I think I've commented before on how the standing analysis for activists---a barrier to litigation---can sometimes act as a proxy for nonhuman interests. Animals and other living parts of the ecosystem don't have standing to sue. To have their interests recognized in federal courts, humans need to sue on their behalf, alleging harm to human interests. For environmental and animal activists, this typically means establishing an emotional or aesthetic interest, that the defendant's actions caused the injury, and that the sought remedy will redress the injury.
For example: the Seventh Circuit appeals court's recent decision in American Bottom Conservancy v. U.S. Army Corps of Engineers, No. 10-3488 (slip op., law.com). The decision has a skeptical account of logic behind the standing doctrine. I want, however, to highlight a nice section, part of the redressability analysis, on the real interests of wetlands animals:
Animals migrate to areas rich in food and water, crowding the area until the supply of nutrients is stretched to the point where it cannot support any more animals. If a habitat is reduced in size by more than two thirds, the supply of nutrients will be reduced by roughly that fraction and many of the animals will leave, starve to death, or fail to reproduce. Butterflies rarely live more than six weeks; given their short lifespans and limited range, destroying a small area of wetland could destroy a butterfly population very quickly.
Most animals whose habitat in the 18.4 acres of wetland was destroyed would not be able to relocate to the proposed mitigation area because about 80 to 85 percent of the area is treeless—and birds and other wildlife need shelter as well as food. They can’t wait for newly planted trees in the mitigation area to mature. As one affiant explains, “Some bird species nest in all trees, other birds nest in understory trees and shrubs, and some nest on the ground . . . . Yellow-throated Warbler, Northern Parula, and Cerulean Warbler nest in tall sycamores. Other species that nest in tall, mature trees include Baltimore Orioles, Orchard Orioles, Summer Tanager, Scarlet Tanager, Yellow-billed Cuckoo, Red-eyed Vireo, Whiteeyed Vireo, Warbling Vireo, Yellow Warbler, Blue-gray Gnatcatcher, Tufted Titmouse, and Eastern Kingbird. These species could nest at various levels within a tall tree but the maturity of the tree means that there are many branches which offer protection; the leaves and fullness of the tree keep the nests from being seen.”
Such a careful consideration of interests, and echoing of the valid concerns of animal advocates, should be applauded.
