A Place-Based Theory of Standing

Abstract

Standing doctrine is well-known to be a quagmire, plagued by inconsistent results and judicial dissension. Worse, leading scholars have cast doubt on its historical pedigree and conceptual underpinnings. Yet, there seems to be little prospect for a radical change in direction. This article proposes a more modest doctrinal shift. The proposed approach is much simpler than the current test, but preserves the core intuition that plaintiffs must have some special connection to the subject-matter of the dispute, as opposed to a generalized interest in law enforcement or public policy. The proposal addresses standing in environmental cases, which form a major part of the Supreme Court's standing jurisprudence.

The place-based standard is easily stated. Under this approach, a plaintiff has standing to contest environmental violations involving a specific geographic area, provided that the plaintiff has an appropriate personal connection to the area. The place-based approach would clarify and simplify existing doctrine, but without working a revolution. The Court's two most recent environmental standing decisions are not only consistent with this test, but quite readily resolved. People who live near and use a stream are obviously appropriate individuals to litigate issues relating to the pollution of the stream, as the Court correctly concluded in the Laidlaw case. And no one has a better claim than a state government to litigate harms to that state's environment - and even more so, potential erosion of that state's territory. Thus, Massachusetts v. EPA is also an easy case under the place-based approach.

Keywords: standing, environment, climate change, jurisdiction