Are environmental lawsuits for everyone?

The following post was written by staff member Derek Leslie.

Who is permitted to bring an action to protect the environment or a natural resource when it is threatened? As a plaintiff, the answer to that question can mean getting your foot in the door, or alternatively, having it slammed in your face. The question's significance, then, can hardly be underestimated and certainly cannot be overlooked. In the area of environmental law, where groups like the Sierra Club pursue court action protecting the environment, standing has been a contentious issue.


While statutes can expand and limit what is required for standing with respect to a particular cause of action, the Supreme Court has recognized three elements required for so-called "classical" standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the plaintiff must have suffered an injury in fact; this injury must be concrete and particularized as well as actual and imminent. Secondly, the injury and conduct complained of must be casually connected. Finally, it must be likely that a favorable decision of the court would redress the injury. Id. at 560-561.


It is easy for plaintiffs, particularly national environmental groups, to run afoul of the simple requirements, particularly with respect to the need for injury in fact. For example, what injury did an environmental group called 4 Clean Lakes, whose membership consists entirely of citizens from Town A, suffer when Citizen B pollutes Town B's lake, a lake no member of 4 Clean Lakes has ever visited? Obviously, it is more natural that an avid swimmer in Town B's lake brings a suit rather than any member of 4 Clean Lakes. This example implicitly acknowledges that a group may bring an action, however, where one of its members would have had standing to bring the action herself, the interests it seeks to protect are germane to its purpose, and neither the claim asserted nor the relief requested require the individual members' participation in the lawsuit. Hunt v. Washington State Apple Advertising Com'n, 432 U.S. 333, 333 (1997). The bar for an individual's injury in fact is actually fairly low. Plaintiffs may adequately allege injury in fact if they use the area in question, and the aesthetic and recreational values of the area will be diminished by the challenged activity. Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 183 (2000).



Looking to the policy reasons behind standing, the requirements appear to further these goals. Generally speaking, standing is meant to ensure that courts do not entertain litigation based on tenuous legal interests with parties who may not pursue claims as diligently as someone who is injured directly. Thus, standing requirements help to manage the number of cases on a court's docket and also helps to ensure robust litigation between fully invested parties. Nevertheless, some have considered these standards in an environmental case too stringent. In response, several states have passed their own Environmental Protection Acts, which among other things have reduced the requirements of standing in state environmental cases. Potential plaintiffs, therefore, would do well to be aware of their particular jurisdiction's stance on the requirements of standing.