Learning Gateways: Who Can Sue to Protect the Environment?

In this activity, students will review the Court’s current position on standing in environmental cases and debate how standing rules might apply in a hypothetical case.

Step One

Share with students the three-part requirement for standing outlined in Lujan v. Defenders of Wildlife (1992). Students can either read the description of Lujan in the article,

“Standing: Who Can Sue to Protect the Environment?” by Marisa Martin in this issue, or you can write the three elements, listed below, on the board:

1. The plaintiff must show an “injury-in-fact” that is “concrete and particularized” and “actual or imminent,” not conjectural or hypothetical.
2. The plaintiff must demonstrate a “causal connection between the injury and the conduct complained of” (i.e., the injury must be “fairly traceable” to the defendant’s challenged actions).
3. The plaintiff’s injury must be one that is likely to be redressed by a favorable decision in the case.

Make sure that students understand that the “injury-in-fact” suffered by the plaintiff does not have to be an economic injury. Injuries to a recreational or aesthetic interest, for example, can

also satisfy the “injury-in-fact” requirement. Also point out that, in Massachusetts v. EPA (2007), the Court gave “special solicitude” to a state that was seeking standing to challenge an action by the Environmental Protection Agency.

Step Two

Share with students the following scenario:

Pleasant Lake lies along the border of two states. The lake’s shoreline in State A lies along the edge of a state park and is largely undeveloped; only a few small structures (outhouses and a shower) for a rustic campground in the state park have been built near the shoreline. More development, primarily private single-family vacation homes, has occurred along the shoreline in State B. A public access boat landing is also on the State B shoreline.

Getaway Resorts, a private company, has proposed a major resort development on one of the last remaining tracts of undeveloped land along the shoreline in State B. The edge of this tract lies along the border with State A. It is zoned for single-family residences. Getaway Resorts has applied for a zoning variance to allow development of the resort.

An environmental assessment of the proposed development has identified what might result if the property is developed as a resort instead of as single-family residences. Possible consequences: increased traffic from motorboats and other recreational watercraft on the lake and a slight increase in runoff of lawn fertilizers in the proposed resort development. In addition, the resort

will border the state park in State A and may disrupt wildlife populations at the edge of the park.

A number of parties have challenged Getaway Resorts’ application for a zoning variance.

Using the three standing requirements outlined in Lujan v. Defenders of Wildlife and the “special solicitude” ruling in Massachusetts v. EPA, ask students to debate whether any of the following

parties should have standing to sue. You may want to divide the students into small groups to discuss standing of the parties. Then have small groups share their conclusions and discuss them with the class as a whole.

1. A group of owners of lakeside private residences in State B argues that the presence of a large resort property will diminish the economic value of their properties.
2. A group of individuals who use the public access boat landing for recreational fishing argues that increased runoff of fertilizers into the lake will have a negative impact on fish populations and diminish recreational enjoyment of the lake.
3. A family who vacations every year at the state park campsite argues that increased traffic on the lake will diminish their sense of solitude they experience when camping in the state park.
4. State A challenges the resort project, citing its interest in conserving wild places for its citizens to enjoy.

Extended Activities

• Sierra Club v. Morton (1972), an early Supreme Court decision on standing in an environmental case, included a dissenting opinion by Justice William O. Douglas, a well-known conservationist. Justice Douglas proposed a federal rule “that [would allow] environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.”

Have students read Justice Douglas’s dissent. Ask them to consider how the standing rule proposed by Justice Douglas would work in the Pleasant Lake scenario described above. What arguments could be made on behalf of Pleasant Lake? Which of the parties described above would be best suited to speak for the lake? Would Pleasant Lake, as a party, be able to meet the three requirements of standing defined in Lujan v. Defenders of Wildlife?

• On November 2, 2018, the U.S. Supreme Court announced that the trial in a case brought by 21 people, including minors, against the federal government for its role in the global warming crisis, could continue. Juliana v. United States is underway in the 9th circuit, in Oregon. The plaintiffs, many of whom live in regions of the country suffering from effects of climate change, including extreme weather events, want a federal judge to order the federal government to develop a plan to address climate change.

Students could consider the facts of this pending case to determine if the plaintiffs satisfy the criteria for standing outlined by the Court in Lujan. Do the facts of the case in Juliana satisfy standing requirements as outlined by the Court in Lujan? If not, what looks different? Why might the Court have ruled to allow this trial to continue?

James Landman is associate director of the American Bar Association Division for Public Education in Chicago.