Jeffrey Bossert Clark *
In a surprising departure from the trend it set in the 90s of increasing
the stringency of the tests for standing, the Supreme Court has
just decided a case that appears to water down standing requirements
to such a degree that they are even easier to satisfy than they
were in the heyday of United States v. Students Challenging Regulatory
Agency Procedures ("SCRAP").1 In SCRAP, decided in 1970,
a student group was permitted to obtain standing based on a speculative
and indirect causal chain where the final link in the chain at least
involved real harm to the environment (even if there might not have
been very much such harm directly traceable to the defendant's proposed
But in Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc.2, the Supreme Court has now approved standing based
on a causal chain, albeit one somewhat less speculative than in
SCRAP, despite an unchallenged District Court finding that no environmental
harm resulted from the challenged behavior. The Laidlaw majority
reasoned that environmental standing was about harm to the human
plaintiff and not harm to the environment and therefore sanctioned
standing based on the plaintiffs' subjective averments of adverse
impacts on their environmental enjoyment. Though dissents are often
full of "Chicken Little" hyperbole, it is probably no
exaggeration to say, as Justice Scalia does in his Laidlaw dissent,
that if "subjective standing" takes root in other contexts
or even in other environmental cases, the Supreme Court has created
a "revolutionary new doctrine" in Laidlaw.3
The facts in Laidlaw are relatively simple. Laidlaw operated a
wastewater treatment plant in Roebuck, South Carolina that held
a Clean Water Act permit to discharge limited quantities of various
pollutants into the North Tyger River. Laidlaw violated its permit
limitations 489 times between 1987 and 1995, in particular by discharging
too much mercury into the North Tyger. In the spring of 1992, Friends
of the Earth and another environmental group took the preliminary
steps necessary to commence a citizen suit against Laidlaw for its
Clean Water Act violations. Apparently in order to take advantage
of a defense that would bar such a citizen suit, Laidlaw contacted
South Carolina state environmental authorities and asked them to
bring suit against Laidlaw for violating its state-issued Clean
Water Act permit. South Carolina was amenable to doing so and indeed
simply signed off on a complaint drafted by counsel for Laidlaw.
On the last day before Friends of the Earth could have brought suit
without encountering at least a potential preclusion defense, Laidlaw
and the State of South Carolina settled for $100,000 in civil penalties.4
Despite the availability of the preclusion defense, Friends of
the Earth filed suit under the Clean Air Act in federal court. The
District Court ruled that Friends of the Earth had standing "by
the very slimmest of margins" and also rejected Laidlaw's preclusion
defense by holding that South Carolina had not diligently prosecuted
its enforcement action against the company.5 After the suit was
commenced, but before judgment was rendered, Laidlaw violated its
mercury-discharge limitations 13 more times. On January 22, 1997,
about two years after Laidlaw's last mercury-discharge violation,
the District Court entered judgment in favor of the environmental
plaintiffs. It denied the plaintiffs' request for injunctive an
declaratory relief, but awarded $405,800 in civil penalties to the
United States, who participated as amicus curiae in favor of the
Friends of the Earth appealed to the Fourth Circuit, but only on
the ground that the penalty award was too small. Laidlaw cross appealed,
arguing that Friends of the Earth lacked standing to bring the suit
and asserting that the District Court's rejection of its preclusion
defense was error. The Fourth Circuit assumed for the sake of argument
that Friends of the Earth had standing, but ruled that the case
became moot because Laidlaw had complied with the conditions of
its permits before judgment was issued and that, given Friends of
the Earth's decision only to appeal only the size of the penalty
award, the only form of relief available (penalties) could not defeat
mootness because such an award would not redress Friends of the
Earth's alleged injuries. According to Laidlaw, after the Fourth
Circuit ruled, but before certiorari was granted, its relevant wastewater
plant in Roebuck, South Carolina was permanently closed, dismantled,
and put up for sale. It was uncertain as a factual matter, however,
whether Laidlaw continued to possess the Clean Water Act discharge
permit under which it had operated.7
Majority's Holding and Analysis
In an opinion written by Justice Ginsburg, the Court concluded
that the case was not moot and that Friends of the Earth did possess
standing to bring it. Justice Stevens wrote separately to argue
that voluntary discontinuance of the unlawful behavior should never
be able to moot a case once a valid judgment has been rendered.
Justice Kennedy wrote to emphasize that difficult separation of
powers concerns based on interfering with the President's law enforcement
powers are raised by citizens suits, but that such questions were
not part of the current case. But both of those Justices concurred
in the result. Justices Scalia and Thomas, in an opinion by Justice
Scalia, dissented from the majority's analysis on virtually all
Justice Ginsburg addressed the question of standing first, holding
that the plaintiffs had demonstrated injury in fact, the first requirement
of that doctrine, based on their allegations of subjective harm.
"For example, FOE member Kenneth Lee Curtis averred in affidavits
that he lived a half-mile from Laidlaw's facility; that he occasionally
drove over the North Tyger River, and that it looked and smelled
polluted; and that he would like to fish, camp, swim, and picnic
in and near the river between 3 and 15 miles downstream from the
facility, as he did when he was a teenager, but would not do so
because he was concerned the water was polluted."8 The majority
noted that the Court had upheld environmental standing based on
the lessening of purely aesthetic values.9 (This suggests that the
damage down by Laidlaw to standing doctrine can be contained perhaps
by noting that aesthetic values, which are important to environmentalism
and are unavoidably subjective, might not justify standing in non-environmental
Justice Scalia challenged this finding in dissent by pointing out
that there was no evidence of a nexus between what was deterring
individuals such as Kenneth Lee from using the North Tyger and Laidlaw's
behavior. In other words, it simply does not follow that the river
looked and smelled polluted and thus Lee's injury was the result
of Laidlaw's mercury discharges.10 The majority simply brushed this
concern aside by noting, however, that they saw "nothing `improbable'
about the proposition that a company's continuous and pervasive
illegal discharges of pollutants into a river would cause nearby
residents to curtail their recreational use of that waterway and
would subject them to other economic and aesthetic harms."11
(While it is discouraging that a majority of the Supreme Court has
effectively held that even pollution that may cause none of the
ill effects complained of by plaintiffs will justify an action against
that polluter, another way to limit the reach of Laidlaw is to read
it narrowly only to hold that where a toxic chemical is released
into an individual's immediate surroundings, that individual will
possess standing to sue for such discharges if a private right of
action of some kind exists to mitigate such pollution.)
The majority also rejected Laidlaw's argument that Friends of the
Earth could not demonstrate redressability because the civil penalties
at stake were payable to the government.12 Specifically, the majority
reasoned that redressability existed because a penalty award would
deter future unlawful conduct of a similar nature by Laidlaw.13
The majority did, however, recognize that "there may be a point
at which the deterrent effect of a claim for civil penalties becomes
so insubstantial or so remote that it cannot support citizen standing.
[But the] fact that this vanishing point is not easy to ascertain
does not detract from the deterrent power of such penalties in the
ordinary case."14 The Court has nevertheless left open the
possibility that citizen standing will not be held to exist in every
case where civil penalties are available as a deterrent.
Shifting from considering standing to mootness, the majority noted
that Laidlaw's and the Fourth Circuit's argument from Steel Company
v. Citizens for a Better Environment15 was inapposite. In Steel
Company, the Court held that an environmental plaintiff lacked standing
because the conduct being complained of had terminated before suit
was brought. Despite statements in cases such as Arizonans for Official
English v. Arizona16 that mootness is "the doctrine of standing
set in a time frame," the Court held that the requirements
for standing and mootness do not always overlap. In particular,
the Court ruled that there was no counterpart in standing doctrine
to the exception to mootness for "voluntary cessation"
in other words, voluntary cessation does not moot a case,
but under Steel Company, it does deprive a plaintiff a standing.
Given this important difference, the majority held that the Fourth
Circuit erred by confusing standing with mootness and that the voluntary
cessation by Laidlaw here, even if it would have been effective
to deprive a plaintiff of standing under Steel Company, was insufficient
to trigger mootness.17
Assuming that Laidlaw on remand could carry its burden of proof
under "voluntary cessation" doctrine to show that it was
clear that its violations would not recur, the Supreme Court left
open that possible defense to Laidlaw.18 In addition, except by
signaling that it disapproved of the `collusive' behavior of South
Carolina authorities and Laidlaw, the Court did not address in any
way Laidlaw's argument that the District Court had erred by rejecting
its preclusion defense on the basis of South Carolina's previous
enforcement action. Finally, the Court expressly declined to consider
whether Friends of the Earth would be entitled to attorney's fees
because it was the "catalyst" for an award of penalties
to the United States.19
Justice Scalia's Dissent
Justice Scalia's own words summarize his dissent best: "The
Court begins its analysis by finding injury in fact on the basis
of vague affidavits that are undermined by the District Court's
express finding that Laidlaw's discharges caused no demonstrable
harm to the environment. It then proceeds to marry private wrong
with public remedy in a union that violates traditional principles
of federal standing thereby permitting law enforcement to
be placed in the hands of private individuals. Finally, the Court
suggests that to avoid mootness one needs even less of a stake in
the outcome than the Court's watered-down requirements for standing.
I dissent from all of this."20
The essence of Justice Scalia's concerns that the injury-in-fact
prong of standing analysis has been undermined by Laidlaw is sketched
above. Justice Scalia also explored at length what he thought was
wrong with the majority's analysis on the facts of this case of
standing's redressability prong and mootness. Justice Scalia made
three points about the majority's rulings regarding redressability:
(1) this case should have fallen under the well-established rule
in Linda R.S. v. Richard D.21 that individuals lack standing to
force the public prosecution of others because indirect benefits
of this nature should not be considered since the direct function
of prosecutions is for the state itself to right the wrongs done
to it;22 (2) the benefits to the plaintiffs were wholly speculative,
even more speculative than those approved in Simon v. Eastern Ky.
Welfare Rights Org.,23 which held that denying a tax deduction to
hospitals that refused to treat indigents was unlikely to ensure
that such hospitals would serve indigents in order to obtain the
deduction in the future, or in Linda R.S., which held that it was
unlikely that prosecution for nonpayment of child support would
result in the payment of such support;24 and (3) in an echo of his
dissent in Morrison v. Olson,25 which held that the Independent
Counsel statute was constitutional, Justice Scalia noted that it
violated the separation of powers to permit courts to intrude on
the power of the Executive by turning over law enforcement powers
to private citizens and by authorizing law enforcement activity
by those who have a narrow focus and lack a need to prioritize pursuing
serious violations over pursuing those that are merely colorable.26
Finally, as noted above, Justice Scalia argued that the majority
was attempting to water down mootness doctrine as well by engaging
in an extended comparison of mootness and standing where simple
invocation of the "voluntary cessation" rule would have
sufficed.27 Justice Scalia also took issue with Justice Stevens'
concurrence, by arguing that a judgment providing retrospective
relief such as damages at law could not be mooted by subsequent
events, but that civil penalties were of a different character because
they were equitable in nature and designed to deter future violations.28
This casenote has suggested several ways that Friends of the Earth
could be read narrowly, but it is clear that if the case is not
read in this way it works a genuine change in the law of standing
as it has been carefully crafted throughout the 1990s. It also suggests
that the Court may be rethinking its enthusiasm for what has been
largely Justice Scalia's vision for standing doctrine. For instance,
it is notable that Chief Justice Rehnquist and Justice O'Connor
did not join Justice Kennedy's concurrence, which was to the effect
that nothing in Laidlaw prejudges the question of whether it violates
the separation of powers to authorize private enforcement of the
laws. Of course, this is one of the very issues at stake in Vermont
Agency of Natural Resources v. United States ex rel. Stevens, No.
98-1828, another case to be decided this term. Vermont Agency will
likely establish whether the False Claims Act's qui tam provisions,
which allow private "relators" to enforce claims for fraud
against the government and to obtain a bounty by doing so, is constitutional.
At oral argument in Vermont Agency, there were signs that Chief
Justice Rehnquist and Justice O'Connor were backing away from Justice
Scalia's view of standing doctrine, at least in the context of qui
tam, which has a long common-law provenance. In fact, "[w]hen
Rehnquist suggested the actions of the first Congress `maybe show
that our irreducible minimum [of a constitutional case or controversy]
isn't consistent with the understanding of framers,' Justice John
Paul Stevens quipped, "Maybe the framers hadn't read Lujan."29
These hints that further, substantial changes in standing doctrine
may be wrought this term should be watched with great care.
* Associate, Kirkland & Ellis (Washington, D.C.).
1. 412 U.S. 669 (1973). In SCRAP, the Supreme Court held that a
student group had standing to challenge a railroad rate increase
in review proceedings before the Interstate Commerce Commission.
The student group alleged that it wished to camp, hike, fish, and
sightsee at various natural sites and that the rate increase would
impinge on those activities because it would increase the cost of
shipping recyclable materials and therefore the cost of recyclable
materials themselves, hence resulting in some increase in the number
of non-recyclable materials, such as bottles and cans, in the natural
areas the group wished to enjoy without interference from such debris.
SCRAP is generally thought of as the high-water mark (or low point,
depending on one's point of view) of standing doctrine.
2. 120 S. Ct. 693 (2000).
3. 120 S. Ct. at 719 (Scalia, J., dissenting).
4. See 120 S. Ct. at 701-02.
5. See id. at 702. The District Court noted that the settlement
agreement had been entered into with such haste that Friends of
the Earth did not even have an opportunity to intervene. See id.
at 702 n.1.
6. See id. at 703.
7. See id.; see also id. at 711.
8. Id. at 704.
9. See id. at 705.
10. See id. at 714 (Scalia, J., dissenting).
11. Id. at 706.
12. See id. at 706. Redressability is the third requirement of
standing. The majority apparently determined that traceability,
the second requirement, was not at issue in the case, although what
was effectively a traceability argument was perhaps the most powerful
point made by Justice Scalia in dissent, although even he did not
explicitly state his argument in such terms.
13. See id. at 706-07.
14. Id. at 707.
15. 523 U.S. 83 (1998).
16. 520 U.S. 43, 68 n.22 (1997).
17. Laidlaw, 120 S. Ct. at 708-10.
18. Id. at 711.
19. See id. at 711-12. Some lower courts have held that the Supreme
Court eliminated the so-called catalyst theory in Farrar v. Hobby,
506 U.S. 103 (1992).
20. Id. at 713 (Scalia, J., dissenting).
21. 410 U.S. 614 (1973).
22. Laidlaw, 120 S. Ct. at 715-17 (Scalia, J., dissenting) ("A
claim of particularized future injury has today been made the vehicle
for pursuing generalized penalties for past violations, and a threshold
showing of injury in fact has become a lever that will move the
23. 426 U.S. 126 (1976) .
24. Laidlaw, 120 S. Ct. at 717-19 (Scalia, J., dissenting).
25. 487 U.S. 654 (1988). See Laidlaw, 120 S. Ct. at 719 (Scalia,
J., dissenting) (once a citizen suit target is chosen by the plaintiffs
"the suit goes forward without meaningful public control").
26. Laidlaw, 120 S. Ct. at 719-20 (Scalia, J., dissenting).
27. Id. at 720-22 (Scalia, J., dissenting).
28. See id. at 720 n.5 (Scalia, J., dissenting).
29. Steve France, Qui Tam Pop Quiz: A Surprise Order Asks Whether
Whistleblowers Must Have Standing, ABA Journal 32 (Feb. 2000).