A shift in citizen suit standing doctrine: Friends of the earth, Inc. v. Laidlaw environmental services

Ecology Law Quarterly

Volumn 28, Issue 2, 2001, Pages 233-251

  Henry, Hudson P ^a  

^a NONE

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EID: 0035626909     PISSN: 00461121     EISSN: None     Source Type: Journal    
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References (144)

1. See, e.g., William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221 (1988); Craig N. Johnston, Standing and Mootness After Laidlaw, 30 ENVTL. L. REP. 10,317 (2000); Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741 (1999); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992).
2. See, e.g., William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221 (1988); Craig N. Johnston, Standing and Mootness After Laidlaw, 30 ENVTL. L. REP. 10,317 (2000); Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741 (1999); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992).
3. See, e.g., William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221 (1988); Craig N. Johnston, Standing and Mootness After Laidlaw, 30 ENVTL. L. REP. 10,317 (2000); Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741 (1999); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992).
4. See, e.g., William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221 (1988); Craig N. Johnston, Standing and Mootness After Laidlaw, 30 ENVTL. L. REP. 10,317 (2000); Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741 (1999); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992).
5. See, e.g., William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221 (1988); Craig N. Johnston, Standing and Mootness After Laidlaw, 30 ENVTL. L. REP. 10,317 (2000); Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741 (1999); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992).
6. See Fletcher, supra note 1, at 221.
7. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (denying standing for citizen suit claim under Endangered Species Act); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) (denying standing for citizen suit claim under Emergency Planning and Community Right-To-Know Act).
8. 528 U.S. 167 (2000).
9. This decision has prompted significant commentary. Thus, there are a variety of articles commenting on this case that should be reviewed in addition to this Note. See, e.g., Stephen Lanza, The Liberalization of Article III Standing: The Supreme Court's Ill-Considered Endorsement of Citizen Suits in Friends of the Earth v. Laidlaw Environmental Services, Inc., 52 ADMIN. L. REV. 1447 (2000): Joseph T. Phillips, Friends of the Earth v. Laidlaw Environmental Services, Inc.: Impact, Outcomes, and the Future Viability of Environmental Citizen Suits, 68 U. CIN. L. REV. 1281 (2000).
10. This decision has prompted significant commentary. Thus, there are a variety of articles commenting on this case that should be reviewed in addition to this Note. See, e.g., Stephen Lanza, The Liberalization of Article III Standing: The Supreme Court's Ill-Considered Endorsement of Citizen Suits in Friends of the Earth v. Laidlaw Environmental Services, Inc., 52 ADMIN. L. REV. 1447 (2000): Joseph T. Phillips, Friends of the Earth v. Laidlaw Environmental Services, Inc.: Impact, Outcomes, and the Future Viability of Environmental Citizen Suits, 68 U. CIN. L. REV. 1281 (2000).
11. See U.S. CONST, art. Ill, § 2.
12. See Allen v. Wright, 468 U.S. 737, 750 (1984).
13. See id. at 751; Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972).
14. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). This three-prong test arose after the abandonment of the "legal interest" test previously used to determine standing. See Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970).
15. See, e.g., Coleman v. Miller, 307 U.S. 433, 464-68 (1939) (Frankfurter, J., concurring). This statement marked the first time that the court stated, albeit in dicta, that Article III standing was required for jurisdiction. See Martin A. McCrory, Standing in the Ever-Changing Stream: The Clean Water Act, Article III Standing, and Post-Compliance Adjudication, 23 STAN. ENVTL. L.J. 73, 86 (2001).
16. See, e.g., Coleman v. Miller, 307 U.S. 433, 464-68 (1939) (Frankfurter, J., concurring). This statement marked the first time that the court stated, albeit in dicta, that Article III standing was required for jurisdiction. See Martin A. McCrory, Standing in the Ever-Changing Stream: The Clean Water Act, Article III Standing, and Post-Compliance Adjudication, 23 STAN. ENVTL. L.J. 73, 86 (2001).
17. Pierce, supra note 1, at 1767. Many other scholars have offered subsequent justifications for the standing doctrine. Alexander Bickel, for example, suggests that standing and other "passive virtues" serve to preserve the legitimacy of the federal courts by avoiding deciding issues that would otherwise generate controversy. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 111-198 (1962).
18. See Laveta Casdorph, The Constitution and Reconstitution of the Standing Doctrine, 30 ST. MARY'S L.J. 471 (1999) (providing a detailed discussion of the evolution and history of standing doctrine).
19. Pierce, supra note 1, at 1742-43 ("The doctrinal elements of standing are nearly worthless as a basis for predicting whether a judge will grant individuals with differing interests access to the courts.").
20. 16 U.S.C. § 1540(g)(A) (2000) ("[A]ny person may commence a civil suit on his own behalf [] to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter.").
21. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992) (noting that none of DOWs members had shown that they had specific travel arrangements to observe or study an adversely impacted species).
22. See id. at 574-75 (arguing that the lack of individual harm and the remedy sought, agency action, classifies DOWs claim as a generalized grievance).
23. 478 U.S. 221 (1986).
24. Compare id. at 231 n.4, with Defenders of Wildlife, 504 U.S. at 563-64 (highlighting the dissimilar treatment of similar alleged injuries).
25. Pierce, supra note 1, at 1756 (noting that the Court failed to state any requirement that the American Cetacean Society prove they had immediate whale watching plans for the injury-in-fact analysis).
26. See Defenders of Wildlife, 504 U.S. at 567.
27. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688-90 (1973).
28. See id. at 676.
29. See id. at 688-89.
30. See Fletcher, supra note 1, at 258-60 (discussing possible rationales for the Court's seemingly odd decision).
31. See Peter Manus, To a Candidate in Search of an Environmental Theme: Promote the Public Trust, 19 STAN. ENVTL. L.J. 315, 345 (2000).
32. Daniel A. Farber, Environmental Litigation After Laidlaw, 30 ENVTL. L. REP. 10,516, 10,522 (2000).
33. 523 U.S. 83 (1998).
34. See supra note 9 and accompanying text.
35. See STEPHEN G. BREYER, ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY: PROBLEMS, TEXT, AND CASES 916 (4th ed. 1999) ("If the plaintiffs in Lujan had a plane ticket to visit the places where the relevant species could be found, it seems generally agreed that the injury-in-fact requirement would have been satisfied.").
36. 42 U.S.C. § 11046(a) (2000).
37. See Steel Co., 523 U.S. at 88.
38. See id. at 107 ("[A]lthough a suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated . . . that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.").
39. See 16 U.S.C. § 1540(g) (2000) (ESA's citizen suit provision).
40. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) ("To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed." (quoting U.S. CONST, art. II, § 3)).
41. See id. at 580 (Kennedy, J., concurring) ("In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.").
42. The Court's recent decision in Laidlaw seems to support Professor Sunstein's prediction. See Sunstein, supra note 1, at 236.
43. See Steel Co., 523 U.S. at 127.
44. See id. at 130.
45. See Defenders of Wildlife, 504 U.S. at 579-80.
46. 524 U.S. 11 (1998). See Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 674 (1999).
47. 524 U.S. 11 (1998). See Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 674 (1999).
48. See 2 U.S.C. § 441 (2000).
49. See Akins, 524 U.S. at 19-20.
50. See id. at 24-25.
51. See Farber, supra note 26, at 10,517; Fletcher, supra note 1, at 221; Pierce, supra note 1, at 1742.
52. See Farber, supra note 26, at 10,516.
53. See id. at 10,517.
54. See id.; see also Pierce, supra note 1, at 1759-60 (finding a strong statistical correlation between judges' politics and their decisions concerning environmental suit standing).
55. See Farber, supra note 26, at 10,517.
56. Scalia, supra note 1.
57. See id. at 896. But see Pierce, supra note 1, at 1774. (noting that Scalia's proposal would further a policy goal opposite of the goal that motivated Brandeis and Frankfurter to initially develop Article III standing doctrine (see supra note 11 and accompanying text)).
58. See Farber, supra note 26, at 10,518.
59. See id. at 10,517.
60. See id.
61. See id. (stating that the rationale is simple: a cause of action constitutes a legal interest and deprivation of that interest causes a cognizable injury, so if Congress creates a cause of action then all requirements of injury-in-fact should be satisfied).
62. See Fletcher, supra note 1, at 253-54.
63. See Sunstein, supra note 1, at 236 ("[A]n injury in fact is neither a necessary nor a sufficient condition for standing. Indeed, the notion of injury in fact is a form of Lochner-style substantive due process. It assumes that there can be a factual inquiry into 'injury' independent of evaluation and of legal conventions. There can be no such law-free inquiry. . . . Despite the holding of Lujan, Congress should be permitted to grant standing to citizens.").
64. Laidlaw purchased a facility in Roebuck, South Carolina that included a wastewater treatment facility. See Friends of the Earth, Inc. v. Laidlaw Envtl. Svcs., 528 U.S. 167 (2000).
65. The Clean Water Act (CWA) requires entities that discharge pollutants to have NPDES permits. See 33 U.S.C. §§ 1311, 1342 (2000). The act also provides for citizen suit enforcement of the NPDES provisions. See 33 U.S.C. § 1365 (2000).
66. See Laidlaw, 528 U.S. at 176.
67. 33 U.S.C. § 1365(a) sets forth the procedures under the CWA for filing a citizen suit.
68. See Laidlaw, 528 U.S. at 178.
69. See id. at 176. Pursuant to 33 U.S.C. § 1365(b)(1)(B), a citizen suit cannot be filed if, within 60 days after filing the notice, the Administrator files a civil or criminal action seeking compliance from the alleged violator. The court recognized that Laidlaw's sole reason for requesting that DHEC file suit was to "bar FOE's proposed citizen suit." Id.
70. See id. at 176-77.
71. See id. at 177.
72. The District Court found that this suit was not diligently prosecuted, and was only filed to displace the pending citizen suit. See id. at 178 n.1.
73. Id. at 177.
74. See id. (quoting the District Court).
75. See id. at 168.
76. See id. at 179 (quoting transcript record of District Court hearing).
77. See id.
78. See 149 F.3d 303 (4th Cir. 1998)
79. See id. at 306.
80. See Laidaw, 528 U.S. at 179 (noting that civil penalties for past violations cannot support standing redressability requirements).
81. See 525 U.S. 1176 (1999).
82. Laidlaw closed, dismantled, and put up for sale, the entire facility. Thus, all discharges from the facility permanently ceased. 76. 528 U.S. 167 (2000).
83. Id. at 180-83. The Court also briefly examined the mootness issue. The majority held that the Fourth Circuit erred in finding the case moot, explaining that a defendant's voluntary cessation of statutory violations does not moot a case unless that defendant shows it is absolutely clear that the behavior cannot be reasonably expected to recur. See id. at 189-94; see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66-67 (1987); United States v. Concentrated Phosphate Export Ass'n. 393 U.S. 199, 203 (1968). Because Laidlaw had not given up its NPDES permit or proven that violations could not reasonably be expected to recur, the majority held that this was an issue for the lower court on remand. See Laidlaw, 528 U.S. at 194. Justice Stevens in his concurrence expressed concern at the prospect of the plant closure mooting the lower court's holding on remand. He argued that post-judgment conduct should never invalidate that judgment. Id. at 196.
84. An NPDES permit holder can violate that permit's restrictions while not causing sufficient pollution damage to exceed EPA water quality standards.
85. See Laidlaw, 528 U.S. at 181.
86. One FOE member, Kenneth Lee Curtis, averred that he lived near the facility and occasionally drove over the river. Curtis stated that he would like to "fish, camp, swim, and picnic in and near the river between 3 and 15 miles downstream from the facility." See id. at 181-83. Other plaintiff group members attested to similar concerns. See id. CLEAN member Gail Lee averred that her home near Laidlaw's facility "had a lower value than similar homes located further from the facility, and that she believed the pollutant discharges accounted for some of the discrepancy." See id. 81. See id. at 183 (citing Sierra Club v. Morton, 405 U.S. 727, 735 (1972). and Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992) for support).
87. See Laidlaw, 528 U.S. at 184-85 ("[W]e see nothing 'improbable' about the proposition that a company's continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms. The proposition is entirely reasonable, the District Court found that it was true in this case, and that is enough for injury in fact.").
88. See Manus, supra note 25, at 350 (noting that the Court used Scalia's narrow factual construction technique against him to alter the law in Steel Co.).
89. See Laidlaw, 528 U.S. at 185-86.
90. See Gwaltney of Smithfleld, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 59 (1987).
91. See Laidlaw, 528 U.S. at 185.
92. See id. at 185-86; see also Michael P. Healy, Standing in Environmental Citizen Suits: Laidlaw's Clarification of the Injury-in-Fact and Redressability Requirements, 30 ENVTL. L. REP. 10,455, 10,466 (2000) (noting that the Court's acknowledgement of the relevance of Congressional intent further strengthens and legitimizes the reasoning in Akins).
93. See id. at 185-86; see also Michael P. Healy, Standing in Environmental Citizen Suits: Laidlaw's Clarification of the Injury-in-Fact and Redressability Requirements, 30 ENVTL. L. REP. 10,455, 10,466 (2000) (noting that the Court's acknowledgement of the relevance of Congressional intent further strengthens and legitimizes the reasoning in Akins).
94. See Laidlaw, 528 U.S. at 188.
95. See supra note 61 and accompanying text.
96. See Gwaltney, 484 U.S. at 59.
97. See Laidlaw, 528 U.S. at 197 (noting that "difficult and fundamental" questions are raised by such delegations of Executive power).
98. See id. at 198 (joined by Justice Thomas).
99. Id. at 201.
100. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
101. See Laidlaw, 528 U.S. at 199-200 (arguing that a lack of harm to the environment should equal a lack of harm to the plaintiffs).
102. See id. at 202 (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 106-07 (1998)).
103. See id.
104. 410 U.S. 614 (1973).
105. See Laidlaw, 528 U.S. at 203.
106. See Linda R.S., 410 U.S. at 617-18.
107. See Laidlaw, 528 U.S. at 204. But see id. at 188 n.4 (providing the majority's response, which argues that Linda R.S. is distinguishable by the special status of criminal prosecutions, and by the fact that incarcerating the father and reducing his earning power would be very unlikely to redress the plaintiffs lack of child support).
108. See id. at 186.
109. See id. at 208. But see supra note 101 (majority response to this argument).
110. See id. at 188 n.4 (noting that the Justice Department had submitted amicus briefs supporting FOE in the District Court, the Court of Appeals, and the Supreme Court).
111. See id. at 209; see also U.S. CONST. art. II, § 2.
112. See Laidlaw, 528 U.S. at 209-10 (citing 33 U.S.C. § 1365(b) (2000)).
113. See id. at 210.
114. See Manus, supra note 25, at 350-51 (observing that Laidlaw may represent the Court's backlash against Scalia's unilateral control over the issue of environmental standing in recent years).
115. See Farber, supra note 26, at 10,517-18 (noting that this may move litigation closer to the public law model).
116. See id. at 10,519.
117. This wider recognition of cognizable harms and deference to congressional grants of private enforcement authority signifies the shift to a broader compromise between the traditional private law model of adjudication and the public law model the Court has previously resisted. See supra notes 45-56 and accompanying text.
118. See supra notes 15-24 and accompanying text.
119. See Farber, supra note 26, at 10,522 ("Laidlaw . . . is a welcome sign that the long string of restrictive environmental standing decisions may be coming to an end. It is particularly welcome in its clarification that 'injury-in-fact' is a contextual question, requiring not only a classification of different forms of damages but a consideration of harm to the plaintiffs relationship with the environment.").
120. Pierce, supra note 1, at 1767-68.
121. 204 F.3d 149 (4th Cir. 2000) (en banc).
122. See Johnston, supra note 1, at 10,323.
123. See Gaston, 204 F.3d at 158.
124. See id. at 152-53.
125. See id. at 153.
126. Id. at 154.
127. See id. at 163.
128. See id. at 164 (arguing that before Laidlaw he would have upheld the judgment, and disagreeing with the majority that this case could be distinguished as doctrinally consistent with prior Article III standing).
129. Friends of the Earth, Inc. v. Laidlaw Envtl. Svcs., 528 U.S. 167, 180-81 (2000).
130. See Farber, supra note 26, at 10,518.
131. See id.
132. See Fed. Election Comm'n v. Akins, 524 U.S. 11, 24-25 (1988).
133. Cf. Farber, supra note 26, at 10,520-21. (arguing that this compromise will lead to inconsistent and unprincipled application).
134. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 129 (1998).
135. See Friends of the Earth, Inc. v. Laidlaw Envtl. Svcs., 528 U.S. 167, 197 (2000).
136. See id. at 209-10.
137. See U.S. CONST, art. II, § 3.
138. See supra notes 95, 96 and accompanying text.
139. See Fed. Election Comm'n v. Akins, 524 U.S. 11, 24-25 (1988).
140. See Laidlaw, 528 U.S. at 185; Akins, 524 U.S. at 24-25.
141. Akins, 524 U.S. at 24-25.
142. See Laidlaw, 528 U.S. at 185 (quoting Tull v. United States, 481 U.S. 412, 422-23 (1987)).
143. It is of great significance that a 7-2 majority decided Laidlaw.
144. For a detailed discussion of why the Court should allow Congressional grants of enforcement power to citizens, see Sunstein, supra note 1, at 212-14 (arguing that if Article II imposes a duty on the President to enforce the law, then the failure of an executive agency to enforce a statute is a constitutional violation, and the citizen suit provisions merely aid the Executive in fulfilling its constitutional duty). But see Manus, supra note 25, at 351 ("That debate, if it emerges, could significantly undercut the effectiveness of environmental watchdogs. Thus, although Laidlaw may be heartening to environmentalists . . . it would be premature to cast the decision as inviolate precedent or as an end to the obstacles encountered by environmental plaintiffs over the past decades.").