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.

8 Responses

  1. More of the same human arrogance!

  2. Standing doctrine when it comes to animals is completely illogical. Corporations can have standing, incompetent humans can have standing, yadda yadda, but anyone arguing for animals has to jump through completely counterintuitive hurdles to make a standing argument. On the one hand, “existence value” may be a step forward, on the other hand, I can’t imagine it making any significant change in animal protection laws. That change will only come if animals are granted something other than “resource” value under the law. As things stand now (no pun intended) that’s a very tall order.

  3. Lorien,
    While I couldn’t agree more about the inanity of standing doctrine (not just with animals but with virtually everything and especially environmental law), I respectfully disagree that existence value doesn’t have potentially significant implications. If it were to be accepted (a huge and highly dubious “if”), then the ability to advocate on behalf of animals would be enormously expanded, both because the number of people who could claim injury and therethrough standing would increase, but also because the nature of the injury would mean that the animal’s existence as such becomes part of the valuation process. Granted, that is not the same as intrinsic worth but it is a lot closer to it than the courts have ever gone.

  4. David,
    You may be right about the acceptance of existence value increasing the number of people who could claim injury, and have standing in animal protection/environmental cases. Whether this will have any lasting effect on animals in the US, I cannot say. I’m no legal scholar (by any stretch) and my argument is not necessarily a legal one. But it seems to me that animal (and environmental) advocates weaken the argument for animals by playing the cost/benefit “valuation” game in the first place, because that game is one animals can only benefit from if they are charismatic (orcas), endangered (as decided by a governmental agency) or otherwise of human-characterized value (elks to hunters, for example). I know most law professors would disagree with me (Revesz for one). But I don’t think you can change things by using the same weapons that created the problem. The lack of logical clarity in the standing doctrine vis a vis animals is a symptom, not the disease itself.

    Bolivia recently introduced a constitutional amendment to give nature “rights” (“wild law”). I don’t know much about it, and wonder if it is purely hortatory, or if there’s any real force to it. But the fact that it happened is interesting in itself (and the fact that it most likely won’t happen here in the foreseeable future), because it’s a reminder that reasonable humans can admit that not everything needs to be approved by humans before it has the right to exist.

    Having said all that, I don’t mean to suggest that existence value, if accepted, would not have significant practical uses (as I said above). By all means, expand the tool box. I just am pessimistic about it making much of a difference to animals in this country.

  5. Very, very interesting.

    I see Lorien’s points, and I see yours, David.

    The difference between existence value and intrinsic value sounds like the difference between animal welfare and animal rights.

    Rather than take a position, I’m going to ponder this quietly, and watch the action unfold.

    Oh, but I’m rooting for the ALDF and the orca’s other defenders to win the lawsuit!

  6. “but I’m rooting for the ALDF and the orca’s other defenders to win the lawsuit!”

    Me too, CQ! (despite, or in addition to, my arguments above)

  7. Thank you so much for this post. This blog is great and this what the internet needs more.

  8. […] of November 2011. The ALDF make a reasonably sophisticated argument for recognition of ‘Existence Value‘ with an intellectual move that situates the discussion in partially-anthropocentric terms […]

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