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Direct Environmental Standing for Chartered Conservation Corporations

In 1972, in Sierra Club v. Morton,(1) the United States Supreme Court rejected the Sierra Club's attempt to assert Article III standing under the Administrative Procedure Act based on its own corporate interest in environmental issues. The Court suggested instead that an environmental organization must rely on its ability to represent the environmental interests of its individual members. Since Morton, no environmental organization has been successful in asserting its own corporate interest in environmental resources as the basis for Article III standing in environmental litigation. For the most part, public interest environmental organizations have given up trying to assert direct environmental interests, relying instead on organizational standing as representatives of their affected members. Courts have routinely inquired into the individual standing interests asserted by organizational plaintiffs.(2) But, in recent years, this representational standing hurdle has become harder and harder to clear, as courts have demanded ever more detailed showings of individual injury and causation. Entities asserting direct business interests have fared far better in the courts. Most recently, in Bennett v. Spear,(3) the Supreme Court upheld the statutory and constitutional standing of ranchers to challenge a habitat conservation plan adopted under the Endangered Species Act.(4) Courts have likewise recognized standing under the environmental laws for business corporations asserting economic interests.(5) These courts have not conducted any inquiry into the individual interest of corporate shareholders; the corporate entities' business interests were found to be sufficient.(6) This article suggests that, as an antidote to the ever-tightening restrictions on individual environmental standing, a state may charter a not-for-profit corporation organized to protect a particular environmental resource, giving the corporation a non-exclusive portion of the State's interest in enforcing applicable environmental protections. The dichotomy between not-for-profit organizations that may litigate only as the representative of individual members' interests, and business corporations that assert their own direct economic interests, may seem natural to our late-twentieth-century sensibility, but is not founded in original intent. The framers of Article III, which grants jurisdiction over "cases and controversies" to the federal courts, would have seen the latter day business corporation as something of an oddity. Most incorporated entities during the eighteenth century were religious institutions, municipalities, and government franchisees. In fact, the now ubiquitous business corporation did not become commonplace until the early nineteenth century, as government franchise corporations expanded to include incorporation of private businesses.(7) To the framers, then, the concept of a corporate entity asserting community interests in natural resources on its own behalf would have been no more alien than the concept of a corporate entity asserting private business interests. A line of cases suggests that states and municipalities have standing to assert environmental interests within their jurisdiction without reference to individual standing or injury on the part of any particular resident.(8) And, state-chartered corporations have long been delegated functions and powers originally residing in state government.(9) It follows that a state-chartered organization should have Article III standing to assert its own interest in protecting environmental resources directly, without reference to the individual interests of its members. I. THE ROAD NOT TAKEN: A DETOUR FROM DIRECT ENVIRONMENTAL STANDING AFTER SIERRA CLUB V. MORTON The litigation choices made by the Sierra Club in Sierra Club v. Morton, the first environmental standing case to reach the Supreme Court, established the path for all environmental citizen plaintiffs. …