Bench Memos

This Day in Liberal Judicial Activism—August 24

1995—The citizen-suit provision of the Endangered Species Act authorizes “any person” to sue for violations of the ESA. Demonstrating why liberal judicial activists should be an endangered species, Ninth Circuit judge Stephen Reinhardt, joined by two other Jimmy Carter appointees (Harry Pregerson and William C. Canby, Jr.), rules in Bennett v. Plenert that the so-called “zone of interests test” that courts have developed (beyond Article III’s constitutional requirements) as a prudential limitation on standing overrides the broad language of the citizen-suit provision. Therefore, the court concludes, “plaintiffs who assert no interest in preserving endangered species” — in this case, ranch operators and irrigation districts who alleged that they would be harmed by reservoir levels designed to protect two species of sucker fish — cannot challenge violations of the ESA.

On review by the Supreme Court, not even the Clinton Administration will defend the Ninth Circuit’s reasoning. In a unanimous opinion (in Bennett v. Spear), Justice Scalia explains that the zone-of-interests test is a judicially self-imposed limit on standing that Congress is free to negate — and that Congress did so through the ESA’s citizen-suit provision.

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