Removing 'The Cloak of a Standing Inquiry': Pollution Regulation, Public Health, and Private Risk in the Injury-in-Fact Analysis

Abstract:     
Environmental enforcement jurisprudence, especially standing jurisprudence in citizen suits, privileges actual concrete injuries over increased risk of disease, despite the public health aspects of most of the federal pollution control statutes. This privileging undermines the preventive and precautionary public health goals embodied in these statutes. Focusing particularly on the federal Clean Air Act and Clean Water Act, this Article argues that the federal courts should adopt a public health perspective on citizen environmental enforcement and adjust the injury-in-fact analysis in the federal standing requirement to reflect the necessarily probabilistic and risk-based relationships between pollution control regulation, protection of the public health, and individual harm. Specifically, after re-evaluating the Supreme Court's standing analysis in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., from a public health perspective, this Article argues that four threads of jurisprudence - increased risk causes of action in tort, environmental increased risk standing, public health-based increased risk standing, and deference to agencies' public health-related regulatory decisionmaking - and the inherent limitations of technology-based pollution regulation combine to suggest that violations of health-related regulatory requirements should qualify as per se injuries-in-fact for any plaintiff falling within the zone of the resulting increased risk to public health.

Keywords: standing, injury, injury-in-fact, pollution, harm, Clean Air Act, Clean Water Act, public health, environmental law, teachnology-based, citizen suits, citizen enforcement, environmental enforcement, deference, regulatory standards, risk, increased risk, probabilistic

Accepted Paper Series