Standing

Background

Standing doctrine involves the issue of who (if anyone) is entitled to prosecute a particular legal claim in court.

The question, "who has standing to sue?," is vitally important to the enforcement of our nation's major environmental laws. A number of federal environmental protection laws, including the Clean Water Act, the Clean Air Act and the Endangered Species Act, contain provisions conferring standing on citizens to sue violators of the law. These so-called citizen suit provisions authorize citizens to act as "private attorneys general" to help enforce these anti-pollution and resource protection laws. In the past 25 years, hundreds, if not thousands of lawsuits have been filed under these citizen suit provisions, resulting in injunctions prohibiting further illegal actions and the levying of millions in dollars in fines payable to the U.S. treasury. Unfortunately for those concerned about protection of the environment, the ability of Congress to confer standing using citizen suit provisions has come under fierce attack in the courts.

Despite its importance as a fundamental gate-keeping requirement for access to the court system, the concept of "standing" is in fact relatively modern, first appearing in Supreme Court rulings in the late 1930s, and not taking on its present form until the 1970s. The majority of legal scholars who have studied the issue have concluded that the framers of the Constitution never intended standing, a term absent from the Constitution, to serve as an independent test for identifying who can properly bring a legal claim in federal court. Instead, the framers believed that Congress should have broad power to enact legislation granting citizens the right to sue.

Nevertheless, the U.S. Supreme Court has clearly established a standing requirement and has grounded this requirement in Article III, section 2 of the Constitution, which grants the judiciary the power to hear "cases" and "controversies." The requirement that litigants demonstrate their standing to sue under the Constitution, the Court has said, confines the judiciary to its limited role in our system of separated powers, and helps ensure that cases filed in federal court involve the type of well-defined, adversarial contests which the courts are institutionally competent to resolve.

Under modern standing doctrine, a plaintiff must meet three requirements to have Article III standing. First, the plaintiff must show that she has suffered an "injury in fact." Second, she must establish causation, that is, show that the injury "fairly can be traced to the challenged action." Third, the plaintiff must show that the injury "is likely to be redressed by a favorable decision" of the court.

U.S. Supreme Court standing decisions at the beginning of the modern environmental era were relatively accommodating to environmental interests. However, in the mid 1970s, the Court began developing significantly stricter standing requirements.

With the elevation of Justice Anotonin Scalia to the bench in 1987, the Supreme Court intensified its scrutiny of citizen suit provisions. In a series of opinions, all authored by Justice Scalia, the Court made it much more difficult for citizens to establish that they have been "injured in fact" by a violation of environmental laws. The Court also ruled that much of the relief available to plaintiffs under the citizen suit provisions is insufficient to "redress" citizen's alleged injuries, and therefore citizens seeking relief under these provisions fail to meet standing requirements. At the same time, the Court made access to judicial relief easier for the objects of environmental regulations, including manufacturers, agricultural interests and other business concerns. These questionable rulings not only weaken existing environmental protections, but call into question the authority of Congress to follow the popular will and pass strong and effective environmental protection laws.

In its landmark decision in Friends of the Earth v. Laidlaw, the U.S. Supreme Court undid much of the damage it had previously caused in standing cases, ruling broadly that citizens should generally be able to sue to enforce environmental laws if they have a reasonable basis for concern that ongoing or projected activities may adversely affect the environment they use and enjoy.


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