Citations (1)



The Law of Words: Standing, Environment & Other Contested Terms

David N. Cassuto

Pace University - School of Law

September 6, 2010

Harvard Environmental Law Review, Vol. 28, p. 79, 2004

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), exposes fundamental incoherencies within environmental standing doctrine, even while it ostensibly makes standing easier to prove for plaintiffs in environmental citizen suits. According to Laidlaw, an environmental plaintiff needs only to show personal injury to satisfy Article III's standing requirement; she need not show that the alleged statutory violation actually harms the environment. This Article argues that Laidlaw's distinction between injury to the plaintiff and harm to the environment is nonsensical. Both the majority and dissent in Laidlaw incorrectly assume that there exists an objective standard by which a plaintiff, society or a court can measure harm or injury. Using examples drawn both from history (the Trail Smelter Arbitration (1930-41)) and fiction (Barbara Kingsolver's novel Animal Dreams), this Article illustrates that the inherent contingency of language renders it impossible to define harm or injury without acknowledging the systemic perspective from which the concepts are viewed.

The path to an intelligible standing doctrine lies not in focusing on this artificial opposition, but instead in acknowledging statutory violations as injurious to the social and legal system of which we all form a part. Assuming the violated statute contains a citizen suit provision, the resulting harm to the system could and should enable individuals to sue. This policy would conform the Court's standing jurisprudence to the language and intent of the statutes before it. Moreover, this policy would counter the undermining of the rhetoric of environmental protection that persists so long as the Supreme Court continues its frequent yet unsuccessful efforts to retool its definition of cognizable legal injury.

Number of Pages in PDF File: 50

Keywords: Standing, Environmental Law, Laidlaw, Kingsolver, Animal Dreams, Systems Theory, Citizen Suits, Private Right of Action,water law,pollution,Clean Water Act,Luhmann

JEL Classification: K10, K11, K32, K41, K39,D81,I18,K19,K42,K49,Q25,Q28,Q38

Open PDF in Browser Download This Paper

Date posted: December 6, 2006 ; Last revised: February 1, 2012

Suggested Citation

Cassuto, David N., The Law of Words: Standing, Environment & Other Contested Terms (September 6, 2010). Harvard Environmental Law Review, Vol. 28, p. 79, 2004. Available at SSRN: https://ssrn.com/abstract=949613

Contact Information

David N. Cassuto (Contact Author)
Pace University - School of Law ( email )
78 North Broadway
White Plains, NY 10603
United States
Feedback to SSRN

Paper statistics
Abstract Views: 1,752
Downloads: 147
Download Rank: 158,237
Citations:  1