Recent Supreme Court Decision May Affect
Environmental Standing
A recent decision by the
United States Supreme Court has raised questions about the scope of plaintiffs'
standing to bring suit in federal court, a critical issue for environmental
litigants.
Federal courts have long
recognized that certain types of environmental harms can form the basis of
standing under Article III of the United States Constitution, which requires
plaintiffs to establish an "actual or imminent" injury that is "fairly
traceable" to the challenged conduct and "likely to be
redressed" by a favorable decision.
In one of the earliest federal rulings on environmental standing, Scenic Hudson Preservation Conference v. Federal Power Commission, the Second Circuit held that "those who by their activities and conduct have exhibited a special interest" in the "aesthetic, conservational, and recreational aspects" of a site have Article III standing, even in the absence of a "personal economic interest" at stake. 354 F.2d 608, 615-616 (1965).
Although it has been
well established that environmental harms, and not just economic harms, can
serve as the basis for a federal lawsuit, courts have struggled to define which
types of environmental harms may give rise to standing. In particular, courts
have questioned what level of risk, and over what time scale, rises to the
level of a cognizable environmental injury.
In a recent 5-4
decision, the Supreme Court held that a coalition of lawyers, human rights
activists and journalists lacked standing to challenge government surveillance
activities because the threatened harm posed by potential surveillance was, in
the view of the majority, too remote. Clapper v. Amnesty International, 2013 WL
673253 (U.S. February 26, 2013).
In Clapper, the plaintiffs sought to challenge
the constitutionality of § 1881a of the Foreign Intelligence Surveillance Act
(FISA), which authorizes federal interception of certain communications between
parties located in the United States and parties outside the United States.
The
Second Circuit found that the plaintiffs had established standing by
demonstrating an "objectively reasonable likelihood" that they would
eventually be subjected to the surveillance that they claimed was
unconstitutional. Amnesty Int'l USA v. Clapper, 638 F.3d 118, 134 (2d Cir.
2011). The Supreme Court overturned this decision, holding that the plaintiffs
needed to demonstrate that their future injuries were "certainly
impending."
Many environmental
issues involve long-term risk of harm that may not materialize immediately,
most notably, but not exclusively, in connection with climate change. In
Massachusetts v. EPA, the Supreme Court confronted the question of whether
claims by the State of Massachusetts that it would lose parts of its coast due
to gradual sea-level rise resulting from climate change were too speculative or
too far in the future to establish standing. 549 U.S. 497, 521 (2007).
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