Active citizen involvement is the lifeblood of environmental protection. By engaging in government decision-making processes and, when necessary, bringing lawsuits against violators, citizens, environmental organizations, and state agencies serve a critical watchdog role that agencies may lack the resources or the political will to play. Many national environmental laws contain “citizen suit” provisions that expressly grant citizens the right to sue not only violators, but also government officials, to ensure compliance with the law. Citizen action, and even the threat of it, by way of citizen suits and under other legal theories can compel federal regulators to perform their legal duties.
A standard move made by defendants in environmental lawsuits is to challenge the plaintiff’s “standing” to sue—that is, the plaintiff’s right to be in court. Article III of the Constitution, by its terms, allows federal courts to decide only “cases or controversies.” From this simple foundation, the Supreme Court has, over the years, developed a substantial body of legal doctrine for assessing when plaintiffs may have access to the federal courts. The Court interprets the Constitution to require that a plaintiff demonstrate three “irreducible” elements of standing:
(1) An “Injury in Fact”—meaning that the plaintiff has suffered a harm that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) “Causation”—the plaintiff’s injury must be fairly traceable to the challenged action of the defendant; and
(3) “Redressability”—meaning that it is likely, and not merely speculative, that the plaintiff’s injury will be redressed by a favorable decision from the court.
These requirements have nothing to do with the merits of a plaintiff’s case—rather, a plaintiff must satisfy them simply to be heard in a federal court. And if the court determines at any point in the proceedings—from the time a case is filed until all appeals have been exhausted—that a plaintiff fails to satisfy any aspect of standing, the court must dismiss the case for lack of jurisdiction. (In addition to these constitutional standing requirements, courts also apply so-called prudential standing tests to determine, for example, whether an environmental organization may properly represent the interests of its members, or whether a plaintiff’s claimed injury falls within the “zone of interests” protected by the particular law at issue.)
Courts and commentators typically defend standing requirements as a proper means of ensuring that the judiciary is limited to its intended constitutional role, especially with respect to separation of powers among the three branches of federal government. Regardless, modern standing doctrine creates very real financial and legal hurdles for every plaintiff seeking to be heard in federal court.
A typical standing challenge in an environmental case argues that the plaintiff has failed to meet one or more of the three elements of constitutional standing: injury in fact, causation, or redressability. Currently, there is a great deal of dispute over what is required to demonstrate injury in fact where the plaintiff is claiming that the defendant’s action has resulted in an increased likelihood of harm. In addition, issues of causation and redressability are expected to play an important role in standing challenges in climate change cases.
DC Circuit Cases (2006-07) Involving “Increased Risk of Harm” from Agency Action - Probabilistic Injury
Beyond suing to vindicate substantive environmental protections, citizens can also file suits challenging irregular procedures or demanding access to environmental information or data. These plaintiffs are often met with the argument that they lack standing because they have not suffered an actual injury in fact.
Massachusetts v. Environmental Protection Agency (2006) - Procedural Injury
Friends of the Earth v. Mosbacher (2005) - Procedural Injury, National Environmental Policy Act
Cary v. Hall 2006 (associated with Center for Biological Diversity v. Norton) - Procedural Injury (Informational), Endangered Species Act
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