Private Enforcement of U.S. Environmental Laws — Why Standing Still Matters

Changes in leadership at the U.S. Environmental Protection Agency (“EPA”) and Department of Justice (“DOJ”) have prompted some to worry about the commitment of the federal government to environmental enforcement in the Trump era.

While serving as Oklahoma’s chief law enforcement official, EPA’s new Administrator, Scott Pruitt, advocated greater limitations on the exercise of federal authority over environmental issues. This approach already has resulted in proposals for substantial cuts to EPA’s compliance and enforcement budget. [1] At DOJ, Attorney General Jeff Sessions regularly opposed environmental legislation in Congress. He is likely now to urge the Department to take a less active approach to enforcement.[2]

It remains to be seen whether and to what extent these changes will make a difference to the actual level of government enforcement activity over time. The perception that they could, however, may provide an incentive for private, non-governmental organizations to intensify their own enforcement efforts under the citizen suit provisions of federal environmental statutes.[3] It also could encourage courts to apply more liberal tests in deciding whether potential plaintiffs have standing to bring private enforcement actions if the federal government sidesteps enforcement.

As discussed below, however, recent appellate court decisions, in particular the U.S. Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins,[4] suggest that the rules governing standing in federal court cases may continue to present significant hurdles to the use of citizen suit litigation for enforcement purposes.

Statutory Provisions Allowing Environmental Citizen Suits

Virtually every major federal environmental statute allows for some degree of private party enforcement.[5] For example, section 505(a)(1) of the Clean Water Act (“CWA”) authorizes “any citizen” to commence a civil action “on his own behalf” against any person who is alleged to be in violation of an effluent standard or limitation promulgated under the statute. [6] Section 304 of the Clean Air Act (“CAA”) authorizes “any person” to commence a civil action “on his own behalf” against any person who is alleged to be in violation of an emission standard or limitation promulgated under that statute.[7]

Similar provisions can be found in the federal Safe Drinking Water Act (“SDWA”); [8] the Endangered Species Act (“ESA”);[9] the Toxic Substances Control Act (“TSCA”);[10] the Resources Conservation and Recovery Act (“RCRA”);[11] and the Emergency Planning and Community Right to Know Act (“EPCRA”).[12]

Congress has imposed relatively few limitations on the rights of individuals and groups to pursue enforcement actions under these statutory provisions. As a general matter, private litigants are only required to provide both the government and prospective defendants with notice of alleged environmental violations before filing private actions.[13] Notice requirements are intended to give the government, among other things, time to evaluate potential violations and commerce their own enforcement actions. If the government has “commenced and is diligently prosecuting” an enforcement action with respect to an alleged violation, citizen suits concerning the same matter may be barred.[14] In the absence of diligent government enforcement, private litigants are free to proceed as a statutory matter and may recover attorney fees.[15]

As a general matter, Congress has not itself imposed any restrictions on who may initiate citizen suits under the nation’s environmental laws. However, the U.S. Supreme Court has long held that under the Article III “case or controversy” requirement of the U.S. Constitution, litigants must demonstrate that they have suffered “injury in fact” in order to establish standing to bring an action in federal court.[16] This requirement applies just as much to litigants seeking to prosecute environmental citizen suits as it does to parties involved in any other federal court case.

The Evolution of Citizen Suit Standing Requirements

The U.S. Supreme Court’s 1992 decision in Lujan v. Defenders of Wildlife delineated the essential criteria that must be met to establish standing to bring environmental citizen suits in federal court.[17] Lujan specifically concerned the authority of the Department of the Interior to adopt regulations implementing the ESA.[18] According to the majority opinion in Lujan (authored by Justice Antonin Scalia),

[O]ur cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”[19]

A key part of the Lujan decision was the way in which it addressed the claim that a “procedural injury” could be sufficient to establish standing to bring an environmental citizen suit under federal law. The Court focused on the ESA’s commonly used language allowing that “any person may commence a civil suit on his own behalf” to enforce the requirements of the statute.

The Eighth Circuit Court of Appeals had held that this “provision create[d] a procedural righ[t] ... in all ‘persons,’—so that anyone could file a suit” challenging the government’s “failure to follow [ESA procedures], notwithstanding [the absence of] any discrete injury flowing from that failure.”[20] The Supreme Court rejected this position, however, on the grounds that plaintiffs’ ESA challenge was no more unique to the plaintiffs than to members of the public at large and therefore did not state a justiciable case or controversy under Article III.[21]

The Supreme Court clarified its ruling in the Lujan case with its 2000 decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.[22]In Laidlaw, several environmental groups brought an action under the citizen suit provision of the CWA, seeking injunctive relief and civil penalties for alleged violations of a state-issued permit authorizing the discharge of treated industrial wastewater. Relying on its decision in Lujan, the Court found that factual averments in affidavits submitted by the plaintiffs adequately documented the existence of an injury in fact.[23] The Court pointed out that it previously had “held that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.”[24]

More recently, the Supreme Court addressed standing specifically within the context of a request for injunctive relief from agency actions allegedly violating NEPA. In Monsanto Co. v. Geertson Seed Farms,[25] the Court considered a decision by the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”) to deregulate a variety of genetically engineered alfalfa known as “Roundup Ready Alfalfa” (“RRA”). The district court held that APHIS violated NEPA by issuing its deregulation decision without first completing a full environmental review, and it enjoined future planting of RAA pending the completion of that review.[26]

The Ninth Circuit Court of Appeals subsequently affirmed the district court’s entry of permanent injunctive relief. While reversing the Ninth Circuit’s decision on other grounds, the Supreme Court sustained its holding on the issue of standing. According to the Court,

Article III standing requires an injury that is (i) concrete, particularized, and actual or imminent, (ii) fairly traceable to the challenged action, and (iii) redressable by a favorable ruling. Petitioners are injured by their inability to sell or license RRA to prospective customers until APHIS completes the EIS. Because that injury is caused by the very remedial order that petitioners challenge on appeal, it would be redressed by a favorable ruling from this Court.[27]

The Court rejected petitioners’ argument that respondents had failed to show that any of the named respondents were likely to suffer a constitutionally cognizable injury absent injunctive relief. The Court noted the district court’s finding that respondents, including conventional alfalfa farmers, had “‘established a “reasonable probability” that their organic and conventional alfalfa crops will be infected with the engineered gene’ [in RRA] if RRA is completely deregulated.”[28] This “reasonable probability of harm” test is consistent with the Court’s emphasis in prior cases on the necessity of a concrete and imminent injury in fact for standing purposes (whether or not the injury alleged is procedural).

The Impact of the Supreme Court’s 2016 Decision in Spokeo, Inc. v. Robins

The Supreme Court addressed the parameters of federal court standing most recently with its 2016 decision in Spokeo, Inc. v. Robins.[29] Spokeo was not an environmental case, but instead addressed remedies available to consumers under the Fair Credit Reporting Act of 1970 (“FCRA”).[30] That statute provides for a private right of action against “[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any” individual.[31] The district court had dismissed a federal class action suit against Spokeo, an alleged “consumer reporting agency,” on grounds that the plaintiff had not properly pleaded “concrete and particularized” injury in fact under the criteria specified in the Lujan case. The Ninth Circuit reversed, based on plaintiff’s allegation that “Spokeo violated his statutory rights” and the fact that plaintiff’s “personal interests in the handling of his credit information are individualized.”[32]

The Supreme Court rejected the Ninth Circuit’s analysis. It held that while the Court of Appeals’ decision addressed the requirement that injury in fact must be particularized (i.e., affect a plaintiff in a personal and individual way), it also must be concrete. According to the Court, a “‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”[33] The Court recognized that concrete injuries need not always be “tangible” ones to establish standing. As the Court acknowledged in its 2013 decision, Clapper v. Amnesty International USA,[34] even a risk of injury can be sufficient for standing purposes, so long as the risk is “certainly impending,” not speculative, and is “fairly traceable” to the statutory violation for which a plaintiff seeks relief.[35] Nevertheless, the injury in fact requirement cannot be met simply because legislation “grants a person a statutory right and purports to authorize that person to sue to vindicate that right.”[36]

The line drawn by the Supreme Court between “particularity” and “concreteness” in determining whether injury in fact exists for standing purposes under Spokeo is especially important in the context of federal environmental citizen suits. As noted above, provisions in environmental laws authorizing citizen suits generally allow “any person” or “any citizen” to file an action pursuant to those provisions; thus, the Lujan requirement of “particularity” arguably can be met without regard to whether individual plaintiffs are personally affected by conduct alleged to be in violation of the statute. This is different from the situation addressed in Spokeo, where violations alleged under the consumer reporting provisions of FCRA focused on the misreporting of consumer information about specific individuals.[37]

By highlighting “concreteness” as a requirement distinct from “particularity,” the Supreme Court confirmed in Spokeo the fundamental tenets of standing under Article III that it first articulated in Lujan. Thus, in Forest Watch v. U.S. Bureau of Land Management, a California district court stated “federal courts generally agree that Spokeo clarified the meaning of ‘concreteness’ without breaking any new ground.”[38] At most, Spokeo suggests that plaintiffs in citizen suit cases may have a higher burden to plead facts establishing the existence of an injury that is both sufficiently concrete and particularized in the way in which it implicates plaintiff’ interests, regardless of whether those interests are substantive or procedural.[39]

Implications for Challenging the Adequacy of Citizen Suit Pleadings

In 2007, the U.S. Supreme Court issued its decision in Bell Atlantic Corp. v. Twombly,[40] making it clear that it “[w]hile a complaint … does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Thus, claims asserted in federal court cannot be sustained unless the pleadings contained “facts to state a claim to relief that is plausible on its face.”[41] This was confirmed by the Supreme Court’s 2009 decision in Ashcroft v. Iqbal,[42] in which the Court stated that “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but has not ‘show[n]’ – ‘that the pleader is entitled to relief.’”[43]

Some commenters have predicted Twombly and Iqbal “raise potentially dire consequences” for plaintiffs in environmental law cases, particularly in citizen suits brought by private parties to vindicate alleged public interest concerns.[44]Under this view, the heightened burden of establishing the plausibility of claims “threatens the enforcement of environmental norms by reducing both the threat and the consummation” of citizen suit-type actions.[45] Thus, Twombly and Iqbal clearly have created opportunities (which might not have existed under prior case law) to mount a meaningful challenge to environmental claims at the earliest possible stage, before costly discovery and pre-trial motion practice can alter a defendant’s tolerance for protracted litigation.

Unless it is supported by substantial factual allegations that provide a plausible basis for assigning liability, including allegations relating to a plaintiff’s standing to assert liability, the most effective and cost-efficient response to a federal environmental claim may be a simple motion dismiss it under Fed. R. Civ. P. 12(b)(6), before any answer is ever filed.


As suggested at the beginning of this article, changing priorities at the highest levels within the EPA, the DOJ, and other federal agencies may change the manner in which those agencies choose to enforce the nation’s environmental laws under the current administration. Reasonable people will invariably differ as to whether those changes are desirable from a public policy perspective. Nevertheless, environmental advocacy groups already view them as cause for concern and justification for intensifying private enforcement efforts in the form of statutorily authorized citizen suits.

Potential targets for citizen suit enforcement of federal environmental laws need to be aware of these concerns and prepared to test the adequacy of citizen suit complaints at the earliest possible time. After the Supreme Court’s seminal procedural rulings in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, any such complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face,” in order to survive a motion to dismiss for failure state a sufficient claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In light of the Supreme Court’s ruling in Spokeo, it is clear that citizen suit plaintiffs must allege in their complaints facts sufficient to show that they will suffer injury in fact that is both particular and concrete. Absent credible, independent allegations on each point, environmental citizen suit claims cannot be sustained.

* Kevin Haroff is the managing partner of Marten Law’s San Francisco office. Mr. Haroff represented the Washington Legal Foundation as amicus curiae in connection with the U.S. Supreme Court’s 2000 decision in Monsanto Co. v. Geertson Seed Farms, discussed herein. Reed McCalib, who currently is enrolled as a third year law student at the University of Michigan Law School, assisted in the preparation of this article.

[1] Robinson Meyer, What Does Trump’s Budget Mean for the Environment?, The Atlantic (May 24, 2017).

[2] Renee Schoof, Environment May Not Be Top Priority for Sessions: Attorneys, Bloomberg BNA Daily Environment Report (Feb. 6, 2017).

[3] Dan Farber, 200 Days and Counting: Enforcing Environmental Laws, Legal Planet (Aug. 11, 2017).

[4] 136 S. Ct. 1540 (2016).

[5] A principal exception is the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., which establishes the broad national framework for protecting the environment and requires government agencies to consider environmental impacts prior to undertaking any major federal action that significantly affects the environment. While NEPA does not provide explicitly for citizen suit enforcement, private party actions challenging the sufficiency of environmental review conducted for federal agency actions are allowed under the federal Administrative Procedures Act (“APA”), 5 U.S.C. § 702 (any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof”). See Kevin Haroff, On Thin Air: Standing, Climate Change, and the National Environmental Policy Act, 46 Val. U. L. Rev. 411 (2012).

[6] 33 U.S.C. § 1365(a).

[7] 42 U.S.C. § 7604(a).

[8] 42 U.S.C. § 300j-8.

[9] 16 U.S.C. § 1540(g).

[10] 15 U.S.C. § 2619.

[11] 42 U.S.C. § 6972.

[12] 42 U.S.C. § 11046.

[13] See, e.g., 42 U.S.C. §1365(b)(1)(A), requiring private plaintiffs to give notice of alleged CWA violations at least sixty days prior to the commencement of any suit.

[14] See, e.g., 42 U.S.C. §7604(b)(1)(B); 42 U.S.C. §6972(b)(1)(B); and 33 U.S.C. §1365(b)(1)(B).

[15] See, e.g., 42 U.S.C. §7604(d), authorizing courts to award costs of litigation (including reasonable attorney and expert witness fees) to any party in cases alleging violations of the CAA. See also 16 U.S.C. §1540(g)(4) (recovery of fees under the ESA); 33 U.S.C. §1365(d)(recovery of fees under the CWA); 42 U.S.C. §6972(e) (recovery of fees under RCRA).

[16] See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).

[17] 504 U.S. 555 (1992).

[18] The regulations at issue were ones intended “to render [the statute] applicable only to actions within the United States or on the high seas.” 504 U.S. at 558.

[19] Lujan, 504 U.S. at 560–61 (alterations in original) (footnote and citations omitted).

[20] 911 F.2d 117, 121–22 (8th Cir. 1990)) (internal quotation marks omitted).

[21] 504 U.S. at 573–74.

[22] 528 U.S. 167 (2000).

[23] Id. at 180–82.

[24] Id. at 183.

[25] 561 U.S. 139 (2010).

[26] Id. at 139–40.

[27] Id. at 140 (citation omitted).

[28] Id. at 153–55, n.3.

[29] 136 S. Ct. 1540 (2016).

[30] 15 U.S.C. § 1681 et seq.

[31] 15 U.S.C. § 1681n(a).

[32] 136 S. Ct. at 1546.

[33] Id. at 1548, citing Black’s Law Dictionary 479 (9th ed. 2009).

[34] 568 U.S. 398 (2013).

[35] Id. at 401–02.

[36] Spokeo,136 S. Ct. at 1549.

[37] See Justiciability — Class Action Standing — Spokeo, Inc. v. Robins, 130 Harv. L. Rev. 437, 443 (Nov. 10, 2016).

[38] No. CV-15-4378-MWF (JEMx), 2016 WL 5172009, at *7 (C.D. Cal. Sept. 6, 2016) (citing In re Nickelodeon Consumer Privacy Litig., No. 15-1441, 2016 WL 3513782, at *7 (3d Cir. June 27, 2016) (“The Supreme Court’s recent decision in Spokeo, Inc. v. Robins does not alter our prior analysis ....”); Bock v. Pressler & Pressler, LLP, No. 15-1056, 2016 WL 4011150, at *1 (3d Cir. July 27, 2016) (“While the Supreme Court did not change the rule for establishing standing in Spokeo, it used strong language indicating that a thorough discussion of concreteness is necessary in order for a court to determine whether there has been an injury-in-fact.”); Krakauer v. Dish Network L.L.C., No. 1:14-CV-333, 2016 WL 4272367, at *1 (M.D.N.C. Aug. 5, 2016) (“Spokeo clarified the meaning of a concrete injury, but it did not fundamentally change the doctrine of standing or jurisdiction.”); Mey v. Got Warranty, Inc., No. 5:15-CV-101, 2016 WL 3645195, at *2 (N.D. W. Va. June 30, 2016) (“Spokeo appears to have broken no new ground.”)).

[39]See, e.g., Alfa Int’l Seafood v. Ross, No. 17–cv–00031 (APM), 2017 WL 1377914 (D.D.C. Apr. 17, 2017) (environmental organizations lacked standing to intervene in a challenge to the Seafood Traceability Rule under the Magnuson-Stevens Fisher Conservation and Management Act, on grounds that the applicants’ claimed injuries were illegal, unregulated, and unreported (“IUU”) were “simply too abstract to satisfy the ‘concrete’ injury requirement discussed in Spokeo”); Nucor-Steel Arkansas v. Pruitt, No. 14–cv–0199 (KBJ), 2017 WL 1239558 (D.D.C. Mar. 31, 2017) (plaintiff sufficiently alleged standing to seek to compel EPA to respond to a petition objecting to a state-issued operating permit under the CAA, on grounds that a plaintiff’s inability to operate a manufacturing facility as it chooses inflicts a concrete injury on that plaintiff) (citing Spokeo, 136 S. Ct. at 1548).

[40] 550 U.S. 544 (2007). Twombly involved a class action suit alleging conduct constituting an unlawful restraint of trade under Section 1 of the Sherman Antitrust Act. The district court initially dismissed the complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Second Circuit Court of Appeals reversed the dismissal on grounds that the complaint met the liberal “notice” pleading standard previously articulated by the U.S. Supreme Court in Conley v. Gibson, 355 U.S. 41 (1957), where the Court held that claims must be allowed under Fed. R. Civ. 8(2)(a) unless “no set of facts” could be alleged to support those claims. Fed. R. Civ. P. 8(2)(a) does not itself describe any standard for assessing the sufficiency of pleadings, but requires only that a “pleading that states a claim for relief must contain … a short and plain statement of the claim showing that the pleader is entitled to relief ….”

[41] 550 U.S. at 555.

[42] 556 U.S. 662, 129 S.Ct. 1937 (2009).

[43] 129 S.Ct. at 1949-50.

[44] See, e.g., S. Foster, Breaking the Transubstantive Pleading Mold: Public Interest Environmental Litigation After Ashcroft v. Iqbal, 35 Wm. & Mary Envtl. L. & Pol’y Rev. 885 (2011).

[45] Other commenters have suggested that any changes in pleading standard jurisprudence reflected by these cases (even if real) should have less probity in environmental cases, where the elements of any claim are more thoroughly delineated by applicable federal statutes and administrative regulations than in other areas of the law. See, e.g., B. Detterman, Rumors of Conley’s Demise Have Been Greatly Exaggerated: The Impact of Bell Atlantic Corporation v. Twombly on Pleading Standards in Environmental Litigation, 40 Environmental Law Review 295 (2010).

Source: Marten Law

John Stewart
Vice President, BlueRibbon Coalition