Friends of the Earth v. Laidlaw Environmental Services: A resounding victory for environmentalists, its implications on future justiciability decisions, and resolution...

Georgetown Law Journal, Apr 2001 by Shults, Kristen M

Part IV discusses the issues on remand. This Part suggests that the case should not be found moot because violations can be reasonably expected to recur, DHEC's prosecution of Laidlaw did not bar FOE's suit because the prosecution was not "diligent," and FOE should be awarded attorney's fees.

1. A CHANGE IN DIRECTION FOR THE STANDING DOCTRINE?

The Laidlaw Court may be signaling a change in direction for the standing doctrine. Justice Scalia's alarmed dissent in Laidlaw concluded that

[bly uncritically accepting vague claims of injury, the Court has turned the Article III requirement of injury in fact into a `mere pleading requirement' and by approving the novel theory that public penalties can redress anticipated private wrongs, it has come close to `mak[ing] the redressability requirement vanish.' The undesirable and unconstitutional consequence of today's decision is to place the immense power of suing to enforce the public laws in private hands.40

Justice Scalia's alarm is valid insofar as the Court's opinion implies that the strict, formalistic standing doctrine outlined in Lujan v. Defenders of Wildlife has peaked, and the Court is now indicating a change in direction toward a more relaxed approach to the standing doctrine.

A. EVOLUTION OF THE STANDING DOCTRINE

To understand where the Court may be headed, it is useful to consider the evolution of the standing doctrine. Scholars have suggested that there are five periods in the history of the standing doctrine prior to Laidlaw. From the

Founding era until 1920, litigants seeking to establish standing needed a legal right, but not a concrete interest, to bring suit.41 During the 1920s and the New Deal era, Justices Brandeis and Frankfurter, in an effort to protect New Deal legislation from judicial scrutiny, revamped the standing doctrine.42 During this period, standing could not exist in cases lacking a common-law right or an explicit statutory right to bring suit.43 The third period began in 1946 with the passage of the Administrative Procedure Act (APA), which established "standing for people whose common law or statutory interests were at stake, as well as for people expressly authorized to bring suit under statutes other than the APA."44

The birth of the modern approach to standing came in the fourth period, beginning in 1970 with Association of Data Processing Service Organizations v. Camp.45 In Camp, the Court created a new test requiring plaintiffs to establish injury in fact.46 The purpose of the injury-in-fact requirement was to assure that an actual dispute existed between the parties before the court.47 From there, the approach to standing evolved into the current test that requires plaintiffs to establish injury in fact, causation, and redressability.48

During the 1970s the Court applied a relaxed version of the standing doctrine and rarely used it to declare cases unfit for judicial review. For instance, in Sierra Club v. Morton,49 the Court explained for the first time that aesthetic

harms can constitute injury in fact.50 Also, in United States v. SCRAP,51 law students challenged the Interstate Commerce Commission's (ICC) failure to prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) when it decided to charge an interim surcharge on recyclable commodities.52 The Court found that the law students had standing because they used areas that might be environmentally degraded as a result of this new surcharge. The Court explained that all persons who utilize the scenic resources of the country and all who breathe its air could claim harm similar to that alleged by the environmental groups before the court-standing was not to be denied simply because many people suffered the same injury.53 This decision was indicative of a relaxed approach to standing where the overall philosophy was to open the courtroom doors to as many parties as possible.