Cited: 12 Duke Envtl. L. & Pol'y F. 85
LAIDLAW: REDRESSING THE LAW OF REDRESSABILITY
HAROLD J. KRENT*
A. Judicial Review
B. Overcoming Congressional Findings in Specific Cases
C. Limits of Congressional Mechanisms to Assure Redressability
Contemporary standing doctrine has revolutionized public interest
litigation by requiring not only that the injuries asserted be
individuated, but that the remedies sought be capable of redressing
those harms. Through standing doctrine, the Court has erected a
substantial barrier to citizen oversight of both governmental and
Although much of standing doctrine protects decision-making by
Congress and the executive branch, the Court ironically has more
recently used standing doctrine to enhance its own power at the expense
of Congress. In Lujan v. Defenders of Wildlife,1
the Court invalidated a congressional grant of citizen standing under
the Endangered Species Act because the congressional enactment failed
to require sufficient injury in fact. Subsequently, in Raines v. Byrd,2
the Court invalidated a congressional grant of standing to members of
Congress to challenge the Line Item Veto Act. Although the rhetoric of Lujan and Raines
defends standing in terms of preserving a limited judicial role, the
reality is that courts have interfered with the majoritarian process by
nullifying congressional decisions as to the appropriate parties to
vindicate particular rights. 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 asserted injury in fact to assure that the injury is substantial
or at least individuated enough to satisfy the "case or controversy"
require- [*pg 86] ment.3 A congressional creation of a new injury may suffice -- such as under the Freedom of Information Act4 or the National Environmental Policy Act5
-- but only if the injury meets the Court's criteria for the injury in
fact test. For instance, a congressional determination that all
citizens are harmed by pollution is not enough. Congress must limit
standing to a group harmed by pollution in a particular way, whether
because of increased risk of disease or because of frequent use of
affected areas. Courts limit congressional control of access to the
The Court, however, has not had occasion to determine whether
congressional findings or determinations as to redressability -- a
distinct doctrinal component of standing6
-- should similarly be second-guessed. In contrast to injury in fact,
the redressability inquiry is more fact based. Courts must predict the
degree to which a favorable judicial decision will remedy the
plaintiff's asserted injury. The redressability inquiry also often
includes complex forecasting.
This past term's decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.7 raises the deference issue. In Laidlaw
the Court held in a Clean Water Act suit that the plaintiff
environmental organization could seek civil penalties payable to the
United States Treasury because such relief redressed its continuing
interest in being free from illegal discharges in the future.8
Central to the Court's conclusion was a premise, based in part on
Congress's implicit determination in creating the civil penalty scheme,
that any company "in violation" of the Act at the time the complaint
was filed likely will repeat such conduct in the future.9
An award of civil penalties therefore would redress the harm by
deterring continued unlawful conduct. Thus, in upholding standing, the
Court arguably carved out for Congress a greater role in determining
redressability than likely was anticipated after its Lujan decision.
Part I of this Article initially examines the role of
congressionally created interests, the violation of which may give rise
to standing. Although the Court has recognized congressional creation
of new interests, the Court in Lujan held that the injuries defined by Congress [*pg 87] must be individuated.10
The Court may defer to congressional determination of the adequacy of
particular injuries, but not when the injuries are drawn too broadly.
In addition to injury in fact, the Court requires the relief
sought to redress the injuries asserted. Otherwise, judicial decisions
would resemble advisory opinions. The Court has vacillated in deciding
how demanding the redressability inquiry should be. In City of Los Angeles v. Lyons11
the Court held that a plaintiff who had suffered injuries as a result of
a chokehold administered by Los Angeles City Police Department officers
could not seek an injunction because the injunction would not help
redress any injury in the absence of a showing that plaintiff likely
would be subjected to a chokehold in the future.12 Similarly, in Steel Company v. Citizens for a Better Environment,13
the Court apparently was of the view that parties can only recover
penalties payable to the government if they can demonstrate a
substantial continuing risk of harm. The Court's decision in Laidlaw, however, undercuts Lyons and Steel Company
by permitting suit even when the prospect that the relief would prevent
future harm is highly speculative. The decisions can be accommodated,
however, by understanding the pivotal congressional role in determining
that particular remedies are likely to redress categories of harm. The
Court was willing to defer to Congress's determination that there was a
significant risk of recurring harm in Clean Water Act cases while there
was no congressional judgment to defer to in Lyons and only an insufficiently considered judgment in Steel Company.
Part II then briefly explores the normative underpinnings of Laidlaw. Accepting for the purpose of this Article the Court's standing doctrine,14
deference to Congress comports with a proper understanding of the
allocation of authority among the branches. Congress is better
equipped than courts to engage in fact-finding. It has the time and
resources to assess the remedial issue more fully than the courts.
Given Congress's wide latitude in determining which parties should
enforce particular laws, courts should defer to explicit and implicit
congressional findings that illuminate the link between [*pg 88]
relief and injury. Only in the most extreme cases should the Court
second-guess a congressional determination of deterrent impact.
Indeed, congressional findings as to redressability help make
Congress's enforcement decisions more transparent and accessible to the
public as a whole.
Part III then considers the limits that courts should place on
Congress's power to ensure redressability. First, courts should review
any determination as in Steel Company to convince themselves
that the congressional judgment is at least plausible. Second, to
ensure that redressability exists in a particular case, courts should
allow defendants to show that there is no realistic chance of
redressability given the particular circumstances. Despite the
deference that should be afforded to congressional determinations in
this area, this article concludes by arguing that courts should not
find redressability for plaintiffs who can only claim a stake in the
litigation -- whether because of expectations of a bounty or attorney
fee award -- unless the award provides either compensation for past
injury or sufficient deterrence of repeated wrongdoing to protect
plaintiffs from future harm.
The Supreme Court has recognized a wide ambit within which Congress
can determine which interests can be vindicated in court. Throughout
the nation's first century the Court, often without comment, permitted
Congress complete discretion in determining the interests that could be
raised in lawsuits.15 In
general, restrictive rules of justiciability only began to emerge as a
reaction to activist judges striking down legislation in the Lochner era.16
The Court never explicitly articulated an independent requirement of an
injury in fact until the Warren Court, and then perhaps only as a
misguided effort [*pg 89] to simplify the legal inquiry into whether a particular plaintiff could sue.17
In demanding injuries in fact, the Court stressed that the
injury must be direct and palpable. The Court controlled whether the
assertion of economic, aesthetic, or environmental harm sufficed.18 If the injury were too abstract or generalized, the Court denied standing.19
After articulation of the injury in fact test, the Court
struggled in determining whether Congress had plenary authority to
recognize or create injuries that would satisfy the Court's test. For
instance, in Trafficante v. Metropolitan Life Insurance Co.,20
the Court considered whether a white tenant could sue under a statute
permitting anyone to challenge housing discrimination practices.21 Congress in essence had created a new interest that safeguarded the opportunity to benefit from "interracial association."22 The Court found injury in fact and permitted the suit to proceed.23
In the absence of the statute, however, it would have been difficult to
recognize the injury as sufficient to open the courthouse doors.
Indeed, Justice White in concurrence commented that he "would have
great difficulty in concluding" that standing was satisfied but for the
statute.24 Similarly, in Havens Realty Corp. v. Coleman,25
the Court recognized that housing testers -- who had no interest in
renting or purchasing homes -- had standing to challenge the owner's
refusal to sell or lease principally because Congress had conferred on
"all 'persons' a legal right to truthful information about available
housing."26 During this period, Congress created a wide variety of citizen suits, particularly in environmental contexts.27
The Court's recognition that Congress can create interests whose
violation gives rise to Article III injury should not be surprising.
Since the inception of the country, Congress has accomplished the same
result by creating property interests. Pursuant to Congress's power to
"grant Letters of Marque and Reprisal,"28
for example, early Congresses authorized the President to commission
private ships to capture enemy vessels trading with the enemy. Those
armed with the letters of marque could tow the captured vessel into the
United States' jurisdiction and then file an in rem action in federal
court seeking a declaration of ownership.29
But for the congressional action, private parties could not have
asserted any property ownership in the vessels seized, and could not
have established standing. More recently, congressional creation of
property-type interests (though not full entitlements) in the
electromagnetic spectrum30 and sulfur dioxide31 similarly allows permit parties to assert standing that they otherwise would have lacked to contest government action.
Congress plays a critical role in determining which parties
should be permitted to sue for what type of injuries. Congress helps
determine the parameters of a case or controversy under Article III of
the Constitution. Members of Congress, like members of the Court, have
an independent obligation to interpret and defend the Constitution.
In Lujan, however, the Court for the first time32
blunted a congressional effort to create a new interest whose violation
could give rise to injury in fact. Under the Endangered Species Act
(ESA),33 Congress directed
agencies to consult with the Secretary of the Interior to ensure that
actions funded by them were "not likely to jeop- [*pg 91] ardize the continued existence of any endangered species or threatened species. . . ."34
After the Department of the Interior promulgated a regulation limiting
the scope of the consultation provision to actions taken within this
country, plaintiff environmental organizations sued under the
citizen-suit provision codified in the ESA,35
asserting that the lack of consultation increased the chance that
federal agency funds would support projects abroad that would threaten
endangered species.36 For
example, they focused on federal support for rehabilitating the Aswan
High Dam, which threatened the habitat of the endangered Nile crocodile.37
The Court found the individual injury too indirect, and thus
focused on whether the congressional authorization for suit supplied
the requisite interest to create the injury in fact that was otherwise
missing. The Court concluded that congressional authorization would
not satisfy the standing requirement. The Court independently
scrutinized the congressional grant of standing to ensure that the
injury was sufficiently individuated:
To permit Congress to convert the undifferentiated
public interest in executive officers' compliance with the law into an
"individual right" vindicable in the courts is to permit Congress to
transfer from the President to the courts the Chief Executive's most
important constitutional duty, to "take Care that the Laws be
At least in suits against the federal government, Justice Scalia
warned that private lawsuits -- in the absence of particularized
injuries -- impeded the Executive's ability to execute the law
faithfully. Otherwise, private citizens, and not the Executive, would
be enforcing public law. Through private suits, individuals would
decide, at least in part, how to implement congressional regulatory
objectives. Article II concerns thus shaped the Court's analysis of
The Lujan opinion acknowledged that cases or
controversies may be created by statutes creating legal rights, but
stated "that in suits against the Government, at least, the concrete
injury requirement must remain."40
Justice Kennedy in concurrence presented a more accommodating position,
explaining that Congress "has the power to define injuries and
articulate chains of causation that will give rise to a case or
controversy where none existed before."41 But, he, too, found that the interests under the ESA were too diffuse.42
A majority of the Court, therefore, may support some deference to
Congress in defining new injuries, but will mandate that the injuries
The Court has invalidated congressional grants of standing outside the citizen suit context. For instance, in Raines v. Byrd,43
the Court considered Congress's determination in the Line Item Veto Act
to permit any member of Congress to sue to challenge the
constitutionality of the Act.44
Congress may have permitted members of Congress to sue because their
interests as legislators would be uniquely affected by the exercise of
the line item veto. The Court concluded, however, that the injury to
the plaintiff members of Congress was too indirect and explained that
"[i]t is settled that Congress cannot erase Article III's standing
requirements by statutorily granting the right to sue to a plaintiff
who would not otherwise have standing."45 No mention of deference was made.
In Lujan and Byrd the Court focused exclusively on
injury in fact. For the past thirty years, however, the Court has also
stressed that causation and redressability constitute independent
requirements a litigant must meet to satisfy standing under Article III.46 With re- [*pg 93]
spect to the redressability hurdle, all plaintiffs must demonstrate that
the relief sought can provide them with some tangible benefit. For
instance, in Linda R.S. v. Richard D.47
an unwed mother sued to force prosecution of the child's father for
failure to pay child support. The Court acknowledged the injury, but
concluded that plaintiff lacked standing because a favorable decision
would not necessarily "result in payment of support."48 The Linda R.S.
decision contemplated that courts don a forecasting cap to gauge whether
any relief might have a measurable impact on plaintiff. Redressability
constituted an additional obstacle to surmount for any plaintiff
vindicating an interest in federal court. Similar analysis led to
findings of a lack of redressability in Warth v. Seldin49 and in Simon v. Eastern Kentucky Welfare Rights Organization.50
If the injury would not be redressed, then a judicial resolution
would resemble an advisory opinion, and would suffer from the same
vices. Courts would be addressing important questions that they
otherwise could avoid, and might thereby become embroiled in political
disputes. Judicial resources might be squandered, and the respect due
the judiciary as an independent branch of government might be
jeopardized. Moreover, redressability ensures that issues are
presented to the courts "with that clear concreteness provided when a
question emerges precisely framed and necessary for decision. . . ."51
Finally, the absence of any concrete consequences might lift modest
constraints upon judges because they are more often free to change the
law if the stakes are lower.52 In other words, it is easier for courts to issue decisions with little direct consequences -- such as a directive in Lujan to the Department of the Interior to consult more broadly -- than when the results are more palpable.
In addition, the redressability inquiry helps weed out
ideological plaintiffs. Courts may prevent such plaintiffs, to the
extent possible, [*pg 94] from using courts as a platform from which to pursue political agendas.53
Judges should only use resources to resolve disputes when they have the
capacity to provide some tangible relief to an injured plaintiff.
Indeed, although the majority in Lujan found that the
injury asserted was not imminent enough to satisfy the injury in fact
requirement, a plurality stressed that "[t]he most obvious problem in
the present case is redressability."54
Only the Secretary of the Interior would be bound by any judgment, and
even if the federal funding agencies withdrew support for the projects,
"it is entirely conjectural whether the non-agency activity . . . will
be altered."55 In other words,
the Aswan Dam might well have been rehabilitated irrespective of the
U.S. support, and the habitat for the Nile crocodile threatened. The
link between any relief awarded and redress for the particular injury
-- defined as preservation of the Nile crocodile -- was too attenuated.
The opinion did not specify whether congressional legislation
could affect the Court's assessment of redressability. Indeed, the
concurring opinions would have omitted all discussion of redressability
in the case.56 Left undecided, therefore, was whether Congress should have any role in influencing the redressability inquiry.57
The redressability question came to the fore in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.58
There, the Court considered whether the Clean Water Act permitted
citizens to sue for violations which had ceased by the time suit was
filed.59 Under the citizen-suit
scheme, affected individuals -- in the absence of state or federal
enforcement -- may commence actions against any person "alleged to be
in violation of" federal requirements60 after affording [*pg 95] sixty days notice.61 A citizen may sue either for injunctive relief or to require payment of civil penalties to the federal government.62
Between 1981 and 1984, Gwaltney violated various regulatory
requirements, discharging an excessive amount of pollutants. After
affording the statutorily required notice, two nonprofit corporations
filed suit in June 1984 alleging that their members had been harmed by
the pollution and that Gwaltney "has violated . . . [and] will continue
to violate" the Clean Water Act.63
Gwaltney moved to dismiss the case on the ground that all violations had
ended several weeks prior to suit, and that therefore it could not be
said "to be in violation" of federal requirements.
The Court agreed. Largely as a matter of statutory
construction, the Court determined that the "to be in violation"
language in the statute required citizen-plaintiffs to "allege a state
of either continuous or intermittent violation -- that is, a reasonable
likelihood that a past polluter will continue to pollute in the future."64
The Court continued, however, that the language could be satisfied by a
"good faith allegation of continuous or intermittent violation."65
The Court clarified that, even if the allegations later proved
unfounded, jurisdiction would attach, and plaintiffs could continue
seeking civil penalties payable to the government for the wholly past
In response, Gwaltney argued that allowing suit to proceed for
wholly past violations would violate Article III because plaintiffs'
injury would not be remediable by the suit.67
Plaintiffs could proceed only if the relief attainable -- either the
injunction or penalties -- redressed their injury. If there were no
injury at the time the suit was filed, then there was nothing left to
remedy. The Court was unmoved. As long as some chance of recurrence
of injury existed, the Court reasoned that the Article III case or
controversy requirement was honored.68 Article III permits suits to collect civil penalties payable to the U.S. Treasury, presumably because such suits would [*pg 96]
minimize the likelihood that such future injury would occur. The
majority did not elaborate on how likely the deterrent impact must be.
Nor did it elaborate whether congressional direction could influence
its determination of redressability. Nonetheless, as long as the
chance of injury continued, then redressability and hence Article III
requirements, could be satisfied.
In concurrence, Justices Scalia, Stevens, and O'Connor
disagreed with the majority's approach. In their view, if no violation
existed on the date the suit was filed, then "the plaintiffs would have
been suffering no remediable injury in fact that could support suit."69
A favorable result -- the civil penalties -- would not remedy the prior
harm because the penalties were paid to the U.S. Treasury, and there
was no showing that the injury was likely to recur.
The Court's decision over ten years later in Steel Company v. Citizens for a Better Environment70 seemingly adopted the concurrence's view in Gwaltney. There, a citizen group sued for violations of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA).71
The company had failed to file required inventory forms in a timely
manner. The EPCRA permitted a private suit to require "an owner or
operator of a facility for failure . . . to complete or submit an
inventory form. . ."72 as long as no agency action was pending.73 After the plaintiff organization had notified the agency of the company's tardiness -- as mandated under the EPCRA74 -- the company filed the requisite forms before suit was commenced.75
In an opinion authored by Justice Scalia, the Court held that no
case or controversy was established due to the lack of redressability.76
No relief could plausibly remedy the injury of late reporting. In
particular, plaintiff had relied upon the availability of civil
penalties, but the Court held that, because "these penalties -- the
only damages authorized by the EPCRA -- are payable to the United
States Treasury," the plaintiff "seeks not remediation of its own
injury -- reimbursement for the costs it incurred as a result of late
filing -- but vindi- [*pg 97] cation of the rule of law."77 As in Lujan,
therefore, plaintiff would be acting not on its own behalf, but rather
as a shadow executive department in violation of Article II. Here, the
target of the citizen suit was a private party instead of the
government agency as in Lujan. Nonetheless, private suits can
undermine the enforcement levels that federal agencies deem optimal.
Such suits can either force the government to enter frays that they
would prefer to avoid or, if the government does not intervene, result
in settlements that the government might not find to be in the public's
In addition, the Court specifically rejected the possibility
that the civil penalties would redress plaintiff's injury by
"deter[ring] the risk of future harm."79 Only if plaintiff had alleged a continuing violation "or the imminence of a future violation" would there be redressability,80 and only then if plaintiff could demonstrate "a likelihood that the requested relief will redress the alleged injury."81 Justices O'Connor and Kennedy concurred, explicitly agreeing with the redressability part of the Court's opinion.82
Justice Stevens concurred in the result, but vehemently objected
to the redressability analysis. Labeling the analysis "mechanistic,"83 he explained that
[w]hen one private party is injured by another, the
injury can be redressed in at least two ways: by awarding compensatory
damages or by imposing a sanction on the wrongdoer that will minimize
the risk that the harm-causing conduct will be repeated. Thus, in some
cases a tort is redressed by an award of punitive damages; even when
such damages are payable to the sovereign, they provide a form of
redress for the individual as well.84
According to Justice Stevens, remedies that enhance deterrence of
future wrongdoing satisfy the redressability prong of Article III, and [*pg 98] thus he would have permitted plaintiff to seek civil penalties, even though payable to the United States Treasury.
The picture of redressability in Steel Company therefore apparently contrasts sharply with that in Gwaltney. In Gwaltney redressability could be demonstrated as long as any possibility of future injury existed coupled with prior injury, while in Steel Company
a different coalition of judges supported the proposition that the
likelihood of future injury must be greater, and the injury imminent.
The Court in Laidlaw seemingly flip-flopped again, returning to Gwaltney's analysis. As in Gwaltney,
plaintiff environmental organization filed a citizen suit against a
company for violations of pollution limits prescribed in the Clean
Water Act. Plaintiff sought injunctive relief and penalties payable to
the United States Treasury after defendant had failed to halt the
discharges within the sixty-day notice period.85 Unlike in Gwaltney and Steel Company,
Laidlaw was in violation of the pertinent regulations at the time
plaintiff's suit was filed. By the time the case reached the Supreme
Court, Laidlaw had closed the offending facility, making the likelihood
of future injury extremely low. An injunction would not have been
appropriate, and collection of civil penalties would not have redressed
plaintiff's past injuries any more than it would have in Steel Company.
Nonetheless, the Court held that the Friends of the Earth had
standing to seek the monetary penalties. Although the Court reiterated
that a plaintiff must demonstrate standing separately for each form of
relief sought,86 it held that
private parties could seek penalties payable to the government in light
of the fact that "all civil penalties have some deterrent effect."87
The Court continued that "there may be a point at which the deterrent
effect of a claim for civil penalties becomes so insubstantial or so
remote that it cannot support citizen standing."88
The Court concluded, however, that the district court had reasonably
determined that the penalties were needed to effectuate deterrence on
the facts of this case: "that the penalties would redress FOE's
injuries by . . . preventing future ones."89
The majority attempted to distinguish Steel Company on the ground that the violations had ceased by the time the suit was filed. [*pg 99]
As Justice Scalia noted in dissent, that distinction is meaningless.
Imposition of civil penalties should deter future violations
irrespective of whether the violations ceased one month before suit was
filed or one month after. A defendant in both contexts would think
twice about future violations "once hit in its pocketbook."90
The likelihood of future violations may differ in the two contexts, but
the deterrent function of civil penalties payable to the government is
Irrespective of the date on which the violations ceased, the
critical question for redressability under the Court's doctrine should
be whether the prospect of future injury was sufficiently high on the
day suit was filed to warrant imposition of the civil penalties. Civil
penalties payable to the government redress not the prior injury,92 but are designed to minimize the likelihood of future recurrence. Perhaps, plaintiff's failing in Steel Company
was that it neglected to allege that the prospect of future harm -- that
defendant would again fail to report its discharges -- was substantial.
A comparison with the Court's decision in City of Los Angeles v. Lyons93
is illustrative. There, plaintiff challenged the city's practice of
encouraging law enforcement officers to subdue suspects by dint of a
chokehold. The theory was that, by using chokeholds, police would not
have to rely on weapons. Use of the chokeholds, however, resulted in
several deaths and numerous serious injuries.
Plaintiff had been subjected to a chokehold, and sued to stop
the city from engaging in the practice. The Court dismissed the suit,
holding that he lacked standing to seek an injunction against continued
use of the chokehold. Plaintiff could seek damages for injuries he had
suffered, but in the absence of any reason to think that he would again
be subjected to a chokehold, no case or controversy existed.94
If the analysis in Lyons reflects current doctrine, the question in environmental citizen suits should be whether plaintiffs have demon- [*pg 100] strated a sufficient risk of future harm to justify the civil penalty award. The record in neither Steel Company nor in Laidlaw convincingly demonstrated such risk.
The Court in Laidlaw, however, seemingly deferred to Congress's decision to create particular remedies in the Clean Water Act. It stated:
Congress has found that civil penalties in Clean Water
Act cases do more than promote immediate compliance by limiting the
defendant's economic incentive to delay its attainment of permit
limits; they also deter future violations. This congressional
determination warrants judicial attention and respect.95
Justice Ginsburg further stressed that "[t]he legislative history of
the [Clean Water] Act reveals that Congress wanted the district court
to consider the need for retribution and deterrence, in addition to
restitution, when it imposed civil penalties. . . [The district court
may] seek to deter future violations by basing the penalty on its
The structure of the statute reinforces this understanding. No
damages are available for past violations. The two key remedies
instead are injunctions or civil penalties payable to the United
States, both designed to deter future violations. And, neither is
available until after defendant is granted a sixty-day time period
within which to change its conduct. Thus, once a plaintiff can
demonstrate that a defendant is in violation of the Act on the date the
complaint is filed, Congress presumptively intended that the other two
remedies be available.
To be sure, Congress did not explicitly make any findings
about redressability under the Clean Water Act. And, the statutory
structure under the EPCRA similarly permits an inference that Congress
determined that civil penalties would help redress continuing
The link between civil penalties and injury under the EPCRA,
however, is not as intuitively compelling for three reasons. First,
the Court may well have discounted Congress's role under the EPCRA in [*pg 101]
determining that civil penalties were necessary to deter companies from
future violations. Congress apparently adopted the Clean Air Act and
Clean Water Act remedial scheme wholesale in establishing the EPCRA (as
well as other environmental enforcement schemes). Congress may not
have demonstrated sufficient independent concern for the efficacy of
the remedial scheme in the EPCRA context. Accordingly, the Court had
less reason to defer in Steel Company.
Second, the framework of the EPCRA suits supports the inference
that Congress did not make any findings as to the need for civil
penalties in that context. In contrast to most Clean Water Act cases,
there is not likely to be a track record of numerous past violations.
The situation in Laidlaw is not unique. The district court
determined that Laidlaw had violated the mercury limits on 489
occasions between 1987 and 1995.97
Environmental groups monitoring discharges seldom sue after one random
violation, but only after a pattern has been discerned. After 489
separate violations spanning an eight-year period, the presumption that
such discharges will continue absent a deterrent is strong. In
comparison, there was only a single violation alleged in Steel Company. There was less reason, therefore, to assume that the defendant would continue to violate the Act in the future.98
Third, and related, defendants who violate the Clean Water Act
arguably are more culpable than their counterparts under the EPCRA.
Officials in such companies are well aware of the legal requirements,
and well aware of the magnitude of their discharges. They can monitor
effluent levels just as readily as can the Friends of the Earth and
other environmental organizations. From the prior conduct, one can
presume a continued risk of lawlessness, as indeed occurred in Laidlaw.
Companies that have knowingly discharged excessive contaminants are
likely to continue illegal discharges in the future. On the other
hand, under the EPCRA, companies may violate the Act inadvertently,
either by failing to file in a timely fashion, or by presenting
information that the agency deems misleading. Viola- [*pg 102]
tions may stem from negligence as opposed to knowing behavior. The
difference in level of culpability may be critical, for a prior
violation under the EPCRA may not be indicative of future violations.
Thus, in light of the different probabilities of recurring harm, the
Court was more willing to defer to congressional creation of civil
penalties under the Clean Water Act: a presumption of continuing harm
only exists in that context.
In short, Congress under both the Clean Water Act and the
EPCRA determined that civil penalties payable to the government should
be available to private plaintiffs. But only under the Clean Water Act
did Congress make its reasoning clear, and that context more fully
supports the premise that defendants who have violated statutory
requirements are quite likely to violate them again in the future.
Congress could have made the link between past and future
injuries under the Clean Water Act more explicit, and any such findings
may well have aided the Court in reaching its redressability analysis.
Familiarity with the dynamics of Clean Water Act suits evidently
persuaded the Court to defer to the congressional scheme, despite
Congress's lack of detailed findings. Laidlaw therefore illustrates Congress's critical role in determining that particular remedies are likely to redress particular harms.
Accordingly, this Part briefly sketches the normative assumption underlying Laidlaw
-- courts should defer to congressional determinations that selected
remedies will likely deter particular harms. Such congressional
determinations may be implicitly reflected in the logic or legislative
history of the enforcement scheme, in explicit legislative findings, or
in creation of statutory mechanisms such as nominal damages or bounties
designed to ensure that an individual's interest in an action be
redressable by a favorable judgment. In any of the contexts,
Congress's determination that citizens should be able to sue for
particular remedies warrants deference.
Deferring to legislative findings explicitly or implicitly
supporting the redressability of a particular injury comports with
traditional separation of powers principles for a number of reasons.
First, careful empirical work by legislatures can persuade judges of
causal connections that may have seemed a stretch at first glance. The
redressability inquiry turns on the likelihood that a particular remedy
will redress the plaintiff's injury. Because of its wide-ranging
nature, con- [*pg 103] gressional fact finding might assess the possibility of remediation better than efforts by judges or their clerks.
Even in Lujan, the concurring and dissenting Justices
recognized the special role for Congress in creating interests whose
violation can give rise to a cognizable injury in fact. In comparison
to implicit congressional declarations as to injuries in fact in Lujan or Raines,
there is greater reason to defer to fact finding or determinations as
to the connection between particular remedies and the injuries alleged.
As an initial matter, factual analysis bears on whether the
link between remedy and potential for future violations exists. Courts
may not have the empirical data to assess whether particular companies
are likely to continue violations after a complaint is filed.
Judgments "on the deterrent effect of the various weapons in the armory
of the law can lay little claim to scientific basis. Such judgment as
yet is largely a prophecy based on meager and uninterpreted experience."99
Moreover, courts may not have experience in gauging whether the prospect
of civil penalties deters effectively. Some remedies such as
injunctions are likely more effective than awards of nominal damages
and perhaps civil penalties as well. In addition, the deterrent
effects of remedies may differ depending upon the statutory context,
the size of the defendant, and the ease of compliance. Such
congressional determinations can therefore aid the Court in assessing
whether a particular remedy is likely to redress a potential harm, such
as the harm in Laidlaw of recurring discharge of pollutants in excess of permissible levels.
Moreover, courts may wish to monitor the injury in fact
determination more than redressability because of their gatekeeper
role. Courts will face fewer conflicts with the coordinate branches if
particular interests -- whether interests in effective enforcement of
the law or in environmental health -- fall outside those recognized as
satisfying the injury in fact test. Once injury in fact is satisfied,
the number of cases avoided by enforcing redressability strictly is not
as great. Thus, courts arguably should be willing to defer to
congressional determinations more in the redressability context.
Indeed, factual issues often inform constitutional analysis. For instance, the Supreme Court in United States v. Lopez100 adverted to the advantages of legislative findings in demonstrating a link between [*pg 104] regulation and the flow of interstate commerce.101
The majority commented that, "to the extent that congressional findings
would enable us to evaluate the legislative judgment that the activity
in question substantially affected interstate commerce, even though no
such substantial effect was visible to the naked eye, they are lacking
here."102 The concurring
opinion suggested the result might have been different had
congressional findings illuminated the commercial character of the
regulation prohibiting possession of a firearm near schools.103
In dormant commerce clause cases as well, the Court has asked whether
legislative findings demonstrate that a challenged state regulation
will bring legitimate safety and health effects.104 Commercial speech regulation may turn on the need to protect consumers from confusion or misrepresentation.105 As the Supreme Court recently reiterated in Turner Broadcasting System, Inc. v. FCC,106 "courts must accord substantial deference to predictive judgments of Congress."107
One might wonder whether courts should defer at all to legislative findings in constitutional cases. In Bose Corp. v. Consumers Union108
the Court held that factual determinations in certain areas of the law
such as under the actual malice standard in libel law must be
independently reviewable on appeal.109
To ensure superintendence over the constitutional claim, appellate
courts can review factual findings more stringently. Courts might
afford even less deference to fact finding by political actors. Under
the now discredited constitutional fact doctrine in administrative law,
for instance, courts retained the discretion to retry all factual
determinations made by agencies to preserve full control over the
constitutional claims.110 Otherwise, factual findings could unduly influence the availability of relief under the Constitution.
But deference to the findings of a coordinate branch of government cannot be equated with capitulation. The Court explained in Turner Broadcasting
that "[w]e owe Congress' findings deference in part because the
institution is far better equipped than the judiciary to amass and
evaluate the vast amounts of data bearing upon legislative questions."111
Indeed, the Court this past term in United States v. Morrison112
stressed that "the existence of congressional findings is not
sufficient, by itself, to sustain the constitutionality of Commerce
Clause legislation."113 The Court criticized Congress for relying in its findings on "reasoning" previously rejected by the Court.114
Although courts should not defer to Congress's assessment of the
legality of its own legislation, they have deferred to the superior
fact finding ability of a coordinate branch of government including
Congress's "findings as . . . to the remedial measures adopted. . . ."115
For a variety of reasons, the current Court will likely defer
more to explicit than implicit findings. Some members of the Court
have shied away from attention to congressional intent drawn from
committee reports, hearings, and the like. Justice Scalia in
particular has noted the unreliability of such materials. As he
explained in Wisconsin Public Intervenor v. Mortier,116
[a]ll we know for sure is that the full Senate adopted
the text that we have before us here, as did the full House, pursuant
to the procedures prescribed by the Constitution . . . we should try to
give the text its fair meaning, whatever various committees might have
had to say -- thereby affirming the proposition that we are a
Government of laws, not of committee reports.117
According meaning to legislative history may sanction lawmaking
outside the constitutionally prescribed procedures of bicameralism and
presentment. Danger resides on a more practical level in vesting too
much power in committee reports and the like -- which may well have
been written by staff members and interest groups.
Nonetheless, Justice Scalia's views in this respect have not
commanded a majority. The Court has relied on such evidence in
considering a variety of issues, including whether Congress provided a
clear statement of its intent to regulate states or to subject the
federal government to suit.118
The more explicit the findings, however, the less controversial and the
greater the deference that likely will be shown. Part of the rationale
for deferring to Congress's assessment of redressability, therefore,
turns on its comparative advantage in fact-finding.
A second justification rests on concern for a due process of
lawmaking. Encouraging the use of legislative findings may promote
greater deliberation as to the wisdom of congressional authorization
for particular individuals to sue. Congress arguably should exercise
care in determining which parties are appropriate in which contexts to
bring suit. To be sure, members of Congress may relegate
responsibility to craft such findings to staffers. Few members of
Congress [*pg 107]
read reports or summaries of hearings; for that matter, few may read the
intricate text of voluminous bills. But in some cases, the need to
make findings may itself prompt greater debate as to what kind of
findings to place in the statute. Indeed, in the exceptional case,
legislation may not only be slowed but altered due to the difficulty
members of Congress (or staffers) have in making a convincing nexus
between a particular remedy and the injury suffered.
In this respect, required findings operate like clear
statement rules of statutory construction, which the Court has applied
-- albeit not always consistently -- when reviewing legislation that
trenches upon Tenth119 and Eleventh Amendment concerns.120
The Court will not interpret a statute to invade a core state function
or subject a state to suit in federal court in the absence of a clear
statement. A clear statement approach adds costs to legislation, but
at the same time attempts to prompt Congress to deliberate more
forthrightly about the wisdom of such legislation.121 As the Court stated in Gregory v. Ashcroft,122
the clear statement rule ensures "that the legislature has in fact
faced, and intended to bring into issue, the critical matters involved."123
Congress arguably should not open the courthouse doors unless it
has broad-based political support. It should only permit wide ranging
inquiry into executive branch administration of the laws when it is on
firm terrain. When the Court is skeptical about the nature of a
plaintiff's injuries or motives, congressional findings reassure the
Court that Congress has in fact determined that such suits are
appropriate. Findings, like clear statement rules, help ensure that
congressional action impinging on Article III (or Article II) concerns
is a product of reflection and deliberation.
Third, encouraging a legislative record opens up the
legislative process to greater public scrutiny. Individuals can better
assess the basis for congressional action. When the link (or lack
thereof) between fines and continued polluting is better understood,
citizens can [*pg 108]
hold their representatives more accountable for their actions. In
essence, legislative findings reduce the cost to the public of
understanding and then monitoring their legislative agents' actions.
In short, the Court's deference in Laidlaw to Congress's
decision to provide civil penalties under the Clean Water Act as a
means to deter future wrongdoing is normatively appealing. Even though
the structure of the statutory scheme in the EPCRA is similar, the
different social and economic contexts may have convinced the Court
that there was no reason to presume a high probability of continuing
If Congress, however, would have made findings suggesting that
a single failure to file an accurate report under the EPCRA likely
leads to repeated violations, then the Court would have had to address
the linkage between remedy and future injury more directly. Depending
upon the strength of the legislative showing, the Court might have been
persuaded to recognize the likelihood of recurring injury as it did in Laidlaw . Deference to congressional fact finding makes sense both as a matter of policy and formal separation of powers doctrine.
Courts, however, should place limits on Congress's efforts to
influence the redressability inquiry. Judges should not blindly accept
congressional statements or efforts to legislate away any
redressability concerns for a number of reasons. First, given that
redressability remains part of standing, courts should exercise the
authority to determine the bounds of the case or controversy
requirement rooted in Article III. Second, even when Congress has
plausibly fashioned a link between a particular remedy and harm on the
wholesale level, the congressional forecast of the likelihood of
continuing injury, or a congressional assessment of the deterrent
effect of a selected remedy, may fall apart in a given case. Third,
due to separation of powers concerns, courts maintain an appropriate
role in ensuring that Congress follows particular procedures in
designing the congressional mechanisms that assure redressability --
Congress must ensure that redressability is demonstrated apart from a
stake in the litigation itself.
A. Judicial Review
Under the Supreme Court's contemporary view, standing doctrine constitutes a critical component of the case and controversy re- [*pg 109]
quirement of Article III. Courts understandably will review
congressional efforts to confer standing on individuals to safeguard
the values underlying standing doctrine. As the Court stated in Raines,
"Congress cannot erase Article III's standing requirements by
statutorily granting the right to sue to a plaintiff who would not
otherwise have standing."124
Absent review, Congress would have plenary authority to link particular
remedies to common law or statutory injuries that have scant
For instance, assume that Congress authorized all persons to
challenge unlawful conduct by the FBI. Congress further might declare
that individuals, assuming injury in fact, will benefit from a finding
of illegality by receiving assurance that the government is operating
within the confines of the law. Courts presumably would find such
congressional declaration insufficient to demonstrate that a favorable
resolution of the suit would redress the injury.125
Alternatively, Congress may rely on such weak statistical inferences in
making its connections between injury suffered and remedy selected as
to forfeit any deference. The remedial scheme under the EPCRA may
represent such a case. Judicial review protects the core requirements
of a concrete dispute and adverse parties that delimit the bounds of
B. Overcoming Congressional Findings in Specific Cases
Moreover, any congressional determination as to the connection
between relief and injury may not hold in the particular circumstances
of a case. Standing doctrine contemplates that plaintiffs in
particular cases enjoy a sufficient stake in the controversy to invoke
the Court's authority. Standing is evaluated at the retail, not the
Thus, although congressional determinations or findings as to redressability as in Laidlaw
merit deference, the presumption of redressability should be rebuttable.
Congressional determinations as to the likelihood of recurring harm or
as to the effectiveness of deterrent measures make sense only in the
aggregate. Congress could not possibly foresee all of the contexts in
which the question of redressability could arise. A congressional
determination that a particular remedy [*pg 110]
redresses a harm in the generality of cases is entitled to respect, but
the individual characteristics should still be considered.126
This is not to suggest that defendants can overcome a presumption of
redressability by arguing that damages or penalties will not
successfully deter them in the future. When Congress determines that
penalties such as cease and desist orders or injunctions are
appropriate, courts should accept their deterrent effect. Nor can
defendants argue that such relief is unnecessary because they will not
violate the law in the future.127
But, defendants should be able to point to any extraordinary reasons
arising prior to initiation of the lawsuit -- such as technological or
statutory changes -- that make resumption of the wrongful conduct
highly unlikely. If there is no realistic chance that defendants'
conduct will again harm plaintiff, then plaintiff has nothing at stake
in seeking deterrent remedies, whether they take the form of an
injunction, damages, or penalties payable to the government.
The same, of course, is true with congressional creation of
injuries. Congress can recognize an interest in environmental quality,
but someone who does not live near the disputed region still cannot
sue. In Trafficante, the Court respected Congress's
determination that a tester could sue, but a tester who did not
actually apply to the particular housing units could not challenge the
housing policies. Similarly, with respect to redressability, a
defendant under the Clean Water Act can try to establish, as Laidlaw
tried, that it is unlikely to violate the Act in the future given
unique circumstances, despite the legislation.128 District courts should have the discretion to make the [*pg 111]
ultimate call as to whether the relief sought will redress injury, but
the determinants -- and presumption of redressability -- are set by
C. Limits of Congressional Mechanisms to Assure Redressability
In lieu of findings, Congress at times seeks to ensure
redressability by altering the legislative scheme so that plaintiffs
receive tangible benefits from pursuing the suit. Although courts
should allow Congress wide latitude in shaping the relief attainable,
such relief must redress an interest apart from the litigation itself.
Payment of monetary damages, irrespective of the form,
constitutes the traditional means of redressing injury. Plaintiffs
injured by torts or breaches of contract can recover damages as one
means of redressing the injury. If Congress had authorized the
plaintiffs in Laidlaw or Lujan to recover damages
(liquidated or otherwise) to compensate them in part for the
environmental and procedural injuries suffered, then the remediation
principle would be honored. There might be a point at which
congressional creation of a damages remedy would fail to redress a
particular injury. Nonetheless, almost every congressional provision
of a damages remedy should satisfy the redressability requirement.
Congress similarly might try to overcome any redressability
obstacles by authorizing punitive or nominal damages awards. Such
damage awards are not directly linked to the injuries suffered.
Punitive damages punish the offender, and the amount of the award is
not commensurate with restoring plaintiff to its rightful position.129
As the Supreme Court recently summarized, "[p]unitive damages may
properly be imposed to further a State's legitimate interests in
punishing unlawful conduct and deterring its repetition."130
Most would agree that a recovery of punitive damages satisfies
redressability if the plaintiff has in fact suffered injury. The
recovery might be more than necessary to redress the injury, but that
should not offend any Article III requirement. The redressability
requirement does not impose any [*pg 112] obligation that the congressional remedy be closely tailored to the injury suffered, just that there be some redress.131
The Court, however, must ensure that plaintiff has suffered some
cognizable injury that the punitive damages can redress. If the
punitive damages award does not help remedy the harm, then the absence
of redressability would convert plaintiff into a private attorney
For instance, consider Plotkin and the Better Government Association v. Ryan.132
There, a registered Illinois voter and political watchdog group alleged
that the Secretary of State's office coerced employees into making
contributions and performing campaign work during the gubernatorial
campaign of former Secretary of State and now governor George Ryan.133
That coercion allegedly led to two separate injuries: an official
subsidy for the Ryan campaign that undermined the democratic process,
and more dangerous roads because employees were forced to sell drivers'
licenses to cover the cost of the campaign contributions.134
With respect to the subsidy, however, defendants' actions harmed
plaintiffs' interests only as voters, injuries shared with the general
populace. Under Lujan, such injury cannot satisfy the Article
III injury in fact test. Nor could standing be predicated on Plotkin's
separate injury as a user of Illinois' roads. The relief sought,
including punitive damages, would not "redress his injury."135
The punitive damages might ensure him financial comfort, but not prevent
dangerous driving by those who improperly obtained licenses. And there
was no likelihood that he personally would be injured by any continuing
unlawful conduct, much as in Lyons. Accordingly, the court threw out the suit.136
But the punitive damages award, by providing deterrence, might
redress plaintiff's injuries if a likelihood of future injury existed
that could be deterred. If Plotkin had been able to show that coercion
in the Secretary of State office was continuing, then the award of
puni- [*pg 113]
tive damages may have deterred that conduct. Just like civil penalties,
punitive damages would make new harms much less likely.137
Nominal damages present the flipside of punitives because they
provide less than full relief. An award of nominal damages, as in
civil rights cases, should comparably satisfy the redressability
requirement. Nominal damages can be seen as a way to redress a harm by
providing moral vindication -- the award stamps the defendant's actions
as unjust, and provides a measure of relief for the prior injury. As
the Supreme Court stated in Carey v. Piphus:138
common-law courts traditionally have vindicated
deprivations of certain 'absolute' rights that are not shown to have
caused actual injury through the award of a nominal sum of money. By
making the deprivation of such rights actionable for nominal damages
without proof of actual injury, the law recognizes the importance to
organized society that those rights be [sic] scrupulously observed.139
Property rights have been protected in a similar fashion through
trespass suits even when no tangible harm can be demonstrated. An
award of nominal damages plainly redresses the prior injury.
An award of nominal damages, however, has a less pronounced
impact on deterrence. A one-dollar fine, by itself, may not change
behavior. Nonetheless, if the prospect of continuing harm exists, the
damages award of even a nominal amount serves a deterrent purpose.
Defendants may strive to avoid another finding of liability, and the
accompanying financial or social loss. Congress, therefore, may help
ensure redressability by providing for nominal damage awards as long as
the award redresses prior injury or prevents recurrence of future
Whether Congress can satisfy redressability through other
mechanisms such as bounties or attorney's fees poses a more difficult
question. With respect to attorney's fees,140 the Supreme Court in Diamond v. Charles141
found that a party's interest in attorney's fees was insufficient to
support standing. Even though Diamond stood to lose fees if the case
were dismissed, he lacked standing to continue [*pg 114]
litigating the merits. Rather, what is required is "an injury with a
nexus to the substantive character of the statute or regulation at
issue."142 A party's
expectation of an attorney's fee award does not confer standing or
demonstrate redressability because it is not directly related "to the
substantive character of the statute or regulation at issue."143
Otherwise, Congress could avoid standing (and advisory opinion)
obstacles merely by dint of affording anyone ten percent reimbursement
of fees for any successful constitutional claim against the government.
The injury in fact and redressability prongs would be circumvented.
The expectation of an attorney fee award therefore does not give rise
to standing -- at least under current doctrine -- if no other injury
Similarly, in Steel Company the Court held that the expectation of reimbursement for litigation costs is insufficient to satisfy redressability.144
Even though Congress had created the expectation, only interests related
to the substance of the cause of action suffice to create standing. As
the Court explained, "[t]he litigation must give the plaintiff some
other benefit besides reimbursement of costs that are a byproduct of
the litigation itself."145 Reimbursement of litigation expenses would not redress the underlying wrong.
Some have argued that bounties operate quite differently.146
If Congress provided that successful plaintiffs in citizen suits receive
a cash bounty, the argument goes, then redressability concerns are
satisfied. The bounty might redress the injury in one of two ways:
first, it might compensate for some of the environmental or other loss
suffered; and second, it might redress the procedural interest -- the
bounty -- conferred by Congress on citizens wishing to challenge
Support for this view stems from historical qui tam practice. Qui tam and informer's actions have proceeded since the nation's founding.147
There, the injury can be conceptualized either as derivative, e.g.,
suing on behalf of the United States, or more individuated in the sense
of efforts to take advantage of the opportunity provided by [*pg 115]
Congress to collect funds. The prospect of a bounty affords a personal
stake in the controversy. Under either view, the payment of the bounty
redresses the injury. As even the plurality opinion in Lujan
noted, "[n]or, finally, is [this] the unusual case in which Congress has
created a concrete, private interest in the outcome of a suit against a
private party for the government's benefit, by providing a cash bounty
for the victorious plaintiff."148 Several courts recently have upheld standing in qui tam cases on the ground that the bounty provides sufficient interest to confer standing.149
Indeed, prior to enactment of citizen-suit provisions in the
Clean Water Act, individuals attempted, albeit unsuccessfully, to
prevent violation of environmental laws through qui tam suits.150 Like citizen suits, qui tam
actions provide a means through which citizens can help enforce the laws
even when the executive branch has not taken an active enforcement
However, the Supreme Court's decision in Vermont Agency of Natural Resources v. United States ex rel. Stevens151 -- decided in the same term as Laidlaw -- rejected the bounty theory. Before concluding that a private party could not bring a qui tam action against a state, the Court considered whether the qui tam
relator had standing to pursue the False Claims Act case against
Vermont. Although the relator, if successful, would have collected a
bounty, "the same might be said of someone who has placed a wager upon
the outcome. An interest unrelated to injury in fact is insufficient
to give a plaintiff standing."152
A bounty does not alter the nature of the injuries to be redressed in
litigation, but only creates a stake in its outcome, much like an
attorney hoping for a contingency fee or fee shifting award might
A comparison with the letters of marque cases is helpful.
There, Congress in a sense creates standing, but before any party can
invoke [*pg 116]
the court's jurisdiction, that party must first take action by capturing
the foreign ship and towing it back into this country's territory. The
private party must obtain the property interest in advance of the
lawsuit -- the lawsuit by itself does not create the interest that
gives rise to standing. The cognizable injury must be distinct from
Viewed another way, the Court does not recognize property
interests in litigation as sufficient to support standing. Otherwise,
Congress could delegate the responsibility to enforce laws through
litigation to any concerned individual, irrespective of the
individual's interest in the litigation. Although the line between
creation of interests antecedent to the litigation and in the
litigation itself may seem thin, it represents one way for the Court to
protect against widespread delegation of the President's authority to
enforce the law.153 Just as injuries in fact must be individuated under Lujan,
so too must remedial mechanisms be linked to specific injuries. And,
courts in other contexts have held that an interest in avoiding or
carrying out litigation is not sufficient to keep lawsuits alive.154
The individual injury requirement safeguards against congressional
displacement of the President as the chief law enforcement officer.
Bounties, nonetheless, can create sufficient redressability if
a separate injury in fact exists. In that case, the bounty may serve
the same deterrent function as civil penalties. If the injury may
continue after the lawsuit, then the bounty deters future wrongdoing.
Like the civil penalties in Laidlaw, bounties can act as a financial deterrent of unlawful conduct.
Congress thus has ample discretion to ensure redressability,
both by crafting findings that demonstrate the link between the
asserted injury and the relief sought, and by authorizing remedies such
as punitive damages, civil penalties, and even at times bounties that
serve a deterrent function. As long as a sufficient chance of future
injury exists, creative remedial schemes satisfy Article III's mandate
of a redressable injury.
Laidlaw suggests a new role for Congress in linking remedies
to injuries. Congress's policymaking authority plainly includes the
power to authorize individuals who have been injured to sue to pre- [*pg 117]
vent recurrence of statutory and constitutional violations that may
affect them. Judges should defer to congressional determinations and
findings that particular injuries will redress particular harms.
Congress has greater ability to assess social, economic, and
technological trends that underlie the inquiry whether injury is likely
to recur and whether a 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. Congress should only open the courthouse doors
when the interests raised are clear, and the benefits sought from the
lawsuit are tangible.
Courts, however, continue to discharge a critical function by
requiring each plaintiff to demonstrate redressability. To the extent
that the redressability requirement stems from the case or controversy
limitation in Article III, redressability ensures adverseness, limits
the role of ideological plaintiffs, and prevents courts from needlessly
resolving disputes that might embroil them in controversy with the more
politicized branches. Review of congressional findings of
redressability is needed because the findings may be implausible, or
they might not be probative in the context of the facts of a specific
case. Moreover, review is also critical to ensure that congressional
mechanisms designed to further access to courts -- creation of property
interests, damage remedies, and bounties -- build on interests separate
from those in the lawsuit itself. Otherwise, Congress can delegate to
private parties an enforcement role at odds with Article II's mandate
of presidential control over law enforcement.
Nonetheless, with limited exceptions, Congress properly enjoys
wide latitude in determining which remedies are appropriate to
vindicate which interests. By restoring Congress to its appropriate
role, Laidlaw redresses the Court's law of redressability.
and Associate Dean, Chicago-Kent College of Law. I would like to thank
Doug Letter and Dan Tarlock for comments on an earlier draft, and I
would like to thank the Duke Environmental Law & Policy Forum for
taking the initiative to host and facilitate the recent conference on Laidlaw.
|| 504 U.S. 555 (1992).
|| 521 U.S. 811 (1997).
|| See 504 U.S. at 576-78.
|| 5 U.S.C. § 552 (1994 & Supp. V 1999).
|| 42 U.S.C. § 4321 (1994).
See, e.g., Allen v. Wright, 468 U.S. 737 (1984).
|| 528 U.S. 167 (2000).
See id. at 187-189.
See id. at 184-186.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-78 (1992).
|| 461 U.S. 95 (1983).
See id. at 98.
|| 523 U.S. 83 (1998).
own views on the Court's premise that congressional creation of a right
to sue is not sufficient to satisfy Article III's case or controversy
requirement, see Harold J. Krent & Ethan Shenkman, Of Citizen Suits and Citizen Sunstein, 91 MICH L. REV. 1793 (1993).
See, e.g., Donald L. Doernberg, "We the People": John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action, 73 CAL. L. REV. 52 (1985); William Fletcher, The Structure of Standing, 98 YALE L.J. 221 (1988); Louis Jaffee, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968); Gene R. Nichol, Jr., Justice Scalia, Standing and Public Law Litigation, 42 DUKE L.J. 1141 (1993); Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 173-78 (1992); Steven Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988).
See, e.g., Massachusetts v. Mellon, 262 U.S. 447 (1923). See also Sunstein, supra note 15, at 179-81; Fletcher, supra note 15, at 225.
See Sunstein, supra note 15, at 188.
United States v. Students Challenging Regulatory Agency Procedures, 412
U.S. 669, 683-90 (1973); Association of Data Processing Serv. Orgs.,
Inc. v. Camp, 397 U.S. 150, 152-54 (1970).
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974);
Sierra Club v. Morton, 405 U.S. 727 (1972); Laird v. Tatum, 408 U.S. 1
|| 409 U.S. 205 (1972).
See id. at 206-207.
See id. at 210.
See id. at 212.
See id. (White, J., concurring).
|| 455 U.S. 363 (1982).
See id. at 377. See also Bennett v. Spear, 520 U.S. 154, 163-168 (1997) (addressing Congress's role in creating citizen suits).
The Court's decision in Morton,
405 U.S. 727, provided a blueprint when it denied standing in an
environmental context only because there was no individual injury or
stake asserted. See, e.g., Toxic Substances Control
Act, 15 U.S.C. § 2619 (1994); Clean Water Act of 1976, 33 U.S.C. § 1365
(1994); Safe Drinking Water Act, 42 U.S.C. § 300j-8 (1994 & Supp.
IV 1998); Solid Waste Disposal Act, 42 U.S.C. § 6972 (1994); Air
Pollution Prevention and Control (Clean Air) Act, 42 U.S.C. § 7604
(1994); Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), 42 U.S.C. § 9659 (1994); Emergency Planning and
Community Right-to-Know Act (EPCRA), 42 U.S.C. § 11046(a)(1) (1994).
See U.S. CONST. art. I, § 8, cl. 11.
See C.J. Hendry Co. v. Moore, 318 U.S. 133, 152-53 (1943).
|| 47 U.S.C. § 309(j) (1994 & Supp. IV 1998) (authorizing auctions of electromagnetic spectrum).
|| 42 U.S.C. §7651, §7651o (1994).
The Court's summary affirmation in McClure v. Reagan, 454 U.S. 1025 (1981), aff'g
513 F. Supp. 265 (D. Idaho 1981), arguably constitutes an earlier
example. There, the Court upheld dismissal of a lawsuit challenging
then Representative Abner Mikva's appointment to the bench. See
513 F. Supp at 266-67. The problem was that Mikva as a representative
had voted for a pay increase for all judges in arguable violation of
the Emoluments Clause. See id. at 265. Despite the fact
that Congress authorized any of its members to challenge the
appointment, the Court refused to reach the merits of the claim. See id.
at 271. Congressional standing poses particular problems because of
Congress' self-dealing in affording its members the power to help
enforce the laws.
|| 16 U.S.C. § 1531 (1994).
16 U.S.C. § 1536(a)(2).
16 U.S.C. § 1540(g).
|| See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-563 (1992).
See id. at 563.
Id. at 577; see also Printz
v. United States, 521 U.S. 898, 921-922 (1997) (elaborating further
Justice Scalia's views pertaining to congressional direction that state
officers-as opposed to private parties-execute the laws in
investigating applicants for gun ownership: "[T]he insistence of the
Framers upon unity in the Federal Executive-to ensure both vigor and
accountability-is well known. That unity would be shattered, and the
power of the President would be subject to reduction, if Congress could
act as effectively without the President as with him, by simply
requiring state officers to execute its laws")(citations omitted).
problem may be one not of interfering with the President's duty to take
care to enforce the laws faithfully, but rather with the President's
status as the sole official charged with the responsibility to
represent the interest of the nation as a whole. See Krent & Shenkman, supra note 14, at 1801-1808.
See 504 U.S. at 578.
See id. at 580 (Kennedy, J., concurring).
See id. at 579-580 (Kennedy, J., concurring).
|| 521 U.S. 811 (1997).
|| 2 U.S.C. § 692(a)(1) (Supp. V 1999).
See 521 U.S. at 820 n.3. The Court in Federal Election Commission v. Akins relaxed some of Lujan's rigor. See 524
U.S. 11 (1998). There, the Court held that a party enjoyed standing to
challenge the agency's failure to subject a particular lobbying group,
AIPAC, to reporting and registration requirements. See id.
at 11-12. Even though the informational injury was shared with many
others not participating in the lawsuit, the Court reasoned that the
concrete nature of the injury-the lack of information-made injury in
fact easier to determine. See id. at 24. The Akins decision appears to conform to the requirements set forth in Justice Kennedy's concurrence in Lujan.
See, e.g., Allen v. Wright, 468 U.S. 737, 751 (1984).
|| 410 U.S. 614 (1973).
See id. at 618.
U.S. 490 (1975) (finding insufficient evidence that low cost housing
would have been available but for allegedly discriminatory practices of
U.S. 26 (1976) (finding insufficient likelihood that defendants would
have provided more hospital care to indigents even in absence of
alleged unlawful regulation).
See Flast v. Cohen, 392 U.S. 83, 96 (1968). See also Federal Election Commission v. Akins, 524 U.S. 11, 24-25 (1998); Evan Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 HARV. L. REV. 605, 644-45 (1992).
Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 105 (1993) (Scalia,
J., concurring) (deciding cases without impact on the parties is "the
handmaid of judicial activism"); Desist v. United States, 394 U.S. 244,
256-69 (1969) (Harlan, J., dissenting).
Professor Stearns notes in this symposium, ideological plaintiffs may
try to manipulate the Supreme Court's agenda to ensure a favorable
precedent. See generally Maxwell L. Stearns, From Lujan to Laidlaw: A Preliminary Model of Environmental Standing, 11 DUKE ENVTL. L. & POL'Y F. 321 (2001).
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 568 (1992).
See id. at 571.
See id. at 580 (Kennedy, J., concurring).
The Court determined that there was redressability in Bennett v. Spear, without inquiring into Congress' role in illuminating the link between asserted injury and relief sought. See 520
U.S. 154, 155 (1997). There, plaintiff sued under the Endangered
Species Act for review of a Biological Opinion issued by the Fish &
Wildlife Service. See id. at 154. According to the
Court, a favorable opinion would have enhanced the possibility that the
federal government would have continued support for the Klamath
Irrigation Project. See id. at 168-171.
|| 484 U.S. 49 (1987).
See id. at 56.
|| 33 U.S.C. § 1365(a)(1) (1994).
See id. at § 1365(b)(1)(A).
See Gwaltney, 484 U.S. at 53.
See id. at 54.
See id. at 57.
See id. at 64.
See id. at 64-67.
Defendants in Gwaltney also argued, as would defendants in Laidlaw, that the suit became moot given that the offending conduct has stopped and was unlikely to recur. See Gwaltney, 484 U.S. at 50. Both Courts rejected the arguments. See id.; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 188-194 (2000).
See Gwaltney, 484 U.S. at 66.
See id. at 70.
|| 523 U.S. 83 (1998).
|| 42 U.S.C. § 11046(a)(1) (1994).
|| See id.
See id. at §11046(e).
As under the Clean Water Act, the EPCRA incorporated a notice requirement as a prerequisite to filing suit. See id. at § 11046(d).
See Steel Co., 523 U.S. at 87-88.
See id. at 106.
|| See id.
See Michael S. Greve, Friends of the Earth, Foes of Federalism, 12 DUKE ENVTL. L. & POL'Y F. 167 (2001).
See Steel Co., 523 U.S. at 106-07.
at 108. Furthermore, the prospect of recovering investigation and
prosecution costs was insufficient because the litigation must give the
plaintiff some other benefit besides reimbursement of costs that are a
byproduct of the litigation itself. See id. at 107 ("[An]
interest in attorney's fees is . . . insufficient to create an Article
III case or controversy where none exists on the merits of the
underlying claim.") (citations omitted).
at 110. Much of the Court's opinion can be considered dicta, however,
because plaintiff evidently did not satisfy statutory standing because
there was no showing that defendant was "in violation" of the Act at
the time the suit was filed.
See id. at 124.
Id. at 127.
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 176-177 (2000).
See id. at 185.
See id. (citing Hudson v. United States, 522 U.S. 93, 102 (1997)).
See id. at 186.
See id. at 187.
See id. at 186.
Thus, the Court has come full circle since Gwaltney.
The Court initially determined that civil penalties payable to the
federal government, by deterring future misconduct, satisfied
redressability. See Gwaltney, 484 U.S. 49, 66 (1987). Then, the Court in Steel Company held that redressability could not be justified unless the likelihood of future injury was high and the threat imminent. See 523 U.S. 83, 106 (1998). Finally in Laidlaw,
the Court once again determined that penalties can redress injuries by
deterring future misconduct, even when there has been no concrete
demonstration of a likelihood of recurring harm. See 528 U.S. at 186.
|| As long as the injury conceptualized is that of the plaintiff, as opposed to the public at large.
|| 461 U.S. 95 (1983).
See id. at 105-09.
|| Laidlaw, 528 U.S. at 185.
(quoting Tull v. United States, 481 U.S. 412, 422-23 (1987)).
Furthermore, one of the Senate reports accompanying amendments to the
Clean Water Act asserted that citizen suits "have deterred violators
and achieved significant compliance gains." See S. REP. NO.
90-50, at 28 (1985). Similarly, a Senate Report supporting revisions
to the Clean Air Act explained, "the assessment of civil penalties for
violations of the [Clean Air] Act [is] necessary for deterrence,
restitution and retribution." See S. REP. NO. 101-228, 373 (1989). See also 136 CONG. REC. 5627 (1990) (remarks of Senator Chafee).
See Laidlaw, 528 U.S. at 176.
The fact patterns of the two cases also differ in that the defendant in Steel Company cured the defect within the sixty-day period, unlike the defendant in Laidlaw. See Laidlaw, 528 U.S. at 176; Steel Co.,
523 U.S. 83, 87-88. When a defendant takes vigorous steps to stop the
offending conduct quickly, the presumption of recurring violations has
less force. In sharp contrast, the defendant in Laidlaw
violated the mercury discharge limit thirteen times after suit was
filed, and committed an additional thirteen monitoring and ten
reporting violations. See 528 U.S. at 176. The Court's finding of no standing in Steel Company reflected its conviction that the likelihood of continuing injury after defendant's voluntary compliance was low.
|| Tigner v. Texas, 310 U.S. 141, 148 (1940).
|| 514 U.S. 549 (1995).
See id. at 562.
Id. at 563.
at 580 (Kennedy, J., concurring). When Congress builds a record, as it
has, for instance, under the Freedom of Access to Clinic Entrances Act
of 1994, 18 U.S.C. § 248 (1994), the federal carjacking statute, 18
U.S.C. § 2119 (1994 & Supp. IV 1998), the Child Support Recovery
Act of 1992, 18 U.S.C. § 228 (1994 & Supp. IV 1998), and the Child
Restoration and Penalties Act of 1990, 18 U.S.C. § 2252 (1994 &
Supp. IV 1998), the task of reviewing courts is lightened. Instead of
speculating as to the connections between the regulation and interstate
commerce-as Justice Breyer did in the Lopez dissent-courts
rather can rely on the empirical bases demonstrated in the
congressional findings. Most would agree that Congress has better
factfinding capabilities than do courts. Thus, directing Congress to
build a record can streamline-and sharpen-the judicial task of
reviewing federal legislation for conformity to the Commerce Clause.
C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994) (inquiring
into health and environmental safety reasons for a waste control
ordinance favoring a local business); Kassel v. Consolidated
Freightways Corp., 450 U.S. 662, 705-09 (1981) (inquiring into safety
reasons for state rule burdening national trucking companies).
de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 333-34 (1986)
(upholding regulation of advertising of casino gambling aimed at Puerto
Rico citizens in part because "[w]e have no difficulty in concluding
that the Puerto Rico Legislature's interest in the health, safety, and
welfare of its citizens constitutes a 'substantial' governmental
interest"). See also Nixon v. Shrink Mo. Gov't PAC, 528 U.S.
377, 390-393 (2000) (deferring to legislative judgments about level of
corruption engendered by certain campaign practices); Colorado
Republican Fed. Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604
(1996) (discussing usefulness of congressional finding in demonstrating
the corruption that supports campaign finance regulation). And, in
Eleventh Amendment cases, congressional findings may shed light on
whether Congress can authorize individuals to sue states for violations
of federal law. See Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Union Pac. R.R. v. Utah, 198 F.3d 1201 (10th Cir. 1999).
|| 520 U.S. 180 (1997).
Id. at 196.
|| 466 U.S. 485 (1984).
See id. at 501 n.17.
See Ng Fung Ho v. White, 259 U.S. 276 (1922); Ohio Valley Water Co. v. Ben Avon, 253 U.S. 287 (1920).
520 U.S. at 195.
|| 529 U.S. 598 (2000).
See id. at 673-74.
See id. As the dissent pointed out, the findings in Morrison were far more probative and careful than in many prior cases. See id.
at 682-86 (Thomas, J., dissenting). The Court in the last several terms
has accorded less deference to the judgment of the coordinate branch. See, e.g., Dickerson v. United States, 530 U.S. 428 (2000); City of Boerne v. Flores, 521 U.S. 507 (1997).
See Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 196 (1997).
|| 501 U.S. 597 (1991).
Id. at 621 (Scalia, J., concurring). See also
Thompson v. Thompson, 484 U.S. 174, 191-92 (1988) (Scalia, J.,
concurring) (stating that "[c]ommittee reports . . . are frail
substitutes for bicameral vote upon the text of a law and its
presentment to the President"); INS v. Cardozo-Fonseca, 480 U.S. 421,
452-53 (1987) (Scalia, J., concurring).
Kimel v. Florida Bd. Of Regents, 528 U.S. 62 (2000); Hilton v. South
Carolina Pub. Ry. Comm'n, 502 U.S. 197 (1991); Welch v. Texas Dep't of
Highways & Public Transp., 483 U.S. 468 (1987); cf.
Environmental Defense Fund v. Costle, 636 F.2d 1229 (D.C. Cir. 1980)
(considering legislative history in search for clear statement needed
to supplant prior consent decree).
See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991).
See, e.g., Kimel, 528 U.S. 62; Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985); cf. Vermont Agency of Natural Resources v. United States ex rel.
Stevens, 120 S. Ct. 1858, 1866-67 (2000) (stating that the presumption
that the term "person does not include the sovereign" may "be
disregarded only upon some affirmative showing of statutory intent to
See generally John C. Nagle, Waiving Sovereign Immunity in an Age of Clear Statement Rules, 1995 WIS. L. REV. 771; William N. Eskridge & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992).
|| 501 U.S. 452 (1991).
See id. at 461 (citations omitted).
See Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997).
Allen v. Wright, 468 U.S. 737, 754 (1984) (noting that the "right to
have the Government act in accordance with law is not sufficient,
standing alone, to confer jurisdiction on a federal court"); Linda R.S.
v. Richard D., 410 U.S. 614 (1973); Associate Builders &
Contractors v. Hovey Elec., 16 F.3d 688 (6th Cir. 1994) (rejecting
efforts by plaintiffs to require the state to enforce the law).
this respect, the Court's analysis departs from Professor Fletcher's
recommendation that redressability be considered only at the
"wholesale" level. See Fletcher, supra note 15,
at 242-43. If the only question were whether Congress has conferred a
cause of action, then redressability would only be considered at the
greater level of generality. But, given the Court's insistence that
litigants in each lawsuit demonstrate a concrete injury and that it be
redressable, the connection between relief sought and the injury
suffered must be assessed in particular cases. In Lyons, for
example, the Court may have held that even Lyons' injury was
redressable if he could have marshaled empirical evidence demonstrating
a greater possibility that he would be subject to another chokehold.
United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) (stating that
a case is not mooted when "defendant is free to return to his old ways")
In determining standing, the Court relies on the factual context at the time the suit is filed. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 571 n.4 (1992) (explaining that
standing is "assessed under the facts existing when the complaint is
filed"); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49, 69 (1987) (Scalia, J., concurring) (stating that
"[s]ubject matter jurisdiction depends on the state of things at the
time of the action brought") (citation omitted); Carr v. Alta Verde
Indus., Inc., 931 F.2d 1055, 1061 (5th Cir. 1991) (stating that
"standing is determined as of the date of the filing of the
complaint"). Thus, even if the likelihood of recurring injury becomes
either greater or less as the suit progresses, courts will not take
that into account in determining redressability. Indeed, in Laidlaw,
the potential for recurrence was extremely low at the time the Supreme
Court considered the case because the offending plant had been shut
BMW of N. Am. v. Gore, 517 U.S. 559 (1996); Browning-Ferris Indus. v.
Kelco Disposal, Inc., 492 U.S. 257 (1989) (noting that "the practice of
awarding damages far in excess of actual compensation for quantifiable
injuries . . . date[s] back to the thirteenth century"); Silkwood v.
Kerr-McGee Corp., 464 U.S. 238 (1984).
Gore, 517 U.S. at 568.
damages on occasion may be justified on the grounds that the injury may
be difficult to quantify monetarily or damages might be
undercompensatory, as in wrongful death cases or instances of crippling
injury. See RICHARD S. POSNER, ECONOMIC ANALYSIS OF LAW 82-85 (3d ed. 1986).
|| No. 99-C 53, 1999 U.S. Dist. LEXIS 16214 (N.D. Ill. 1999).
See id. at *2-3.
See id. at *3.
See id. at *15.
See id. at *20-21.
damages rarely if ever have been authorized or awarded in contexts such
as declaratory judgment actions to deter conduct before the injury
occurs, presumably because the "punishment" is not yet due. No Article
III obstacle, however precludes such use as long as a sufficient risk
of continuing injury exists, as in Laidlaw. With respect to deterring future harm, the punitive damages function similarly to an award of civil penalties.
|| 435 U.S. 247 (1978).
Id. at 266.
Evans v. Jeff D., 475 U.S. 717, 730 (1986) (holding that an award of
attorney's fees belongs to a party and not to the attorney).
|| 476 U.S. 54 (1986).
See id. at 70.
3. See id.
|| See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 107-108 (1998).
See Sunstein, supra note 15, at 232.
See generally Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341 (1989); Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275 (1989).
Lujan v. Defenders of Wildlife, 504 U.S. 555, 572-73 (1992).
See United States ex rel.
Kreindler & Kreindler v. United Techs., 985 F.2d 1148, 1154 (2d
Cir. 1993) ("Because the qui tam relator (1) funds the prosecution of
the FCA suit, (2) will receive a private share in the government's
recovery only upon prevailing, (3) may be liable for costs . . . the
relator's personal stake in the case is sufficiently ensured."); see also United States ex rel. Truong v. Northrop Corp., 728 F. Supp. 615, 618-19 (C.D. Cal. 1989).
Connection Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 88 (2d
Cir. 1972) (explaining in part that private suits "could well be highly
disruptive to permit intervention in Refuse Act enforcement by a
private citizen not charged with general responsibility or oversight").
|| 120 S. Ct. 1858 (2000).
Id. at 1862.
See Krent & Shenkman, supra note 14 at 1801-40.
See Diamond v. Charles, 476 U.S. 54 (1986); see also
FTC v. Standard Oil Co., 449 U.S. 232 (1980) (litigation costs are at
times "part of the social burden of living under government").