Standing and Environmental Law: An Overview

Abstract

Standing has long been one of the most common constitutional challenges in federal environmental cases. While standing is technically a requirement in all federal ]cases in order to satisfy those courts’ constitutional restriction to hearing “Cases” and “Controversies,” standing rarely becomes a contested issue in “normal” litigation involving that plaintiff’s assertion that a defendant injured the plaintiff personally, as in most tort, property, and contract litigation. Instead, it is the “public interest” nature of many environmental lawsuits that has made environmental law a significant flashpoint for the U.S. Supreme Court’s standing jurisprudence. Specifically, because environmental plaintiffs often bring public interest claims, their connections to the legal problems challenged can appear attenuated, prompting defendants to assert that the plaintiffs lack standing to bring the legal challenge.Environmental standing law has a long history in the Supreme Court, but new standing issues, such as the possibility of special standing rules for states, still arise. This chapter begins in Part I by tracing the early history of standing doctrine in the Court. Part II shifts focus to the Court’s specifically environmental standing decisions in the 20th century, emphasizing the importance of its 1992 decision in Lujan v. Defenders of Wildlife. Part III provides an overview of continuing and emerging issues in environmental standing, including, for example, the problem of increased risk (probabilistic) standing and the Supreme Court’s suggestion in Massachusetts v. EPA that states are entitled to “special solicitude” in the standing analysis.