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The Persistent Problem of Standing in Environmental Law

Citation: ELR 10956

Author: Holly Doremus

The first panel at this conference discussed standing to invoke federal court review, and related doctrines that limit access to the courts. That a standing panel should begin the day's discussion of the relationship between constitutional and environmental law is fitting in three respects. First, establishing standing is the initial step in pressing a claim in federal court. Second, standing was the issue in one of the first U.S. Supreme Court cases of the modern environmental era, and it remains the most persistent constitutional quandary for environmental law. Third, citizen standing is critical to the success of environmental law.

The early architects of statutory environmental law understood that the executive branch might not always wholeheartedly pursue the environmental goals set by the U.S. Congress. They therefore sought to ensure that interested citizens could fill that role when the government did not. Environmental citizen suits presented the courts with a new situation, one that immediately raised standing issues.

Standing is the most important gatekeeper doctrine for the federal courts, determining who can, and who cannot, invoke their jurisdiction. The Supreme Court has derived (some might say invented) the doctrine of standing from the U.S. Constitution's description of the judicial power of the United States as extending to specified "cases" and "controversies." That forecloses friendly suits or requests for advisory opinions. In order to ensure that the process will be truly adversarial, and that the legal issues "will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action," the Court requires that a would-be plaintiff show that she has suffered (1) an "injury in fact;" (2) which is "fairly traceable" to the defendant's challenged action; and (3) that it is likely that a favorable ruling would redress that injury.

Holly Doremus is Professor of Law, University of California, Berkeley.

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