Standing, Including Representative Standing, in Environmental Cases

A party seeking to assert claims in federal or New Jersey State court needs “standing,” which is more than a desire to affect the outcome of the case. In order to have standing, “a party must present a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that the party will suffer harm in the event of an unfavorable decision.” See In re Camden Cty., 170 N.J. 439, 449 (2002). The test for standing has always been more stringent in federal cases than in New Jersey State courts, because “[u]nlike the Federal Constitution, there is no express language in New Jersey’s Constitution which confines the exercise of … judicial power to actual cases and controversies.” See Crescent Park Tenant Assoc. v. Realty Equities Corp., 58 N.J. 98, 101 (1971) (citing U.S. Const., Art III, § 1).

Thus, the Supreme Court of New Jersey has established a liberal standard for determining standing, explaining that New Jersey appellate decisions throughout the decades “have given due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of ‘just and expeditious determinations on the merits.’” See Crescent Park, 58 N.J. at 107-108 (citations omitted); see also People for Open Government v. Roberts, 397 N.J. Super. 502, 510 (App. Div. 2008).

The test for standing is even more liberal when a litigant seeks to promote the public interest. Indeed, the New Jersey Supreme Court has stated that “in cases of great public interest, any ‘slight additional private interest’ will be sufficient to afford standing.” See Salorio v. Glaser, 82 N.J. 482, 291 (1980). Standing in environmental cases, therefore, can be easier to establish than in other matters. See, e.g., NJDEP v. Exxon Mobil, 453 N.J. Super. 272, 301 (2018), certif. den. 233 N.J. 378 (2018) (where the Appellate Division recalled how Waterfront Dev. Permit, 244 N.J. Super. 426, 438 (App. Div. 1990), “expanded standing” to allow a public interest environmental group to appeal NJDEP’s action when it was likely that no one else could or would assert the public’s opposing interests).

Obviously, the burden of bringing litigation, especially environmental litigation, is prohibitive for many, if not most, individuals. Thus, individual interests are often represented by environmental associations or other groups with pooled resources, and the New Jersey Supreme Court has analyzed and expressly recognized the propriety and need for such representative litigation. See, e.g, Crescent Park, 58 N.J. at 109 (“No one before us questions the tenants’ stake and adverseness and admittedly there would have been no attack on standing if individual tenants had joined in the complaint. However, they understandably chose to act instead entirely through their Association which was formed to help balance the bargaining power of the landlord and to enable them to deal from a position of strength with the acknowledged strength of their landlord.”); see also id., (“Both our statutes and appellate decisions have given wide recognition to suits by associations.”).

Thus, “[t]he importance of representative standing as an efficient procedural vehicle for addressing the common rights and grievances of association members is well-recognized in New Jersey.” See Twp. of Voorhees v. Voorhees Police Officers Ass’n, 2012 N.J. Super. Unpub. LEXIS 2046 at *5 (citing Crescent Park, supra, and other appellate cases). Indeed, representational standing in an environmental case can be easier to establish than individual standing, even when an individual feels acutely aggrieved. See, e.g., N.J.D.E.P. v. Exxon Mobil, 453 N.J. Super. 272, 301 (App. Div. 2018) (where an individual who was also a State Senator and lived near a polluted site was held to lack standing, but a number of Environmental Groups nevertheless were held to have standing, based upon their “broad representation of citizen interests throughout this State”).

Nevertheless, like individual litigants, associations claiming representational standing must show a real stake in their claims and an adversity of interest toward their counterparties; and a complaint brought by a representative organization should “not include any individual grievance which might perhaps be dealt with more appropriately in a proceeding between the individual [member] and the [defendant].” See, e.g., Twp. Of Voorhees v. Voorhees Police Officers Ass’n, 2012 N.J. Super. Unpub. LEXIS 2046 at *6 (App. Div.)(quoting Crescent Park, supra, 58 N.J. at 108-109). In federal courts, the test is similar if not the same, and perhaps more clearly stated, in that an association must show that (1) its members themselves would otherwise have personal standing; (2) the interests it advances are germane to its purpose; and (3) neither the claim presented nor the relief sought requires the participation of individual members in their own right. See Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 343 (1977).

Representative environmental litigation presents some of the same benefits as class action litigation. Davis Environmental Law can help potential litigants sort through the differences, and devise winning strategies based on our extensive experience with complex environmental situations in New Jersey.