Stand or Deliver: Do Liberalized Standing Rules Advance Environmental Protection?

Abstract

Supreme Court decisions limiting citizen suit standing are commonly viewed as a threat to environmental protection. Lujan v. Defenders of Wildlife, Steel Co. v. Citizens for a Better Environment, and other cases are portrayed as attacks on environmental activists' ability to safeguard the public from pollution while decisions which expand citizen-suit standing, such as Friends of the Earth v. Laidlaw, are seen as victories for environmental protection. The underlying premise of these charges is that citizen suits play an important role in safeguarding environmental values. From this standpoint, legal doctrine which curtails citizen suits is, by implication, anti-environmental. At first blush, this view seems eminently reasonable and intuitive. Citizen suits, insofar as they enhance governmental enforcement of environmental laws and prompt cleanup, should be environmentally beneficial. But is this necessarily so? Do liberalized standing rules, such as those embraced in Laidlaw, maximize environmental protection, or would the ecology be better off with a set of standing rules more focused on a demonstration of environmental harm? This paper argues that liberalized standing rules, insofar as they do not make standing contingent upon any tangible, identifiable environmental harm, cannot be assumed to enhance environmental quality. It further presents evidence that expansive citizen suit litigation may even make some environmental problems worse by exacerbating the perverse incentives created by existing regulations. It concludes by suggesting an alternative approach to citizen-based environmental protection that replaces conventional citizen suit provisions with property rights in environmental resources and explains why such an approach may better serve environmental goals.