If an (Endangered) Tree Falls in the Forest, and No One is Around....: Resolving the Divergence between Standing Requirements and Congressional Intent in Environmental Legislation

INTRODUCTION During the mid-twentieth century, Congress passed a series of statutes that changed the face of American law. (1) Legislative protection was extended to the air, water, endangered species, and tracts of land where "the earth and its community of life [remain] untrammeled by man." (2) Many of these statutes include "citizen suit" provisions, an innovation designed to foster public participation in environmental protection. (3) The participation encouraged by citizen suits, however, did not follow the traditional model of civic involvement. Indeed, citizen suits were designed to "replace deficient programs of administrative enforcement" (4) with a body of "private attorneys general," (5) encouraging citizens to air their grievances in Article III courts rather than through the political process. (6) Understandably, this new (7) model of enforcement has evoked a wave of commentary and criticism. (8) In the court system, the influx of citizen suits has been accompanied by an evolution (or, many would say, devolution) of the doctrine of standing. Although the exact contours of the standing doctrine still remain unclear, (9) its most recent "phase" has proved challenging to plaintiffs attempting to enforce environmental statutes through citizen suits. (10) In several notable cases, plaintiffs have been barred from court despite Congress' apparent intent to enable "any person" to proceed with a citizen suit. (11) These plaintiffs were barred because they failed to assert a cognizable injury to themselves, although the statutes were seeking to protect the environment, (12) and citizen suit provisions do not require personal harm. (13) An old riddle comes to mind: "If a tree falls in the forest, and no one is around to hear, does it make any sound?" Adapted to the context of environmental law, the question can be posed: "If a tree falls in the forest, and no one is around, can statutory protections be enforced via citizen suit?" By barring plaintiffs who do not sustain a "particularized" injury, (14) courts answer in the negative. Congress, however, in deciding to protect the tree itself, seems to desire an affirmative answer to the question. This divergence between the apparent will of Congress and the doctrine of standing stems from the courts' view of their proper role within the constitutional scheme of government. The Article III judiciary is established to adjudicate disputes between individuals, or "private rights," while the political branches are charged with creating law and taking care that it be faithfully executed. (15) Although a bright-line "public-versus-private rights" rule has not been adopted as the touchstone for what can (or must) be adjudicated in Article III courts, (16) this view of separation of powers has heavily influenced modern standing requirements. (17) Via the doctrine of standing, courts have resisted congressional attempts to use them as a means through which ordinary citizens can influence execution of the law. Rather, an individual may approach a court only when his or her suit seeks to vindicate a "private right"; in other words, when the plaintiff suffers some injury to him or herself and approaches the court seeking relief. (18) Many disagree with this conception of the judiciary's role, and the doctrine of standing has been thoroughly criticized. (19) However, perhaps these criticisms are misplaced. After all, it was Congress that decided to protect the environment, while granting persons the right to sue. Additionally, it was Congress that determined to enforce these statutory protections (at least partially) in the courts, whose jurisdiction is cabined by Article III. Thus, it makes sense that Congress should attempt to resolve the resulting conflict between the branches. This Note assumes that the doctrine of standing properly articulates the role of Article III courts in our tripartite system, and looks to how Congress can repair the disconnect between the purpose of environmental statutes and the injuries required to convey standing. …