Stand or Deliver: Citizen Suits, Standing, and Environmental Protection
Adler, Jonathan H., Duke Environmental Law & Policy Forum
Give me where to stand, and I will move the earth.
Stand in the place where you live.
Until Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,(1) it appeared that a majority of the Supreme Court would keep many environmental citizen-suit plaintiffs out of court. In Lujan v. Defenders of Wildlife,(2) and other cases,(3) the Court's majority placed Constitutional and prudential limits on standing for environmental citizen suits. The New York Times reported that this trend was one of the "most profound setbacks for the environmental movement in decades."(4) Justice Harry Blackmun accused the Court's Lujan majority of taking a "slash and burn expedition through the law of environmental standing."(5) The losing counsel in Lujan accused the Supreme Court of putting environmental attorneys "out of business."(6) In 1999, John Echeverria and Jon Zeidler warned that the very "ability of American citizens to vindicate their legal rights to a clean and healthy environment is rapidly eroding."(7) With Laidlaw, the Supreme Court reversed course, lowering the standing barriers faced by environmental citizen-suit plaintiffs. From this standpoint, the Supreme Court's Laidlaw decision was "a win for the environment."(8)
This perspective on standing assumes that citizen suits play an important role in safeguarding environmental values.(9) By implication, any legal doctrine, such as that embodied in Lujan, which curtails citizen suits is "anti-environmental." Citizen suits, insofar as they enhance governmental enforcement of environmental laws and prompt cleanup, should be environmentally beneficial. Yet this "conventional view," which equates more liberal citizen-suit standing rules with greater environmental protection, is in the words of one commentator, "too facile."(10) More environmental citizen suits do not necessarily yield better environmental protection.
The Laidlaw decision certainly will benefit citizen-suit plaintiffs. This does not mean, however, that Laidlaw will advance environmental protection. Ecological values may well be better protected under a set of standing rules, such as those embodied in Justice Scalia's Lujan opinion, which require a demonstration of environmental harm. This article argues that liberalized standing rules that disconnect standing from a concrete and particularized injury in fact cannot be assumed to enhance environmental quality. Nor will increasing the volume of citizen suits inexorably increase the effectiveness of environmental regulation. This article further presents evidence suggesting that expansive citizen-suit litigation may even exacerbate the environmental failings of the current regulatory regime. Whether a liberalized standing regime enhances or undermines environmental protection is an open question.(11) In the meantime, there are many reasons to believe that an alternative framework for environmental citizen-suit standing would do more to advance the protection of environmental resources.
Part I of this article provides an overview of environmental citizen suits in theory and practice, with a particular focus on the use of citizen suits to enforce environmental regulations against emitters. While environmental citizen suits are designed to improve regulatory enforcement, and thereby reduce pollution, the pattern of litigation suggests that citizen suits do not consistently serve this purpose. Part II provides a brief overview of the role of standing in citizen-suit litigation. It examines the Court's competing approaches to standing, as typified by Lujan and Laidlaw and the latter decision's likely effect on citizen suits. As already intimated, Laidlaw will make it much easier for prospective plaintiffs to file citizen suits under existing environmental laws. Part III outlines the theoretical and empirical basis for questioning the importance of liberal standing rules for environmental protection. …