"Who do you think you are?" Tales from the trenches of the environmental standing battle.

• Author: Van Tuyn, Peter

Mr. Van Tuyn identifies as a significant trend in environmental law the increasing tendency of federal judges to dismiss proenvironment lawsuits for lack of standing. The trend has been facilitated by United States Supreme Court Justice Antonin Scalia, who urged in a 1983 law review article a stricter application of the standing doctrine for environmental plaintiff and who has applied this strict test in several Supreme Court cases. The private defense bar and Department of Justice have followed suit, Mr. Van Tuyn argues, raising standing as a defense in improbable circumstances without regard to the practical results of their position, including the greatly increased costs of litigating cases in the public interest. "How dare you complain!"

"Just who do you think you are?"

With increasing frequency over the last twenty-five years, federal courts have been driving away environmentalists with decisions that ring like mockery in the ears of the dispatched plaintiffs. This disturbing trend originated with conservative members of the federal judiciary who are prevented by the constitutional principle of separation of powers from changing the underlying environmental laws that appear to cause them so much grief. Instead, they twist other constitutional principles in order to prevent ordinary citizens from even entering the courthouse. Championed by United States Supreme Court Justice Antonin Scalia, this trend can wreak significant damage on the environment and alienate people from the judicial system.

Within our three-branch system of government, the authority of one branch is checked by that of the others.(1) Thus, Congress can enact legislation, but cannot implement it(2); that is the task of the executive branch.(3) The judiciary, in turn, is charged with ensuring that the executive branch implements the laws consistently with Congress's intent and with the United States Constitution.(4)

Ingrained within the separation of powers doctrine lies the concept that the judiciary must limit its review to actual "cases or controversies."(5) As courts have long held, the Framers of the Constitution inserted the "case or controversy" requirement in order to allow plaintiffs standing to bring a lawsuit only when they have a stake in a real dispute.(6) This is a common sense requirement. The courts are not academic institutions or think tanks established to anticipate legal disputes or to consider generalized grievances with no specific impact. Rather, issues are best resolved when real people are so injured and upset by the conduct of others that they will vigorously pursue all legal options for relief. The case or controversy requirement ensures that lawsuits are heard only if the parties are true adversaries, because only true adversaries will aggressively present to the courts all issues that support their position.(7) The courts are then in the best possible position to discern the truth, whether it be predicated upon a question of law or a question of fact.

The United States Supreme Court has established a three-part test for ferreting out cases in which true adversarial positions do not exist.(8) First, a plaintiff must show a concrete and imminent injury in fact.(9) Second, the injury must be "fairly traceable" to the challenged action of the defendant.(10) Third, the court must be able to redress the injury through a favorable Decision.(11) The Court has also said that standing may be limited by judicially created "prudential" considerations, including whether a plaintiff is in the "zone of interest" of the law at issue.(12) The Court has held that Congress can modify these prudential considerations, but the initial three-part test is founded on the Constitution and thus cannot be changed solely by Congress or the courts.(13)

Justice Scalia has relentlessly pursued his desire to raise the standing bar well above its current height.(14) He pushes an interpretation of the case or controversy requirement that mandates more than the traditional application of this test.(15) At the heart of his theory on standing is the idea that courts must reject cases that go against the court's "traditional undemocratic role of protecting individuals and minorities against impositions of the majority."(16) Consequently, he believes the courts must reject cases that place them in the "undemocratic role of prescribing how the other two branches of government should function in order to serve the interest of the majority itself."(17)

Justice Scalia has been successful in pushing his agenda. Writing for the majority in three recent cases in which constitutional standing was at issue, Justice Scalia used his theory to deny standing to environmental plaintiffs in two of the cases yet to grant standing to industry plaintiffs in the third case.(18) Notably, Justice Scalia's theory appears to lower the bar for establishing standing for industrial polluters and others who are the object of government regulation, but to raise the same bar for the beneficiaries of regulation.(19) The threat to the environment posed by Justice Scalia's vision for the standing doctrine is hard to underestimate. As scholars and environmental litigators have stated,

[t]he implications of this theory for environmental advocates are disastrous. According to this view, timber companies, mining firms, industrial manufacturers, and so on--the objects of environmental regulation--should routinely be granted standing to challenge regulatory requirements. On the other hand, environmental groups, which commonly complain about inadequate regulation resulting in widespread environmental harms, should routinely be denied standing. The upshot of this theory is a dramatic redefinition of the role of the federal judiciary in environmental disputes, to the benefit of those who are subject to (and sometimes object to) environmental standards, and to the detriment of those seeking to enforce environmental standards.(20) This trend has not gone unnoticed by industry attorneys and the United States...