From Lujan to Laidlaw: A Preliminary Model of Environmental Standing

In the short span of eight years, the Supreme Court has issued two seemingly opposite answers to the question of whether Congress has free reign to provide private citizens with standing to redress violations of federal environmental law, when those violations have not produced any discernible harm to the claimants. In his prior scholarship, Professor Maxwell Stearns has developed a model of standing based upon the theory of social choice, which focuses primarily upon constitutional standing rules. The recent doctrinal transformation from Lujan v. Defenders of Wildlife, to Friends of the Earth v. Laidlaw Environmental Services, Inc., has provided a valuable opportunity for Professor Stearns to expand his social choice model and to apply it in the context of statutory standing. In this article, which develops a preliminary model of environmental standing, Professor Stearns considers how bargaining over standing expands the issue spectrum for legislative bargaining as it affects the optimal compliance level under a proposed environmental statute. He then considers the differential signaling value of a citizen suit versus agency enforcement as a proxy for the optimal compliance level of the median member of the enacting Congress. The model of statutory standing, which grows out of this analysis, provides several valuable insights into recent environmental standing cases, and suggests a plausible means of reconciling Lujan and Laidlaw