Friends of the Earth V. Crown Central Petroleum: A Standing Attack Undermines Environmental Protection

Article excerpt

INTRODUCTION

Several recent Fifth Circuit decisions have created new

hurdles to standing requirements with regard to environmental law. Both a court of appeals and a federal district court have held that plaintiffs will not be able to meet the standing requirement of the Clean Water Act (CWA)1 unless they can present scientific proof of injury to the environment.2 Not only are such decisions incorrect on their face, but they also have been cast into doubt by recent case law in both the United States Supreme Court and other federal circuits.3 Yet, this erroneous standing requirement remains valid law within the Fifth Circuit.4

Standing5 is the constitutional requirement that any action brought in federal court must constitute an actual "case" or "controversy."6 Standing has come to play an important role in environmental law by governing the ability of a plaintiff to bring an action under the citizen suit provisions that Congress has included in most major environmental legislation.7 Standing can be separated into two categories: (1) the standing of a plaintiff to bring suit in court; and (2) the minimum constitutional requirements for a party to have standing, imposed on the federal courts by Article III of the United States Constitution.

1. PLAINTIFFS' STANDING TO SUE

In environmental cases, both an organization and individual plaintiffs may have standing to bring suit. An organization has the option of bringing suit on its own behalf if it can prove that an injury has been done to it directly, or it may bring suit to defend the interests of its members. An organization, to qualify for representational standing to bring suit on behalf of one of its members, must meet three requirements. It must show that: "M the organization's members would have standing to sue individually; (2) the organization is seeking to protect interests that are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the organization's members to participate in the lawsuit.18

An individual or an organization, acting on its own behalf, must also meet three requirements to have standing. "First, the plaintiff must have suffered an `injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical."9 Second, "there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court."10 Third, "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."11

In addition, courts have developed prudential limits to standing. These are "judicially self-imposed limits which are subject to modification or abrogation by Congress. Most importantly, .. . a litigant suing a federal agency under federal law must establish that the interest being asserted is within the `zone of interests' of the statute allegedly being violated."12

In the past decade a trend has developed, within both the Supreme Court and numerous federal and state courts, to use the standing issue as a limitation upon environmental actions brought through citizen suit provisions.13 These courts have held that a plaintiff bringing an environmental suit does not meet one of the several standing requirements,14 and consequently have dismissed the case without ever proceeding to trial.15 Recently, in Friends of the Earth, Inc. v. Crown Central Petroleum Corp.,16 the United States Court of Appeals for the

Fifth Circuit followed this trend by ruling that when an action is brought under the citizen suit provision of the CWA,17 the requirement of standing will not be met unless a plaintiff offers proof of the alleged pollution and that the pollution has been caused by the defendant. …