Existence-Value Standing

That someone might have a real, quantifiable interest in an environmental good he will never see seems, at first, like quackery.¹ But questions such as, “What would I pay to know that the Grand Canyon will always be there? Or that African elephants will survive in the wild?” lead us to recognize that the mere fact that an environmental good exists may have real value. Economists call this interest “exis-tence value.” While the methods used to calculate this value remain contested, many mainstream economists have come to accept the concept’s validity.²

Among those economists are the regulators at the Office of Information and Regulatory Affairs (OIRA), the division within the Office of Management and Budget (OMB) that coordinates and evaluates regulations from across the federal government.³ Beginning during the Reagan Administration and continuing through the Obama Administration, cost-benefit analysis (CBA) has played an increasingly prominent role in the analyses performed by OIRA — and, accordingly, by regulatory agencies themselves.⁴ As a result, CBA now informs or, where legally permitted, dictates, much regulation.⁵ Because regulators often incorporate existence values into CBAs, the concept is now being accounted for in rulemakings across the executive branch.⁶

Existence value reflects the psychological benefits that accrue from the mere knowledge that a good exists and will continue to exist. The precise nature of these psychological benefits is difficult to ascertain, and remains contested,⁷ but perhaps the most enlightening framing is to consider existence-value harms as “psychic spillovers.”⁸ Like physical spillover effects, which cause harm beyond the immediate damage inflicted, a “psychic spillover” results where harm (or the threat of harm) damages the psychological welfare of someone not immediately present. Existence values are generally measured through “contingent valuation” surveys, which, despite considerable debate within the economic literature as to how best to design them,⁹ remain a well-respected tool.¹⁰ Existence values might also be reflected in the political process: when Congress decides to protect endangered species or wetlands, public-choice theories about interest-group preferences cannot fully explain those decisions, the argument goes. Rather, interests in the existence values of environmental goods must play some role in motivating such aggressively protective statutes.¹¹

If the Executive has through its CBAs recognized existence value as a legitimate interest that an individual may have in an environmental good, should the judiciary also recognize such an interest?¹² That is, does the executive branch’s acknowledgment of such an interest — and the corresponding risk of harm to that interest — provide a compelling reason for the courts to recognize an “injury in fact” for purposes of Article III standing?¹³

The reader familiar with standing doctrine might assume that precedent forecloses the Supreme Court from recognizing standing based on an injury to existence value.¹⁴ This Note argues this is not so: the Court’s decisions contain two strands of doctrine that, when combined, make standing based on an existence-value interest possible. First, the Court repeatedly has accepted that “environmental well-being”¹⁵ and “esthetic” interests are “cognizable interest[s] for the purposes of standing.”¹⁶ Second, the Court has acknowledged both in persuasive concurrences and in an important majority opinion that an “injury in fact” may be created by Congress and that such an injury may extend beyond the confines of the common law.¹⁷ The claim advanced in this Note is that an interest in the existence value of an environmental good is an aesthetic interest cognizable for the purposes of standing, and that it could be created by statute. Moreover, existence-value standing passes doctrinal muster where other proposals to liberalize standing rules do not, thanks to three unique characteristics. First, the injury at issue in an existence-value claim is concrete. Sec-ond, the injury is particularized. Finally, the injury is of a kind recognized by both Congress and the Executive.

An example, drawing on the analogy to spillover effects, may be helpful. Those harmed by the spillover effects of air pollution caused by coal generation in the Midwest can sue to enforce the Clean Air Act because they suffer physical spillover injuries.¹⁸ But consider, instead, the victim of a psychic spillover resulting from the destruction of old-growth timber in the Pacific Northwest.¹⁹ In particular, consider victims who might never be able to visit those forests, either because of a lack of time or money or because the forests are on private property that visitors are barred from entering.²⁰ The far-away victim feels a real, monetizable harm resulting from the destruction of the old-growth forest.²¹ Under current doctrine, however, that harm is un-recognized and the victim lacks an opportunity to vindicate her interests — either in court or anywhere else.²² Recognizing that harm as a real “injury in fact” — as the economic literature and the executive branch do — would allow the victims of such harms to vindicate their interests in court.

This Note proceeds by addressing whether existence value might serve as the basis for standing in Article III courts in two hypothetical scenarios. The scenarios progress from that where standing based on existence value is most likely to withstand judicial scrutiny to that where it is least likely to.

Part I provides a brief overview of existence value and its use by federal regulatory agencies. This discussion of existence value is intentionally circumscribed; the goal is to provide the reader with a sufficient basis from which to assess the Note’s main claim, not to explore the wealth of scholarship on the technical and normative problems associated with existence value.²³

Part II proceeds to the heart of the argument: assessing the constitutionality of two possible claims to standing based on an interest in the existence value of an environmental good. Part II first considers a hypothetical statute in which Congress explicitly confers standing on individuals with an existence-value injury (Scenario I). It shows how congressional “creation” of an “injury in fact” has (at least some) support on the current Supreme Court, such that such a grant is at least a practical as well as a constitutional possibility.

Second, Part II considers a hypothetical already-existing statute that makes existence value a relevant factor under the statute, and that therefore would support a claim of injury in fact to that existence-value interest (Scenario II). Here, standing has fewer professed advocates on the current Court, but this Part argues that there is a color-able claim that such standing is constitutional.

Finally, Part III addresses a series of questions that may have struck the reader early on: Is any of this a good idea? Why would we want standing based on an existence-value injury in the first place? When should existence-value injuries to persons remote from an environmental good cede to the interests of individuals nearer in space and time to that good?²⁴ Here this Note offers conditional support for the recognition of existence-value-based standing. It argues that Congress or the courts could isolate circumstances in which standing based on an existence-value injury would generate social benefits. In particular, this Part argues that where local enforcement of environmental regulations is systematically repressed, standing based on an existence-value injury would allow “outsiders” to remedy what local actors are unable to.

I. Existence Value in the Executive Branch

For the purposes of existence-value-based standing, it ought to be significant that existence value is recognized and accepted in the economics literature. Economists have established that existence value is “real” — individuals have demonstrable interests in the simple exis-tence of environmental goods and are willing to pay to preserve them.²⁵ And we can measure injuries to those interests in dollar amounts. Properly understood, an injury to an existence-value interest is a financial injury that accrues directly to the individual.²⁶ This injury could be understood as derivative of — but distinct from — the injury to the environmental good itself. That is, the plaintiff claiming an injury to her interest in existence value is not (formally) claiming to represent the environmental good.²⁷ Rather, the plaintiff’s injury is a financial loss equivalent to a dollar value that might be estimated in one of two ways. First, a plaintiff might give an estimate of her own willingness to pay to prevent the destruction of the environmental good at issue. There are obvious practical challenges associated with this approach. For example, a plaintiff has every incentive to overrepresent her willingness to pay. Alternatively, and more realistically, a plaintiff’s injury could be a pro rata share of the total existence value of the environmental good, as estimated by the relevant regulatory agency. Note that, while existence values for CBA purposes are aggregated (and thus, arguably, not individualized) they are nevertheless based on the willingness to pay of individuals. As discussed further below, individualization of this kind should be sufficient to meet the Supreme Court’s requirement that an injury be “particularized.”²⁸

That the Executive also recognizes existence values in cost-benefit analyses lends further support to recognizing injuries to existence values as injuries sufficient for injury in fact.²⁹ This discussion is particularly relevant for the scenario in section II.B, below, which considers existence-value standing without an explicit statutory grant.

While OIRA was not created for the purpose of assessing the costs and benefits of agency decisionmaking,³⁰ cost-benefit analysis has taken a prominent role in OIRA review since the Reagan Administration.³¹ The agency’s approach to CBA evolved in 2003, when the OMB (within which OIRA is housed) provided guidance to the federal regulatory agencies explaining how best to conduct CBA.³² OMB urged agencies to account for the costs and benefits of goods that “are not traded directly in markets,” especially those that one “will not use . . . now or in the future” — that is, goods with “existence value[].”³³ A dozen years later, the use of CBA and existence value — and the methods used to calculate existence value — remain contentious.³⁴ Part III considers a subset of the objections to existence value. More important for the purposes of this Note, however, is the fact that existence value is an element of the CBAs that guide decisionmaking across federal agencies.³⁵

A 1989 D.C. Circuit decision, Ohio v. U.S. Department of the Interior,³⁶ marked the first step in the move toward accounting for exis-tence (and other nonuse) values in CBAs.³⁷ In that case, the court considered the method the Department of the Interior (Interior) used to evaluate damages to natural resources under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.³⁸ The court rejected two different aspects of Interior’s valuation method. First, the court found that Interior could not value environmental resources as the lesser of either the cost of restoration or the diminution of use value.³⁹ The court explained, “Congress’ refusal to view use value and restoration cost as having equal presumptive legitimacy merely recognizes that natural resources have value that is not readily measured by traditional means.”⁴⁰ The court thus recognized that nonuse values were legitimate values worthy of consideration, at least for the purposes of cost-benefit analysis. Moreover, the court went on to hold that Interior could not use market prices as the exclusive measure of a natural resource’s value.⁴¹ The court explicitly admonished Interior for both undervaluing the use value of natural resources and for ignoring nonuse and existence values.⁴²

The Exxon Valdez oil spill, which occurred at nearly the same time as the Ohio decision, also spurred recognition within the Executive of the importance of existence values.⁴³ The spill prompted the passage of the Oil Pollution Act of 1990,⁴⁴ which the National Oceanic and Atmospheric Administration (NOAA) interpreted to include existence value as an element of natural resource damages.⁴⁵ NOAA convened an expert panel, chaired by economists Kenneth Arrow and Robert Solow, to assess the use of contingent valuation surveys in measuring nonuse values.⁴⁶ The panel’s report recommended the use of contingent values and the inclusion of “passive-use values” — including existence values — “among the compensable losses for which trustees can make recovery under the Oil Pollution Act.”⁴⁷

In the quarter century since, agencies have (cautiously) begun incorporating existence values into their CBAs. Over the course of several years of rulemaking, Interior responded to the D.C. Circuit’s Ohio decision by incorporating nonuse values into its natural resource damage assessments.⁴⁸ In 2008, Interior codified its methodology for the valuation of “injured natural resources.”⁴⁹ It established that a component of the “compensable value” of a natural resource — “the amount of money required to compensate the public for the loss in services provided by the injured resources” — should include existence values.⁵⁰ Similarly, NOAA has in its national standards⁵¹ advised fishery councils to “consider the net benefits to the Nation” of avoiding bycatch, specifically citing the “existence values” of bycatch species.⁵²

There is thus little doubt that existence values play some role in guiding decisionmaking within executive agencies. For the purposes of standing to vindicate existence-value interests, the foregoing provides support for two ideas: First, that existence value is a real interest, widely recognized by economists, and that injuries to that interest can be measured. Second, and perhaps more importantly, that the Executive’s recognition of existence value is significant as an indicator of the kinds of values environmental law ought to vindicate. The importance of aligning standing doctrine with substantive environmental values is discussed further in Part III.

II. Existence Value as the Basisfor Standing: Two Scenarios

Part I briefly described the recognition of existence value in the executive branch, which serves as a jumping off point for the main question of this Note: now what? How does the recognition of existence value in the executive branch implicate the validity of existence value as an injury in fact sufficient for Article III standing in courts? This Part proceeds in two sections, exploring different scenarios in which the courts might come to recognize injuries to existence value as sufficient for standing. The first envisions Congress explicitly embracing the concept of existence value as an injury. The second sees the courts finding the recognition of existence-value injury implied in statute.

Let us imagine a world much like our own, but in which Congress passed comprehensive climate change legislation in 2010. And let us further imagine that such legislation explicitly defined “harm” for purposes of standing to sue under that statute.⁵³ In this imaginary legislation, “harm” is defined to include injuries to an individual’s interest in the existence value of an environmental good.

1. The Statute. — Such legislation would closely track language in an early draft of legislation proposed in 2009 to combat climate change,⁵⁴ known by the names of its primary cosponsors, Representatives Henry Waxman and Ed Markey. As part of a comprehensive effort to address climate change and greenhouse gas emissions, Waxman-Markey contemplated an economy-wide cap-and-trade system. As an ancillary provision, the early draft also created a citizen-suit provision, which, like citizen-suit provisions in other environmental statutes, would have allowed interested parties to sue to enforce the substantive terms of the bill. The bill would have conferred standing on “any person who has suffered, or reasonably expects to suffer, a harm attributable, in whole or in part, to a violation or failure to act referred to in” existing environmental legislation, and further defined “harm” as “any effect of air pollution (including climate change), currently occurring or at risk of occurring, and the incremental exacerbation of any such effect or risk that is associated with a small incremental emission of any air pollutant . . . , whether or not the effect or risk is widely shared.”⁵⁵

The hypothetical statute at issue in this Note would similarly expand the definition of “harm,” but would do so by incorporating the concept of existence value.⁵⁶ This imaginary statute would define the “harm” for which an individual could claim standing to sue as:

Any effect of air pollution (including climate change) on the existence of an environmental good in which a person has a demonstrable, individualized, and monetizable interest.

This Note argues that such a law ought to be held constitutional — that is, that a plaintiff suing under the statute should get standing for showing an injury to her interest in the existence value of an environmental good.

The Supreme Court has long accepted that Congress may create rights the violation of which constitutes an “injury in fact” for purposes of Article III standing.⁵⁷ While some saw Lujan v. Defenders of Wildlife⁵⁸ as a rebuke to Congress’s prerogative,⁵⁹ post-Lujan cases nevertheless affirm that Congress may create injuries in fact.⁶⁰ Claims based on harms to existence values should find no trouble on this point: for Article III purposes, existence-value standing is no different from the standing that the Court has repeatedly recognized in the context of other statute-created aesthetic interests.⁶¹

2. Is Such an Injury Sufficient? — The highest hurdle to statutorily conferred existence-value standing is the Court’s decision in Lujan; a close reading of the case, however, suggests existence-value standing may clear that high bar. In an opinion written by Justice Scalia, the Lujan Court held that plaintiffs challenging a rule promulgated by the Secretary of the Interior pursuant to section 7 of the Endangered Species Act of 1973⁶² (ESA) lacked standing.⁶³ After reciting the three elements of the “irreducible constitutional minimum of standing” — injury, causation, and redressability⁶⁴ — Justice Scalia found that the plaintiffs had failed to show sufficient injury.⁶⁵ He acknowledged that “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.”⁶⁶ But, he explained, the plaintiffs’ intentions to travel to visit the endangered species that they claimed were threatened by Interior’s rulemaking were insufficient to establish “imminent” injury.⁶⁷ He continued: “Such ‘some day’ intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the ‘actual or imminent’ injury that our cases require.”⁶⁸

The Court further held that the ESA’s citizen-suit provision was unconstitutional as applied.⁶⁹ By conferring standing on “any person,”⁷⁰ the citizen-suit provision would have allowed a plaintiff to bring suit by “raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large.”⁷¹ This type of suit, Justice Scalia explained, “does not state an Article III case or controversy.”⁷²

Lujan, however, has been limited by Justice Kennedy’s concurring opinion and later cases embracing his interpretation, at least when it comes to the scope of Congress’s ability to create statutory grants of standing.⁷³ Justice Kennedy’s concurrence explicitly affirmed Congress’s “power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”⁷⁴ Justice Scalia’s opinion for the Court did not, Justice Kennedy argued, “suggest a contrary view.”⁷⁵ The ESA’s citizen-suit provision fell short of Article III’s requirements, Justice Kennedy explained, only because “it [did] not of its own force establish that there [was] an injury in ‘any person’ by virtue of any ‘violation.’”⁷⁶ The Lujan concurrence thus leaves room for just the sort of statute envisioned in this section, one that would explicitly reference a particular injury — injury to an interest in existence value.⁷⁷

Justice Kennedy’s limiting construction of Lujan has been borne out in subsequent cases.⁷⁸ As his opinion emphasized, Congress retains substantial leeway to define injuries within the “outer limit” of Article III’s standing requirement.⁷⁹ Thus, after Lujan, the Court has found standing even where plaintiffs claimed potential injuries to themselves as direct or even incidental beneficiaries of a regulation. The Court in Bennett v. Spear⁸⁰ upheld standing for irrigation districts who were “seeking to prevent application” of certain regulations that may have restricted their water supply.⁸¹ In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,⁸² the Court extended Bennett’s holding, granting standing to an environmental group whose members alleged “reasonable concerns” about the pollution being dumped into a river.⁸³ Showing actual injury to the river itself, the Court held, was unnecessary.⁸⁴

That an individual’s interest in the existence value of an environmental good is a cognizable “injury” for Article III follows from the Court’s reasoning in Laidlaw and FEC v. Akins.⁸⁵ That an individual is willing to pay to avoid an injury is not — by itself — sufficient to establish injury in fact. If willingness to pay were sufficient, little would be left of the limits the Court put on purely “ideological” injuries in Sierra Club v. Morton⁸⁶ and Lujan,⁸⁷ for anyone suffering an ideological injury could profess a willingness to pay to avoid that harm. An injury to an interest in the existence value of an environmental good is different, however, because it meets the “particular-ized” and “imminent” requirements developed in Lujan and subsequent cases.

In Akins, the Court upheld a novel form of congressionally conferred standing that is in crucial respects analogous to standing based on existence value.⁸⁸ At issue was a law allowing “[a]ny person who believes a violation of this Act . . . has occurred”⁸⁹ to file a petition with the Federal Election Commission, and any person “aggrieved”⁹⁰ by the dismissal of a petition to then file suit in federal court. “Aggrieved,” the Court held, expanded the rights protected — and the injuries cognizable — “beyond the common-law interests and substantive statutory rights upon which ‘prudential’ standing traditionally rested.”⁹¹ Failing to gain access to information nevertheless was injury in fact sufficient for Article III standing because the statute made it so: “[T]here is a statute which . . . does seek to protect individuals such as respondents from the kind of harm they say they have suffered, i.e., failing to receive particular information about campaign-related activities.”⁹² The Court went on to explain that even though the harm was widely shared, it was nevertheless “concrete” enough — not “abstract” — to suffice as injury in fact.⁹³ Akins thus shows the Court willing to grant standing where an injury is (a) widely shared; (b) outside the traditional common law; and (c) created by statute.

The harm at issue in a case predicated on existence-value standing would share the characteristics of the harm at issue in Akins. First, the harm at issue is widely shared, yet particularized. In Akins, the Court made clear that a harm may be widespread and yet may nevertheless be sufficiently “particular” to be cognizable; thus that a harm is merely widespread is not, by itself, reason to deny standing based on that harm.⁹⁴ Rather, when a harm is not “abstract,” but instead “concrete,” the Court will recognize standing, even if the harm is widely shared.⁹⁵ Thus, though “the fact that an interest is abstract and the fact that it is widely shared” often “go hand in hand,” this need not always be so.⁹⁶ The harm here is “particularized” because it can be traced to a particular individual’s interest. Though in theory any individual might assert an interest in the existence value of an environmental good, in any given case the interest asserted by a given individual would be particular to that individual (that is, defined by the particular individual’s asserted existence-value interest).

Second, the harm is outside the traditional common law, yet “concrete.” To be concrete, the Akins Court explained, a harm must be more particularized than an undifferentiated interest in the law being carried out properly.⁹⁷ But concreteness does not require a common law injury, as Akins itself shows. There the Court found “sufficiently concrete and specific” the denial of information related to lobbying efforts by a group purportedly regulable under federal election law.⁹⁸

Third, though the injury supporting standing in our imaginary scenario is conferred by statute, the citizen-suit provision in our statute⁹⁹ does not confer standing on “any person.” Rather, it confers standing on an individual who has suffered (or will imminently suffer) an injury to, in Justice Scalia’s terms, “a separate concrete interest,”¹⁰⁰ wholly apart from the undifferentiated interest in the Executive properly enforcing the law. Thus, as in Akins, our congressional conferral of standing does not transgress the bounds of Article III.¹⁰¹

Doctrine alone, however, will not likely predict whether a future court will uphold existence-value-based standing. Rather, given that standing doctrine often serves as a tool for controlling access to the courts,¹⁰² political preferences may be a more reliable predictor.¹⁰³ But the purpose of the preceding discussion is simply to show that existence-value standing is doctrinally plausible under current law.

Even absent new legislation explicitly conferring standing on individuals who suffer injury to an interest in the existence value of an environmental good, such litigants might still bring suit based on existence-value standing. A pre-existing statute that does not expressly confer standing based on an existence-value injury nevertheless might make existence value relevant to the purposes of the statute.¹⁰⁴ For instance, if this statute required (or allowed) cost-benefit analysis, then it might also require (or allow) the consideration of existence value, as discussed above; existence value would therefore be a relevant factor — and would thus underlie an impliedly cognizable injury — in any court’s analysis of agency action under the statute. Such a statute could make existence value statutorily relevant, for example, by requiring (or allowing) CBA, which would incorporate existence values.¹⁰⁵

While the above discussion about constitutional standing concerns would be no different for this hypothetical pre-existing statute, the Court’s “prudential” standing doctrine would pose special problems here. The prudential standing test asks whether an injury “is arguably within the zone of interests to be protected or regulated by the statute.”¹⁰⁶ The zone-of-interests test limits standing to cases where the “interest sought to be protected”¹⁰⁷ has a “plausible relationship to the policies underlying” the relevant statutory provision.¹⁰⁸ Because “the breadth of the zone of interests varies according to the provisions of law at issue,”¹⁰⁹ a statutory provision making existence value a relevant factor would likely suffice for zone-of-interests purposes.

III. Evaluating Existence-Value Standing

As the last Part demonstrated, existence-value standing is constitutionally and doctrinally possible either by an explicit grant of standing by a new statute or by an implicit grant in an existing statute. But like other proposals for expanding standing,¹¹⁰ existence-value standing might be thought to violate the separation of powers principles that justify standing doctrine in the first place. This Part argues that existence-value standing does not pose separation of powers issues. It then explains why existence-value standing would be beneficial for environmental reasons. First, this approach would have a valuable discursive effect: it would help align the discourse in environmental case law with the discourse within federal agencies. As noted above, while it remains an open question whether cost-benefit analysis is the right tool for assessing environmental regulation, there is no doubt that CBA does in fact drive decisionmaking. Allowing existence-value standing would help align the language — and the values — of the judicial and the executive branches. Second, existence-value standing would let litigants who would otherwise be “outsiders” barred from court vindicate rights. This Part argues that, contrary to conventional wisdom,¹¹¹ there are circumstances in which such outsider plaintiffs would be valuable.

Existence-value standing ought to be cabined to two particular sets of scenarios: (1) where local interests in an environmental good are systematically outweighed by nonlocal interests or (2) where local environmental protection is systematically stifled. The first scenario might arise where nonlocal actors have some special interest in an environmental good that, for local actors, is relatively insignificant. Such a case might arise, for example, where a displaced native group has a historical or religious interest in an environmental good of relatively little significance to local actors.¹¹² The second scenario might arise where local actors lack the resources to bring suit or where local political pressure makes bringing suit unlikely or impossible.

Existence-value standing is distinct from standing based on an undifferentiated interest in the execution of the laws — clearly barred by Article III¹¹³ — but nevertheless shares some similar characteristics. By expanding what constitutes an “injury” and by relying on statute to do so, this Note’s proposal implicates the separation of powers ratio-nales that justify the concrete injury requirement.¹¹⁴ But as Professor Heather Elliott has argued, the separation of powers function that standing doctrine is professed to serve is actually three distinct functions: (1) ensuring “concrete adversity”; (2) limiting the courts from interfering in political decisions; and (3) preventing Congress from “conscripting” the courts in a struggle for power with the Executive.¹¹⁵ Standing based on existence-value injury is quite clearly consistent with the first of these three separation of powers functions and likely consistent with the others.

First, properly understood, an injury to existence value is sufficiently concrete and particular to ensure adversity.¹¹⁶ As explained above, existence value is a “real” interest, despite its relative remove from conventional views on environmental value.¹¹⁷ Indeed, because CBAs use existence value to put a dollar value on environmental goods, an interest in the existence value of an environmental good is more concrete than most other aesthetic environmental injuries.

Second, while existence-value interests may be widely shared, they are nevertheless also individual. And the Court has repeatedly allowed plaintiffs with standing premised on individual but widely shared injuries to bring suit.¹¹⁸ An interest in the existence value of an environmental good is not an “undifferentiated interest” in the execution of the laws.¹¹⁹ Rather, it is a widely shared interest, much like those the Court has recognized.

Finally, existence-value-based standing would seem unlikely to allow Congress to “conscript” the courts in a struggle for power with the Executive.¹²⁰ This seems unlikely for two reasons: First, as detailed in Part I, executive agencies by their own accord have recognized exis-tence value as an interest worth considering. Judicial accounting for such values would not set up a collision between Congress and the Executive, but would instead show the judiciary taking seriously a set of values embraced by both Congress (in creating a cause of action for existence value) and the Executive (in accounting for existence value in CBA calculations).¹²¹ And second, courts could impose prudential restrictions on existence-value standing, limiting it to plaintiffs particularly well suited to represent existence-value-based claims.¹²²

One might also reasonably object to existence-value standing on the related but slightly different ground that it improperly privileges the individual over the collective.¹²³ If we accept that, generally, public rights should be vindicated by public suits and private rights by private suits,¹²⁴ we might not like a private actor bringing suit to vindicate an interest that, while individualized, is also so widely shared that it is essentially public. But history shows that, where a private actor can show a private injury, he has always been able to “bring a claim that ha[s] aspects of a public right.”¹²⁵

Existence-value standing would have clear benefits for environmental law and for the discourse about the environment. Its benefits for the environment (or for human experience of the environment) warrant closer consideration. This Note argues that there are discrete instances where existence-value standing would be beneficial.

Existence-value standing would help unite environmental law as practiced in federal agencies with environmental law as practiced in federal courts. As Professor Richard Lazarus has documented, most Supreme Court environmental cases are decided with little reference to environmental ends or values.¹²⁶ There is a similar incoherence in regulatory agencies concerning themselves with a certain set of values — including existence value — while federal courts refuse to entertain suits seeking to vindicate those values. Just as there is importance in appreciating what is “environmental” about “environmental law,”¹²⁷ there is also value in aligning the kinds of environmental values at stake in the courts and the Executive. By incorporating nonuse values into CBAs, regulatory agencies have acknowledged that the beneficiaries of environmental goods are not limited to those immediately proximate; the benefits of a natural resource accrue not only to those who use it, but also to those who never will. Recognizing injury to an existence-value interest as the basis for standing would give courts occasion to acknowledge and engage with the executive branch as to the extent to which environmental benefits extend beyond the “local.”¹²⁸

There is a second, somewhat related discursive benefit to existence-value standing. Existence-value standing would expand the realm of cognizable harms without losing focus on the human costs of environmental damage.¹²⁹ Existence-value standing necessarily would require framing environmental injuries in terms of the damage that harms to the environment do to humans. Of course, litigants (and environmental groups) may disagree about whether such a focus is appropriate as a litigation strategy. But at a time when environmental issues are of great importance and political will for action seems lacking, a focus on the human consequences of environmental harms seems likely to have important discursive benefits beyond any particular case.¹³⁰

But where would existence-value standing provide beneficial, practical outcomes in the real world? It would seem most relevant where an individual proximate to the environmental good (and therefore suffering an injury more readily cognizable) was unable to bring suit, but where an individual distant from the environmental good — but nevertheless interested in its existence — was able to do so.

The danger here is in pushing too far. As a matter of pure theory, we might agree with Justice Blackmun and John Donne that “[n]o man is an Iland,” and that environmental concerns transcend bound-aries.¹³¹ But recognizing that environmental costs and benefits transcend local and national boundaries does not imply that local concerns are irrelevant, or even that they should not sometimes trump nonlocal concerns.¹³² In most environmental cases there is every reason to think that local actors will bear the greatest costs and enjoy the greatest benefits associated with an environmental good.¹³³ In such cases, existence-value standing, particularly where a litigant advances a position at odds with local interests, might unduly burden those interests.

Conclusion

The argument offered here is intended to explain why, as a matter of current doctrine, standing based on an injury to an interest in the existence value in an environmental good is constitutional. As the foregoing illustrates, however, standing law is ultimately a reflection of normative judgments about whose and which rights should be vindicated in the courts. Whether existence value makes its way out of the “vast hallways of the federal bureaucracy”¹³⁴ and into the halls of the federal courts may depend on creative litigants and sympathetic judges interested in allowing the courts to recognize as legitimate the values that now guide some executive-branch decisionmaking.