Environmental Litigation After Laidlaw

Daniel A. Farber

The author is McKnight Presidential Professor of Public Law and Associate Dean for Faculty and Research, University of Minnesota.

[30 ELR 10516]

As law students frequently discover during exams, the law of standing is easy to state but hard to apply. The basic rules are simple and well-settled. Under Article III of the U.S. Constitution, in order to invoke federal jurisdiction, the plaintiff must demonstrate the existence of an "injury-in-fact" that is "legally cognizable," "fairly traceable" to the defendant, and capable of being "redressed" by the court.¹ Each of the terms in quotation marks seems clear enough on the surface but has proved remarkably tricky in practice. The case law in the area has long been renowned for its inconsistency,² and recent cases have often been unreceptive to environmental concerns.³

The U.S. Supreme Court's latest foray into the morass of standing law was Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.⁴ Laidlaw involved a citizen suit under the Clean Water Act (CWA), in which the plaintiffs attempted to obtain payment of civil penalties for pollution that had ceased before the district court's judgment.⁵ In finding a justiciable controversy, the Laidlaw Court accepted the standard formulations of standing and other justiciability doctrines, as well as the results of prior cases. Nevertheless, Laidlaw provides an important, helpful gloss on existing doctrine, smoothing away some of the more troublesome rough edges in previous opinions.

Of particular significance is the Laidlaw Court's refashioning of the "injury-in-fact" test. Previous cases seemed to classify particular changes in individual welfare as always constituting or not constituting "injury-in-fact," regardless of the surrounding context. Laidlaw broadens the focus to encompass, not merely changes in the welfare of the individual considered in isolation, but also changes in the relationship between the individual and a natural resource. Thus, psychological harm might not be an injury-in-fact in some settings but could still qualify if connected with an impairment of the plaintiff's ability to enjoy the full use of a resource. This relational view of injury may help to clarify some of the puzzles in existing doctrine.

Standing doctrine is such a puzzle in part because our society has two competing visions of adjudication. The more traditional vision, based on private law, focuses on the redress of tangible harms to the plaintiff stemming from discrete acts of misconduct by the defendant. The more recently emerging version, based on public law, focuses on the role of adjudication in combating threats to public values such as environmental quality. Standing law can be seen as a battle between these visions, in which the traditional vision remains foremost but often bends under pressure from the realities of modern public law litigation. Laidlaw can best be understood as an effort to mediate between these visions, softening the traditional paradigm enough to accommodate the needs of the regulatory state.

Although Laidlaw is an important decision, the effort at accommodating these competing visions is necessarily incomplete. As a result, Laidlaw is a less than perfect fit with the needs of modern regulatory enforcement. Since the Court seems unlikely to abandon its core commitment to the traditional model of adjudication, it may be necessary to readjust regulatory mechanisms to work more smoothly with the Court's justiciability doctrines.

The first section of this Article explores the two models of litigation, their implications for standing, and the Court's failure to embrace a purist version of either model. The next section turns to Laidlaw and explains how the decision has reshaped existing doctrine. The final section explains why Laidlaw still falls short of the needs of the regulatory system, and discusses some changes in enforcement mechanisms that might be helpful. In particular, it suggests that redressability concerns could be satisfied if penalties are dedicated to improving the resource, as compensation for past harm to the plaintiff's use and enjoyment of the same resource.

Two Models of Environmental Litigation

For many people—such as first-year Civil Procedure students—the paradigm of a lawsuit is probably the traditional personal injury case. Bob and Fred have never met before their cars crash; the lawsuit is initiated by one of them; they go through a litigation process aimed at mostly reconstructing historical events (whose fault was the crash?); the remedy is designed to offset the past violation (how much will it cost to replace the car?); the judge plays only the role of an umpire in the litigation; and when the suit is over they will have no further contact. In short, the lawsuit is a discrete event, focusing on the existence and consequences of an identifiable unlawful action. The purpose of the litigation is to correct an injury that one party has suffered at the hands of the other. This vision of adjudication finds its classic expression in the work of Lon Fuller.⁶

[30 ELR 10517]

An alternative vision of adjudication arose toward the end of the 20th century. This alternative model takes as its paradigm institutional litigation such as school desegregation suits. Among the commentators on institutional litigation, two of its defenders stand out: Abram Chayes and Owen Fiss. Chayes contrasted the traditional model of litigation—the Bob v. Fred accident case—with the emerging new model of litigation. The traditional lawsuit is bipolar (a contest between two opposing interests); retrospective (focusing on past events); rights driven (the remedy derives from the wrong); self-contained (limited in time and scope); and party-driven (with the judge acting as referee).⁷ In contrast, the new model has a "sprawling and amorphous" party structure, an infusion of negotiation and mediation at every point, and a judge who actively orchestrates the proceedings.⁸ Most importantly, "the trial judge has increasingly become the creator and manager of complex forms of ongoing relief, which have widespread effects on persons not before the court and require the judge's continuing involvement in administration and implementation."⁹

Like Chayes, Fiss devotes some effort to cataloguing the distinctive traits of the new litigation. He stresses the group nature of the litigation and the institutional nature of the complaint: not that a particular individual's rights have been violated, but that an entire institution is operating in a way that threatens public values.¹⁰ According to Fiss, the basic error made by Fuller is to view mere dispute resolution as the central task of adjudication. Dispute resolution, in his view, is a job for arbitrators, not judges; the role of the judge is to articulate social values and give them concrete form.¹¹

These two different visions of adjudication—the conventional vision and that of Chayes and Fiss—are reflected in two very different views of standing.¹² In the conventional, private law model, the whole purpose of litigation is to redress an unlawful injury visited by one party on the other. Thus, the concepts of "injury" and "redress" must be carefully defined in order to prevent courts from straying into nonjudicial roles. Standing doctrine plays a critical role in helping to police the boundaries of adjudication. In contrast, the public law model views litigation as an effort to bring an institution's conduct into harmony with public values. Often, the crux of the litigation is not the injury of the particular party bringing the suit, but the public interest. Because the public law model is much less party oriented, it is much less important to worry about the identity of the plaintiff, as opposed to the need to vindicate public values. Thus, standing becomes a secondary concern. As we will see, both models have had supporters, but neither has succeeded in winning unequivocal judicial support.

The Private Law Model of Standing

The traditional model of standing attempts to reduce litigation as much as possible to the paradigm of the Bob v. Fred common-law litigation. In this model, standing must be based on an individualized, concrete harm of the kind protected by the common law. The leading modern advocate of this position is Justice Scalia.

Scalia's view is that the purpose of the judiciary is to protect individuals against invasions of their rights, rather than protecting interests shared by a majority of citizens.¹³ Thus, the term "private attorney general" is something like a reductio ad absurdum for Scalia: the whole point of standing doctrine is to distinguish the role of private plaintiffs, vindicating their own rights, from that of the attorney general, who vindicates the rights of the public at large.

Portions of this theory are echoed in Scalia's major standing opinions. Nevertheless, it is clear that a majority of the Court firmly rejects the pure form of the private law model. In Lujan v. Defenders of Wildlife,¹⁴ Justice Scalia's opinion adopted this theory, but the decisive votes for the majority result were provided by Justices Kennedy and Souter. In a notable concurring opinion, they argued that courts "must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition."¹⁵ In their 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 . . . ."¹⁶ Nonetheless, they did not indicate that this congressional power to confer standing is unlimited, thereby stopping short of the public law model of standing.

Even more significantly, over a sharp dissent by Justice Scalia, the Court later found sufficient injury where a voter complained that underenforcement of campaign disclosure laws deprived him (and every other voter) of valuable information about candidates.¹⁷ The majority found this "informational harm" to be a sufficient injury-in-fact to provide standing. Justice Scalia complained in vain that the Court had abandoned the requirement of "particularized" (rather than "undifferentiated") standing.¹⁸

These cases do not reject the requirement of injury-in-fact, but they do expand its boundaries to include at least some injuries shared by the public at large and some injuries defined by Congress rather than by the courts. Justice Scalia was quite right to find both decisions inconsistent with a purist conception of the private law model. If the Court has rejected both the pure public law model and the pure private law model, we may well wonder just what its view of standing might be. The current trend seems to be toward a "soft" version of the private law model, with traditional concepts of injury and redress broadened to accommodate the needs of the regulatory state. Depending on the [30 ELR 10518] degree of softening, the result may be to move litigation toward the public law model discussed below.

The Public Law Model and Standing Doctrine

For those who sympathize with the public law model of adjudication, standing is not an independent constitutional issue. Assuming that a need exists to vindicate public values, the only question is whether the plaintiff is someone who is authorized to bring the lawsuit. Thus, the critical question is whether the common law, a statute, or the Constitution grants the plaintiff a cause of action, not whether the plaintiff has suffered some particular form of personal harm.¹⁹ The logic is simple: to have a cause of action is to have a legal interest, and to be deprived of a legal interest is to suffer legally cognizable injury. Thus, if Congress (or some other relevant source of law) creates a cause of action, any requirement of "injury" is automatically satisfied.²⁰ In particular, Congress has a free hand in giving members of the public a cause of action to enforce federal law as "private attorneys general."

The idea that private plaintiffs may bring suit to vindicate the general public interest also has historical support. Informer's suits, qui tam actions, and other extraordinary writs were available under English and early American law, and were constitutionally uncontroversial in the early years of the Republic.²¹ These actions were designed to allow plaintiffs who might have no concrete individualized harm to bring suit to vindicate the public interest.

Nevertheless, despite the possible appeal of this view of standing, the Court has so far refused to abandon the core of the private law model, the requirement of some tangible injury. Two recent cases involving citizen suits are particularly revealing. In Defenders of Wildlife,²² the Court refused to countenance a suit under the Endangered Species Act in the absence of tangible injury to the plaintiffs, even though the statute extended a cause of action to every citizen. Notably, the Court's opinion stresses that it is for the executive, not the courts, to vindicate the general public interest in the enforcement of the law.²³ Similarly, in Steel Co. v. Citizens for a Better Environment,²⁴ the Court rejected on constitutional grounds a citizen suit to force the payment of civil penalties for wholly past statutory violations. The citizen's interest in vindicating federal environmental law was not sufficient to serve as a basis of standing, and in the Court's view, it was only this interest that could be vindicated by the remedy sought by the plaintiff.²⁵ The Court failed to reach the question of whether Congress had in fact attempted to create such a cause of action; clearly, the implication is that an effort to do so would not have been constitutionally sufficient to create standing.

Although Defenders of Wildlife was accompanied by a strong dissent, the dissenters argued that the "injury-in-fact" requirement of the private law model was satisfied, rather than simply relying on the ability of Congress to create new causes of action at will.²⁶ Thus, the public law model, which focuses on the role of private attorneys general in vindicating public values, seems to have no prospect of wholesale adoption at present. Instead, it must exercise whatever influence it has by permeating the private law model. As we saw in the preceding subsection, the Court had already begun to expand the private law model prior to Laidlaw in order to accommodate public law values.

Laidlaw's Hybrid Approach

A brief discussion of the facts is necessary to understand the Laidlaw Court's handling of the justiciability issues in the case. The defendant purchased a hazardous waste incinerator that discharged into the North Tyger River in South Carolina.²⁷ The permit imposed stringent limits on mercury discharges, which the company failed to meet on numerous occasions.²⁸ The district court later found, however, that the discharges did not cause measurable harm to the river's ecology or pose a health threat. After Friends of the Earth gave notice of an intent to file a citizen suit, the company contacted the state environmental agency and arranged a "sweetheart deal" under which it agreed to make every effort to comply with the permit and paid a modest fine.²⁹ Friends of the Earth nevertheless filed a citizen suit, and the violations continued long afterwards, though they ceased before judgment was entered.³⁰ While the case was on appeal, the plant was allegedly closed permanently and the site put up for sale.³¹

These facts raised several justiciability issues: whether the plaintiffs had suffered an "injury-in-fact" despite the absence of ecological or public health impacts; whether whatever harm they suffered could be redressed by the defendant's payment of civil penalties to the government; and whether the ending of the violations before judgment (not to [30 ELR 10519] mention the plant closing on appeal) rendered the case moot. Laidlaw makes significant doctrinal contributions on all three issues.

Contextualizing the Concept of Injury

Given the district court's finding of "no demonstrated . . . harm" to the environment,³² precedent might have supported the conclusion that the plaintiffs lacked cognizable injury. In reaching the contrary conclusion, the Court relied on affidavits filed by members of the plaintiff organization. For instance, one member said he lived one-half mile from the river and would like to use it (and its surroundings) for recreational purposes, as he had when he was younger.³³ But when he occasionally drove across a bridge over the river, it looked and smelled polluted, and as a result he did not make use of the river "because of his concerns about Laidlaw's discharges."³⁴

In dissent, Justice Scalia was incredulous that these allegations would suffice as a basis for standing, particularly given the absence of careful consideration of the issue by the lower courts:

Inexplicably, the Court is untroubled by this, but proceeds to find injury in fact in the most casual fashion, as though it is merely confirming a careful analysis made below. Although we have previously refused to find standing based on the "conclusory allegations of an affidavit" . . . the Court is content to do just that today. By accepting plaintiffs' vague, contradictory, and unsubstantiated allegations of "concern" about the environment as adequate to prove injury in fact, and accepting them even in the face of a finding that the environment was not demonstrably harmed, the Court makes the injury-in-fact requirement a sham. If there are permit violations, and a member of a plaintiff environmental organization lives near the offending plant, it would be difficult not to satisfy today's lenient standard.³⁵

Justice Scalia's view was not unreasonable, given the precedents (including several he himself has written). The Court's response was twofold. First, the Court carefully distinguished prior cases on their facts.³⁶ This in itself reflects a noteworthy change in emphasis, from a rule-based approach to a more common-law, case-by-case approach. One of Laidlaw's most significant contributions may be this shift away from a rule approach, in which dicta from prior opinions is taken to establish rigid standing rules, toward a common-law approach, in which such statements are set into their factual context.

Second, the Court refashioned the notion of injury. The phrase "injury-in-fact" suggests that we should look at the type of impairment suffered by the plaintiff—so that some harms (like financial losses) qualify as injury-in-fact, while others (such as mere psychological apprehensions) do not. It is this approach that Scalia relied upon in his dissent.³⁷ In the Court's view, however,

the only "subjective" issue here is "the reasonableness of [the] fear" that led the affiants to respond to that concededly ongoing conduct by refraining from use of the North Tyger River and surrounding areas. Unlike the dissent, . . . we see nothing "improbable" about the proposition that a company's continuous and pervasive illegal discharges of pollutants into a river would cause nearby resident 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 it was true in this case, and that is enough for injury in fact.³⁸

This analysis shifts the focus from the impact on the plaintiff alone, to the disruption of the plaintiff's relationship with the river. In this respect, it is somewhat reminiscent of Justice Douglas' view that those who have an "intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen."³⁹ Just as private law protects the relationship between a property owner and land, so the Court seems to recognize a protected relationship between natural resources and those whose lives are bound up with them. By reconceiving standing in terms of harm to relationships rather than harm to individual interests considered in isolation, Laidlaw may help bring a greater degree of coherence to standing law.

Redressability and Mootness

Even if the plaintiffs had suffered injury-in-fact, it was unclear whether the law offered any redress to that injury. The district court had denied an injunction but had imposed a substantial civil penalty.⁴⁰ The Steel Co. decision, however, seemed to say that government penalties cannot be considered redress for private injuries, at least for entirely past violations.⁴¹ But whether a civil penalty could be considered redress for a continuing violation was less clear. The distinction between wholly past and potentially continuing violations is also key to mootness doctrine, so the redressability and mootness issues were connected.

On the redressability point, the Court concluded that the possibility of recurrent violations was enough to support standing at the time the complaint was filed:

It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress. Civil penalties can fit that description. [30 ELR 10520] To the extent that they encourage defendants to discontinue current violations and deter them from committing future ones, they afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct.⁴²

This analysis raises the question of whether the claim for civil penalties remains when the violations cease. The company argued that its achievement of substantial compliance with the permit while the case was pending rendered the case moot. (It also relied on the plant closure, an issue that the Court left for the lower courts on remand.)⁴³ The Court held, however, that "there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness."⁴⁴ As a basis for the distinction, the Court relied on the presence of "sunk costs to the judicial system."⁴⁵

Notably, both of these holdings stretch the private law model. The mootness holding takes into account not just the interests of the parties, which are the focus of the private law model, but also the interests of the judicial system in wisely allocating its resources. The redressability holding allows a remedy that directly benefits the government rather than the plaintiff, again widening the focus past the bilateral relationship between the parties. Thus, while the Court is clearly adhering to the framework of the private law model, it is also clearly willing to stretch it when appropriate.

"Kinder and Gentler" Model

It seems clear that the Court is unwilling to let loose completely of the traditional, private law model of litigation. But this model potentially may be more flexible in its treatment of standing than is often realized.

As mentioned earlier, the classic expression of the private law model is found in Lon Fuller's work.⁴⁶ But Fuller's theory was actually designed with public law in mind. His essay is replete with references to labor arbitration, administrative agencies, international tribunals, and even Soviet legal institutions.⁴⁷ Indeed, he says, "it is in the field of administrative law that the issues dealt with in this paper become most acute."⁴⁸ According to Fuller, "the distinguishing characteristic of adjudication lies in the fact that it confers on the affected party a peculiar form of participation in the decision, that of presenting proofs and reasoned arguments for a decision in his favor."⁴⁹ Because claims are based on argument and principle, they tend to be understood as "claims of right or accusations of fault."⁵⁰ As a corollary of the last of these propositions, Fuller concludes that "adjudication is not a proper form of social ordering in those areas where the effectiveness of human association would be destroyed if it were organized about formally defined 'rights' and 'wrongs.'"⁵¹ His primary conclusion is that adjudication is unsuited for polycentric tasks—tasks in which multiple dimensions are interconnected, so that the proper decision about any one item is inseparable from all of the others. His example is price control, because "the forms of adjudication cannot encompass and take into account the complex repercussions that may result from any change in prices or wages," as when a change in the price of aluminum affects the demand for various other materials.⁵²

As analyzed by Fuller, in determining whether a dispute is suitable for resolution through adjudication, the crucial question is whether the controversy is crystalized around specific questions of law and fact, making them susceptible to legal argument and trial. It seems reasonably implicit in his viewpoint that the "dispute" has some reality apart from the disagreement about law. As indication that a genuine conflict between the parties requires resolution, some kind of injury and redressability requirement may be a fair inference from his theory. But as his analysis indicates, the justiciability of the issues is more important than the character of the plaintiff's injury to the traditional model of adjudication. Thus, without compromising the core of the traditional concept of adjudication, a certain degree of flexibility regarding "injury" and "redress" can be accommodated.

Fuller probably would not countenance the complete abolition of standing doctrine, because of adjudication's core function as a means of resolving real-world disputes. But his theory does not require that these disputes be defined in terms of common-law conceptions of injury and redress. Laidlaw reworks traditional justiciability doctrines, retaining the core commitments of Fuller's traditional model but loosening the concepts of injury and redress.

While upholding the core of the private law model, the Court has also accommodated the concerns of the public law model. In claiming a radical transformation of the judicial function, the public law theorists were too ambitious, but they were undeniably right in maintaining that litigation serves more than a dispute resolution function. Particularly in the modern era, litigation clearly also serves an important function in articulating and defending public values. It is not essential to this function that every dispute about public values be handed to the courts, but it is necessary that a considerable share of these disputes, to the extent they raised issues of law, be within the judicial purview. The Court's recent rulings—including the key concurring opinion in Defenders of Wildlife, the majority in Akins, and Laidlaw itself—broaden the concepts of injury and redressability enough to provide reasonable protection for public values, but retain the judiciary's vital connection with dispute resolution. Like most compromises, this one is sure to be a messy one—and will undoubtedly be attacked as unprincipled in theory and inconsistent in application. But so long as we continue both to think of litigation as a form of dispute resolution and to treasure its ability to defend public values, we are probably going to be stuck with such a compromise.

[30 ELR 10521]

The Mismatch Between Form and Function in Environmental Litigation

The messiness of this compromise is nowhere more clear than in environmental law, where Congress has clearly viewed the public law function as paramount. For instance, the CWA provides sweeping enforcement authority to "any citizen," broadly defined as any person "having an interest which is or may be adversely affected."⁵³ Rather than including any recompense for injury to the plaintiff, the remedies are the same as those in a public enforcement action: coercing future compliance with the statutory requirements plus civil penalties for past violations. Moreover, Congress was at great pains to interlace the citizen suit provisions with public enforcement to avoid duplicative efforts, while ensuring that only an equivalent and diligent official enforcement proceeding would block the citizen suit.⁵⁴ The legislative history confirms that citizen suits were intended to force the hands of laggard administrators rather than to redress private injuries.⁵⁵

Before Laidlaw, there was some risk that this function would be completely frustrated by decisions such as Steel Co. and Defenders of Wildlife.⁵⁶ Laidlaw, along with some other recent standing decisions, seems at least for the present to allay any such fear.⁵⁷ But it remains true that the Court's devotion to the dispute resolution function, and the accompanying requirements of injury and redressability, will complicate and to some extent undermine the public law function of environmental litigation. Smoothing over the conflicts between the needs of the regulatory system and even Laidlaw's milder version of standing is the next task that confronts us.

Laidlaw and Rational Enforcement Policy

To see some of the imperfections in Laidlaw in terms of regulatory policy, begin by considering the incentives facing an environmental organization. The organization must incur certain costs in bringing suit. To begin with, it must identify and document a violation. Justiciability adds other costs. The organization needs to find members who satisfy the Court's standing requirements.⁵⁸ Finally, it must obtain evidence that noncompliance is continuing. None of this is free.

Under current justiciability doctrine, the organization faces the risk of being unable to recoup these costs if the company ceases its violations after the statutory notice is given. If the violations are not continuing, then no standing exists under Steel Co. to obtain either attorneys fees or civil penalties. Even after the suit is brought, if the defendant ceases violations with some definitive permanency, then the case may become moot despite Laidlaw.

As a result, the general incentive to bring citizen suits is reduced. Moreover, the organization has the strongest incentive to bring suit, not in cases presenting the greatest unmet need for environmental enforcement, but in those where the justiciability requirements are most easily met. Thus, it has an incentive to sue in cases where a specific pollution source has a clear impact on aesthetic or recreational uses of particular individuals and where it will be difficult for the defendant to eliminate the potential for future violations. But greater enforcement needs may exist for widespread but very diffuse pollution impacts, or where defendants can easily comply but have failed to do so.

The incentives for the polluting firm are also askew. In the first place, it knows that it is less likely to face a citizen suit, and therefore has less incentive to comply with the law, wherever the justiciability requirements are weaker. Thus, the firm that is adding a small but illegal increment to an existing urban pollution problem, or that knows it can easily come into compliance if it is ever sued, has a smaller incentive to comply in advance.

On the other hand, once threatened with suit, the firm may actually have an incentive to overcomply. For example, suppose that the economically efficient way to comply is to make a process change that will eliminate the violation. But it will be difficult to show that the process change is a permanent, irrevocable solution. So, in order to avoid its accrued civil penalties and possible attorney fees, the company has an incentive to use an end-of-pipe technology solution instead, even though this solution is less efficient.

These are not devastating flaws in the enforcement system, but they are far from ideal. If the Court were to adopt the pure public law model, these flaws would disappear. Or if the Court was so generous in its application of the current justiciability requirements that they were no longer a real threat, these flaws would also disappear. But neither development seems at all likely at present.

Possible Remedies for the Mismatch

After Laidlaw, there are two major problems with the citizen suit mechanism. The first is the distortion in incentives caused by the potential for compliance to eliminate penalties for past violations. The other is that very diffuse, undramatic violations may be difficult to translate into an injury claim.

As to the first, the difficulty is that penalties are viewed as deterrent rather than compensatory. The citizen suit provision [30 ELR 10522] of the Clean Air Act (CAA) suggests one possible response. The statute provides that penalties can either go into a fund for government enforcement and compliance actions or can be used to a limited extent for mitigation projects.⁵⁹ Laidlaw's broad conception of injury suggests that under the right circumstances, this latter use of funds might be considered compensation to the plaintiffs rather than purely a deterrent.

Recall that the theory of Laidlaw is that the plaintiffs' relationship with the natural resource has been damaged by the violation.⁶⁰ One form of compensation would be monetary damages, but another form would be to improve the relationship with the natural resource in the future. If "injury" is defined in terms of the individual's relationship with the environment, there seems no reason why "compensation" could not also involve the same relationship. This form of compensatory resource improvement could take place by not only terminating the violation but otherwise improving the quality of the same environment. For instance, the civil penalty might be used to fund other enforcement proceedings against other violations in the same river body or even to purchase voluntary pollution reductions by parties who are already in compliance. Thus, to compensate for the past injury to the plaintiff's environment by the defendant, the defendant would fund other improvements to that same environment in the future. The future environmental improvement balances and compensates for the past environmental harm.

The best way to implement this system would be through a kind of trustee system, in which the plaintiffs would sue as trustees for themselves and all others using the resource. Here, the analogy is the trustee system used by public entities under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) provision dealing with damages to natural resources. Under this provision, public trustees can collect damages, which can then be used for restoration.⁶¹ Such a system would have a neat symmetry: the plaintiff's harm is the past disruption of his relationship to the environment; penalties are used to compensate for this past harm with future environmental improvement to the same environmental relationship. Under this system, even if the violation were wholly in the past, the case could still be brought to obtain compensating environmental improvements. This kind of trusteeship would also emphasize the defendant's harm to the "human relationship with the resource."⁶² This would not only dovetail nicely with the Laidlaw Court's view of justificability but would also emphasize the "human face" of environmental law.

Even without a formal trustee system, it might be possible to obtain a similar reform through regulation. If the U.S. Environmental Protection Agency (EPA) provided that a percentage of civil penalties would be used to enhance environmental quality in the same resource, this might be enough to render the penalties beneficial to the plaintiffs and thus provide a basis for standing even to collect penalties for wholly past violations (where such penalties are allowed by statute).

The other justiciability problem is that of the diffuse or highly indirect environmental injury. Laidlaw does not directly address this problem, although its relatively generous approach to standing may carry over to causation issues. Here, again, EPA or other federal agencies might be able to render assistance through regulations identifying the kinds of causal connection that EPA considers significant. Such regulations would at least provide expert support for similar claims by plaintiffs and thereby increase their credibility. But they might also have greater weight. Recall that in Defenders of Wildlife, the critical concurring opinion by Justice Kennedy upheld the power of Congress to identify causal connections as a basis for standing even beyond those that the courts themselves would independently recognize.⁶³ It seems doubtful that an agency would have as much power to redefine injury as Congress has. But at least at the margin, Justice Kennedy might recognize agency power to help establish when an injury is "fairly traceable" to a violation. Indeed, under the Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.⁶⁴ doctrine, the agency might be viewed as merely providing a tenable interpretation of what injuries Congress itself identified.

Laidlaw will no doubt keep lawyers, judges, and scholars busy for a long time. It 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. It is too soon to trump the dawning of a new day for environmental litigation. But at least the skies seem to be brightening at the horizon.

1. See, e.g., Lugan v. Defenders of Wildlife, 504 U.S. 555, 560, 22 ELR 20913, 20915 (1992); Gene R. Nichol Jr., Rethinking Standing, 72 CAL. L. REV. 68, 71-73 (1984).

2. See Nichol, supra note 1, at 68, 71 (also remarking that the "law of standing is dominated by slogans and litanies").

3. See Richard J. Lazarus, Restoring What's Environmental About Environmental Law in the Supreme Court, 47 UCLA L. REV. 703, 749-52 (2000).

4. 120 S. Ct. 693, 30 ELR 20246 (2000). For an explanation of how Laidlaw fits into the prior line of standing cases, see Michael P. Healy, Standing in Environmental Citizen Suits: Laidlaw's Clarification of the Injury-in-Fact and Redressability Requirements, 30 ELR 10455 (June 2000); Craig N. Johnston, Standing and Mootness After Laidlaw, 30 ELR 10317 (May 2000).

5. See Laidlaw, 120 S. Ct. at 700, 30 ELR at 20247.

6. See generally Lon Fuller. The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978).

7. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1282-83 (1976).

8. See id. at 1284.

9. Id.

10. Owen M. Fiss, The Supreme Court 1978 Term, Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 17-28 (1979).

11. See id. at 29, 39-44.

12. The connection between these models of litigation and standing doctrine is usefully made in Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 281-301 (1990).

13. See generally Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U.L. REV. 881 (1983).

14. 504 U.S. 555, 22 ELR 20913 (1992).

15. Id. at 580, 22 ELR at 20920 (Kennedy, J., concurring).

16. Id.

17. See Federal Election Comm'n v. Akins, 524 U.S. 11 (1998). For an insightful discussion, see Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613 (1999).

18. See Akins, 524 U.S. at 29-37 (Scalia, J., dissenting).

19. The "cause of action" theory of standing has some powerful scholarly support. See, e.g., William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221 (1988); Nichol, supra note 1, at 68; Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show That Standing Doctrine Is Looking for Answers in All the Wrong Places, 97 MICH. L. REV. 2239 (1999); Richard J. Pierce Jr., Is Standing Law or Politics?, 77 N.C.L.REV. 1741 (1999); Cass R. Sunstein, Standing Injuries, 1993 SUP. CT. REV. 37. It should be noted that some of these writers would recognize limits on the ability of Congress to create new causes of action that might intrude too deeply on executive prerogatives under Article II. Some of them would also have problems with the kinds of free-wheeling remedies involved in some public law litigation, though not because of concerns about standing. For instance, Richard Pierce favors judicial restraint but believes that Congress has plenary power to create new causes of action. See Richard J. Pierce Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power, 42 DUKE L.J. 1170 (1993).

20. Thus, for instance, Cass Sunstein argues that Congress could confer standing on animals, allowing interested members of the public to file suit on their behalf. See Cass R. Sunstein, Standing for Animals (visited May 15, 2000) http://papers.ssrn.com/paper.taf?abstract_id=196212.

21. For discussions of the relevant history, see such works as George Van Cleve, Congressional Power to Confer Broad Citizen Standing in Environmental Cases, 29 ELR 10028 (Jan. 1999); Robert J. Pushaw Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393, 436-51 (1996); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 170-79 (1992).

22. 504 U.S. at 555, 22 ELR at 20913.

23. See id. at 576-77, 22 ELR at 20919.

24. 523 U.S. 83, 28 ELR 20434 (1998).

25. See id. at 106-08, 28 ELR at 20438-39.

26. See Lujan, 504 U.S. at 589-601, 22 ELR at 20926-27 (Blackman, J., dissenting).

27. See Laidlaw, 120 S. Ct. at 701-03, 30 ELR at 20247-48.

28. Id.

29. Id.

30. Id.

31. Id.

32. Id. at 704, 30 ELR at 20248.

33. See id.

34. Id. Other affidavits were similar. See id. at 704-05, 30 ELR at 20248-49.

35. See id. at 714, 30 ELR at 20252 (Scalia, J., dissenting) (citation omitted).

36. See id. at 705-06, 30 ELR at 20248-49.

37. See id. at 714, 30 ELR at 20252 (Scalia, J., dissenting) (citing Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983)).

38. Id. at 706, 30 ELR at 20249. See also Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 74, 8 ELR 20545, 20548 (1978):

And the emission of non-natural radiation into appellees' environment [without any proof of health risk] would also seem a direct and present injury given our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions like those concededly emitted by nuclear power plants.

(Internal footnote omitted.)

39. Sierra Club v. Morton, 405 U.S. 727, 745, 2 ELR 20192, 20196 (1972) (Douglas, J., dissenting). Douglas' dissent is better known for its advocacy of granting standing to the inanimate objects themselves.

40. See Laidlaw, 120 S. Ct. at 703, 30 ELR at 20248.

41. See Steel Co., 523 U.S. at 106-08, 28 ELR at 20438-39.

42. Laidlaw, 120 S. Ct. at 706-07, 30 ELR at 20249.

43. Id. at 711, 30 ELR at 20251. The Court also left open the question of whether the plant closure during the appeal would be a basis for vacating the judgment. Id. at 711 n.6, 30 ELR at 20251 n.6.

44. Id. at 708, 30 ELR at 20250.

45. Id. at 709 n.5, 30 ELR at 20250 n.5.

46. See supra note 6 and accompanying text.

47. See Fuller, supra note 6, at 355, 375-76, 379, 387, 396, 400, 403.

48. Id. at 355.

49. Id. at 364.

50. See id. at 365-69, 385-88.

51. Id. at 371.

52. Id. at 394.

53. 33 U.S.C. § 1365(a), (g), ELR STAT. FWPCA § 505(a), (g).

54. See 33 U.S.C. § 1365(b), ELR STAT. FWPCA § 505(b) (on the notice and initial enforcement opportunity for government enforcers); id. § 1319(g)(6), ELR STAT. FWPCA § 309(g)(6) (on the effect of administrative penalties on collection of civil penalties in citizen suits). For further discussion, see Barry S. Neuman & Jeffrey A. Knight, When Are Clean Water Act Citizen Suits Precluded by Government Enforcement Actions?, 30 ELR 10111 (Feb. 2000).

55. See Harold Feld, Saving the Citizen Suit: The Effect of Lujan v. Defenders of Wildlife and the Role of Citizen Suits in Environmental Enforcement, 19 COLUM. J. ENVTL. L. 59, 146-48 (1994). For a critique of citizen suits as unduly interfering with executive discretion, see Harold J. Krent & Ethan G. Shenkman, Of Citizen Suits and Citizen Sunstein, 91 MICH. L. REV. 1773, 1812-13 (1993).

56. Another worrisome environmental decision was Lujan v. National Wildlife Fed., 497 U.S. 871, 20 ELR 20962 (1990), where the Court took an extremely jaundiced view of the plaintiff's allegations of injury.

57. In addition to the cases discussed above, Bennett v. Spear, 117 S. Ct. 1154, 27 ELR 20824 (1997), seemed to show some softening in the Court's attitudes regarding standing, particularly with respect to "procedural" injuries. See William W. Buzbee, Expanding the Zone, Tilting the Field: Zone of Interests and Article III Standing Analysis After Bennett v. Spear, 49 ADMIN. L. REV. 763 (1997).

58. As Ann Carlson points out, satisfying these requirements may require considerable time and trouble. See Ann E. Carlson, Standing for the Environment, 45 UCLA L. REV. 931, 955-63 (1998). As she also points out, however, there may be long-term gains from dramaticizing the effect of environmental violations on actual human beings. See id. at 995-1004.

59. See 42 U.S.C. § 7604(g), ELR STAT. CAA § 304.

60. See supra notes 30-37 and accompanying text.

61. 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA § 107(a)(4)(C); id. § 9607(f). ELR STAT. CERCLA § 107(f).

62. Carlson, supra note 58, at 963.

63. See supra note 14 and accompanying text.

64. 467 U.S. 837, 14 ELR 20507 (1984) (ruling that courts must defer to reasonable agency interpretations of ambiguous provisions).