State Citizen Suits, Standing, and the Underutilization of State Environmental Law

Date01 June 2022
AuthorPalden Flynn and Michael Barsa
by Palden Flynn and Michael Barsa
This Article explores the relationship bet ween state environmental citizen suit provisions and judicial standing
requirements, and analyzes whether the introduction of citizen suits into state statutory law inspired increas-
ingly strict state standing requirements, as occurred at the federal level. Specifically, it identifies how state
judiciaries have interpreted standing and aggrievement in response to general, non-media-specific citizen
suit provisions, both in the common law and in administrative law. It aims to determine whether judicial tight-
ening of standing rules has made it harder for plaintiffs to gain access to state courts, and whether standing
requirements are the reason state citizen suits have been underutilized and alternative legal channels have
proven more useful. It concludes that state legislatures and administrative agencies actually are the source of
many of the barriers to citizen suits.
Palden Flynn is an attorney with Edelson PC. Michael Barsa is Northwestern University Pritzker
School of Law Professor of Practice and co-director of the environmental law concentration.
In 1974, Patricia A. Renovitch published e Florida
Environmental Protection Act of 1971: e Citizen’s
Role in Environmental Management, a predictive article
about how future courts’ broad or narrow interpretations
of standing would aect citiz ens’ ability to sue under the
then-new environmental citizen suit statutes.1 Renovitch
explained that if courts construed states’ novel citizen suit
provisions liberally, then citizens would not need to pro-
mote alternative legal doctrines (e.g., expanding the public
trust doctrine or granting standing to natura l objects)2 to
strengthen the judiciary’s role in protecting the environ-
ment.3 Conversely, Renovitch explained that if courts con-
strued these provisions narrowly, then citizens would need
to promote alternative legal doctrines.4
Nearly half a century later, it is clear that Renovitch
was right to identify these risks, and correctly predicted
1. Patricia A. Renovitch, e Florida Environmental Protection Act of 1971:
e Citizen’s Role in Environmental Management, 2 F. S. U. L. R. 736,
741-42 (1974).
2. Id. at 740-42. Renovitch correctly predicted that state legislatures have cre-
ated more public trust statutes than citizen suit statutes, but was incorrect
about natural standing, which Florida legislated against in 2019.
3. Id. at 737, 741-42, 752.
4. Id.
the growth of the public trust doctrine.5 Renovitch also
predicted that standing would be the primary barrier to
access to courts, wh ich we conclude is partly true. O ver the
past ve decades, state court s and legislatures have actually
relaxed sta nding requirements, although ma ny require-
ments are still too strict, and have also constructed other
procedural and nancia l barriers that deter citizen action.
5. e expanded use of the public trust doctrine is a phenomenon beyond the
scope of this Article. See generally M C. B  ., T P
T D  45 S (2014) (Lewis & Clark Law School Legal
Studies Research Paper). As of 2014, 45 states had enacted some version of
the public trust doctrine, far more than those who had enacted general or
media-specic citizen suit statutes.
However, like citizen suit plaintis, public trust doctrine plaintis also
face standing issues. As of 2014, citizens have common-law standing to sue
under the doctrine in Alabama, Alaska, Arkansas, California, Florida, Ha-
waii, Idaho, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota,
Mississippi, Missouri, Montana, New Hampshire, New Jersey, New Mex-
ico, New York, North Carolina, Oregon, Pennsylvania, Texas, Utah, Ver-
mont, Washington, and Wyoming. Citizens have statutory standing to sue
under the doctrine in Alaska, Arizona, California, Connecticut, Delaware,
Michigan, Minnesota, Montana, New Jersey, New York, North Dakota,
Oregon, Pennsylvania, Virginia, Wisconsin, and Wyoming. Citizens have
administrative aggrievement to sue under the doctrine in Hawaii, Idaho,
Maryland, and Rhode Island. Finally, citizens have constitutional standing
to sue under the doctrine in Alaska, California, Hawaii, Illinois, Louisiana,
Montana, New York, and Pennsylvania.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
However, somewhat surprisingly, it is state legislatures
(rather than state judiciaries) and administ rative agencies
that are the source of many of the would-be citizen suit
plainti’s barriers.
In other words, the same legislatures that “gave” citi-
zens additional rights throug h new environmental statutes
on the one hand, also “took away” the ability of plaintis
to enforce those rights. is has mea nt that alternative
enforcement mechanisms have become correspondingly
more important, and this Article explores several such
mechanisms that citizens have found since the time Reno-
vitch’s art icle was published.
I. Background
In the 1960s, the U.S. Congress began to enact environ-
mental protection statutes that required certa in kinds of
federal agency action.6 However, legislators quick ly real-
ized that these statutes lacked sucient enforcement
mechanisms to gua rantee that federal agencies would actu-
ally address pollution on a national scale, as the executive
branch and the administ rative bureaucracy could not keep
up with violat ions.7 As a result, Congress passed additional
environmental acts with citizen suit provisions in the 1970s
to enable citizens to enforce environmental laws them-
selves. By turning citizens into private attorneys general
who could sue both violators and the agencies who faile d
to regulate those violators, Congress created a safeguard
to ensure that the executive branch and the bureaucracy
would not fall behind.8 Under these novel provisions, citi-
zens were able not only to sue those who violated federal
environmental statutes, but also to sue those agencies that
failed to enforce the law.9
However, it soon became clear that citizen suit provi-
sions alone could not guarantee court access for poten-
tial plaintis. Faced with a surge of citizen suits brought
by private persons seeking to enforce federal law, either
in their own interest or in the public interest, the U.S.
Supreme Court began to impose other restrictions to mak e
it more dicult for citizens to reach federal courts. e
most important such restriction has been the doctrine
of standing. is doctrine derives f rom Article III of the
U.S. Constitution, which only allows the federal judiciar y
to adjudicate “cases and controversies.”10 In other words,
even if Congress enacts a citizen suit provision allowing an
individual to sue, that individua l may not avail himself or
herself of federal court if that individual lacks standing to
bring a case.11
6. R K C, S  E L: A O-
 (FSU College of Law, Public Law Research Paper No. 425, 2009).
7. Peter A. Alpert, Citizen Suits Under the Clean Air Act: Universal Standing for
the Uninjured Private Attorney General?, 16 B.C. E’ A. L. R. 283,
310 (1988).
8. Jonathan H. Adler, Stand or Deliver: Citizen Suits Standing and Environmen-
tal Protection, 12 D E’ L.  P’ F. 39, 52 (2001/2002).
9. C, supra note 6, at 1.
10. U.S. C. art. 3, §2, cl. 1.
11. See Adler, supra note 8, at 51-52; Lujan v. Defenders of Wildlife, 504 U.S.
555, 22 ELR 20913 (1992). e Supreme Court explicitly dened federal
standing in the context of the environmental citizen suit in Lujan.
is has become problematic for plaintis, because the
Supreme Court has a well-documented history of narrow-
ing standing requirements in response to federal environ-
mental legislation.12 While the do ctrine h as gone through
an evolution over the past 50 years, by 1992, the Supreme
Court established a narrow, three-part test for standing.13
First, all plaintis must suer an injury-in-fact, meaning
an injury of a legally protected interest that is b oth concrete
and particula rized and also either act ual or imminent.14
Second, there must be a causal connection bet ween the
injury and the conduct brought before the court.15 ird,
it must be likely, not just speculative, that a favorable deci-
sion by the court will redress the injury.16 Notably, even
though federal citizen suits genera lly vindicate the public’s
interest rather than an individual’s interests, the Supreme
Court has declined to recognize an Article III case or con-
troversy where the federal plaintis t hemselves failed to
show that there was a particularized, actual, or imminent
injury to them.17
erefore, while Congress enacted a multitude of fed-
eral citizen suit provisions creating opportunities for citi-
zen enforcement of federal environmental law, the Supreme
Court reacted by pronouncing that citizens do not have
standing to sue for legal or regulatory violations that do
not directly impact them. In this way, access to courts is
not just a question of having a statute that enables citizen
enforcement, it is also a question of the judiciary’s interpre-
tations of that statute. While scholars have evaluated judi-
cial standing requirements extensively at the federal level,
these questions have not been answered in a comprehensive
way at the state level.
is Article conducts a parallel review of state citizen
suit provisions and evaluates whether state judiciaries
reacted to state citizen suit statutes in a similar way. is
research will identif y whether, when state legislatures have
given citizens opportunities to sue, state judiciaries have
12. See Adler, supra note 8, at 51-57 (Part III examines the Supreme Court’s
competing approaches to standing, as typied by Lujan and Friends of the
Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 30 ELR
20246 (2000).).
13. Lujan, 504 U.S. at 560.
14. Id.; Conservation L. Found., Inc. v. Jackson, 964 F. Supp. 2d 152 (D. Mass.
2013) (“[F]or an injury to be ‘particularized,’ it must aect the plainti in a
personal and individual way,” meaning that it must be a special injury.). At
the state level, “injury-in-fact” does not necessarily mean that the plainti
experienced a special injury. In Part II, many states discussed require an
“injury-in-fact” but not a special injury.
15. Lujan, 504 U.S. at 560.
16. Id.
17. Id. (Justice Antonin Scalia wrote that, “to allow that interest to be converted
into an individual right by a statute ... would authorize Congress to trans-
fer from the President to the courts the Chief Executive’s most important
constitutional duty, to ‘take Care that the Laws be faithfully executed.’”
(citing U.S. C. art. 2, §3)). Note that in 2000, the Supreme Court did
broaden somewhat the denitions of “injury-in-fact” and “redressability,
holding that the deterrence aorded by civil penalties suciently redressed
an environmental injury-in-fact even though such penalties would be paid
to the government, not to plaintis themselves. Michael P. Healy, Standing
in Environmental Citizen Suits: Laidlaw’s Clarication of the Injury-in-Fact
and Redressability Requirements, 30 ELR 10455 (June 2000) (“[T]he de-
terrence aorded by civil penalties was sucient redress for environmental
injury-in-fact.”); see also Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20469
(1972) (the lessening of aesthetic and recreational values are forms of harm);
Adler, supra note 8, at 56 (citing Friends of the Earth, 528 U.S. 167).
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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