Once upon a time, a South Carolina wastewater treatment plant repeatedly violated the Clean Water Act by dumping illegal amounts of mercury into a river. Unsurprisingly, several environmental organizations responded by suing. They could do so because the Clean Water Act contains “citizen suit” provisions that allow private citizens to sue for the law’s violation. They won, and a trial court ordered the company to pay a fine to the government as a punishment.

Pretty simple, right? But the question of whether the environmental groups had the right to sue went all the way to the Supreme Court. Why? The answer lies in one of the Constitution’s less famous provisions — the vesting of power over “cases or controversies” in the judicial branch — and in the Supreme Court’s use of this provision to create the doctrine of “standing.” This doctrine is a powerful barrier to the use of citizen suits. Because most major environmental protection laws rely on citizen suit provisions, the law of standing is one of the most far-reaching legal rules affecting green activists today.

Know Where You Stand

What is standing? Standing finds its roots in what we all learned in high school civics. The Constitution assigns the courts the power to hear “cases or controversies” that arise under federal law. But what is a case? Over the last two decades, the Supreme Court has determined that a case isn’t a case unless the person who wants to sue has standing to sue. This means three things: the plaintiff must be “injured in fact”; the injury must be traceable to the defendant; and the injury must be redressible by judicial action — that is, the court must be able to do something about it. Without these elements, there is no case; without a case, a federal court has no authority to act.

Most of the time, this is no big deal. Suppose a bully takes your milk money. If you wanted to make a federal case out of it, you would need a federal law that authorizes you to sue; this legal right is called a “cause of action.” Suppose further that you had this right because Congress passed a law that allows lawsuits to recover milk money. You would still need to show a court that you had standing to sue. Now in this example, nobody would worry about standing because it is so obvious. You could claim an injury (“I lost my milk money.”). You could trace it to the defendant (“The big bully took it.”). And you could ask the court for redress (“Make him give it back.”). Simple.

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But things are trickier in the environmental realm. Suppose an oil company decides to drill in the remote hinterlands where nobody lives. There may not be anyone available to bring a suit if no one has been injured. Of course, much depends on how one defines injury, something that is as much a value judgment as a factual question, especially when comparing traditional legal injuries to the harms addressed by the newfangled environmental laws. (For standing purposes, any monetary loss suffices. But is my horror at the plight of the California condor as much an injury as having $100 stolen from me? How about $1?).

For what it’s worth, the Supreme Court acknowledges that individuals may have an “aesthetic” interest in a preserved environment, but a person cannot sue for “psychic” harms alone. This distinction invites confusion, but to give an example, a birdwatcher generally has standing to challenge the clear-cut that kills the birds she views, but not the one that kills birds in the next state. (By the way, establishing standing is typically more of a problem for environmentalists than their foes. If the government told a timber company that it could not clear-cut trees, the company would have standing to sue the government because this restriction on its freedom is a clear injury under conventional standing analysis. In other words, it is often easier to sue for the right to degrade the environment than for the power to stop the degradation.)

Add to this another wrinkle: Standing, and this is the important part, is independent of the cause of action, or the legal right to sue. In other words, Congress can declare that citizens have the right to bring a lawsuit under an environmental statute, but if a court determines that citizens lack standing anyway, no suit can proceed. This limitation has real teeth in the environmental realm, where, as mentioned, there are often no humans directly affected by environmentally unfriendly actions.

This distinction became clear in the Supreme Court’s landmark 1992 decision in Lujan v. Defenders of Wildlife. The U.S. government had decided that the Endangered Species Act (ESA) would no longer apply to U.S. actions in foreign lands. Several environmental groups challenged this decision under the ESA’s citizen suit provision. The Court never considered whether the ESA was violated because it decided that the plaintiffs had no standing to sue. The plaintiffs argued that they suffered an injury in fact because members of the suing groups had previously viewed endangered animals abroad and would do so again in the future. The court said this was not enough, that the injury was not sufficiently “imminent” to be the basis of a suit. (One of the justices suggested that things might have been different if plaintiffs had actually purchased plane tickets.)

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What’s the Big Deal?

Even if you think (as many do) that standing is a judicial invention that is not in the Constitution, the law of standing is not completely useless. There is some logic to requiring a plaintiff to show standing. Opening courts only to those who actually suffer a harm that courts can fix lets judges be sure that there is a real dispute between people who care about the outcome, and not an invented controversy brought for a political goal.

But why worry about standing when Congress explicitly gives people the right to sue? Why impose the standing requirement in an area like environmental law where the difficulty in finding someone with standing may allow environmental damage to go unchecked? If you’re suspicious of courts or conservatives, lots of nefarious reasons come to mind. You might think that it’s just the sort of needless technicality that lawyers love for its own sake. Or maybe the conservatives on the Supreme Court don’t like long-haired environmentalists.

But there is also a less malign explanation. Those who push standing are making a deeper statement about how laws should be enforced. Returning to high school civics, Congress passes the laws, and the president (and his or her minions) enforces them. Congress has been at the law-passing game for over 200 years, so there’s no shortage of laws on the books. But there aren’t enough people or resources to enforce all the laws to the fullest possible degree. Choices have to be made, and normally it’s the president or another executive officer who makes them. But citizen suits also enforce the law, transferring some of the executive’s decision-making power into the hands of private citizens.

Therefore some think that citizen suits lead to the judiciary’s encroaching on the executive branch’s job — that is, deciding how much enforcement is necessary. You may not buy this. After all, Congress has the right to set priorities, and citizen suits are one way to do so. Also, if defining an injury is in some respects a matter of opinion, shouldn’t our elected representatives have the right to broaden that definition as times change? This debate aside, however, several justices on the Supreme Court are firmly committed to a restricted view of standing.

Friends (of the Earth) in High Places

This returns us to the wastewater plant in South Carolina. In January, the Supreme Court decided the case, titled Friends of the Earth v. Laidlaw Environmental Services, and dropped its latest hint as to what standing means in environmental law cases.

After the trial court ordered the company to pay a fine to the government, the company appealed, claiming that the plaintiffs lacked standing to sue in the first place. This gave the Supreme Court the opportunity to answer an open question about standing: Can a private injury be redressed by a penalty paid to the government? The Clean Water Act allows citizens to sue for permit violations, but the money that is collected goes to the government, not the plaintiffs. The company argued that the plaintiffs therefore lacked standing, that punishing the company by making it pay a fine to the government did not redress the plaintiffs’ injury.

The Court disagreed. The majority ruled that penalties serve to remedy a permit violation by making such violations less likely to recur in the future. Because so many citizen suit provisions in environmental laws allow for fines paid to the government, and not citizens, the court’s ruling was a major victory for green groups that rely upon citizen suits. Justices Antonin Scalia and Clarence Thomas dissented, decrying the private enforcement of public laws.

So much for redress, but what about injury? The court found a sufficient injury for standing purposes based on the claims of local residents that they were not using the river for recreation because of pollution fears. Scalia and Thomas dissented on this point as well. They said that though the plant violated its permits, the trial court had found that the pollution from the plant did not actually cause any harm to the river. The majority responded that standing is about injury to people, not the environment.

This is a peculiar exchange. Normally, the claim that standing is about injury to people, not the environment, is used to keep environmental cases out of court. Here, it was used to keep one in. Of course, Scalia and Thomas meant that there was no harm to people because there was no harm to the environment (thus trying to make standing even harder to establish by saying there must be harm to people and the environment in such a suit).

But what the exchange really illuminates is the oddness of the whole doctrine of standing when the environment is at issue. After all, the laws that allow these suits in the first place are there to protect the environment, not individual plaintiffs. But sometimes standing law allows suits on environmental statutes when there is no harm to the environment and prevents them when there is.

It’s not logical, but it’s what happens when doctrines designed for people are applied to laws designed for rivers.

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