What the Hexus is Ecosystem Nexus?

07 Oct 2018 • A Guest Post by Lorentz Hansen

Recently I’ve been writing case summaries of Supreme Court decisions for a legal education startup. One of the cases I wrote about this past week is Lujan v Defenders of Wildlife (1992), which concerns an amendment to the Endangered Species Act of 1973 (ESA). The ESA lays out guidelines for what qualifies as a threatened or endangered species, and requires the Secretary of the Interior to use those guidelines to make a list of threatened or endangered species and each species’ critical habitat. Section 7((a)(2)) of the ESA requires federal agencies to consult with the Secretary of the Interior to ensure that any actions the Secretary authorizes will not threaten or harm endangered species or natural habitats. The amendment at issue in Lujan v Defenders of Wildlife eliminated the requirement that agencies funding overseas projects consult the Secretary to evaluate the potential impact of proposed projects on endangered species. After Congress passed the amendment in 1986, Defenders of Wildlife and several other environmental organizations sued then-Secretary of the Interior Manuel Lujan, Jr. under the claim that the amendment unlawfully established a geographic limit to the Endangered Species Act.

Before this case, the Supreme Court had on many occasions reasserted the doctrine of federal justiciability originally established in Article III of the Constitution. Article III lays out parameters for the kinds of disputes that can be resolved in federal court; for a plaintiff to have the standing to bring their case to federal court, they must have suffered an “injury in fact” (meaning some discernible direct injury, though the phrase’s exact meaning is still debated), which can be traced to the action over which the plaintiff is suing, which could at least be somewhat resolved by a court ruling in favor of the plaintiff. (As a small aside, the whole concept of an individual somehow not having the ‘standing’ to file a lawsuit against another person/entity is still kind of insane to me. If you, too, are baffled, this is a good place to gently dip your toes into the ‘standing to sue’ ocean. If you’re feeling adventurous and want to maybe dip a whole foot in, take a peak at Justice Scalia’s opinion for the majority in this case.)

In this case, Defenders of Wildlife claimed that the amendment would lead to the United States funding activities abroad that would threaten endangered species and environments in which Defenders of Wildlife employees work and conduct research. Defenders of Wildlife therefore asserted its standing to sue on behalf of its employees under the theory of “ecosystem nexus”. According to the theory of ecosystem nexus, any individual who uses part of an ecosystem affected by government-funded activity has the standing to sue the government for damaging that individual’s ability to use that part of the ecosystem. To me, this seemed perhaps the only way lawsuits over environmental issues could be brought on a large scale, but also way too broad to be accepted in federal court. In his 1973 book Should Trees Have Standing? Toward Legal Rights for Natural Objects, Christopher Stone proposes another hook attorneys could use to file lawsuits over environmental issues. Stone argues that the environment should be legally able to have an attorney file a lawsuit on its behalf in the same way that a legal guardian does for children, people with certain disabilities, and others who are not considered able to make legal decisions for themselves. Stone’s proposal has gained even less traction in mainstream legal thought than ecosystem nexus, but is nonetheless at least worth playing with.

The ecosystem nexus argument made its debut in Lujan v Defenders of Wildlife, after a similar argument was used in the case Lujan v National Wildlife Federation (1990). In that case, the National Wildlife Federation argued that individuals who use land near some other piece of land that is being affected by a group’s actions have the standing to sue that group over their actions. This argument, later referred to as “geographical nexus”, at first glance might appear identical to ecological nexus; however, by shifting from a geographical effects to ecological effects, Defenders of Wildlife thought it could establish a much more discernible “injury in fact”. If the government damages a piece of land and that damage affects the people who live next door, that injury is quite different than if the government damages an ecosystem. Damage to an ecosystem reverberates far beyond one neighbor and can cause significant damage both to the environment and the individuals working with any component of that ecosystem. The Supreme Court actually said as much in its ruling on Japan Whaling Assn v American Cetacean Society (1986), in which Justice White wrote for the majority that the practice of whaling in one part of the world is an injury in fact to anyone wishing to study or observe whales in any other part of the world. Justices Kennedy, Stevens, Blackmun, and O’Connor cited the ruling in Japan Whaling Assn v American Cetacean Society to argue that ecosystem nexus theory provided standing in Lujan v Defenders of Wildlife and the injuries suffered did indeed constitute injuries in fact.

The majority, however, ended up rejecting the theory of ecosystem nexus with a 6-3 ruling in favor of Lujan. The majority determined that the plaintiffs had shown no injury in fact caused to them by the amendment, and therefore Defenders of Wildlife lacked the standing to sue. Justice Scalia’s majority opinion in this case is well-known for its discussion of standing in general, but it is worth noting his treatment of ecosystem nexus specifically, as well as nexus theories in overall. Justice Scalia wrote that ecosystem nexus aimed to give standing to sue to “persons who use portions of an ecosystem not perceptibly affected by the unlawful action [of governments or groups]”. He argued that harm felt by one part of a system from damage done to another part is not the same as an injury in fact. Nexus theories in his view therefore lacked sufficient evidence of direct injury to provide standing.

Perhaps the reason ecosystem nexus at first seemed so bizarre to me is because we now know the long-lasting ripple effects of past government and industry actions, and it’s somewhat unfathomable to me that a court could deem damage to an ecosystem not an injury in fact to those who are part of it. So far, I haven’t found any recent cases in which ecosystem nexus was used to argue standing to sue, but it is possible that the prevailing view of ecosystem nexus theory could change in the near future as people search to hold someone accountable for the injuries suffered from climate change.

(Cartoon by Stu’s Views)

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