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Standing to Sue

The issue of “standing” is omnipresent in environmental law, and it often determines the outcome of cases–or, perhaps more accurately, whether the plaintiff will even be able to bring a case. The concept of standing basically says that only a person who has been injured in some way should be able to bring a lawsuit to enforce her rights. This is simple to apply in simple situations, such as car accidents or assaults, but it gets complicated in environmental law, where the injuries are less concrete and are harder to trace to their source. (Hint: the words “concrete” and “traceable” are going to be thrown around a lot when you’re talking about standing).

Much of environmental law involves citizen suits in which members of the general public allege that polluters or government agencies are doing something (or failing to do something) that harms the environment. These suits raise questions like: why should citizen X or environmental group Y be allowed (in the eyes of the law) to represent a forest in North Carolina or the atmosphere over Texas in a suit against a power company? Or why should anyone be allowed to sue this particular power company for polluting the air over Texas when that air is already so polluted by other power plants and industrial sources? Who is to say this particular defendant is responsible?

The Supreme Court attempted to resolve these questions by holding that a plaintiff will only have standing to sue if she has (1) suffered a concrete and particularized injury (2) that is traceable to the defendant and (3) that is capable of redress by a court. Accordingly, if you want to sue a power company, you will first need to show that its pollution has caused you to suffer a concrete injury. Aesthetic injuries count, but it is much easier to get standing if you have an economic injury. A bird watcher would be a decent plaintiff, but a hot-air balloon tour guide would be better. Secondly, the plaintiff will have to show that the pollution that caused the injury is traceable to the power company. Finally, the court has to be able to do something about it, like award damages or enjoin the pollution.

The lesson of standing is that if you want to sue on behalf of the environment, you need to find the right plaintiff or else your case will get kicked out of court.