Posted on May 24, 2023 by Tracy Hester
In a jurisprudential pile-up, the Fifth Circuit has become the arena for two simultaneous legal battles that may shape the law of standing and realign federal environmental law. While all eyes are on the U.S. Supreme Court as it releases backlogged decisions prior to its June recess, the Fifth Circuit recently held back-to-back important oral arguments that haven’t drawn nearly the same amount of attention.
The Fifth Circuit attracted the national spotlight on May 17 when it reviewed an injunction to halt mail deliveries of mifepristone, a prescription pill that halts early pregnancies, and to reverse the FDA’s expanded regulatory approval of the drug. But these fireworks obscured a longer abortion battle lingering in the Fifth Circuit since 2022: an attempt to overturn S.B. 8, the Texas abortion bounty statute. This law, adopted in 2021, empowers private claimants to sue individuals who assist women seeking an abortion in Texas (or, arguably, outside the state) and recover a statutory award of $10,000 per abortion (plus costs). The U.S. Supreme Court refused to enjoin the Texas statute because the plaintiffs lacked standing to sue state officials who had not yet acted on possible future private party actions under the new law. It remanded the case to the Fifth Circuit for further review of a narrow category of state officials who might still be sued in state court.
The Fifth Circuit quickly tossed that hot potato to the Texas Supreme Court by requesting an advisory opinion on whether certain state officials could be sued under Texas law if they acted on a private bounty lawsuit. The Texas Supreme Court said no, and the case faded from public view soon afterward when the U.S. Supreme Court reversed Roe v. Wade in 2022. As a result, the federal judiciary’s reluctance to intervene has left the Texas abortion bounty law on the books as a potentially viable strategy to minimize federal judicial review of state actions that arguably throttle a federal constitutional right.
The other appellate battle involves federal environmental citizen suits. On May 16, the Fifth Circuit heard oral arguments – again – on one of the largest citizen suit penalties ever awarded under the federal Clean Air Act. In Environment Texas Citizen Lobby v. ExxonMobil, the en banc court wrestled with the obligation to show Article III standing for a federal environmental statutory citizen suit action brought in a federal court. This marathon case had already wound its way to the Fifth Circuit in an earlier appeal, but after the latest remand, the Southern District of Texas ultimately upheld a recalculated $14 million award [subscription required]. In the oral argument over that penalty, the judges vigorously challenged Environment Texas on whether its members could show a direct connection between each regulatory violation allegedly committed by Exxon and a specific injury suffered by the plaintiffs. If the Fifth Circuit adopts this rigorous threshold of proof for specific concrete injuries-in-fact, it would bolster federal Article III limits on Congress’ power to authorize citizen suits.
While at first glance both cases explore the frontiers of standing doctrine, they aren’t as intertwined as it seems. For example, the Texas abortion bounty lawsuits involved a state statute that expanded the universe of parties who could bring lawsuits in Texas state courts, where the state’s constitution arguably imposes fewer standing constraints than Article III’s structural limits on federal courts (although one Texas court has already dismissed an abortion bounty lawsuit for the claimant’s lack of standing). In addition, the abortion bounty cases involved attempts to conscript federal courts to review private party lawsuits by enjoining state officials (such as court clerks) who would ultimately receive those future complaints. As an Illinois federal district court noted, in a collateral attack on the Texas abortion bounty law (interestingly enough, through an interpleader action), the potential effect of the Texas statute on federal constitutional rights did not “federalize” the potential challenges to the private state-law actions by individual plaintiffs in a way that required the court to take jurisdiction. And last, the Texas abortion bounty statute avoids some of the linguistic quirks in the federal environmental citizen suit statutes that have created additional hurdles for environmental claimants (e.g., bars against citizen suits for entirely past violations of the Clean Water Act under the Gwaltney doctrine).
But larger implications lurk nonetheless. If the Fifth Circuit mandates a demanding threshold of proof for standing in federal environmental citizen suits, can states sidestep those Article III barriers and other statutory minefields by adopting their own environmental citizen suit statutes modeled on the Texas bounty law? California’s recent passage of a gun liability statute that explicitly mimics the Texas bounty law shows that other states haven’t overlooked the model’s potential uses outside of abortion battles. Imagine, for example, if New York or New Jersey wished to expand their landmark environmental justice statutes by including a private bounty action provision along the same lines. More broadly, a state might indirectly bolster an environmental claimant’s Article III standing by providing a statutory financial recovery (say, $10,000 per complaint) that would create a state-law property interest to undergird a concrete and particularized injury-in-fact. This approach might also skirt the U.S. Supreme Court’s recent hemming in of citizen suit standing in Spokeo, Inc. v. Robins to exclude purely procedural violations.
If these trends collide, the U.S. Supreme Court will find itself hard pressed to untangle a complex jurisdictional farrago. A broad judicial finding of preemption would require either identifying a federal statute that expressly or implicitly preempts these types of bounty actions, or a federal effort that occupies the field so entirely that states cannot regulate in it. Renewed arguments over field preemption or conflict preemption might also have implications for state law tort actions for environmental harms, particularly where a state may pass a statute to expand standing in ways that Article III standing would bar (imagine a state-law citizen bounty statute aimed at climate claims). In the end, a comprehensive and consistent answer may require congressional action – but given the hyperpartisan politics over anything touching the intractable abortion political fight, the prospects for that sort of legis ex machina seem scant.