One of the well-commented-on oddities of environmental law is that the National Environmental Policy Act, the most litigated environmental statute in America, contains no provision for private litigation. A brief overview confirms this. Section 101 declares a national policy of preservation. Section 102 of the act directs federal agencies to prepare detailed environmental impact statements. But nowhere does the statute mention courts, private attorneys general, or judicial review. Nor is there any indication that the members of Congress who passed NEPA understood it to create private standing. When President Nixon signed the act on January 1, 1970, there was no doctrine by which a conservation group would have standing to haul an agency into federal court for failing to study the environmental consequences of its decisions.
And yet—within months—such suits became routine. More importantly, such suits were almost instantaneously afforded deference by the courts. This raises the question: How? How did doctrine change so suddenly to allow for previously uncognizable (e.g. environmental) injuries to provide not only standing but injunctions against government action?
The conventional answer is the Administrative Procedure Act, which permits persons “adversely affected or aggrieved” by agency action to seek judicial review. But the APA was passed in 1946, and for 24 years, environmental plaintiffs were not seen to be “aggrieved” by agency action. Before 1970, standing doctrine required what is referred to as a “legal interest”—a right that was recognized at common law or in statute. Back then, if an organization wanted to stop a ski resort being built to protect the natural beauty of the area, it faced a problem: no law gave it the right to enjoy said beauty. If you wanted to challenge such an act, you needed to win an election.
