The Persistent Problem of Standing in Environmental Law
| Date | 01 October 2010 |
| Author |
40 ELR 10956 ENVIRONMENTAL LAW REPORTER 10-2010
The rst panel at this conference discussed stand-
ing to invoke federal court review, and related doc-
trines that limit access to the courts. at a standing
panel should begin the day’s discussion of the relationship
between constitutional and environmental law is tting in
three respects. First, establishing st anding is the initial step
in pressing a claim in federal court. Second, standing was the
issue in one of the rst U.S. Supreme Court cases of the mod-
ern environmental era,1 and it remains the most persistent
constitutional quandary for environmental law. ird, citi-
zen standing is critical to the success of environmental law.
e early architects of statutory environmental law under-
stood that the executive branch might not always whole-
heartedly pursue the environmental goals set by the U.S.
Congress.2 ey therefore sought to ensure that interested
citizens could ll that role when the government did not.
Environmental citizen suits presented the cour ts with a new
situation, one that immediately raised standing issues.
Standing is the most important gatekeeper doctrine for
the federa l cour ts, determining who can, and who cannot,
invoke their jurisdiction. e Supreme Court has derived
(some might say invented) the doctrine of standing from
the U.S. Constitution’s description of the judicial power
of the United States as extending to specied “cases” and
“controversies.”3 at forecloses friendly suits or requests for
advisory opinions.4 In order to ensure that the process will be
truly adversaria l,5 and that the legal issues “will be resolved,
not in the raried atmosphere of a debating society, but in a
concrete factual context conducive to a realistic appreciation
of the consequences of judicial action,”6 the Court requires
that a would-be plainti show that she has suered (1)an
“injury in fact;” (2)which is “fairly traceable” to the defen-
1. Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20469 (1972).
2. E.g., J L. S, D E: A S C-
A (1971).
3. U.S. C. art. III, §2.
516, 37 ELR 20075 (2007).
5. Lujan v. Defenders of Wildlife, 504 U.S. 555, 581, 22 ELR 20913 (1992)
(Kennedy, J., concurring).
6. Valley Forge Christian College v. Americans United for Separation of Church
and State, Inc., 454 U.S. 464, 472 (1982).
dant’s challenged action; and (3)that it is likely that a favor-
able ruling would redress that injury.7
Environmental conicts test the limits of each of those ele-
ments. e interests environmental law is intended to protect
are diuse, often shared by millions of people. ey include
interests in directly observ ing natural areas, but also the sat-
isfaction of knowing that beautiful areas or astonishing crea-
tures continue to exist, whether or not we will experience
them in our lifetime. Indeed, environmental law is sup-
posed to protect a nd nurture t he environmental preferences
of future generations as well as those of people now living.8
Furthermore, environmental harms are frequently caused by
a combination of actions taken by a range of actors, compli-
cating the task of showing that any defendant is responsible
for the injury, or that a court victory will correct the problem.
It is no surprise, therefore, that many of the most importa nt
standing cases have been environmental, and that standing
remains an issue in a high proportion of environmental cases.
In the very rst environmental standing case to reach the
Supreme Court, Sierra Club v. Morton,9 the Court addressed
the nature of the requisite injury. e Sierra Club sought
to challenge the decision to authorize development of a ski
resort in a national forest. e Court handed the Sierra Club,
and the generations of environmental pla intis that would
follow, both a crucial victory and an important defeat.
e good news for environmental litigants was that non-
economic injury would suce; the Court recognized their
interest in the esthetics and ecology of the area as the type of
harm that can support sta nding.10 Furthermore, the Court
made it clear that the fact t hat an interest is widely shared is
not a barrier to standing.11 e bad news for the Sierra Club
was that it would be required to show that it or its mem-
bers were concretely injured. Its long-standing expertise and
interest in protecting the Sierra Nevada range from devel-
opment was dismissed as a “mere interest in the problem,”
7. Lujan, 504 U.S. at 560-61.
8. One of the purposes of the National Environmental Policy Act, for example,
is to help the nation “fulll the responsibilities of each generation as trustee of
the environment for succeeding generations.” 42 U.S.C. §4331(b)(1).
9. 405 U.S. 727, 2 ELR 20192 (1972).
10. Id. at 734.
11. Id. (“the fact that particular environmental interests are shared by the many
rather than the few does not make them less deser ving of legal protection
through the judicial process”).
The Persistent Problem of
Standing in Environmental Law
by Holly Doremus
Holly Doremus is Professor of Law, University of California, Berkeley.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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