The Court Grapples with
Congress and Standing Hurdles
in Environmental Cases
During the last quarter of the twentieth century, the Supreme Court used a number of avoidance strategies to sidestep ruling on the merits of numerous environmental controversies. The most prevalent tactic was development of the constitutional law of “standing” to hinder people and groups concerned with protecting the environment from bringing claims to federal courts. This avoidance strategy thwarted con- gressional intent by substantially limiting the ability of citizen plaintiffs to enforce environmental laws. President Richard Nixon presented a lengthy message on environmental cleanup and pollution prevention in his 1969 State of the Union address and supported creation of the Envi- ronmental Protection Agency (“EPA”) in 1970. The executive and legisla- tive branches passed many laws during the remainder of the 1970s aimed at cleaning up our air and water, protecting species, regulating pesticide use, and managing hazardous waste. These laws significantly changed the relationship between regulated industries, environmentalists, and the federal government. Most of these laws provided a new enforcement tool by creating rights for private citizens to enforce the laws by suing when the government or regulated industry violated the environmental laws.
Congress included the option of litigation by private citizens to sup- plement the ability of regulators to enforce the laws.1 Sponsors of some antipollution laws, for example, deemed citizen suits necessary because of the close relationship between some regulated industries and government regulators. Lawyers for the regulated industries complained that defend- ing against citizen suits was expensive, and the suits were used to harass small businesses over technical violations of environmental laws. Some conservatives viewed environmental citizen suits as “blackmail” and en- couraged courts to be hostile toward such “terrorism.”2