Academic journal article Duke Environmental Law & Policy Forum

Environmental Standing: Who Determines the Value of Other Life?

Academic journal article Duke Environmental Law & Policy Forum

Environmental Standing: Who Determines the Value of Other Life?

Article excerpt


The constitutional requirements for standing articulated by the Supreme Court impose a fiercely contested theory of value on the democratic polity. These requirements (of injury-in-fact, causation, and redressability) are threshold requirements that must be met by the human plaintiff in order for a federal court to hear the case. Because they are constitutional in nature, these requirements trump any statutory grant of standing to citizens to stand in for ecosystems or other life that is injured by activities that are statutorily prohibited. For instance, a statute (such as the Endangered Species Act) may grant protection to a given species and grant citizens' standing to sue to enforce these protections. Nevertheless, the courts cannot hear a case brought by a citizen in which such a species is injured by activities alleged to be prohibited unless the human plaintiff can show that he or she was also injured by those activities. Further, the injury must be shown to be caused by the activity in question and the plaintiff must show that the injury would be likely to be redressed if the activity was stopped. (1)

Such requirements, at least in those cases where the agency with enforcement power fails to act, effectively remove other life or ecosystems from any direct claim to justice in our legal system. A claim to justice is premised at least in part on the value of the parties. Therefore, the constitutional standing doctrine amounts to a judicial imposition of a theory of value in which human beings are the source and center of value. (2)

The scope of citizens' suit provisions in environmental regulations have been significantly curtailed by the standing doctrine, with its constitutional requirements that the plaintiff show injury-in-fact, causation, and redressability. (3) Ironically, the most basic rationale for the standing doctrine is the separation of powers between the branches of the federal government. (4) The Supreme Court explained that standing "is founded in concern about the proper--and properly limited--role of the courts in a democratic society." (5) By requiring that plaintiffs meet the requirements of standing, the Court arguably confines its own activity to justiciable cases and controversies and so keeps the Court out of the policymaking arena properly conferred on the elected branches of government. These requirements are also purported to prevent the other branches from infringing on each others' constitutionally delegated powers; in particular, they prevent Congress from delegating to the courts the executive task of carrying out legislative mandates or enforcing the law. (6)

In the context of environmental regulations (such as the Endangered Species Act, the Clean Air Act, and the Clean Water Act) that protect, at least in part, ecosystems and other life, citizens' suit provisions allow for individuals to meet statutory standing requirements by suing on account of injury to ecosystems or other life. The Court, however, has explicitly rejected this construal as failing to meet the constitutional requirements for Article III standing. In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., (7) the Court explained, "[t]he relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff." (8) Even if the relevant statute prohibits activity that results in injury to a river, a species, or an ecosystem, the courts will only hear the case if the human plaintiff can demonstrate that she has suffered a particularized, concrete injury (or injury-in-fact) as a result of (i.e. causation) the prohibited activity. Further, it is the injury to the human plaintiff that must be likely to be redressed by a favorable ruling.

The standing doctrine, then, has the odd effect of placing the human plaintiff before the court, with the injury to the ecosystem or other life that is prohibited by the relevant statute as relevant only to the extent this environmental injury also injures the human plaintiff and to the extent that healing this environmental injury redresses the injury to human plaintiff. …

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