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Drafting Standing Affidavits After Defenders: In the Court's Own Words

January 1993

Citation: ELR 10026

Author: James M. McElfish

Editors' Summary: The U.S. Supreme Court's recent decision in Lujan v. Defenders of Wildlife, raises the threshold requirements that an environmental plaintiff must meet to establish its standing to sue. Although the decision will not fundamentally alter who brings environmental issues before the courts, the decision may herald an era in which pleading formalism and proof of each standing element are required. Proof offered to support standing will have to satisfy the Court's interpretation in Defenders of the standing requirements. In this Article, the author asserts that despite the heightened scrutiny of standing in Defenders, the Supreme Court's own language provides instruction for the drafter of standing affidavits. The author examines the Court's language in Defenders as it applies to the standing requirements, and provides a sample standing affidavit that complies with this language.

Mr. McElfish is a Senior Attorney at the Environmental Law Institute.

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