Chapter 3 - Procedural Matters: Standing
As with other parts of the law, litigation involving animal matters generates a plethora of procedural issues. Some of these, such as standing, are closely linked to the status of animals as property. Standing refers to the right of a person to bring and defend a court case. Due to the fact that animals are classified as property, they lack standing and are thus unable to initiate or defend court cases. Consequently, one difficult issue is whether a person can bring or defend an action on behalf of an animal.
In many jurisdictions, including Australia, standing in animal cases relies on common law rules derived from case law that require evidence of a “special interest” on the part of the plaintiff. The decisions in this Chapter demonstrate the difficulties that courts face when trying to determine whether interest groups have a sufficient “special interest” to allow them to litigate. In the United States, the courts have developed doctrines, based on “injury” and “zone of interests” to be protected under statute, that facilitates granting standing. The cases are particularly instructive for animal welfare and animal rights groups who wish to structure their organisations on the best possible footing to gain standing.
3.1 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Prepared by Ashleigh Best
Court
High Court of Australia
Facts
The Australian Conservation Foundation Inc (‘ACF’), the appellant, brought action against the Commonwealth of Australia, Ministers of State and the Reserve Bank (‘Commonwealth’), the respondents, alleging that the approval granted to a corporation for the development of a resort and tourist facility in central Queensland was invalid. In early 1978, the corporation initiating the development was instructed by the Commonwealth to prepare a draft environmental impact statement in accordance with the administrative procedures under the
Environment Protection (Impact of Proposals) Act 1974 (Cth), (‘the Act’), which was made available for public comment. The ACF lodged a valid submission concerning the proposal within the time frame for public comment.
Some days later, the Acting Minister for the Environment announced that approval had been granted for either the acquisition of overseas funds for the development or the development of the resort and tourist facility itself. The ACF sought declarations and injunctions in the High Court of Australia to nullify the approval. The claim was based principally on the ground that the Commonwealth had reached its decision without regard to the final environmental impact statement, and therefore failed to observe required administrative procedures. The Commonwealth sought to have the claim struck out on the basis that the ACF lacked standing to bring the action.
Issue
- Whether the ACF had standing to enforce a public right
Decision and Reasons for Decision
A majority of the Full Court, agreeing with the decision of Aickin J at trial, held that the ACF did not have the necessary standing to maintain the action. Principally, this determination was based on the fact that the Minister’s grant of approval did not expose the ACF to special damage or injure a special interest of the appellant.
In relation to standing generally, the Court emphasised that “apart from cases of constitutional validity”, a member of the public with the same interest as everyone else “has no standing to sue to prevent the violation of a public right”. While this was deemed the ordinary position, the Court explored various circumstances in which standing would be available for the enforcement of such a right.
Gibbs J noted that the enforcement of public rights by way of declarations and injunctions is the “responsibility of the Attorney-General” who, unlike in this case, may bring a related action on behalf of a member of the public who would not ordinarily have standing.
Stephen J and Gibbs J affirmed the capacity of legislation to grant standing for the enforcement of public rights. Stephen J rejected the contention that the legislation, by permitting and governing public contribution to environmental impact statements, had the effect of granting standing to the ACF as a participant in the process and, rather, found that the role of the ACF was limited to providing comments.
The Court referred to the English case of
Boyce v Paddington Borough Council [1902] UKLawRpCh 174;
[1903] 1 Ch 109, which established that standing to enforce a public right may be available independently of the Attorney-General only where a private right is “at the same time interfered with”, or a plaintiff “suffers special damage” as a consequence of the public right being infringed. The Court found that the ACF was not asserting a private right, but rather a “public wrong”. Accordingly, while the ACF had been set up with the objective of promoting environmental protection, Stephen J was not satisfied that conduct “injurious to the object of that concern” namely, the construction of the resort and tourist facility, would cause special damage so as to vest the ACF with standing.
Gibbs J reformulated the special damage limb of the
Boyce test to extend standing to a plaintiff in circumstances where they have a “special interest in the subject matter of an action”. While conceding that “a person might have a special interest in the preservation of a particular environment”, Gibbs J indicated that “an interest… does not mean a mere intellectual or emotional concern” and that there must be an advantage to be gained “other than the satisfaction of righting a wrong, upholding a principle or winning a contest”, deeming the appellant’s motivation inadequate. He also noted that a corporation “does not acquire standing because some of its members possess it”. By reducing the appellant’s cause to nothing more than a “belief”, Gibbs J found against the presence of a special interest, and thus held that the appellant lacked standing to bring the action.
Mason J affirmed that a person will have standing provided they can demonstrate “actual or apprehended injury” to his or her “property or proprietary rights… business or economic interests and perhaps…social or political interests”. However, Mason J found that the “mere belief or concern” held by the ACF and the fact that its “primary object is to protect…the environment, by virtue of that characteristic alone” were inadequate to vest the ACF with standing.
Murphy J, in dissent, concluded that by inviting public contribution to the environmental impact statement, the Act disclosed an intention to grant members of the public the standing required to enforce the procedures under it. Murphy J also found that the appellant had a special interest, being “more particularly affected as [the appellant] has gone to the trouble of submitting comments”.
Significance of the Case
A party seeking to bring an action in respect of a public right must identify a special interest in the subject matter of the case. Intellectual or emotional concern by itself will not constitute a special interest, nor will a mere belief. The fact that a corporation is underpinned by certain objects does not provide that corporation with a special interest, and thus standing, to take action against conduct which harms those objects.
Although this case concerned environmental protection, rather than animal welfare, much of the reasoning can be applied to animal welfare issues. Indeed, as the cases of
Animal Liberation Ltd v Department of Environment and Conservation [2007] NSWSC 221 and
Animal Lovers Volunteer Association v Weinberger [1985] USCA9 1163;
(1985) 765 F.2d 937 (9th Cir. 1985) demonstrate, such reasoning has already been applied to animal cases. It is also noteworthy, that in a later case,
Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200, the ACF was found to have standing in accordance with legislation that gave standing to “a person aggrieved”. The Court found that the ACF was the most important national conservation organisation and its objectives and activities were such to classify it as “a person aggrieved”. The later decision reflects an expansion in the test for standing in public interest matters at common law, as well as the breadth of the statutory test imposed under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
Prepared by Paul Khodor
Court
United States Court of Appeals, Ninth Circuit
Facts
In 1977, the Fish and Wildlife Service of the Department of the Interior determined in accordance with the Endangered Species Act, 16 U.S.C. s 1531, that the removal of feral goats on San Clemente island was required to protect local endangered or threatened animals and plants in critical habitat. San Clemente is a military enclave under the jurisdiction of the Navy and there is no public access to the island.
The Navy proposed an “aerial eradication” program involving Navy marksmen shooting the goats from helicopters, which attracted opposition from animal protection groups. However, the Navy had limited success with alternative methods, such as trapping and removing live goats from the island. Accordingly, the Navy announced its intention to proceed with the aerial eradication.
Animal Lovers Volunteer Association (‘ALVA’), the plaintiff, sought injunctive relief on the basis that the environmental impact statement prepared by the Navy was so inadequate as to violate the National Environmental Policy Act 42 USC ss 4321, 4332 (‘NEPA’). The substance of these contentions is not set out in the case because the Court decided the matter on the basis of standing. The District Court granted judgment in favour of the Navy and the ALVA appealed.
Issue
- Whether ALVA had standing to seek the remedy sought
Decision and Reasons for Decision
The Court held that ALVA lacked standing to maintain a NEPA suit challenging the Navy's goat eradication program. The Court clarified that while they were not excluding everyone from bringing proceedings against the Navy to prevent it from violating the NEPA, in the relevant circumstances, ALVA could not maintain its action as it lacked standing. The Court accordingly dispensed with any consideration of the merits of ALVA's litigation.
The Court stressed that a party seeking injunctive relief against another person’s actions must satisfy two conditions in order to acquire standing. First, there must be an “injury in fact” arising from the action. Second, there is a requirement that the injury be “arguably within the zone of interests to be protected” by law.
In relation to the first requirement, the Court held that a mere assertion of organisational interest in a problem, unaccompanied by allegations of actual injury to members of the organisation, is not adequate to establish standing. In this particular case, the Court emphasised that a general contention based on the distress ALVA members would suffer was insufficient to establish individual injury. The Court reached this conclusion notwithstanding the fact that ALVA is dedicated to preventing inhumane treatment of animals and aerial culling was alleged to amount to cruelty.
Furthermore, the distress of ALVA members was held not to be the type of interest protected by NEPA. Their Honours cited
Metropolitan Edison Co. v People Against Nuclear Energy 460 US 132 (1984)as authority for the proposition that the NEPA zone of interests does not cover persons claiming a psychological impact from a particular action. The Court recognised one possible exception, that is, where psychological injury results from a “direct sensory change”. This type of impact is one that unequivocally impacts on a person. Examples include, a person picking up on a distasteful smell, or objecting to events and matters that person could see in their environment. However, as the property in question was private, ALVA had no access to it; no sensory impact was therefore possible.
The Court further found ALVA had not differentiated its interest in the matter from the general objection that may be felt by members of the public concerned with animal cruelty. This differentiation formed the core requirement of standing. The Court reached this conclusion largely based on ALVA’s lack of longevity and demonstrated commitment to similar causes. In particular, ALVA had no prior activity preceding the litigation, and could not identify any other initiatives illustrative of its concern. As a result, it was held that neither ALVA as an organisation, nor its members, had a stake in the outcome of the case.
Significance of the Case
This case demonstrates how animal protection groups must be able to establish a unique interest in litigation in order to be granted standing in respect of it. Despite refusing to extend such standing in this matter, the Court’s identification of the deficiencies in ALVA’s claim was accompanied by examples of circumstances that may have produced a different result. Animal protection groups seeking standing may rely upon these. The Court also emphasised that a denial of standing for ALVA did not operate to prevent others from bringing an action against the Navy.
This case further demonstrates a reluctance of the Court to grant standing to ad-hoc animal advocacy groups, unless the group demonstrates an injury which is “distinct and palpable” and not “abstract” (
Allen v Wright, [1984] USSC 198;
82 L.Ed.2d 556 (1984)). In Australia, the New South Wales Supreme Court applied similar reasoning in the case of
Animal Liberation Ltd v Department of Environment and Conservation [2007] NSWSC 221.
3.3 Japan Whaling Association v American Cetacean Society [1986] USSC 161; 478 US 221 (1986)
Prepared by Brittany Kenaly
Court
United States Supreme Court
Facts
The United States and Japan were signatories of the International Convention for the Regulation of Whaling (‘ICRW’). The ICRW was originally formed to set whaling quotas to manage the whaling industry. It established the International Whaling Commission (‘IWC’) to accomplish the ICRW’s objectives by making the IWC responsible for implementing strategies. In 1982 the IWC ordered a five-year moratorium on all commercial whaling, to commence with the 1985-1986 season. This measure was binding on all ICRW member nations unless a nation lodged a timely objection to exempt itself from compliance. The IWC had no power to enforce its measures or to impose sanctions for non-compliance.
In an effort to remedy the IWC’s enforcement deficiencies, the US enacted the Pelly and Packwood Amendments (‘the Amendments’). These enabled the US to certify, and thereby impose sanctions, upon states whose nationals conducted fishing operations in such a way as to diminish the effectiveness of a program, such as that established pursuant to the ICRW. Sanctions were to be applied “in the case of flagrant violation of any international fishery conservation program to which the United States committed itself.”
In 1984, the United States and Japan negotiated and reached an executive agreement under which Japan agreed to restrict its whaling and to achieve a total cessation of whaling by 1988. In exchange, the United States agreed to refrain from certifying Japan under the Amendments, insulating Japan against sanctions. The Secretary of Commerce deemed a compromise with Japan would more beneficial in the long-term to the conservation of whales. A consortium of conservation groups brought District Court actions seeking a writ of mandamus to compel the Secretary of Commerce to enforce the Amendments in order to induce Japan’s adherence to the moratorium.
Issues
- Whether the claim was justiciable, meaning whether it was an appropriate claim for determination by a court
- Whether the Amendments required the Secretary to certify Japan for its failure to comply with the IWC whaling restrictions
- Whether the legislative history of the Amendments required the Secretary to certify Japan for its failure to comply with the IWC whaling restrictions
Decision and Reasons for the Decision
The Supreme Court found that the Secretary was authorised to determine whether a state’s whaling activities diminished the effectiveness of the IWC, and that it was open to the Secretary to find that Japan’s violation of the whaling restrictions did not fail that standard.
Justiciability
The Court found that it was competent to engage in judicial review of the matter, since not every political issue concerning foreign relations lies beyond the adjudicative reach of the courts. The judiciary has the authority to construe treaties and executive agreements, and to interpret congressional legislation; as the duty of the Secretary was expressed in the Amendments, the question of its content could be resolved by the Court using rules of statutory interpretation.
Presence of a requirement to certify
In respect of the claim that the Amendments required the Secretary to certify Japan for failing to adhere to the whaling quotas, the Court observed that the duty involved the certification of states where their operations diminished the effectiveness of the ICRW. It held that such a duty was distinguishable from a duty to certify the deliberate taking of whales. As the legislation permitted the Secretary to refrain from certifying a state which failed to conform to the whaling restrictions, it was open to the Secretary to determine that it would be more effective to conclude the executive agreement than to certify Japan.
The relevant legislative history
The Court also found that the legislative history of the amendments did not support a conclusion that the Secretary was required to certify every breach of the IWC limits on whaling. Nothing in the Senate and House Committee Reports evinced an inflexible congressional intention to require the Secretary certify every state in breach of whaling restrictions.
Significance of the Case
This case demonstrates the difficulties with enforcing international agreements and the further difficulty of using domestic regimes to enhance that enforceability.
From the point of view of standing, the Court noted that the American Cetacean Society and other similar organisations had “alleged a sufficient ‘injury in fact’ in that the whale watching and studying of their members would be adversely affected by continued whale harvesting”. However, the case also highlights how environmental and animal protection issues can generate tension for regulators faced with making legal and policy decisions. Often statutes will be deliberately drafted to avoid imposition of mandatory obligations, precisely to give regulators leeway to deal with intractable issues. Yet, the outcome can compromise environmental and animal protection. Indeed in this case press reports speculated that an influential factor in the decision was the fact that Japan had substantial economic and political leverage in trade matters because of its $58 billion dollar trade surplus with the United States.
Prepared by Rosario Russo
Court
United States Supreme Court
Facts
Section 7(a)(2) of the Endangered Species Act (‘the Act’) required that, where a US Federal agency funded programs and activities, the Secretaries of the Interior and Commerce were to consult with the appropriate Secretary to guarantee that those activities were unlikely to endanger the existence or habitat of any endangered or threatened species. Regulations initially extended the coverage of s 7(a)(2) to include actions taken in other countries; however, this was amended to limit the application of the section to activities undertaken in the United States and upon the high seas.
The respondents, Defenders of Wildlife, sought a declaratory judgment that the new regulations did not fall within the scope of s 7(a)(2) of the Act. An injunction was sought, calling for the reinstatement of the initial interpretation of s 7(a)(2). The matter was dismissed in the Federal District Court on the basis that the Defenders of Wildlife lacked standing. This decision was reversed by the Court of Appeals for the Eighth Circuit. Leave to appeal was granted by the United States Supreme Court.
Issues
- Whether the respondents had standing to bring this matter
- What must be proved to establish justiciability of the case
- What must be proved to establish standing
- Whether citizens could bring suits where their direct interests were not injured
Decision and Reasons for the Decision
The Court held that the Court of Appeal was in error in finding that the respondents had standing.
Whether the respondents had standing
The Court held that the respondents lacked standing to seek judicial review of the regulations. The respondents could not establish that they had suffered an injury in fact, that is, a concrete and particularised, actual or imminent invasion of a legally-protected interest. Therefore it was found that the Court of Appeal was in error in finding that the Act’s citizen action provision gave the respondents standing.
While the respondents could establish that activities in foreign countries threatened certain species and habitats, the respondents could not prove they had suffered an “injury in fact”. In particular, the respondents failed to show that any one of their members would be directly affected, notwithstanding the special interest of the members as a whole in the subject matter. To be satisfied, the “injury in fact” test requires more than an injury to a perceived interest; it requires an “imminent” injury. The mere possibility of being denied the opportunity to revisit project sites to observe endangered animals because of the lack of consultation was not an “imminent” injury.
Justiciability
Scalia J, reflecting the opinion of the Court, referred to the separation of powers doctrine in accordance with which the judicial arm of government deals with “cases” and “controversies” as mentioned in Article III of the United States Constitution. The doctrine of standing was expressed to be the core element of the “case” or “controversy” requirement, which must be satisfied before the matter can be heard by the courts.
Requirements of standing
The Court acknowledged that case law had established three elements crucial to proving standing. First, the plaintiff must have suffered an “injury in fact” – an interference with a legally-protected interest which is concrete and particularised and is “actual or imminent”, not “conjectural” or “hypothetical”. Second, a causal connection must exist between the injury and the conduct complained of. Third, it must be “likely”, as opposed to merely “speculative”, that the injury would be “redressed by a favourable decision”.
Bringing action without direct injury
A number of new theories on standing were suggested. First was that of an “ecosystem nexus”, which proposed that a person who used any part of a “contiguous ecosystem” negatively affected by activities would have standing even if the activities occurred overseas. This approach was rejected by the Court, which maintained that a plaintiff claiming injury from the relevant activities must adduce evidence regarding the affected area rather than an area “in the vicinity” of the activities. Additional theories included the “animal nexus” approach, where a person with an interest in studying or viewing endangered animals would have standing. The “vocation nexus” approach would also grant standing to any person with a professional interest in animals. As these theories could enable anyone observing or working with endangered animals throughout the world to attain standing by virtue of their characterisation as a harmed person, they failed due to the breadth of the arguments.
Significance of the Case
This case illustrates the difficulty associated with attaining standing in matters concerning the protection of endangered species and their habitats. This largely stems from the inability of the party bringing the action to identify direct and related harm. In the United States, the requirement for an “injury in fact” to the claimant is difficult to establish, minimising the likelihood of the applicant being able to sue for matters of general public interest. The case therefore demonstrates that the inhibiting effects of standing in the context of animal protection litigation are not exclusive to Australia.
3.5 Animal Liberation Ltd v Department of Environment and Conservation [2007] NSWSC 221
Prepared by Emily Shipp
Court
Supreme Court of New South Wales
Facts
The Department of Environment & Conservation, the defendant, proposed to carry out an aerial shooting operation of goats and pigs in Nattai Reserve and Wollondilly River Nature Reserve. The plaintiff, Animal Liberation Ltd, sought an interlocutory injunction to restrain this operation on the basis that it would likely involve breaches of the Prevention of Cruelty to Animals Act 1979(‘the Act’). Specifically, Animal Liberation suggested that acts of cruelty were likely to occur because animals may be wounded and then die a long, inhumane death.
Issue
- Whether the plaintiff had standing to bring the proceedings
Decision and Reasons for the Decision
The Act does not provide a legislative basis for standing, therefore the Court applied the common law rules as set out in
Australian Conservation Foundation v The Commonwealth (1980) 28 ALR 257 (‘
ACF’).
Hamilton J held that Animal Liberation did not have standing and thus, must fail in their application for an injunction. Hamilton J’s decision was based on
ACF. In that case it was stated that:
It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty … a private citizen who has no special interest is incapable of bringing proceedings …
Later it was held that:
An interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.
Hamilton J held that Animal Liberation was not “interested” within the meaning of the rule and that it accordingly did not have standing. While Animal Liberation had a “worthy sentiment” in bringing proceedings, it did not have the required “special interest”. Although not made explicit in the judgment, Hamilton J appeared to conflate “worthy sentiment” with “mere intellectual or emotional concern”.
Significance of the case
This case highlights the how the attainment of standing represents a major hurdle in animal protection litigation. To be successful, the person bringing the action must have a “special interest” in its subject matter, that is, they must stand to “gain some advantage”; a “mere intellectual or emotional concern” is not sufficient. While courts could construe the interests of persons bringing actions to protect the interests of animals either way, this case represents an example of where an organisation has been found to have no more than an intellectual concern.
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