State Courts, Citizen Suits, and the Enforcement of Federal Environmental Law by Non-Article III Plaintiffs

Article excerpt

I. INTRODUCTION

Environmentalists habitually bring their federal claims to federal court. Only a handful of citizen suits under national environmental statutes have surfaced in the state courts. This pattern may reflect environmental lawyers' greater familiarity with federal procedure, their fear of state court bias, or their greater confidence in the quality of federal adjudication. Perhaps it reflects a mistaken belief that state courts generally lack concurrent jurisdiction over federal environmental claims. The task I shoulder here is not to plumb the origins of this pattern, but to predict and defend a change--a new role for state courts in adjudicating claims under federal environmental law. It is my contention that state courts can, will, and should adjudicate the federal environmental claims of parties who lack Article III standing (non-Article III plaintiffs).

My prediction emerges from no insider knowledge of environmentalists' litigation strategy. Rather, it takes root in the principle that, in law as in markets and ecosystems, unexploited niches come to be filled. This Note reveals an open niche.(1) Three jurisprudential developments that came to a head in the last decade make state courts increasingly attractive fora for the private enforcement of federal environmental law. First, under the intellectual leadership of Justice Scalia, the Supreme Court elaborated constitutional doctrines of standing that curtail environmentalists' access to the federal courts. Second, in the underappreciated case of ASARCO v. Kadish,(2) the Supreme Court decisively affirmed the right of state courts to adjudicate federal claims that do not present federally justiciable "cases or controversies." New doctrinal architecture unveiled in ASARCO reverses the longstanding principle that state court decisions on claims brought by non-Article III plaintiffs lack collateral effect in federal courts. Third, the Court continued to strengthen the presumption of concurrent jurisdiction. One can argue reasonably that seven of the nine major environmental statutes now accommodate state court jurisdiction, notwithstanding several lower court decisions to the contrary.

It is no accident that the milestone cases in the modern development of Article III standing pertain to environmental matters.(3) Laws usually aim to improve the condition of a class of people. To violate the law is to hurt a member of this class, creating the central predicate of Article III standing: "injury in fact."(4) Most environmental laws aim to improve the condition of the natural world. Sometimes conditions in the natural world bear on the well-being of people, and harms to the environment translate into injuries in fact to human beings. Yet, immediate connections between environmental damage and human welfare are not inevitable. Within the ambit of environmental law are remote and rarely visited lands;(5) uncommon and inconspicuous species;(6) and the depths of the seas.(7) Even when concern for human health or welfare motivates a statute, and environmental protection is only penultimate, the connection between regulated activities and human well-being can be roundabout or probabilistic. A doctrine of standing bottomed on causation and redressability could impede citizen-suit enforcement, much as the complexities of proving causation ensnarl common-law environmental claims.(8) All "ideological" plaintiffs would benefit from liberal state court standing to enforce federal law, but environmentalists have the most to gain.

The argument of this Note unfolds in four segments. In Part II, I provide a brief overview of the law of standing in state courts. My goal in Part II is simply to convey a sense of the various ways in which state standing law advantages public-interest plaintiffs. An in-depth, state-by-state examination of standing doctrine would be far beyond the scope of this Note.

Part III lays out recent developments in Supreme Court jurisprudence and shows how they presage the growth of federal environmental claims in state courts. …