Strengthening locus standi in Public Interest Environmental Litigation: Has Leadership Moved from the United States to South Africa?

 

Tumai Murombo
Senior Lecturer
University of the Witwatersrand (Wits)
School of Law, Private Bag X3
Wits 2050, South Africa
Tumai.Murombo@wits.ac.za

 
 

There is an increasing shift towards globalisation not only of the world economies but also of the world's legal systems. Broadening of locus standi in South Africa has deconstructed the fears that informed the conservative common law approach to the issue of locus standi or standing, with its roots in private law individual rights. Most of the reasons advanced for constraining locus standi in public interest environmental law, and constitutional matters for that matter, can all be ameliorated through procedural safe guards and rules tried and tested under the common law, such as rules regarding legal costs, and keeping frivolous and vexatious litigation out of the courts. However, the USA seems to be lagging behind in mainstreaming global international developments in public interest environmental litigation, particularly at the federal level by sticking to archaic common law rules on standing where a litigant wants to bring suit on behalf of the environment. The strict approach to standing in federal courts in the USA since the times of Sierra Club v Morton can be change if the federal judges are prepared to make use of comparative constitutional analysis in adjudication, drawing on lessons from a number of progressive new democracies, in this case the South African experience. I argue that the US federal courts have moved too slowly in following international and foreign developments in the modernisation of the rules governing public interest environmental litigation to the detriment of sustainable development and environmental civic organisations in the USA. I conclude that it is time for the US federal courts, and other conservative common law jurisdictions, to make use of comparative constitutional tools to modernise this blemish aspect of their jurisprudence, following the lead by South Africa.

 

Cases and controversies, constitutional standing, environmental rights, locus standi, public interest environmental litigation, South Africa, USA.

 

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