Lessons From Environmental Lawsuits

Rarely does reading something confirm long-held pessimistic beliefs and deepen despair on current issues while simultaneously providing a glimmer of hope and compelling statistics that serve as a call-to-action. Christopher Rea’s article, “What We Learned From 25,775 Environmental Lawsuits” (Issues, Spring 2025) succeeds in this, and was easy to read, even for us law professors who may not be avid consumers of empirical research.

Some context may help the reader appreciate why someone who has taught and researched in the field of environmental law and corporate governance found this article so valuable.

Near the end of the twentieth century, US Supreme Court Justice Antonin Scalia commented that “the judiciary’s long love affair with environmental litigation” was waning. While Scalia had expressed this opinion in an academic article, by the turn of the millennium he was well along the road to realizing this sentiment in practice.

Although Congress had expressly written into major environmental laws that private citizens could sue to enforce them, Scalia had convinced a majority of justices that a strictly applied standing test could still be applied to dismiss cases. Even in situations in which violations of law had been or could be proven, cases could now be dismissed if citizen plaintiffs failed to show that they had been specifically harmed.

While an earlier famous justice, William O. Douglas, had contemplated whether trees (or entire ecosystems) should be allowed to have standing, even absent any harm to humans, this has not been the direction embraced by the Court in recent decades.

Arguably, the courts are used less and less for enforcing environmental laws, yet are not entirely abandoned or ineffective.

The trend described above motivated me to write my first solo law journal article on whether environmental plaintiffs could secure standing by buying shares in the companies against whom they hoped to enforce environmental laws. It has been my primary motivation for researching the “soft law” of regulation-by-disclosure and, more broadly, the evolving transparency practices of organizations and reporting standards, as alternative policy tools.

I was therefore grateful to learn, thanks to Rea, that indeed civil lawsuits related to environmental issues constitute a small and shrinking percentage of federal litigation. Moreover, the federal government wins 75% of such cases when it initiates them, often against polluting firms, and nongovernmental organizations win 50% of theirs, even though a large percentage are against the federal government, attempting to force it to enforce laws.

So, arguably, the courts are used less and less for enforcing environmental laws, yet are not entirely abandoned or ineffective.

The article builds to statistics that serve as a specific call to action, starting with observations of what issues tend to manifest in which regions of the United States, and culminating with the revelation of how shockingly unusual it is that environmental justice issues appear in these increasingly rare federal civil lawsuits.

This revelation should prompt any legal practitioner or academic to contemplate the opportunities to improve or save lives in the course of our work—specifically, among the marginalized and exploited who, additionally, are disproportionately victimized by pollution.

Adam J. Sulkowski