In 1994, the Ninth Circuit affirmed standing for citizens to sue to compel the EPA Administrator to undertake a statewide TMDL program. Although the citizens had standing for only some of the water-quality-limited waters in Alaska, the court held that the underlying cause of action was the EPA's failure to initiate the TMDL process for Alaska. This Note proposes that the court improperly reasoned its way to the correct holding. Like the EPA, the court confused standing to sue with the ultimate scope of the remedy. This Note proposes a three-step analysis to consider issues of standing and remedy. The first step is to determine the scope of the underlying action by analyzing the legal duty that forms the basis for the claim. This scoping action is critical since it serves as the referent for the next two steps. The second step is to determine whether the plaintiff has standing with respect to the underlying action. If the court decides on the merits of the case that the plaintiff should prevail, the third step is to determine the appropriate remedy. In this step, the court starts with the underlying cause of action and incorporates other factors as appropriate. This three-step analysis decouples the standing and remedy analyses and should lead to better reasoned opinions. I. INTRODUCTION In Alaska Center for the Environment v. Browner (ACE III), 1 the Ninth Circuit distinguished between standing to sue and the ultimate scope of the remedy. The court affirmed standing for a group ...
Carl E. Bruch,
Where the Twain Shall Meet: Standing and Remedy in Alaska Center for the Environment v. Browner,
6 Duke Environmental Law & Policy Forum
Available at: http://scholarship.law.duke.edu/delpf/vol6/iss1/4