The year before publication of Christopher Stone’s seminal article ‘Should Trees have Standing?’ in the Southern California Law Review, another American environmentalist made an important, if overlooked, contribution to the debate on public interest litigation.
“I am the Lorax…I speak for the trees, for the trees have no tongues.”
Apart from a recent US Court of Appeals decision concerning the forestry implications of a pipeline, The Lorax has not garnered the legal attention that it really deserves. In particular, the above quote serves as a useful gateway into one of the areas of public law less well understood to non-lawyers: standing.
‘Standing’ marks out those who are able to bring legal claims which challenge government action. Typically, to be granted standing a legal person must demonstrate a particular relationship with the act that they are challenging. The owner of a house, for example, would clearly have standing to challenge government mandatory acquisition of his land.
Different cases, however, are not so simple: as government action becomes less linked to individual instances of interference with property or persons, whether a relationship should allow for standing becomes less clear.
Our example of The Lorax highlights how this poses issues for environmental litigation. The protagonist there claims to ‘speak for the trees’, but we might ask if that really is enough, or whether we should require him to have a ‘right’ (such as ownership) that the logging interferes with.
The law in many jurisdictions has come to side with the Lorax. In the UK context, this has been relatively recent, falling slightly behind the strong rhetoric of the 1970s environmentalist movements. But this delay is not necessarily something to condemn. I argue that standing rules deserve incredibly delicate treatment because they stem from, and feed back into, our very conception of democracy.
At the risk of oversimplifying the nuance in this debate, I will discuss how standing is a feature of three parts of a conception of democracy. The first is inherent in any limit on court access: how much hypothetical illegality we are willing to tolerate for other ends. The second brings into play wider questions about the relationship between the court and popular representation: what function (if any) the court serves as a democratic forum. The third is the most abstract: if courts are democratic fora, then a shift from individualizable rights and interests to more general issues in courts represents a wider shift in the interests that democracy serves.
Our first point is a basic one: if judicial review is a way of calling government illegality to account, then process restrictions mean that certain potential (i.e. if litigated) illegalities could go unchecked. We then have an empirical proposition that, all other things being equal, restrictive standing creates a greater risk of illegality. Given that standing is not a natural phenomenon but a man-made one, we can transform this into a normative proposition: a more restrictive approach to standing demonstrates a society that is more tolerant to potential illegality in government action.
Illegality by itself is obviously undesirable to a political system that itself sets the laws against which government conduct is measured. So, there has to be a trade-off, and two obvious ones come to mind. The first is ensuring the functioning of the courts within their capacity constraints. Even in the healthiest and most vibrant democracies, some restrictions on who can bring claims may be necessary to preserve the efficient operation of the court system, even if this raises the illegality risk. Critics of the Indian Supreme Court, for example, point to its expansive approach to standing as a factor that has paralysed the apex court, with the net effect of extreme delay to otherwise routine claims. Closer to home, the UK Supreme Court has argued that court access restrictions (in the context of tribunal review) are a key part of managing judicial resources. The ‘judicial resources’ argument is not necessarily even a ‘trade-off’: it is an argument for prioritising review of conduct that is most violative of a political community’s self-conception.
The second point should be familiar to anyone who has witnessed the ‘Get Brexit Done’ mantra, symbolising frustration with formalistic requirements that hamper a goal viewed as more important. This frustration is in no way inherently partisan: Roosevelt’s attempt to restructure the Supreme Court is well-documented. Rather, executive agencies often rely on areas of discretion and flexibility to deliver optimal outcomes, and the possibility of review shrinks this discretionary area. One might respond here that executive agencies are given a particular scope of power for good reason, and that inadequate judicial review should not be a way of widening that scope through the backdoor. I agree, and am instead arguing that there are externalities associated with litigation (paying counsel, locating documents, pre-empting challenge) imposing costs on executive agencies irrespective of whether their conduct was illegal. When executive agencies try to ‘judge-proof’ their decisions, they defensively try to minimise these costs and thus act within a discretionary area narrowed by the threat of litigation itself. This is the discretionary area that standing serves to maintain. Here, unlike judicial resource management, there is an actual trade-off: to remove the externalities of litigation, we must restrict the litigation itself.
For both of these reasons, allowing the Lorax to speak for the trees expresses a lower tolerance for government illegality. The courts view the importance of hearing what the Lorax has to say as outweighing the expense and energy spent on evaluating it. They also see their opportunity to hear the Lorax as outweighing the interest that the agency has in a wider margin of discretion.
Furthermore, this ‘illegality intolerance’ feature not only allows for more litigants to have access to the court, but different kinds of litigants. Courts may be willing to accept public interest groups and associations where these bodies have the expertise necessary for robust accountability in an adversarial legal process. In fact, courts may even restrict individual standing as they welcome group standing, if this ‘channels’ claims through the most effective litigants.
Moving towards the more abstract, standing reflects a second feature of our conception of democracy: the nature and role of courts in a democratic system. Some contend that courts have no such role, and see the legal order as distinct from the political. For those with such views, the importance of standing, in terms of giving shape to our democracy, is limited to the ‘trade-off’ function identified above. However, others see the courts, and directly elected government, as playing mutually reinforcing roles in the democratic system. The legal order gives shape to, and derives content from, the political. On this view, courts are democratic organs, and standing tells us how – in at least two ways.
The first way stems from looking at the kinds of argument and claim that give a party standing. A good demonstration of this is the recent shift to human rights rhetoric. For example, where an individual lacks housing we could see this as a matter for the legislature: housing is conceived of as a policy outcome. However, if that individual were able to challenge the government for their homelessness, solely because they lack a home, we start to see the language of ‘rights’ in the housing context. Thus, the interests that give rise to standing could indicate a democratic role for the courts by supplementing the collective values of the political system with more individualizable values giving rise to claims.
Where our Lorax has his day in court because he speaks for the trees, the court recognises that the legislative cost-benefit assessment is not enough, and supplements this with recognition of environmentalist values which constrain legislative choice. However, the Indian practice highlights that courts must firmly establish the limited kinds of reasons that confer standing. Public interest litigation at the Indian Supreme Court often takes place suo moto (of the court’s own motion – the loosest possible form of standing) and is thus driven by the prevailing judicial philosophy. There can be added value where courts confer standing for reasons supplementary to the political process, but the types of acceptable reasons must be selected for their contribution to good governance and institutional legitimacy.
The second way looks less at the substance of a court claim, and more at its procedure. Courts might hear a claimant not because she has something different to say, but because it was not listened to in a satisfactory way during the political process. The technical term for such accounts of judicial review is ‘representation-reinforcing’, because the court reinforces the representative elements of democratic governance through its unique structure. A classic example of this is English law’s ‘right to be heard’, whereby someone adversely affected by a decision has a right to make representations on it. Thus, standing for a claim already made in the political arena implies that the court is able to complement the features of the legislative or executive forum. The Lorax may not have the resources to compete with large lobby groups, or the connections necessary to get his concerns on the agenda. Where the courts hear his claim, they might be doing so because they conceive of themselves as an arena in which those limitations can be overcome.
Where standing is expanded, some critics (such as Harlow) argue that this allows our aggrieved Lorax to have a ‘second kick at the can’ after losing out in the legislative process – paralysing executive action and rewarding those with the resources to come forwards. To overcome this objection, the above analysis highlights that courts can confer standing where (i) he is kicking at a different ‘can’ altogether; and/or (ii) he never had a real ‘kick’ in the first place. In doing so, courts become a special kind of institution, supplementing and complementing the legislature and executive.
The third and final feature of our conception of democracy which is shaped by rules of standing is the most abstract and requires us to rethink what democracy is at its core. Some theorists (such as Waldron) see democratic governance as a representation of the most fundamental of all rights: having a say in the most coercive power in our lives. Such a characterisation stresses the intrinsic value of elected government and would allow standing where it furthers this essential representation and accountability. However, democracy could also, at least in part, be an instrumental good; an effective means for maximising certain goods and welfare.
If we see democracy in this (at least partially) instrumental light, these goods may not be limited to human preference satisfaction. ‘Thick’ environmentalists reject the idea that the natural environment only exists for human benefit and see an inherent value in nature. If we couple this thick environmentalism with a partially instrumental account of democracy, then we could construct a role for courts to serve environmental outcomes irrespective of their human impacts.
This third feature is the final piece of the puzzle to truly understand the Lorax. Where the court welcomes the Lorax, it refuses to tolerate illegality in the logging domain (the first feature). The Lorax initially tries to reason with the loggers and townspeople, but they ignore his pleas in pursuit of profit through manufacture and sale of ‘thneads’. If the court then gives the Lorax standing without it being a second ‘kick at the can’, it does so because it sees value in the Lorax’s reasoning even if the townspeople did not, or because the Lorax did not have a fair go at convincing them (the second features). Furthermore, the Lorax does not speak ‘because of’ the trees, but for them: his pleas resemble the thick environmentalist that sees trees as having their own inherent value.
This article is not the place for a full exposition of modern day Loraxes. There are no hard and fast rules of how to balance the competing pressures to expand and restrict standing, but perhaps a final quote from The Lorax itself helps. Standing may be desirable where:
“Unless someone like [the claimant] cares a great awful lot…things aren’t going to get better, they’re not.”