'If an (endangered) tree falls in the forest, and no one is around ....': resolving the divergence between standing requirements and congressional intent in environmental legislation.

• Author: Carter, Preston

INTRODUCTION

During the mid-twentieth century, Congress passed a series of statutes that changed the face of American law. (1) Legislative protection was extended to the air, water, endangered species, and tracts of land where "the earth and its community of life [remain] untrammeled by man." (2) Many of these statutes include "citizen suit" provisions, an innovation designed to foster public participation in environmental protection. (3) The participation encouraged by citizen suits, however, did not follow the traditional model of civic involvement. Indeed, citizen suits were designed to "replace deficient programs of administrative enforcement" (4) with a body of "private attorneys general," (5) encouraging citizens to air their grievances in Article III courts rather than through the political process. (6) Understandably, this new (7) model of enforcement has evoked a wave of commentary and criticism. (8) In the court system, the influx of citizen suits has been accompanied by an evolution (or, many would say, devolution) of the doctrine of standing. Although the exact contours of the standing doctrine still remain unclear, (9) its most recent "phase" has proved challenging to plaintiffs attempting to enforce environmental statutes through citizen suits. (10) In several notable cases, plaintiffs have been barred from court despite Congress' apparent intent to enable "any person" to proceed with a citizen suit. (11) These plaintiffs were barred because they failed to assert a cognizable injury to themselves, although the statutes were seeking to protect the environment, (12) and citizen suit provisions do not require personal harm. (13)

An old riddle comes to mind: "If a tree falls in the forest, and no one is around to hear, does it make any sound?" Adapted to the context of environmental law, the question can be posed: "If a tree falls in the forest, and no one is around, can statutory protections be enforced via citizen suit?" By barring plaintiffs who do not sustain a "particularized" injury, (14) courts answer in the negative. Congress, however, in deciding to protect the tree itself, seems to desire an affirmative answer to the question.

This divergence between the apparent will of Congress and the doctrine of standing stems from the courts' view of their proper role within the constitutional scheme of government. The Article III judiciary is established to adjudicate disputes between individuals, or "private rights," while the political branches are charged with creating law and taking care that it be faithfully executed. (15) Although a bright-line "public-versus-private rights" rule has not been adopted as the touchstone for what can (or must) be adjudicated in Article III courts, (16) this view of separation of powers has heavily influenced modern standing requirements. (17) Via the doctrine of standing, courts have resisted congressional attempts to use them as a means through which ordinary citizens can influence execution of the law. Rather, an individual may approach a court only when his or her suit seeks to vindicate a "private right"; in other words, when the plaintiff suffers some injury to him or herself and approaches the court seeking relief. (18)

Many disagree with this conception of the judiciary's role, and the doctrine of standing has been thoroughly criticized. (19) However, perhaps these criticisms are misplaced. After all, it was Congress that decided to protect the environment, while granting persons the right to sue. Additionally, it was Congress that determined to enforce these statutory protections (at least partially) in the courts, whose jurisdiction is cabined by Article III. Thus, it makes sense that Congress should attempt to resolve the resulting conflict between the branches.

This Note assumes that the doctrine of standing properly articulates the role of Article III courts in our tripartite system, and looks to how Congress can repair the disconnect between the purpose of environmental statutes and the injuries required to convey standing. As expressed in its standing decisions, (20) the judiciary's primary role is to adjudicate private-rights disputes, while leaving creation and enforcement of the law to the political branches. Accordingly, there are two ways in which Congress can remove the tension inherent in the current enforcement scheme: (1) provide a public-rights forum for adjudication of citizen suits brought under environmental laws by creating an Article I tribunal; or (2) make environmental citizen suits mirror private-rights disputes, by granting environmental resources the right to bring citizen suits. Although both of these proposals would remedy the divergence highlighted in this Note, creating an Article I tribunal would inject political considerations back into the enforcement of environmental statutes. (21) This would effectively undermine the purpose of citizen suits, and perhaps the effectiveness of environmental law as a whole. (22) Therefore, this Note proposes that Congress grant environmental resources the power to bring citizen suits, drawing upon the paradigm of federally chartered corporations.

Part I of this Note gives a brief overview of the modern standing doctrine. Part II analyzes the Endangered Species Act, (23) using standing disputes arising under its citizen suit provision to highlight the divergence between its purpose and the injuries-in-fact required to establish Article III standing. Part III advances two possible methods through which Congress could heal the divergence. Part III.A discusses, and eventually dismisses, the idea of an Article I tribunal for adjudication of environmental citizen suits, and Part III.B proposes vesting environmental resources with the right to bring citizen suits to enforce environmental statutes, drawing on the paradigm of federally chartered corporations.

1. THE MODERN DOCTRINE OF STANDING

   Standing is "'among the most amorphous [concepts] in the entire domain of public law.'" (24) However, it has become a topic of debate only recently, with the phrase first appearing in 1944 and the vast majority of discussion occurring after 1970. (25) The doctrine stems from the "case or controversy" language of Article III, as well as upon a "common understanding of what activities are appropriate ... to courts." (26) In its most recent "phase," (27) the Supreme Court has emphasized that the doctrine of standing is vital to maintaining the separation of powers envisioned by the Constitution. (28) Although this assertion has been thoroughly criticized by academics, (29) it seems that the Court's conception of standing, and the requirements stemming therefrom, will govern standing decisions for the foreseeable future. (30)

   To ensure that a dispute is a "case" or "controversy" under Article III, a plaintiff must satisfy several constitutional and prudential standing requirements. Section A of this Part discusses the constitutional requirements of standing: injury-in-fact, causation, and redressability. Section B notes some important prudential standing requirements, highlights the important distinction between regulated parties and parties seeking regulation of someone else, and discusses standing requirements for associations and corporations.

   1. "Irreducible Constitutional Minimum" Requirements

      In Lujan v. Defenders of Wildlife, (31) the Supreme Court enumerated the "irreducible constitutional minimum" requirements of standing: injury-in-fact, causation between the injury and alleged illegal conduct, and likelihood that the injury will be "redressed by a favorable decision" in court. (32) These elements ensure that the dispute before the court is a "Case" or "Controversy" (33) over which Article III grants jurisdiction, restricting the judiciary to its constitutionally assigned role and preventing judicial intrusion on the purview of the political branches.

      1. Injury-in-Fact

         In order to establish standing, a plaintiff must allege an "invasion of a legally protected interest" which is both "concrete and particularized" and "'actual or imminent,'" as opposed to "'conjectural' or 'hypothetical.'" (34) Thus, generalized grievances that affect every citizen's interest in proper application of the law, where the relief requested does not tangibly benefit the plaintiff more than it does the public at large, are not sufficient to convey standing. (35) This requirement is based, in part, on a "common understanding of what activities are appropriate ... to courts." (36) Further, a plaintiff may not merely assert that someone has suffered a cognizable injury; rather, the party seeking review must "be himself among the injured." (37)

         The injury suffered by a plaintiff does not have to be particularly egregious, and injuries to aesthetic, scientific, educational, or recreational interests are sufficient to grant standing. (38) Thus, a plaintiff suffers an injury-in-fact when he is prevented from watching elephants at a circus, (39) when he is a member of a bird-watching group with reduced opportunities to view endangered raptors, (40) or when he is prevented from recreating by a river because of a fear of pollution. (41) However, a plaintiff may not sue in court when he suffers no injury, even when a defendant has clearly violated an environmental statute by discharging toxic chemicals into a river. (42)

      2. Causation

         To establish standing, the injury-in-fact suffered by the plaintiff must be "'fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court."' (43) Although the specific implications of this requirement are not entirely clear, federal courts may not "raise the standing hurdle higher than the necessary showing for success on the merits in an action." (44) In the environmental context, plaintiffs may satisfy the "causation" element of Article III standing by showing an increased risk of environmental degradation which...