Civil Procedure as Public Policy: Case Studies in the Federal Standing Doctrine

Abstract

Federal courts use justiciability doctrines to limit the kinds of cases that they hear. One of these doctrines, the doctrine of standing, renders otherwise justiciable claims nonjusticiable if brought by a plaintiff whom the court deems an improper party to litigate the interests at stake. The application of this doctrine has posed a problem for congressional efforts to oversee the executive branch. Congress has placed citizen suit provisions in nearly every major environmental law since 1970. These provisions allow private parties to bring suit against violators in the federal courts to supplement the executive branch’s enforcement efforts. They also allow private parties to bring suit against the executive branch itself when it fails to follow the proper deliberative procedures for formulating environmental regulations or when it fails to make required information disclosures. Whereas Congress apparently intended for any citizen to be able to sue for any violation of a law with a citizen suit provision, courts have consistently used the doctrine of standing to read into these laws a number of constitutional requirements for citizens to be the proper plaintiffs to bring suit. While a number of commentators have analyzed what Supreme Court decisions on the doctrine of standing might imply for environmental citizen suits and for congressional oversight policy, there has been virtually no empirical work examining how lower federal courts have been implementing the doctrine of standing in practice. This area of Supreme Court jurisprudence has been marred by conflicting precedents and non-precedential plurality opinions. This paper asks the question, “Under what conditions do federal courts grant or deny standing in environmental citizen suit cases?” I examine over 100 federal district court and Court of Appeals cases for the type of claim they present (material injury, informational injury, or procedural injury), the identity of the defendant (private party or federal government), and for the statute under which it was brought (Clean Water Act, Endangered Species Act, or National Environmental Policy Act), in addition to the more idiosyncratic features of each case. I use three case studies (one on the CWA suits, another on the ESA suits, and the last on the NEPA suits) to illustrate different features of how and when courts grant or deny standing to environmental citizen suits. Ultimately, I argue that the courts’ standing jurisprudence is animated by a formalist approach to the separation of powers (similar to that underlying unitary executive theory), which has sharply circumscribed Congress’s apparent intent to allow relatively free-form enforcement of environmental laws against private violators and against the executive branch. This is contrary to past predictions in the literature about how lower courts have been approaching standing in environmental citizen suits. I also present a more specific framework that outlines the conditions under which environmental citizen suit plaintiffs can expect to encounter greater or lesser difficulty in gaining standing. I conclude by arguing that there are effective policy changes Congress could make that would allow environmental citizen suit plaintiffs to bypass Article III courts’ restrictive approach to standing, although I do not make any specific recommendations because I do not assess the desirability of these plaintiffs being able to bypass these limitations or whether Congress may have other reasons to prefer the current regime.