The structure of standing requirements for citizen suits and the scope of congressional power.

• Author: June, Robert B.
• Position: Endangered Species Act at Twenty-One: Issues of Reauthorization

1. INTRODUCTION

   Congress has systematically included "citizen suit" enforcement provisions in environmental statutes over the course of the past two decades, thereby allowing private individuals and organizations to file civil actions to remedy statutory violations or to compel the performance of federal agency actions made mandatory by those statutes.(1) Since the inception of the citizen suit provision in the Clean Air Act twenty-four years ago,(2) judicial developments have enmeshed the citizen suit in a complex web of threshold standing requirements.(3) These requirements, emerging from constitutional and statutory interpretation as well as jurisprudential considerations, restrict the classes of plaintiffs who may take advantage of the citizen suit authority provided by Congress.

   This tension between legislative endowment and judicial restraint of a citizen's right to enforce environmental laws has generated several interacting doctrines which sometimes produce great difficulty in determining the range of citizens who have standing to sue in a given situation. Nevertheless, Congress retains considerable power to confer standing on litigants, and could use this power to clarify the nature of the standing inquiry as it relates to citizen suits.

   In the recent case of Lujan v. Defenders of Wildlife,(4) the Supreme Court emphasized the minimum requirements imposed on federal litigants by the Cases and Controversies Clause of the Constitution.(5) The Court held that a plaintiff seeking standing to sue must demonstrate a particularized and imminent injury "fairly ... trace[able]" to the alleged unlawful conduct, and that a favorable decision will likely redress the injury.(6) The Court's opinion, applying a separation-of-powers analysis, precludes Congress from conferring standing on any plaintiff who is unable to meet these minimum constitutional requirements.(7) Beyond that limitation, however, the Defenders opinion acknowledged that Congress retains the authority to grant standing to a broad range of citizens.(8)

   The Court's decision in Defenders focused largely on the nature of the specific injury required to satisfy the constitutional test.(9) While the injury standard established in Defenders will undoubtedly become a topic of much debate among practitioners and scholars,(10) this comment focuses instead on the dynamics of standing in a context that generally presumes satisfaction of the injury standard. The comment examines the structural interaction of constitutional, statutory, and jurisprudential standing requirements in order to evaluate the scope of congressional power to confer standing on private citizens.

   2. OVERVIEW OF CITIZEN SUIT PROVISIONS

      1. Origin of the Citizen Suit

         Congress first established the citizen suit in the 1970 amendments to the Clean Air Act,(11) in response to a perceived governmental failure to enforce the statute.(12) Even then the need to provide some limitation on the range of potential plaintiffs was apparent, and several provisions of the Clean Air Act were intended to prevent abuse.(13) For example, a sixty-day notice period was required to allow the federal or state agency to begin enforcement proceedings,(14) and a citizen suit could not be filed if an agency was diligently prosecuting the violation.(15) The applicability of the citizen suit provision was limited to violations of emission standards or limitations, violations of administrative orders, and administrative failure to perform a mandatory duty.(16) The term "emission standard or limitation" also was restrictively defined by the 1970 amendments, further limiting the applicability of the citizen suit provisions.(17) The amendments allowed citizen suits to enforce statutory standards or compel performance of mandatory actions, but did not provide for damage awards (although the right to common-law actions for damages was preserved).(18) The legislation also authorized the courts to award litigation costs and attorneys fees to either party when appropriate.(19)

         The overall impact of these features was to establish a citizen suit mechanism based on the violative conduct of the polluter or regulating agency, rather than focusing on the specific nature of the injured interest, while restricting the scope of relief and including a retaliatory remedy for frivolous lawsuits.

      2. Basic Structure of Citizen Suit Provisions

         Once established in the Clean Air Act, the citizen suit provision quickly became a standard feature of environmental legislation.(20) The institutionalization of the citizen suit is evident in the similarity of the provisions enacted in different statutes, although some important differences have developed.(21) Citizen suit laws generally provide for federal question jurisdiction in the district courts,(22) sixty-day notice requirements,(23) and prohibitions against suits where the relevant agency is diligently prosecuting the infraction.(24) They provide remedies of injunctive relief (and civil penalties in some cases);(25) several allow for bond requirements where a plaintiff seeks a temporary restraining order or preliminary injunction;(26) and they provide for awards of litigation costs and attorney fees.(27)

         With the exception of the Clean Water Act, these citizen suit provisions typically grant authority to "any person" to file a citizen Suit.(28) The term "person" is further defined in each of these statutes.(29) These provisions characteristically permit suits to be filed against "any person" who is in violation of the specifically enumerated standards.(30)

         In summary, these statutes grant authority to a wide variety of potential plaintiffs to file citizen suits under specified circumstances. However, courts interpret this statutory grant of authority within a framework of established standing requirements, and the threshold question of standing has become a central feature of citizen suit practice.

   3. SOURCES OF STANDING REQUIREMENTS

      1. The Warth Framework

         The question of standing simply asks "[w]hether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy."(31) However, the answer to this question in citizen suit cases frequently requires the categorization of the sources of standing requirements according to a pecking order described in Warth v. Seldin.(32) In Warth, the Court noted that the inquiry into standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise."(33) These constitutional limitations are derived from the case or controversy requirements of Article III, restricting the exercise of judicial power to the resolution of grievances in which the plaintiff has suffered an actual injury.(34)

         In addition to constitutional requirements, the Warth Court recognized other limitations "closely related to Article III but essentially matters of judicial self-governance."(35) These prudential limitations included the Court's prohibition against allowing individual plaintiffs to assert widely-shared "generalized grievances" and the general policy that a plaintiff "cannot rest his claim to relief on the legal rights or interests of third parties."(36) Despite the strength of these prudential policies, however, the Court recognized that such restrictions could not withstand conflicting action by the legislative branch: "Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules."(37)

         The interrelated propositions of constitutional and prudential limitations define the core of the standing analysis. The constitutional requirements are fundamentally unalterable; congressional directives may define the remaining aspects of standing; and where Congress does not provide clear directives, the courts may fill gaps in the standing doctrine with jurisprudential requirements.

      2. Constitutional Requirements

         The Court's decision in Lujan v. Defenders of Wildlife generally reiterates the fundamental principle announced twenty years earlier in Sierra Club v. Morton.(38) In Morton, the Sierra Club

         under the Administrative Procedure Act to challenge the issuance of commercial development permits in a national game refuge.(39) Sierra Club sued in its capacity as a membership organization with "a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country."(40) However, Sierra Club did not allege that any of its members "would be affected in any of their activities or pastimes by the ... development."(41) The Court held that this failed the "injury fact test" requiring "the party seeking review be himself among the injured."(42) In doing so, the Court also recognized that the required injury could be aesthetic in nature, and that Congress could expand the range of redressable injuries subject to citizen standing through legislation.(43) The Court indicated that broadly-shared aesthetic interests, as well as economic harms, could satisfy the injury requirement.(44) The problem with Sierra Club's allegation was that it represented only the interests of the general public.(45) The Court rejected this approach because Sierra Club sought to assert general grievances without demonstrating that any of its members actually suffered any particular harm.(46)

         The Court refined this. fundamental injury requirement throughout the next two decades, eventually forming it into the three-pan test announced in Defenders.(47) The dispute apparent in the varying Justices' opinions in Defenders focuses on the factual specificity required to satisfy this standard.(48) Although this debate over the factual requirements of the constitutional injury standard will undoubtedly continue to draw much attention,(49) the Defenders decision also is remarkable in its efforts to clarify the relative dominions of the courts and the legislature in determining who has standing.(50) The...