THE PENDULUM SWINGS BACK: STANDING DOCTRINE AFTER FRIENDS OF THE EARTH V. LAIDLAW
CRS Report for Congress
The Pendulum Swings Back: Standing Doctrine
After Friends of the Earth v. Laidlaw
Robert Meltz
Legislative Attorney
American Law Division
Summary
On January 12, 2000, the Supreme Court held in Friends of the Earth v. Laidlaw
that plaintiffs had standing to pursue a Clean Water Act citizen suit, despite the fact that
(1) the company-defendant had achieved compliance prior to the district court’s decision,
(2) plaintiffs sought only civil penalties payable to the U.S. Treasury, and (3) plaintiffs
had demonstrated only reasonable concern, not physical injury to the environment. In
so holding, the Court appeared to retrench substantially from its environmental standing
decisions of the 1990s, which had all gone against plaintiffs. In the wake of Laidlaw,
environmental citizen suits will be easier to bring. This report will not be updated.
During the 1990s, Supreme Court decisions heightened the “standing” hurdle for
plaintiffs alleging environmental injury in federal courts. These rulings called into question
the viability of many citizen suits under federal environmental statutes. On January 12,
2000, however, the Court appeared to shift course in Friends of the Earth v. Laidlaw
Environmental Services,1 liberalizing certain elements of standing doctrine. This report
reviews the Supreme Court’s treatment of the standing issue prior to Laidlaw, describes
the Laidlaw litigation, and speculates as to the decision’s implications for environmental
citizen suits.
By way of background, standing doctrine is concerned with who is a proper party to
raise a particular issue in the federal courts. The doctrine demands a plaintiff who has
“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 ....”2 Some precepts of standing are viewed as merely “prudential” – that is,
developed by the courts as part of their inherent power of judicial self-management. Our
target here is those aspects of standing mandated by Article III of the Constitution – that
is, its confinement of the jurisdiction of courts created under that article to “Cases” and
1 120 S. Ct. 693 (2000).
2 Baker v. Carr, 369 U.S. 186, 204 (1962).
Congressional Research Service ˜ The Library of Congress
“Controversies.” This restriction, in the Supreme Court’s eyes, means that a plaintiff in
an Article III court (such as a federal district court) must show that (1) he/she has suffered
an “injury in fact” that is concrete and particularized (not common to the entire public),
and actual or imminent; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely that the injury will be redressed by a favorable decision.
Like all suits in federal district court, citizen suits must at a minimum meet these
constitutionally mandated prerequisites.
Environmental Standing Prior to Laidlaw
The environmental-standing case law prior to Laidlaw divides into two historical3
phases. In the first, standing was easily obtained. In Sierra Club v. Morton, the Supreme
Court in 1972 made clear that injury to aesthetic and environmental well-being may
constitute “injury in fact” for purposes of establishing standing to seek judicial review
under the Administrative Procedure Act (APA).4 Moreover, the fact that the injury was5
“shared by the many” did not make it less deserving. The following year, in what is
generally regarded as the apogee of relaxed standing law, the Court in United States v.6
SCRAP found APA standing based on an attenuated argument by a group seeking to
compel the ICC to suspend a proposed freight rate increase. The group argued that the
rate increase would raise the price of recyclable materials, which would discourage their
use, which would result in increased use of nonrecyclable materials, which would lead to
adverse environmental impacts (e.g., increased litter) on the forests and streams in the
D.C. area that group members used for recreation.
Following Sierra Club and SCRAP, the standing hurdle remained an easily
surmounted one in environmental cases for almost two decades. In 1983, however, then-
Judge Antonin Scalia argued in a law review article that federal courts were conferring7
standing too liberally. For one thing, he said, courts need to accord greater weight to the
traditional requirement that plaintiff’s alleged injury be a particularized one, which sets him
or her apart from the public at large. For another, he asserted that courts should be less
intrusive into executive branch affairs, particularly when the plaintiff seeks to vindicate
majoritarian interests. The law of standing, in Judge Scalia’s view, should restrict courts
3 405 U.S. 727 (1972)
4 Section of the APA requires that those seeking review under that statute have “suffer[ed] legal
wrong,” or be “adversely affected” or “aggrieved,” by the challenged agency action. 5 U.S.C. §
5 To be sure, the Court denied the Sierra Club standing, because the Club had failed to allege that
it or its members were among the injured. This deficiency was easily remedied by the Club’s
amending its complaint to allege recreational harm to those of its members who visited the affected
area.
6 412 U.S. 669 (1973).
7 Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers,
to protecting the minority against the majority. Important here, he seemed to place many
environmental suits in the undesirable vindication-of-the-majority category.8
When Judge Scalia ascended to the Supreme Court in 1986, this article assumed
some significance. And, indeed, now-Justice Scalia authored the majority opinions in each
of the Supreme Court’s environmental standing decisions in the 1990s. Not surprisingly,
these opinions reflect his law review article, and define the second phase of the Court’s
environmental standing jurisprudence.
All three decisions in this second phase found the environmental plaintiff to lack
standing. In Lujan v. National Wildlife Federation,9 the Court held 5-4 that where
individual plaintiffs averred only that they recreated on unspecified portions of public land,
there was insufficient geographic specificity to say they were “adversely affected” under
the APA by a Bureau of Land Management action affecting particular tracts. Similarly,
in Lujan v. Defenders of Wildlife,10 the Court held 7-2 that allegations by the
environmental group’s members that they intended “some day” to visit an area where
endangered species might be harmed by the challenged federal action, lacked the temporal
specificity needed to meet the “injury in fact” prong of Article III standing. Finally, in
Steel Co. v. Citizens for a Better Environment,11 the Court ruled 6-3 that where the
defendant came into compliance during the 60-day notice period before the citizen suit
could be filed, the plaintiffs failed the “redressability” component of Article III standing.
For example, the civil penalties sought by the suit were payable to the U.S. Treasury, not
the plaintiffs, and so could not redress any lingering injury plaintiffs may suffer from the
former violation.
The stage was now set for Laidlaw.
The Laidlaw Litigation
Laidlaw operated a hazardous waste incinerator that discharged wastewater into the
Tyger River in South Carolina. In 1992, Friends of the Earth (FOE) brought a Clean
Water Act (CWA) citizen suit against Laidlaw,12 alleging that the incinerator had
committed hundreds of violations of its effluent permit. FOE submitted the affidavits of
several of its members alleging that they were injured by the violations in that they used
the river downstream of Laidlaw’s point of discharge and had curtailed their use because
of concerns about the effect of the violations on human health and fish.
8 Also underlying Justice Scalia’s narrow view of standing is his dissent in Morrison v. Olson, 487
U.S. 654, 697 (1988). There, he opined that the Constitution permits only the executive branch
to enforce a public law.
9 497 U.S. 871 (1990).
10 504 U.S. 555 (1992).
11 523 U.S. 83 (1998).
12 CWA § 505(a); 33 U.S.C. § 1365(a).
In 1997, the district court found that Laidlaw had violated the mercury limits in its
permit 489 times, the monitoring requirements 420 times, and the reporting requirements
503 times.13 Some of these violations occurred after the citizen suit was filed. The district
court denied injunctive relief, since there was substantial compliance by the time the court
issued its order, but ordered Laidlaw to pay $405,800 in civil penalties.
The Fourth Circuit vacated.14 In its view, the case became moot once the defendant
fully complied with its permit and FOE declined to appeal the district court’s denial of
injunctive relief. FOE was only seeking a higher civil penalty than the district court
imposed, and under Steel Co., civil penalties do not meet redressability requirements since
they are not payable to the plaintiff. Nor could plaintiffs recover their attorneys fees, since
the CWA citizen suit provision limited such recovery to instances where the plaintiff
prevailed.
On January 12, 2000, the Supreme Court reversed. Writing for a 7-justice majority,
Justice Ginsburg held that the Fourth Circuit erred in concluding that a citizen suit claim
for civil penalties must be dismissed as moot when the defendant, after filing of the suit,
comes into compliance.
The majority opinion first resolves the Article III standing question. As for injury in
fact, it ruled that the relevant showing is injury to the plaintiff, not injury to the
environment. Thus, it was sufficient that FOE members lived downstream from the point
of discharge and were concerned enough by the defendant’s discharges that they curtailed
their use of the river. As for redressability, the Court declared that all civil penalties have
some deterrent effect. Indeed, Congress had said so in the specific context of CWA
enactment and “[t]his congressional determination warrants judicial attention and
respect.”15 Steel Co. does not dictate otherwise, said the Court, since that decision denied
standing for citizen suitors seeking civil penalties for violations that had abated by the time
of suit. It did not reach the issue here: standing to seek penalties for violations ongoing
at such time. Thus, plaintiffs had standing.
Turning to the mootness issue (again, raised by the defendant’s coming into
compliance during the district court’s deliberations), the Court charged the Fourth Circuit
with confusing standing and mootness. The confusion was understandable, the Court
conceded, given its past characterization of mootness as “standing set in a time frame.”
In Laidlaw, the Court backed away from that description. It noted, for example, that the
prospect of future noncompliance may be too speculative to support standing, but not too
speculative to overcome mootness. Then, too, the underlying purpose of the two
doctrines counsels greater hesitancy in dismissing a case on mootness, as opposed to
absence of standing, grounds. Standing doctrine acts to ensure that the scarce resources
of the federal courts are devoted to disputes in which the parties have a concrete interest.
13 956 F. Supp. 588, 600-601 (D.S.C. 1997). There is some overlap in the monitoring and
reporting violations, and a significant number of them involve only technical errors in the forms
used to report compliance.
14 149 F.3d 303 (4th Cir. 1998). An earlier CRS report addresses this Fourth Circuit ruling:
Robert Meltz, The Future of the Citizen Suit After Steel Co. and Laidlaw, CRS Report RS20012
(Jan. 5, 1999).
15 120 S. Ct. at 706.
In contrast, by the time mootness is an issue, the case may have been in the courts for
years, making abandonment without compelling reason a wasteful practice.
That the facility in question had since been closed, however, gave the majority pause.
The closure might indeed moot the case if this event made it “absolutely clear” that
Laidlaw’s permit violations could not reasonably be expected to recur. This factual issue,
not explored by the district court, was found to be open for consideration on remand.
Finally, the Court declined to resolve the important attorneys’ fees issue. FOE
argued that it is entitled to attorneys’ fees on the theory that it was the “prevailing party”
under the CWA citizen suit provision because it was the “catalyst” that brought about
Laidlaw’s compliance. Suggesting that the catalyst theory is viable in general, the Court
nonetheless refused to address its validity in this case. That determination, it concluded,
was initially for the district court.
In a concurrence, Justice Stevens found an absence of precedent for the proposition
that post-complaint compliance that moots a claim for injunctive relief also moots one for
monetary relief. Justice Kennedy, also concurring, asked whether allowing private
litigants to seek public fines gibed with the Article II enforcement responsibilities
committed to the Executive Branch.
Dissenting, Justice Scalia, joined by Justice Thomas, agreed with the majority that
“injury in fact” relates to harm to the plaintiff, rather than to the environment. Here,
however, the district court had found no harm to the environment, in Scalia’s view
precluding a finding that plaintiff had been harmed. Moreover, the majority, in his view,
had accepted hopelessly vague claims of injury. As to redressability, Scalia felt that the
indirect private consequences of the civil penalty being sought (its alleged deterrent effect)
failed to satisfy Article III, particularly here where they were so speculative. And like
Justice Kennedy, Justice Scalia raised but did not answer the Article II question: Can we
“turn[] over to private citizens the function of enforcing the law”?
Implications for Environmental Citizen Suits
The Laidlaw decision is universally seen as a significant win for the plaintiff side of
the environmental citizen suit, likely to make such suits much easier to bring. Moreover,
it now appears that only a minority of the justices are sympathetic to Justice Scalia’s view
that the Constitution prohibits a private party from enforcing a public law. Some specific
implications of the Laidlaw decision are –
1. It will be easier for plaintiffs to demonstrate the “injury in fact” component of
standing. The Laidlaw majority asserts that where the injury to plaintiff results from a
reasonable concern, there is little need for plaintiff to demonstrate injury to the
environment as a predicate. This will alter the current situation, where plaintiff’s attorneys
were expending substantial effort (lab analysis of water samples, ecological testing, witness
depositions) just to get past this threshold issue in the case.
Laidlaw has already borne fruit. One month after the decision, the en banc Fourth
Circuit reversed the panel decision in Friends of the Earth v. Gaston Copper Recycling
Corp. denying standing to bring a CWA citizen suit.16 The en banc court noted that on the
facts presented, denying standing “encroaches on congressional authority by erecting
barriers to standing so high as to frustrate citizen enforcement of the Clean Water Act.”
The citizen suit provision at issue, it observed, uses language that cannot be reconciled
with the strict standard of injury used by the decisions below. To Gaston Copper’s
defense that plaintiff had not adequately proved environmental degradation to show injury
in fact for Article III purposes, the court held up Laidlaw’s focus on injury to the plaintiff.
“[Plaintiff’s] reasonable fear and concern about the effects of Gaston Copper’s discharge,
supported by objective evidence ... constitutes injury in fact.”
Laidlaw also calls into question the no-standing holding in Public Interest Research17
Group of New Jersey, Inc. v. Magnesium Elektron, Inc., yet another CWA citizen suit.
There, the Third Circuit correctly noted that the mere knowledge that a company has
polluted is insufficient to confer standing, since this is a generalized grievance shared by
the public at large. In conflict with the future Laidlaw decision, however, the court went
on to conclude that standing requires a showing of actual, tangible injury to the
environment. This aspect of the Magnesium Elektron decision no longer appears to be
good law.
component of standing, even though the penalties are not payable to the plaintiff. The
Court’s statement that “all civil penalties have some deterrent effect” is a powerful one for
citizen suitors. There are currently several citizen suit provisions that allow claims for
money penalties payable to the U.S. Treasury. Note also: because the Court seems
inclined to defer to congressional findings, it may be useful in the future to accompany new
citizen suit provisions authorizing civil penalties with assertions of deterrent effect.
3. The majority retained the traditional view that makes it hard for a defendant to
obtain a dismissal based on mootness once a plaintiff has established standing.
since many citizen suit law firms are funded largely through recovery of attorney’s fees
from defendants. The Supreme Court’s endorsement of the “catalyst theory” suggests that
the district court may be positively disposed to awarding fees in this case.
5. Two facts suggest that Laidlaw’s reversal of the 1990s trend toward higher
standing hurdles may be more than temporary. First, the Court did not have to decide the
standing question at all in the case; mootness was the principal issue presented, and the
petitioner’s briefs were focused there. That Justice Ginsburg reached out to resolve the
standing issue when it was unnecessary to do so points to a desire on the part of at least
some justices to move the pendulum back to some extent. Second, it may be significant
that the majority opinion commanded fully 7 votes, including some justices normally on
the no-standing side of the Court’s decisions.
16 2000 Westlaw 204559 (4th Cir. Feb. 23, 2000) (en banc).
17 123 F.3d 111 (3rd Cir. 1997).