Private Enforcement of Public Values in US Courts: Justiciability Barriers in Environmental Law

Abstract

We have seen in many countries the development of specialised environmental courts designed to deal with the complex scientific and economic issues that environmental cases often raise. In the USA, however, with the exception of adjudicative bodies devoted to planning disputes in a few individual states, the environmental court movement is non-existent. Nevertheless, liberal rules of standing and ripeness have enabled environmental plaintiffs to bring thousands of lawsuits under federal statutes such as the Clean Water Act, the Endangered Species Act and the National Forest Management Act. Indeed, the actions of citizen plaintiffs under these statutes have contributed enormously to the considerable progress made in the past 30 years toward cleaner water, cleaner air and healthier ecosystems. Recently, however, the US Supreme Court has signalled that federal courthouse doors may have been opened too wide. Lower federal courts have picked up these signals, but the distinctions and rationales they have used to harness judicial review in environmental cases are not as sound as they may appear. Standing and ripeness questions are ultimately reducible to an inquiry into the concreteness and immediacy of the plaintiff's injury. This essay explores recent thinking in the federal courts about this inquiry. That has resulted in the retrenchment of liberalised standing and ripeness. I conclude its thinking does not withstand critical scrutiny.