Laidlaw: Redressing the Law of Redressability

Abstract

Although much of standing doctrine protects decisionmaking by Congress and the executive branch, the Supreme Court ironically has more recently used standing doctrine to enhance its own power at the expense of Congress. In cases such as Lujan v. Defenders of Wildlife and Raines v. Byrd, the Court invalidated congressional grants of standing. The Court has transmuted standing from a means of protecting the majoritarian process into a judicial weapon that can override congressional judgments about the optimal enforcement of particular laws. Lujan contemplates that courts must independently assess each congressionally created injury to assure that the injury is individuated enough to satisfy the case or controversy requirement.

The Court's determination last term in Friends of the Earth, Inc. v. Laidlaw Environmental Services, however, suggests that the Court is now willing to defer more to congressional creation of interests whose violation creates the necessary injury to give rise to standing. In finding that the environmental injury in Lujan was redressable, the Court arguably deferred to Congress's judgment that there was a significant risk of recurring harm in Clean Water Act cases. Imposing a fine on the defendant might redress the harm by deterring continued wrongdoing. This Article applauds that result. Congress has greater ability to assess social, economic, and technological trends that underlie the inquiry whether injury is likely to recur and whether a particular remedy is likely to deter the unlawful conduct. At the same time, encouraging such findings facilitates deliberation within Congress, and the findings enhance the transparency of legislative action.

The Article then examines the extent to which courts should defer to congressional judgments that illuminate the link between relief and injury. It concludes that substantial deference to congressional factfinding is warranted unless Congress attempts to assure redressability merely by creating a stake in the litigation itself, as through a bounty or attorney's fee.

JEL Classification: K100, K230