Appeal from the United States District Court for the Southern District of Illinois. No. 09-cv-603-GPM-G. Patrick Murphy, Judge.
The opinion of the court was delivered by: " Posner, Circuit Judge.
Before POSNER and MANION, Circuit Judges, and LEFKOW, District Judge.
The "American Bottom" is a 175-square-mile floodplain of the Mississippi River in southwestern Illinois, across the river from St. Louis. The area "Hon. Joan Humphrey Lefkow of the Northern District of Illinois, sitting by designation. contains wetlands (water-saturated soil) that provide habitat for many different species of birds, butterflies, and other wildlife. The American Bottom Conservancy is an environmental organization that seeks to preserve the wetlands. Its members include birdwatchers and other people who enjoy seeing wildlife in the wild.
Waste Management of Illinois, Inc., owns and operates a landfill in the American Bottom that it calls the "Milam Recycling and Disposal Facility." The landfill, located near the town of Madison, Illinois, is due east of St. Louis and southwest of a state park that contains a large lake-the largest in Illinois, after Lake Michigan. It is called Horseshoe Lake because of its shape (see the first map at the end of this opinion; the maps, though based on the record, are approximations).
Because the Milam landfill is filling up with waste from St. Louis, Waste Management wants to build another landfill-the "North Milam Recycling and Disposal Facility"-on 180 acresof a 220-acre tract ("North Milam") that it owns just north of the Milam RDF; the tract is thus located between that landfill and the state park. The shortest distance from the site of the proposed new landfill to the park's southern boundary is between a quarter of a mile and half a mile.
The 220-acre tract contains five wetland areas. Almost all of them are in the center and northern parts of the tract, about half a mile from the southernmost part of the state park; and that is the part to which bird- and other wildlife-watchers gravitate because it's away from the park's picnic tables and other clutter, which are near the lake. (The clutter is marked with Xs on the first map.)
Obtaining permission to build a new landfill, and building it, will take time. In the meantime Waste Management wants to remove the soil from some of the wetlands and transport it to its existing landfill to cover layers of waste as they are piled atop that landfill ("daily cover," as this layering is called). The consequence will be to transform the wetlands into a dry "borrow pit."
The wetlands occupy 26.8 acres of the tract and Waste Management wants to destroy 18.4 of them (69 percent). But to destroy wetlands it needed a permit from the Army Corps of Engineers. 33 U.S.C. §§ 1311(a), 1344(a), 1362(7); 40 C.F.R. § 230.3(s)(7). The Corps granted the permit on condition that Waste Management create double the amount of wetlands on a nearby tract that it owns that we have marked as the "proposed mitigation area" on the second map. The company accepted the condition.
Once the existing landfill reaches capacity, Waste Management wants to replace it with the new landfill that it seeks to build in the North Milam tract. The Corps of Engineers doesn't authorize landfills. To build the North Milam landfill, Waste Management needs the permission of the Illinois Environmental Protection Agency. 415 ILCS 5/21(d), 5/39(a); 35 Ill. Admin. Code §§ 807.201, 807.202(a); Community Landfill Co. v. Pollution Control Board, 772 N.E.2d 231, 234 (Ill. App. 2002). The company applied for that permission fifteen months after it had applied to the Corps for the permit to destroy the 18.4 acres of wetlands. Apparently the landfill would not require the destruction of additional wetlands; otherwise Waste Management would have applied for a broader permit.
The application for permission to build the new landfill is pending. But Waste Management won't have to-and won't-wait for it to be granted before destroying the wetlands, since it has to do that anyway in order to obtain daily cover for its existing landfill. American Bottom Conservancy brought this suit to invalidate the permit granted by the Corps of Engineers. The court dismissed the suit without prejudice on the ground that the Conservancy had not established standing to sue under Article III of the Constitution and therefore the suit did not invoke the district court's jurisdiction. The only issue before us is the Conservancy's standing.
Some of the most frequently mentioned grounds for the constitutional doctrine of standing are tenuous, such as that it is derived from Article III's limitation of the federal judicial power to "Cases" and "Controversies," Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269, 273-75 (2008); Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102 (1998); D.L.S. v. Utah, 374 F.3d 971, 974 (10th Cir. 2004); or from the practice of the English royal courts, on which the federal judiciary was modeled, as argued by Justice Frankfurter, concurring in Coleman v. Miller, 307 U.S. 433, 460-61 (1939), and in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 150-51 (1951); see Bradley S. Clanton, "Standing and the English Prerogative Writs: The Original Understanding," 63 Brooklyn L. Rev. 1001, 1031-32 (1997); or from fear that lawsuits wouldn't be vigorously litigated, with the requisite adverseness, unless they involved "tangible" stakes. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982); Baker v. Carr, 369 U.S. 186, 204 (1962); O'Sullivan v. City of Chicago, 396 F.3d 843, 853, 868 (7th Cir. 2005); Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Dep't of Labor, 995 F.2d 510, 513 (4th Cir. 1993).
All three of these grounds have been subjected to strong criticisms by reputable scholars. On whether standing can be grounded in limitations implicit in Article III's case or controversy requirement see 13A Charles Alan Wright, et al., Federal Practice and Procedure § 3531.1, pp. 56-57 (3d ed. 2008); Robert J. Pushaw, Jr., "Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts," 69 Notre Dame L. Rev. 447, 512-17 (1994); Steven L. Winter, "The Metaphor of Standing and the Problem of Self-Governance," 40 Stan. L. Rev. 1371, 1376-77 and n. 26, 1418-25 (1988). On whether it can be grounded in the practice of English royal courts and early American courts see id.; Louis L. Jaffe, "Standing To Secure Judicial Review: Public Actions," 74 Harv. L. Rev. 1265, 1270 (1961) ("I have encountered no case before 1807 in which the standing of the plaintiff is mooted, though the lists of cases in the digests strongly suggest the possibility that the plaintiff in some of them was without a personal interest"); Raoul Berger, "Standing to Sue in Public Actions: Is It a Constitutional Requirement?," 78 Yale L.J. 816, 827 (1969).
And on whether it can be grounded in fear that parties without a tangible stake would litigate with insufficient energy see 13A Charles Alan Wright et al., supra, § 3531.3, pp. 126-28; Abram Chayes, "The Supreme Court, 1981 Term-Foreword: Public Law ...