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

50 Pages Posted: 6 Dec 2006 Last revised: 1 Feb 2012

David N. Cassuto

Pace University - School of Law

Date Written: September 6, 2010

Abstract

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.

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

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

David N. Cassuto (Contact Author)

Pace University - School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States

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