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

Laidlaw's discharges of mercury into the Tyger River in excess of its NPDES permit levels not only violated the law, but also constituted harm to the environment according to this national policy. Thus, not only was the Court correct in determining that it was reasonable for plaintiffs to forego use of the river because of the presence of an extremely toxic pollutant in the waterway, but Congress had already made a finding that a waterway's integrity is compromised if pollutants are discharged above NPDES permit limits. Courts owe respect to this congressional determination that any discharge of a pollutant into the nation's waters harms the chemical, physical, and biological integrity of the water, especially when in amounts above those allowed by an NPDES permit. Therefore, the Court should have recognized that there was demonstrated harm to the environment according to the CWA, regardless of whether scientific evidence demonstrated water quality deterioration. This inevitably bolsters the Court's conclusion that the plaintiffs suffered economic and aesthetic harms and were reasonable in foregoing their use of the Tyger River.

3. The Laidlaw Approach Versus the Defenders of Wildlife Approach

The Laidlaw opinion demonstrates a less formalistic approach to injury in fact than that taken in Defenders of Wildlife because the Court was more willing in Laidlaw to recognize an environmental injury as judicially cognizable, was more willing to accept-at face value-affidavits alleging actual injury, and was less concerned with burdensome formalities.71

The formalistic approach to the injury-in-fact requirement that was applied in Defenders of Wildlife has drawn much criticism. For instance, many scholars argue that while the Court recognizes traditional harms known to the common law, the Court rarely finds injury in fact when novel injuries created by statute are involved.72 The determination of what constitutes an "injury" also seems to depend on value-laden judgments by courts. For instance, courts may require that an individual actually have visited a park before that individual can argue that the destruction of the park has caused her "injury." This is so, even if the individual truly feels injured just by knowing that the park has been destroyed. When courts deny these claims, they "are making a judgment based not on any fact, but instead on an inquiry into what should count as a judicially cognizable injury."73 Another criticism is that the injury-in-fact requirement prevents ideological plaintiffs74 from bringing suit, even though they might actually make better arguments in court and may better represent the public interest than those plaintiffs suffering particularized and concrete injuries.75 Also, the Defenders of

Wildlife approach has been criticized as overly formalistic and stringent,76 requiring courts to engage in unnecessary and burdensome fact finding.77

Justice Scalia argued in Laidlaw that the Court made a sham out of this injury-in-fact requirement by taking a lenient approach to the question of what constitutes an injury in fact.78 Justice Scalia's claim is well-founded in the sense that Laidlaw strays from the established formalistic and stringent approach of Defenders v. Wildlife.