The Story of Laidlaw, Standing and Citizen Enforcement

Abstract:     
This chapter reexamines the Supreme Court's recent Laidlaw decision, placing the decision and statutorily authorized "citizen suits" in historical and jurisprudential context. Relying substantially on interviews with lawyers on the case and clients, the chapter reviews the strategic decisions leading to the Supreme Court's unexpectedly strong reaffirmation of citizen suit standing in Laidlaw. The chapter traces the Court's uncertain standing doctrine shifts, showing how, since the fragmented 1993 Lujan decision, members of the Supreme Court adopted substantially different analytical approaches to standing. For Justices Scalia and Thomas, and perhaps a few other justices, constitutional standing analysis required judges to find a sufficiently tangible injury. Other Justices, most notably Justices Stevens, Ginsburg, Breyer, Souter and Kennedy, viewed standing through a more statutory lens. The universe of interests, goals and procedures set forth in an underlying statute would, for these justices, influence standing analysis. During the period leading up to the Laidlaw decision, lower courts and the justices themselves struggled to render standing jurisprudence coherent. Several appellate court decisions, including the Fourth Circuit's Laidlaw decision, adopted expansive reads of Lujan that threatened to destroy the viability of statutorily authorized citizen suits. The Supreme Court's Laidlaw ruling, however, strongly embraced a more deferential approach to standing and ensured the viability of citizen suits. Nevertheless, the case's tortuous and long litigation path also reveals just how difficult and often unrewarding citizen suits have become. The chapter closes by assessing the future of citizen suits and standing challenges.

Keywords: Standing

Accepted Paper Series