The Problem with Particularized Injury: The Disjuncture Between Broad-Based Environmental Harm and Standing Jurisprudence

Several recent events harmonically converged into the topic for this article. The first was a posting on Georgetown Law’s environmental law professors’ listserv by Professor John Bonine, which raised a number of questions about whether and how standing doctrine might be rethought in light of the Supreme Court’s opinion in Massachusetts v. EPA. That opinion relaxed the states’ standing burden because of the unique sovereign interests, finding that federalism bargaining earned states “special solicitude” when it came to meeting the Court’s standing requirements. The second was a complaint filed by a consortium of regional environmental organizations, Chesapeake Bay Foundation, Inc., and individuals against the Environmental Protection Agency (EPA) for failing to achieve the goals of the Chesapeake Bay Agreements. EPA is one of five signatories to the Agreements, which contains a variety of goals, deadlines, and recommended actions, and which has failed miserably to halt the Chesapeake Bay’s decline. This complaint led to a reflection on work done in the clinic several years ago, where bringing a lawsuit on behalf of a commercial fisherman challenging the practice of chumming on the Bay was thought about long and hard. Chumming involves depositing a slurry of decomposed fish parts, usually menhaden, over the side of a fishing boat to attract game fish like striped bass. While chumming contributes to the Bay’s nutrification, by itself it has little discernible impact on the Bay’s overall health given the much larger sources of nutrients like sewage treatment plants, runoff from farm fields, and confined animal feeding operations. Ultimately it was determined, in part on standing grounds, that such a lawsuit could not succeed. The last event was a recent conversation with a retired Washington attorney about his decision to start a new organization that would supply pro bono assistance to property owners concerned about relatively discrete, highly localized harms to the Bay such as leaking septic systems or permit violations by industrial dischargers. Collectively, these separate events congealed into a somewhat amorphous concern about the extent to which the Supreme Court’s standing jurisprudence and its insistence on a showing of a particularized injury-in-fact are ill-suited to the types of broad-based, generalized harms from which complex, constantly changing ecosystems suffer