Are Standing Rights for Environmental Groups in the Public Interest?

Abstract

This article discusses some important issues associated with NGO standing rights in the environmental area. It reviews the arguments proffered by Hunter and Hallo in their respective contributions to the Environmental Liability Law Review/Tijdschrift voor Milieuaansprakelijkheid, and extends the debate. I argue that there are many difficult problems associated with NGO standing rights. Such rights, as Hunter asserted, involve delegation of public authority to private parties, and restrict the government's negative enforcement discretion. In addition, NGO's have conflicting interests and are not accountable for their enforcement decisions. These are potentially serious deficiencies of NGO-initiated legal actions.

To explain why NGO standing rights are problematic, this article reviews the Hunter and Hallo enforcement models. A cursory analysis of these enforcement models as undertaken in this article suggests that it would not be in the public interest for the EC to prescribe NGO standing rights with respect to environmental harm. There is no reason to believe that NGO-initiated enforcement will bring us any closer to the desired enforcement level. NGO's do not have to take interests other than the environment into account. In addition, the constantly present need for fund-raising may influence their enforcement decisions. Enforcement by NGO's thus creates risks of over-enforcement and excessive litigation in some categories of cases, and will not do much to remedy any under-enforcement, if any exists, in cases that are not attractive from a fund-raising perspective. Moreover, unlike government officials, NGO's are not accountable for their enforcement decisions. The available empirical evidence confirms that the desire to promote environmental quality does not support NGO standing rights. To the contrary, the evidence suggests that NGO-initiated suits harm the environment.