Through the doctrine of constitutional standing, federal courts have consistently attempted to limit their jurisdiction to claims in which they can redress the plaintiff’s injury. This determination becomes more complicated when a third party asserts that it would “replace” the defendant’s role and cause the same injury to the plaintiff that the defendant would have caused. Courts have generally responded by assessing if this replacement will actually occur. However, courts have neither clearly articulated nor consistently applied the standards that govern this replaceability inquiry. The replaceability approach also elides more fundamental questions of whether defendants should be able to escape judicial review simply because other parties might also commit the same harm.
This Note addresses the third-party-replacement issue in the context of the National Environmental Policy Act, which requires federal agencies to conduct an environmental analysis prior to acting. Courts have adopted a special approach to standing for procedural statutes like the National Environmental Policy Act, which does not impose substantive restrictions once agencies have complied with its environmental review procedures. This Note reviews how courts have dealt with the interaction of replaceability and standing under the National Environmental Policy Act, focusing on cases where federal agencies provide funding and other services for wildlife management and energy projects. It concludes that the current replaceability approach is too uncertain for courts to rely on, and is systematically weighted against plaintiffs. The result is that federal programs involving third parties can evade judicial review for reasons that are unrelated to the Act’s purposes.
