University of Pennsylvania Journal of Constitutional Law

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Missing Doctrines in Fifth Circuit Caselaw: Injury and Causation in Environmental Litigators’ Standing

Karen Joo* | 25.6 | Citation: Karen Joo, Missing Doctrines in Fifth Circuit Caselaw: Injury and Causation in Environmental Litigators’ Standing, 25 U. Pa. J. Const. L. 1503 (2023).

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In the last few decades, the Supreme Court adjudicated three major cases on standing for environmental litigants: Lujan v. Defenders of Wildlife (Lujan II), Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), and Massachusetts v. EPA. Lujan II considers a multitude of questions in this inquiry. There, the Court deliberates on the specificity of injuries alleged to occur in the future, the contours of three nexus theories, and the judicial review of procedural injuries. Thereafter, Laidlaw assesses whether it is reasonable for plaintiffs to be apprehensive of the alleged future injuries. Then, Massachusetts contemplates procedural injury again, where the Court contemplates Congress’s power to influence standing requirements. These cases provide rich discussions on standing for environmental litigants; yet, the Fifth Circuit does not integrate their doctrines.

This Comment focuses on the Fifth Circuit, due to the Circuit’s critical coverage of Texas and Louisiana. These states house the largest petrochemical complexes in the United States, which affect surrounding air and waterbodies through their industrial operations. Water pollution is potent for those living near the Texas Gulf Coast, which is exposed to the nation’s highest level of toxic releases. In terms of air pollution, Texas and Louisiana emit the highest amounts of petrochemical pollutants. These releases pose health risks for nearby residents, as these chemicals are conducive to developmental damage, cancer, and elderly mortality. The influence of environmental law—and its enforcement through litigation—is particularly salient in the Fifth Circuit’s jurisdiction.

This Comment will examine cases where the Fifth Circuit could benefit from the Supreme Court’s analysis of standing in cases arising from pollution. First, the basis for environmental litigation will be outlined; Part I will explore the congressional intent behind citizen suit provisions, and Part II will outline the general requirements of Article III standing. Then, Part III will discuss the Supreme Court’s standing analysis in environmental litigation, focusing on Lujan II, Laidlaw, and Massachusetts. Finally, Part IV will compare these Supreme Court precedents to the Fifth Circuit’s caselaw, wherein missed opportunities to draw factual and logical parallels will be identified. This discussion will be focused on the specificity of injury, the judicial authority to review procedural injury, and the adoption of the nexus theories.

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* Articles Editor, Volume 25, University of Pennsylvania Journal of Constitutional Law. J.D. Candidate, 2023, University of Pennsylvania Law School; B.Eng. 2018, McGill University.