Standing in Citizen’s Suits: Easy Now, but Will It Get Harder?

A recent decision by a federal district court in Houston, Texas demonstrates how easy it is for plaintiffs to establish standing in citizen’s suits.

All of the major federal environmental laws allow for citizen’s suits.  These are suits to enforce environmental permits or regulations brought by private citizens.

Things could change if President Trump is allowed to appoint another United States Supreme Court justice to a spot now held by a Democratic appointee or by Justice Kennedy. Many conservative commentators have argued that Justice Scalia was correct in his dissents, when he stated that the United States Supreme Court has made it too easy for private citizens to use the courts to complain of facilities alleged to be violating environmental permits.

Houston Judge Rules that Sierra Club Alleged Adequate Facts to Establish Standing

In Sierra Club v. Pasadena Refining System, a federal district court judge recently determined that Sierra Club met the relatively lenient standing requirement. In response to Pasadena’s motion to dismiss, the judge ruled that the plaintiffs had pleaded adequate facts to demonstrate standing, by pleading that some of their members have suffered injuries related to Pasadena’s emissions, including asthma, headaches, sneezing and coughing. The court ruled that the plaintiffs did not need to prove that Pasadena’s emissions caused these injuries. Rather, plaintiffs needed only to prove that the emissions “contribute to the kinds of injuries alleged by the plaintiffs.”

The opinion suggests that as long as some scientific evidence associates these emissions with the types of injuries alleged by the plaintiffs, that is enough to establish standing, no matter how small the contribution.  Given that almost any emissions in enough quantity can lead to “asthma, headaches, sneezing and coughing,” the decision indicates that plaintiffs will be able to establish standing in almost any air pollution case.

The US Constitution Demands that Plaintiffs Establish Standing

In theory, not just any citizen can bring a citizen’s suit.  The constitutional requirement that a court only has jurisdiction if a case or controversy exists requires the plaintiffs to establish that they have some specific injury that is “fairly traceable” and reasonably redressable to the defendant’s actions. While several United States Supreme Court decisions acknowledge this requirement in environmental citizen’s suit cases, recent decisions have required only a minimal connection between the alleged pollution and the alleged injuries.

Starting at least as early as Justice Scalia’s dissent in some of these cases, conservative commentators have complained that the courts have made it too easy for persons who have no real injury to bring these citizen’s suits, thus making the constitutional requirement of standing meaningless. It appears that the four Republican appointed justices, other than Justice Kennedy, may share this concern. If President Trump is able to appoint another justice in the place of one of the Democratic appointees or Justice Kennedy, it is possible that the United States Supreme Court will make it more difficult for plaintiffs to establish standing in citizen’s suits cases.  Until then, plaintiffs such as Sierra Club in this case will be able to establish standing based on fairly minimal allegations and proof.

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