Earth in the Judicial Balance
Virtually all of our major environmental laws contain citizen-suit provisions, providing a legion of private attorneys general to supplement the government's role in enforcing environmental laws. For citizen suits to vindicate the protections promised by those laws, however, private parties must be able to get into court in the first place. And to do so they must satisfy the requirements of "standing." They must demonstrate (1) that they have suffered an injury in fact; (2) that the injury is the result of an act forbidden under the law; and (3) that the court can provide redress. Primarily because of its narrow view of what constitutes an injury, the Rehnquist Court has until recently made it increasingly difficult for environmental plaintiffs to meet the requirements of standing.
In two of the Court's most significant decisions of the nineties, the Lujan cases, Justice Scalia wrote that plaintiffs must demonstrate specific links of causation between the challenged act and the claimed harm to the plaintiffs. In the case of actions alleged to threaten endangered species, the Court required plaintiffs to show that they had a particular economic or physical connection to the species, expressly ruling out aesthetic or recreational injuries. The net effect was to restrict citizens' access to the courts. Some lower courts have since denied standing to plaintiffs unable to show particularized harm from a polluter's specific discharge. Proving this is well nigh impossible, because it is unusual that a harm resulting from pollution can be traced back to a single source. Usually, the degradation of air and water quality occurs over a long period of extended pollution from multiple sources.
The underlying logic for closing the doors of courts to many environmental concerns lies in separation of powers. Justice Scalia argues that the executive branch, not the public or the courts, is responsible for seeing that the laws are faithfully executed. If citizens are concerned about agencies' poor compliance with statutory mandates they should go to Congress for a legislative fix or to the executive branch for a political resolution. The problem with this pat answer, of course, is that Congress provided for citizen suits expressly to insure that the executive branch did enforce the laws. Recall how Reagan Administration appointee Anne Gorsuch neutered the Environmental Protection Agency.