Standing in Monsanto Co. v. Geertson Seed Farms: Using Economic Injury as a Basis for Standing When Environmental Harm is Difficult to Prove

By Bradford Mank.

To file suit in federal courts, Article III of the U.S. Constitution requires that a plaintiff must demonstrate “standing” by establishing that the defendant’s actions have caused him an actual or imminent injury, and not merely a speculative or hypothetical injury that might occur someday. Many of the Supreme Court’s important standing cases have involved environmental disputes. Most recently, in 2010, the Court again addressed standing in an environmental dispute, Monsanto Co. v. Geertson Seed Farms.

In Monsanto, the Court did not announce a new standing doctrine. Nevertheless, the Court recognized that an environmental plaintiff may sue without proof of actual environmental harm if it can demonstrate that he or she may suffer economic losses from testing and mitigation measures related to a threatened harm. During the oral argument in Monsanto, Justice Antonin Scalia expressed skepticism that the plaintiffs could prove that the petitioners’ sale of genetically modified alfalfa seed would cross-contaminate the plaintiffs’ farms, which used conventional alfalfa seed. Yet he ultimately joined the majority opinion with, among others, Justice Ruth Bader Ginsburg, with whom he had disagreed in previous environmental standing decisions.
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