The Place-Based Theory of Standing


Standing doctrine is well-known to be a quagmire, plagued by inconsistent results and judicial dissension. Worse, leading scholars have cast doubt on its historical pedigree and conceptual underpinnings. Yet, there seems to be little prospect for a radical change in direction. This Article proposes a more modest doctrinal shift. The proposed approach is much simpler than the current test, but preserves the core intuition that plaintiffs must have some special connection to the subject matter of the dispute, as opposed to a generalized interest in law enforcement or public policy. The proposal addresses standing in environmental cases, which form a major part of the U.S. Supreme Court’s standing jurisprudence. The place-based standard is easily stated. Under this approach, a plaintiff has standing to contest environmental violations involving a specific geographic area, provided that the plaintiff has an appropriate personal connection to the area. The place-based approach would clarify and simplify existing doctrine, but without working a revolution. The Court’s two most recent environmental standing decisions are not only consistent with this test, but quite readily resolved. People who live near and use a stream are obviously appropriate individuals to litigate issues relating to the pollution of the stream, as the Court correctly concluded in the Laidlaw case. And no one has a better claim than a state government to litigate harms to that state’s environment—and even more so, potential erosion of that state’s territory. Thus, Massachusetts v. EPA is also an easy case under the place-based approach.

About the Author

Sho Sato Professor of Law and Faculty Director of the California Center for Environmental Law and Policy, University of California, Berkeley

By uclalaw