Environmental claims and defense strategy, Part 1: Standing

Our legal system requires certain protocols before a lawsuit can move forward. If you do not follow protocol, your case will likely fail. Those served with a lawsuit are wise to review the protocol. If the other party does not follow proper protocols, the lawsuit may not move forward — the court can essentially throw it out before it even begins.

One such protocol to look for is standing. Standing refers to whether the individual, business, or agency bringing the claim has any interest in the case. This basically means the plaintiff must face some sort of injury or damage caused by the defendant. This helps reduce the risk of frivolous lawsuits. Someone who was injured in a car accident caused by reckless driver could potentially bring a case against that reckless driver, a court would likely agree that there is standing to move this case forward. In contrast, someone who is afraid an accident could happen is unlikely to convince the court their injury is sufficient to establish standing.

Proper standing is required for most legal claims. In some cases, standing is straightforward; in others, like environmental claims, it is more nuanced.

How does an individual or party to a claim establish standing?

Economic harm is a traditional form of injury used by a plaintiff to establish standing. In environmental cases the harm is not always clearly economic. The court developed three elements to help provide some clarity:

• Injury. The first element involves the plaintiff showing that they suffer an injury-in-fact, a concrete and actual or imminent injury that impacts the plaintiff in a personal way. A hypothetical injury does not satisfy this requirement.
• Causation. Next, the individual or party bringing the claim must show that the defendant’s actions were responsible for the injury noted above.
• Redressability. Finally, that a ruling in the plaintiff’s favor is likely to address the injury.

One of the difficulties in meeting these three elements is the very first step and the need for certainty. The courts generally require the plaintiff show that the defendant’s alleged violation caused injury. When it comes to environmental cases, this can be difficult.

The United States Supreme Court weighed in on this issue in Massachusetts v. EPA, a case that serves as precedent for these types of issues. In this case, in addition to whether the Environmental Protection Agency (EPA) could regulate carbon dioxide the court also provided guidance on standing in environmental claims. Essentially, the court stated that rising sea levels could qualify as an injury. This served to broaden the court’s ability to find standing in environmental cases.

How will I know if the EPA or another party has accused my business of violating an environmental rule or regulation?

The EPA has the authority to enforce statutes and regulations related to the environment such as those that deal with plant life, animal habitats, air quality, water quality and the control of hazardous waste. The EPA may send a warning letter or citation to a business in violation of an environmental law or regulation. Those who receive such a citation or notification of a lawsuit are wise to take the matter seriously. The penalties vary depending on the details of the allegations and can range from a hefty fine to, in egregious cases, allegations of criminal wrongdoing and potential imprisonment.