Roy Luck / Flickr
By Blake Welborn, F22 Environmental Clinic Student
Most federal environmental statutes, such as the Clean Water Act, Clean Air Act, Safe Drinking Water Act, and Resource Conservation and Recovery Act, allow individuals to sue polluters to force them into compliance with laws they may be breaking. These types of lawsuits are called “citizen suits” and were widely incorporated into environmental laws starting in the 1970s, as the environmental movement began to make waves on a national scale. Opinions on citizen suits differ—while many may view them as an effective compliment to agency enforcement, those involved in the targeted industries tend to think of them as unnecessary barriers to progress, and believe that enforcement should lie only with agencies. Even the most positive view of citizen suits must acknowledge their inherent limits, though: individuals and organizations can bring these lawsuits to enforce compliance and penalties until the cows come home, but they cannot sue for and therefore cannot win any damages. While citizen suits can be an effective method of alerting agencies to polluters’ violations and/or having courts enforce compliance, the suits can quickly become complicated and technical, making them often out of the question for individual plaintiffs. Even for community groups that may have the help of law firms or legal aid organizations, the suits can prove to be tricky. One particularly difficult and vexing component of citizen suits is constitutional standing.
Constitutional standing is the “irreducible minimum” requirement for someone to bring a lawsuit in court. Basically, you have to prove that you are actually affected by the behavior you are claiming is illegal or are trying to stop. In the court system, standing has three main requirements: injury in fact, traceability, and redressability. Injury in fact requires that the conduct complained of violates or will imminently violate a legally protected interest of yours—such as the use and enjoyment of your property or of a nearby river for fishing. Traceability requires that this injury be fairly traceable back to the conduct complained of in the suit. Lastly, it must also be likely that the court can actually do something to redress the harm caused by the violations. If the solution to the problem lies outside of the court’s ability, then this final requirement cannot be satisfied.
While this three-part test may seem straightforward, standing has vexed plaintiffs, defendants, and judges since its inception. Proving standing has been especially difficult for environmental citizen suits, for a number of reasons: first, environmental harms are not always as obvious as a financial crime or a bullet wound—pollution can wreak havoc over decades and centuries, making it difficult to point to one single instance that would satisfy injury in fact or traceability; second, citizen groups have met some resistance when bringing cases as a single entity; third, application of the doctrine tends to vary court to court and circuit to circuit, making it difficult to bring a case in certain circuits.
Recently, the Fifth Circuit affirmed its previous ruling in the Environment Texas v. ExxonMobil (ETCL) line of cases. Environment Texas and Sierra Club sued ExxonMobil’s Baytown refinery, one of the largest in the world, to enforce compliance under the Clean Air Act. The case has now been at the Fifth Circuit three times and was sent back down to the District Court twice. Its most recent ruling was clearly in favor of Plaintiffs and affirms longstanding precedent for standing in environmental citizen suits. This ruling cast aside ExxonMobil’s attempt to turn the traceability requirement into a purely causal “but-for” test, finding ExxonMobil’s position at odds with Supreme Court precedent and “more than three decades of law from the court holding that traceability ‘requires less of a causal connection than tort law.”
Despite ExxonMobil’s attempts, standing requirements for environmental citizen suits in the Fifth Circuit will still be evaluated based on the three-part test that is employed in courts around the country. Whatever your take on citizen suits—whether you appreciate them as they are or wish they could provide more to communities that utilize them—the Fifth Circuit’s recent decision should be viewed as a win. ExxonMobil has however received an extension of time to file a petition for en banc review. So, despite the 13 years of ongoing litigation in this case, it may not be over yet.
The articles published on this site reflect the views of the individual authors only. They do not represent the views of the Environmental Clinic, The University of Texas School of Law, or The University of Texas at Austin.
