49 ELR 10064 ENVIRONMENTAL LAW REPORTER 1-2019
courthou se to environmental plainti s every where.8 Ye t,
Sierra Club is probably more famous for the dissent writ-
ten by Justice William O. Douglas. Justice Dougla s argued
that “environmental objects” should be able “to sue for their
own preservation.”9 Rivers, valleys, trees, beaches— all of
these natural objects should be tre ated like other inanimate
objects to which courts have given legal personhood, like
ships or cor porations.10
Justice Douglas’ powerful rhetoric immediately cap-
tured the popular imagination,11 but his colleague Jus-
tice Harry Black mun recognized at the time that it was
not actually that radical a proposal. Practically speaking,
according to Justice Douglas, a river could appea r in
court just as ships or corporations did—that is, repre-
sented by “people who have a meaningful relation to that
body of water.”12 is was not too far from Justice Stew-
art’s majority opinion, which also found a way to allow
those with a meaningful connection to the valley (i.e.,
the Sierra Club) to sue for its protection. is led Justice
Blackmun and his clerks to conclude, “Douglas’ ana lysis
is just an imaginative and novel method of arriving at
Stew art’s r es ult.” 13
Rather, the more radical dissent belonged to Justice
Blackmun. “If this were an ordinary case, I would join the
opinion and the Court’s judgment and be quite content,”
But this is not ordinar y, run-of-the-mill litigation. e
case poses—if only we choose to acknowledge and reach
them—signi cant aspects of a w ide, growing, and dis-
turbing problem, that is, the Nation’s and the world’s
deteriorating environment with its res ulting ecologica l
disturbanc es. Must our law be so rigid and our procedural
concepts so inexible th at we render ourselves helpless
when the existing me thods and the trad itional concepts
do not quite t and do not prove to be entirely adequate
for new issues?15
8. See, e.g., Lisa Schultz Bressman, Procedures as Politics in Administrative Law,
107 C. L. R. 1749, 1762 (2007); Robert V. Percival & Joanna B.
Goger, Citizen Suits and the Future of Standing in the 21st Century: From Lu-
jan and Laidlaw and Beyond: Escaping the Common Law’s Shadow: Standing
in the Light of Laidlaw, 12 D E. L. P’ F. 119, 119-20 (2001);
Andrew C. Lillie, Tenth Circuit Survey: Agency Law Barriers to Successful
Environmental and Natural Resources Litigation: Tenth Circuit Approaches to
Standing and Agency Discretion, 78 D. U. L. R. 193, 197 (2000); Da-
vid R. Hodas, Standing and Climate Change: Can Anyone Complain About
the Weather?, 15 J. L U E. L. 451, 459 (2000); James L. Hu-
man, Symposium on the Public Trust and the Waters of the American West:
Yesterday, Today, and Tomorrow: Introduction and Overview: A Fish Out of
Water: e Public Trust Doctrine in a Constitutional Democracy, 19 E.
L. 527, 546 n.82 (1989).
9. Sierra Club, 405 U.S. at 741-42 (Douglas, J., dissenting).
10. Id. at 742-43.
11. See correspondence in Club Memberships, Sierra Club, 1972-1977 Folder,
Box 1765, William O. Douglas Papers, Library of Congress [hereinafter
Douglas Papers]; Miscellaneous Memos, Cert Memos, Vote of Court Fold-
er, Box 1545, Douglas Papers.
12. Sierra Club, 405 U.S. at 743 (Douglas, J., dissenting).
13. George T. Frampton Jr., Re: Sierra Club No. 70-34, at 6 (Mar. 30, 1972)
(on le in Folder 7, Box 137, Harry Blackmun Papers, Library of Congress
[hereinafter Blackmun Papers]).
14. Sierra Club, 405 U.S. at 755 (Blackmun, J., dissenting).
15. Id. at 755-56.
Justice Blackmun proposed two alternatives to Justice
Stewart’s ruling. First, the Court could nd for the Sierra
Club “on condition that the Sierra Club forthwith amend
its complaint to meet the specications the Court pre-
scribes for standing.”16 Second, Justic e Blackmun would
“permit an imaginative expansion of our traditional con-
cepts of standing in order to enable an organiz ation such as
the Sierra Club, possessed, as it is, of pertinent, bona de,
and well-recognized attributes and purposes in the area
of environment, to litigate environmental issues.”17 is
second option apparently would have allowed indiv iduals
or groups with a deep interest in the environment to have
standing to bring environmental cases even in the absence
of an injury-in-fact.
In the decades following Sierra Club, the Supreme Cou rt
sharply restricted standing for environmental plaintis. In
1992, Justice Antonin Scalia wrote for the Court in Lujan
v. Defenders of Wildlife,18 articulating a new test that, while
still allowing for aesthetic or recreational injuries, made
attaining sta nding considerably harder: a plainti must
demonstrate that he or she has suered (1)a concrete, par-
ticularized, a nd actual or imminent “injury in fact,” which
is (2)“fairly traceable” to the defendant’s conduct, and
(3)which can be redressed by a favorable court decision.19
In Lujan, the Court also ruled, for the rst t ime ever,20 th at
an explicit congressional grant of standing to “citizens” to
sue for a violation of an environmental statute was uncon-
stitutional.21 It is apparent that Justice Sca lia’s opinion was
motivated, in part, by his “undisgui sed hostility toward the
purposes of the environmental laws.”22 Justice Bl ack mun,
in the twilig ht of his ca reer, accused Justice Scalia of going
on a “slash-and-burn expedition through the law of envi-
Today, environmental standing remains incredibly
restrictive. is is a shame, for it prevents many worthy
environmental plaintis from even presenting their cases
in a court of law; it allows those who would desecrate and
despoil the environment for prot to do so with impuni-
ty. 24 Consider ing the c oming envi ronmental catast rophe
that climate change will almost certainly usher in, this is
a shame indeed. Yet, how to x environmental standing?
How to free ourselves from such a complicated, convo-
luted, conservative doctrine?
In this Article, I advocate for the elimination of the
injury-in-fact requirement, at least in environmen-
tal cases. To do so, I thoroughly retrace the history of
standing in general, and of environmental standing in
16. Id. at 756-57.
17. Id. at 757.
19. Id. at 560.
20. Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,”
and Article III, 91 M. L. R. 163, 165 (1992).
21. Lujan, 504 U.S. at 573-77.
22. Percival & Goger, supra note 8, at 120; see also Antonin Scalia, e Doctrine
of Standing as an Essential Element of the Separation of Powers, 17 S
U. L. R. 881, 896-97 (1983).
23. Lujan, 504 U.S. at 606 (Blackmun, J., dissenting).
24. See Holly Doremus, e Persistent Problem of Standing in Environmental
Law, 40 ELR 10956 (Oct. 2010).
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.