Unpublished Papers

Ultra Vires Statutes: Alive, Kicking, and a Means of Circumventing the Scalia Standing Gauntlet in Environmental Litigation

Adam J. Sulkowski, Charlton College of Business, University of Massachusetts Dartmouth

Abstract

This article makes a critical contribution to the fields of environmental and corporate law. It explains a problem in the citizen enforcement of environmental statutes: the issue of how to establish and secure standing to sue. The article then recommends a novel solution based in corporate law: the application of ultra vires statutes.

The article significantly contributes to the scholarly literature on ultra vires statutes by:

(1) examining thoroughly the history of the ultra vires doctrine, especially in early American history,

(2) clarifying that scholars and practitioners should now cite ultra vires statutes rather than the doctrine,

(3) reviewing recent cases in a variety of jurisdictions, including Delaware, which demonstrate that, contrary to popular belief, these statutes are being actively and successfully applied,

(4) explaining how ultra vires statutes could assure standing for environmental plaintiffs,

(5) rebutting objections to the use of ultra vires statutes in environmental litigation,

(6) suggesting the type of clients that would be most likely to succeed in such a context,

(7) stating new grounds for why ultra vires statutes must be respected in this context.

Given the scope and severity of environmental problems and limited resources of government to enforce environmental protection laws, citizen lawsuits can play an important role in assuring that relevant statutes and regulations are obeyed.

However, it has become increasingly difficult for citizens who are suing to enforce environmental legislation to establish standing. Amorphous-yet-sometimes-harshly-applied standards require that a direct injury-in-fact specific to the plaintiff that is redressable and within a statutorily-implied zone-of-interests be demonstrated, which is not always easy for plaintiffs alleging environmental harms.

Ultra vires statutes in corporate law may provide a solution in some contexts. Ultra vires statutes allow a shareholder of a company to sue to enjoin the company from acts outside of what are authorized by its corporate charter. Since corporations are still required to commit to only lawful activities in their charters, an individual may sue to enjoin the unlawful activities of a corporation in which the individual owns shares.

A popular misconception persists that ultra vires lawsuits are an obsolete phenomenon. On the contrary, recent court opinions explicitly state that ultra vires statutes are still a legitimate basis for pursuing injunctions. Standing to sue corporate environmental malfeasors may therefore be established by purchasing shares in a corporation. An ultra vires lawsuit then allows plaintiffs to pursue injunctions and equitable remedies such as court monitoring of the defendants.

While there are foreseeable objections to this theory, reference to legislative intent, the historical evolution of doctrines, respect for state statutes, precedent, public policy, concern for the protection of investors and even constitutional law all militate in favor of a conclusion that ultra vires statutes may – and ought to be – used and recognized as a basis for establishing standing to enforce environmental statutes.

Suggested Citation

Adam J. Sulkowski. 2008. "Ultra Vires Statutes: Alive, Kicking, and a Means of Circumventing the Scalia Standing Gauntlet in Environmental Litigation" ExpressO
Available at: http://works.bepress.com/adam_sulkowski/1

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