William M. Orr


Over the past twenty-five years, courts have applied the doctrine of standing in an increasingly stricter fashion upon environmental organizations. In 1996, the United States Court of Appeals for the District of Columbia issued the Florida Audubon Society v. Bentsen decision which sets "virtually impossible" standards for environmentalists seeking to bring procedural rights challenges under the National Environmental Policy Act (NEPA). The Bentsen court held that the plaintiffs did not have standing to file suit because they failed to demonstrate injury in fact and causation. This Case Note asserts that demonstrating the nature and likelihood of environmental injury is unduly burdensome to procedural rights plaintiffs who often lack the assistance of environmental impact statements. This Case Note provides background information on standing in general and on procedural rights standing under NEPA, focusing on the injury in fact requirement as applied to procedural rights cases including the hallmark Supreme Court decision in Lujan v. Defenders of Wildlife. The facts, procedural history, holding and reasoning of Bentsen will also be discussed. The analysis section examines the opinion of the Bentsen court with focus on its application of Lujan. This Case Note concludes that the Bentsen court misapplied Lujan and should have retained the circuit's prior standing test for procedural rights plaintiffs. By ignoring the geographical nexus test of Lujan, the Bentsen opinion "erodes the effectiveness of one of the most important environmental measures of the past generation."