Existence Value Introduced as an Argument for Standing in ESA Lawsuit

David Cassuto

The National Marine Fisheries Service (NMFS) has construed the Endangered Species Act to exclude captive populations of  the endangered Southern Resident killer whale population.  This means that these endangered orcas  are deprived of the protections of the statute and can be exploited for profit by commercial operations.  A number of individuals and animal advocacy organizations including the Animal Legal Defense Fund (ALDF), on whose board I sit, brought suit in the Western District of Washington to challenge this interpretation.

To wit:

SHELBY PROIE; KAREN MUNRO;                              Case #3:11-05955-BHS
PATRICIA SYKES; ANIMAL LEGAL
DEFENSE FUND, a non-profit
corporation; and PEOPLE FOR THE
ETHICAL TREATMENT OF ANIMALS,
INC., a non-profit corporation,
Plaintiffs,
v.
NATIONAL MARINE FISHERIES
SERVICE, ERIC C. SCHWAAB, in his
official capacity as Assistant Administrator
for Fisheries of the National Marine
Fisheries Service; and REBECCA M.
BLANK, in her official capacity as the
Acting Secretary of the United States
Department of Commerce,
Defendants.
____ _______________

Last week, ALDF amended its complaint to include a standing claim based on “existence value.”  It declared:

16. ALDF also brings this case on behalf of its members who, on information and belief, place significant and particularized value on the continued existence of Southern Resident killer whales, and whose interests in ensuring that the species continues to exist are injured by
NMFS’s decision to exclude the captive members of the population from the list of endangered species because protecting captive members of a listed species is necessary to ensure that it will not become extinct in the future and can eventually be recovered.

and  

18. ALDF’s members’ educational, aesthetic, and existence value interests would be redressed if the captive members of the species were included in the endangered listing of the Southern Resident killer whale population. This would provide the wild population with added protection by ensuring that the captive members are preserved and protected for the future

In brief, existence value is the value people assign to natural resources (e.g., Yellowstone Park, endangered species, etc) whether or not they actually use those resources.  It is used in regulatory processes and to quantify damages in litigation.  For example, in the lawsuit filed by Alaska and the Justice Department arising from the Exxon Valdez oil spill, Alaska conducted a survey to estimate the value that the American public placed on the natural integrity of the Prince William Sound.  It did not focus on people who lost recreational or business opportunities but looked instead at people who might not have and might not ever visit Alaska but who were nonetheless upset and disturbed about the damage caused by the spill.  Based on the responses, the Alaskan government estimated $2.8 billion in  lost passive use values as a result of the spill.  “Passive use value” is another way of describing existence value.

To better understand the concept of existence value, it helps to understand what it is not.  It differs, for example, from “option value,” the value a person assigns to the possibility that she might utilize the resource at some future date.  It is also distinct from “bequest value” — the desire that a resource be preserved for future generations.

Existence value arises not from any future use or possibility of use but rather from current existence.  Just the fact of the Grand Canyon matters to people.  It matters so much that many would gladly pay to preserve it even if they have no inclination to visit the region.  Nonetheless, existence value remains separate  from “intrinsic value” – the concept that a resource has value independent of its value to humans.  Instead, existence value is explicitly tied to the desire of humans to preserve a resource and to the injury they would suffer if that resource were compromised. (For an excellent discussion of existence value — from which much of this explanation is taken — see  Richard Revesz’s fine book, Retaking Rationality)

Though it has been around for many years in different forms in administrative law, existence value has never before (to my knowledge) been argued as a basis for standing.  In this case, it is but one of several standing claims and the court may not even reach it (the other claims are pretty bulletproof).  Nevertheless, ALDF’s bold action represents an exciting step forward in animal/environmental litigation.

Federal standing doctrine is a hodgepodge of bad and confusing jurisprudence and sorely in need of repair (you can read some of my diatribes on the subject here and, at greater length, here and here).  Exhibit A of its dysfunction is that one has to argue for standing by classifying animals as resources and couching one’s arguments in an ESA case in terms of human injury   Nevertheless, that’s where we are and, in my view, existence value could and should be the next standing frontier.  Stay tuned for a law review article arguing just that.

Stay tuned as well for further developments in this important case.