This Article will focus on the Take Care Clause of Article II, the most serious of the Article II challenges to the environmental citizen suit provisions. Justice Scalia and legal commentators have argued that Article II prohibits a citizen from suing to enforce federal laws unless the citizen has suffered a concrete and personal ("individuated") injury as a result of the action that he is challenging. Professor Cass Sunstein and others have dissented, and have suggested that Congress can authorize citizens to sue to enforce federal laws even when the citizens have not suffered individuated injuries.
The first Part of this Article suggests that Article II should not prohibit citizen suits to enforce environmental laws, regardless of whether citizen plaintiffs have suffered individuated injuries. The Take Care Clause does not require that the President must personally enforce all federal laws. It only requires that the President must have control over the enforcement of federal laws. Based on prior Article II decisions of the Supreme Court, the President retains adequate control over enforcement of the federal environmental laws through limits included in the citizen suit provisions of those laws. In addition, environmental citizen suit provisions are similar in nature to other forms of citizen litigation, such as qui tam actions and state enforcement of federal environmental laws, that have not been invalidated on Article II grounds. In its recent Vermont Agency of Natural Resources v. United States ex rel. Stevens opinion, the Supreme Court upheld the qui tam provisions of the False Claims Act against an Article III challenge, in part because qui tam provisions were part of the English common law adopted by the early colonial legislatures and the framers of the Constitution. Although the Vermont Agency of Natural Resources Court did not address Article II challenges, the historical justifications that the Court cited to uphold the law against an Article III challenge would legitimize citizen enforcement of public laws against Article II challenges.
The second Part of this Article suggests that Article II should not prohibit citizen suits to enforce existing environmental laws, even if the Take Care Clause of the Constitution prohibits a plaintiff from suing to enforce federal law unless he has suffered an individuated injury. In light of recent Supreme Court decisions that have clarified the breadth of the individuated injury requirement, it is clear that the citizen suit provisions of the major federal environmental laws are constitutional because the suits are brought on behalf of persons who have suffered individuated injuries, despite periodic references in judicial opinions and academic literature to environmental citizen suit plaintiffs as "private attorneys general. However, recent Supreme Court decisions clarify that the relief available to environmental citizen suit plaintiffs will be limited to relief that redresses the plaintiffs' individuated injuries.
Stephen M. Johnson, Private Plaintiffs, Public Rights: Article II and Environmental Citizen Suits, 49 Kan. L. Rev. 383 (2001).