Standing and Environmental Harm: The Double Paradox By Jan G. Laitos
In 2012, three conservation organizations brought suit in Sonoma County Superior Court in California against the State Department of Forestry and Fire Protection. The lawsuit challenged a controversial proposal by a corporation to clear-cut 154 acres of redwood forest in order to plant pinot noir wine grapes in Sonoma County. The three environmental protection organizations who were plaintiffs--Friends of the Gualala River, Sierra Club, and Center for Biological Diversity-argued that the state agency being sued had failed, contrary to state law, to consider adequately the environmental impacts of converting forested areas to open a vineyard when it approved the project.
This lawsuit is typical of many, if not most, judicial challenges to government action that seem to adversely affect the natural environment. In such lawsuits three elements are commonly present: (1) the suit is brought by a non-profit non-governmental organization whose members are angered or saddened about a threat to an environmental resource; (2) the defendant, typically a government agency or private party, allegedly has violated a law designed to protect not humans, but natural resources or natural objects; (3) a natural resource or natural object is allegedly being harmed, but the human beings who are members of the organization bringing the lawsuit are themselves not being threatened with direct harm or danger--the only real putative injury in the lawsuit is to a natural resource.
Lawsuits like the one in California reflect an important reality about environmental lawsuits: The underlying injury in these cases is an ecocentric injury to nature or natural objects, not to humans (although humans are the proximate cause of the injury). These injuries to nature or natural objects have reached the United States Supreme Court where human actions (1) destroy or remove ecosystems or unique environmental places, (2) contribute to climate change and global warming, (3) poison, degrade, or pollute environmental goods, like waterways, (4) threaten the extinction of endangered species, and (5) kill or harm animals.
Although the human plaintiffs in these lawsuits are aware of and upset by the proposed or ongoing harm to nature arid natural objects, humans themselves are usually not directly impacted, either economically or physically. Instead, any “injury” to a human is at most psychological. Nor, in these kinds of lawsuits, are humans necessarily within the “zone of interests” sought to be protected by the statute or regulation whose violation is the substantive basis for the lawsuit. Rather, the environmental law that is the underlying cause of action for the litigation most often has as its purpose the protection of an ecocentric environmental asset, not an anthropocentric interest.
Despite a plethora of laws designed to protect natural systems and objects, and despite the fact that the “injury” in cases implicating these laws is to nature and not humans, no private lawsuit based on these laws may proceed, either in federal court, or to enforce a federal statute, if the plaintiff cannot demonstrate that the plaintiff has been injured. The plaintiff-injury requirement stems from the Constitution's demand that disputes in federal court constitute a “case” or “controversy,” over which Article III grants jurisdiction.The United States Supreme Court has decided that one threshold condition for a true “case” or “controversy” is that the plaintiff must have “standing” to bring the claim. The essence of standing is to ensure that the plaintiff has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends ....” And, in order to establish a personal stake, generalized grievances such as harm to national resources alone will not suffice. Instead, a plaintiff must allege an injury-in-fact that is particularized and usually anthropocentric. In other words, even though the harm that is the basis of the litigation is to nature, a natural object, or a living organism, the plaintiff may not file the lawsuit on behalf of the injured natural asset because the harm, for Article III standing purposes, must be to the plaintiff.
Thus, there is a fundamental anomaly in Article III judge-made standing doctrine, which is being reflected throughout the lower federal courts whenever they face lawsuits alleging harms to nature or living things. When human decisions adversely affect environmental resources or natural objects, the only plaintiff able to enter federal courts to seek relief for these purely ecocentricinjuries is a plaintiff who can assert a particularized, usually emotional, typically anthropocentric injury. Why is there this disconnect between the underlying harm to nature or the natural object and the plaintiff's harm? What are the practical, constitutional, and ethical implications? And what should be done with the standing doctrine to connect the plaintiff to the true injury? This article addresses each of these issues.
Part II recounts the history of the Article III standing doctrine, and the emergence of the critical “injury-in-fact” test, which has been interpreted by the United States Supreme Court to require a unique and particularized injury to the typically anthropocentric desires of the plaintiff, even if the underlying claim involves an injury to a broad-based ecocentric environmental interest. The history of “environmental standing” in the Supreme Court, beginning in the early 1970s, reveals that the plaintiff's injuries are always the threshold standing condition examined by the Court, not the injuries to nature and natural objects that the plaintiff is trying to prevent or redress. Although the presence or absence of anthropocentric or plaintiff-specific injuries has been determinative in deciding whether standing exists in these cases, Part II will point out that the real interest protected by the substantive law implicated in the litigation is inevitably a purely environmental or ecocentric interest.
This insistence on “injury to the plaintiff” for standing purposes, when the injury being litigated is to nature or natural objects, has created a troublesome “Double Paradox,” discussed in Part III. The first of these, the “Injury Paradox,” is examined in Part III A. This paradox arises when there is a disconnect between the injury required for Article III standing, and the injury to the natural resource or natural object protected by the environmental law. The resulting inconsistency between the injury needed for Article III, and the injury contemplated by the underlying environmental law, means that the federal courts have had to manufacture, for standing purposes, a condition to legal relief that is nowhere contemplated by the law-making body providing legal protection to the environmental interest being harmed. Indeed, the injury-to-plaintiff condition is often contrary to the goal of federal environmental statutes containing citizen suit provisions encouraging litigation when purely ecocentric interests are threatened.
Apart from separation of powers concerns, the Injury Paradox can result in courts marginalizing real harms to nature and natural objects, while elevating the psychological anxieties and sadness of the humans bringing suit under environmental statutes. The Injury Paradox may also mean that threatened and harmed purely environmental interests have no redress, despite being legally protected, when the plaintiff's non-environmental injury is deemed inadequate for standing purposes. Because the Injury Paradox requires courts to focus as a threshold matter on the plaintiff's harm, which is often psychological, the standing inquiry demands a very subjective plaintiff-specific inquiry, while ignoring the interest that is really being harmed--the environment and environmental resources.
Part III B takes up the second paradox that flows from the injury-in-fact requirement--the “Plaintiff Paradox.” Whereas the Injury Paradox prevents enforcement of statutory violations whose effects are experienced solely by nature and objects in nature, the Plaintiff Paradox forces parties seeking to litigate purely environmental harms to present their claims in a self-interested manner contrary to the purposes of the Article III standing doctrine. The fundamental purpose of standing turns on whether the plaintiff has demonstrated the presence of a true “case or controversy.” To do so, the plaintiff must allege such a personal stake in the outcome as to ensure that “the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” However, when courts consider whether plaintiffs seeking to protect environmental interests have satisfied the injury-in-fact test, the focus is on the plaintiff's self-interested harm, which is usually psychological. The focus is not on whether that plaintiff really has a “personal stake in the outcome,” or whether that plaintiff has the professional experience and economic grounding to present the “dispute ... in an adversary context and in a form ... capable of judicial resolution.”
Part III B will show how the Plaintiff Paradox results in disingenuous claims, which some commentators have called nothing more than “artfully drawn pleadings,” where the “injury” suffered for standing purposes by the successful plaintiff is often no more than some kind of emotional fear, disappointment, or frustration. This bad feeling might be because the plaintiff (who is often just one person) would like to picnic near a river, but is “concerned” that a waterway is, or might be, polluted by the defendant. Or a negativeemotion might arise when a plaintiff is saddened by the prospect of decreased opportunities to engage in bird watching due to a ban on leg traps, which in turn might lead to an increase in bird predation. Although these completely anthropocentric psychological “injuries” have been deemed sufficient to meet the injury-in-fact test, they have no (or at best only a tenuous) nexus to the harm suffered by the environmental interest protected by the law raised by the plaintiff. Nor does being sad in any way suggest, or help predict that, the plaintiff has the necessary Article III standing requirements of (1) a personal stake in the outcome, or (2) the ability to mount a lawsuit in a form viewed capable of judicial resolution. In other words, in the context of federal litigation involving harms to nature or natural objects, the Court's injury-in-fact standing requirement satisfies neither the purposes of the environmental law that is the cause- of-action in the case (the Injury Paradox), nor the goal of Article III (the Plaintiff Paradox).
Part IV looks into the origins of the Double Paradox. The source of the Injury Paradox is the Court's assumption, repeated in most of the modern environmental standing cases, that law suits may not be filed by plaintiffs (especially human plaintiffs) on behalf of threatened or harmed natural resources or natural objects; rather, standing demands that “the party seeking review be himself among the injured.” Or, as the Court succinctly stated in Defenders of Wildlife v. Laidlaw, “[t]he relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff.” Part IV will show that this assumption is not compelled by Article III. Moreover, in environmental lawsuits, a logical incoherency results when there is a separation between a harm to the plaintiff, litigated separately as a threshold matter under Article III, and harm to the environment, litigated on the statutory merits.
Part IV then discusses twin reasons for the Plaintiff Paradox: (1) The Supreme Court's refusal to grant standing to organizations perfectly capable of representing and advocating for the purely environmental interest protected by law; and (2) the Court's illogical requirement that standing may only be granted to individual members of the organization who must demonstrate an anthropocentric harm in order to correct an environmental harm. Two consequences follow from this rule requiring that an individual group member of an association satisfy the injury-in-fact condition. First, the Injury Paradox is encouraged. The organization may not satisfy standing by showing that it is willing and able to enforce the law that will prevent the environmental interest from being harmed; instead, a human “member” of the organization must *64 show some anthropomorphic injury. Second, the Plaintiff Paradox is perpetuated. Well-funded professional organizations dedicated to protecting natural resources and objects have the requisite Article III “personal stake” in the outcome, and ability to frame the “dispute ... in an adversary context capable of judicial resolution.” Yet, these organizations cannot meet the threshold for standing while the courts search for individual plaintiffs who are sufficiently concerned or unhappy about, for example, a possible redwood logging operation.
Part V argues that the standing doctrine should be reformed in the case of harm to nature and natural objects, where the real victim of the harm is not a human or some other artificial entity, but a purely environmental interest. In such cases, carefully vetted nongovernmental organizations (“NGOs”) should be able to bring lawsuits to protect the environmental interest. Standing may be granted if the NGO has a non-frivolous sufficient interest in the environmental interest at stake, as well as the professional, experiential, and economic ability to seek redress in court to prevent the environmental injury. For years, commentators, appellate judges, and even Supreme Court justices have suggested organizations should be able to litigate statutorily protected injuries to nature if the organizations possess the commitment, expertise, and resources to do so. This exception to the injury-to-the-plaintiff standing requirement has already been successfully adopted in many countries outside the United States. Part V explains how these specialized organizations are preferable to other proffered solutions to the Double Paradox, satisfy the Article III requirement that the plaintiff have a true “personal stake” in the outcome of the case, and are better able to ensure the legitimacy and vitality of the adversarial process.
Virginia Environmental Law Journal firstname.lastname@example.org Slaughter Hall Rm. 156e 580 Massie Road, Charlottesville, VA 22903-1738