Article III Separation of Powers, Standing, and the Rejection of a 'Public Rights' Model of Environmental Citizen Suits

AuthorRobin Kundis Craig
cha pter eight
Article III Separation of Powers, Standing, and
the Rejection of a “Public Rights” Model of
Environmental Citizen Suits
As Chapter 7 discussed, in 1972 Congress subjected citizen enforcement under
the new Clean Water Act (CWA) to a number of statutory limitations. However,
the U.S. Constitution also limits citizens’ ability to bring CWA citizen suits. The
f‌irst of these constitutional limitations is standing, which derives from Article III’s
specif‌ication that the federal courts may hear only “cases” or “controversies.”
I. Article III and Federal Courts’ “Case or Controversy” Requirement
Plaintiffs bring most CWA citizen suits in federal courts, although §505 and federal
question jurisdiction allow citizens to join any pendent state-law claims.1 However,
federal courts constituted under Article III2 of the Constitution are courts of limited
jurisdiction. Specif‌ically, according to Article III:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitu-
tion, the Laws of the United States, and Treaties made, or which shall be made, under their
Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to
all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United
States shall be a Party;—to Controversies between two or more States;—between a State
and Citizens of another State;—between Citizens of different States;—between Citizens
of the same State claiming Lands under Grants of different States, and between a State,
or Citizens thereof, and foreign States, Citizens or Subjects.3
Article III therefore outlines what has become, after further congressional legislation,
the federal courts’ formalized “federal question” and “diversity” jurisdiction.4
1. See 33 U.S.C. §1365(e): (“Nothing in this section shall restrict any right which any person (or class
of persons) may have under any statute or common law to seek enforcement of any eff‌luent standard
or limitations or to see any other relief (including relief against the Administrator or a State agency).”);
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) (explaining and upholding pendent
jurisdiction). For a discussion of environmental citizen suits in state courts, see generally Christopher
S. Elmendorf, State Courts, Citizen Suits, and the Enforcement of Federal Environmental Law by Non-
Article III Plaintiffs, 110 Yale L.J. 1003 (2001).
2. U.S. Const. art. III, §1.
3. Id. §2, cls. 1, 2.
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The U.S. Supreme Court has also identif‌ied a less obvious but more general
limitation on federal court jurisdiction in the language above: the restriction to
“cases” and “controversies.”5 In 1792, the Court determined that this “case or
controversy” limitation prevented federal courts from issuing “judgments” that
Congress could revise,6 while in 1793, Chief Justice John Jay informed President
George Washington that the Supreme Court could not advise the executive regard-
ing “the construction of treaties, laws of nations and laws of the land,” because
“the lines of separation drawn by the Constitution between the three departments
of government” and the fact that the Justices were “judges in a court of last resort,
afforded strong arguments against the propriety of extrajudicially deciding [such]
questions . . . .7 Thus, within the f‌irst two years of the Constitution’s existence,
the Supreme Court had used the Article III “case or controversy” limitation to
ensure that the federal judiciary remained separate and independent from both the
legislative and the executive branches. While later courts have interpreted these
decisions to mean that federal courts cannot render advisory opinions,8 their greater
import is the connection they drew between the “case or controversy” limitation
and constitutional separation-of-powers principles.
The Supreme Court further elaborated upon the “case or controversy” limitation
in 1911, in Muskrat v. United States.9 According to the Muskrat Court, the Con-
stitution limits the federal courts to powers “which are strictly judicial in nature,”
and the “‘[j]udicial power . . . is the power of a court to decide and pronounce a
judgment and carry it into effect between persons and parties who bring a case
before it for decision.’”10 Moreover, “the exercise of the judicial power is limited
to ‘cases’ and ‘controversies,’”11 which are “claims of litigants brought before the
courts for determination by such regular proceedings as are established by law or
custom for the protection or enforcement of rights, or the prevention, redress, or
punishment of wrongs. Whenever the claim of a party under the Constitution, laws,
or treaties of the United States takes such a form that the judicial power is capable
of acting upon it, then it has become a case.”12
194 the cle an water act a nd t he cons tit ution
5. For general discussions of the “case or controversy” requirement, see Mark V. Tushnet, The “Case
or Controversy” Controversy: The Sociology of Article III: A Response to Professor Brilmayer, 93 Harv.
L. Rev. 1698 (1980); Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the “Case or
Controversy” Requirement, 93 Harv. L. Rev. 297 (1979).
6. Case of Hayburn, 2 U.S. 408, 410, 2 Dall. 409 (1792), especially as interpreted in Muskrat v.
United States, 219 U.S. 346, 353-54 (1911).
7. 219 U.S. at 354 (quoting 3 Correspondence and Public Papers of John Jay 486 (Henry P.
Johnston ed. 1970)).
8. Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973); North Carolina v. Rice, 404 U.S. 244, 246
(1971); South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966); Chicago & Southern Air Lines v. Water-
man S.S. Corp., 333 U.S. 103, 112-14 (1948); Muskrat v. United States, 219 U.S. 346, 361-62 (1911).
9. 219 U.S. 346 (1911).
10. Id. at 356 (quoting Justice Miller, Constitution 314 (Henry P. Johnston ed. 1970)).
11. Id.
12. Id. at 356-57 (quoting Justice Fields’ opinion in In re Pacif‌ic Ry. Comm’n, 32 F. 241, 255 (C.C.
Cal. 1887)).
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