Line of best fit: understanding emerging article III standing doctrine through environmental law

• Pages: 447-501
• Date: 01 April 2024
• Published date: 01 April 2024
• Author: Nika D. Sabasteanski

Line of Best Fit: Understanding Emerging Article III

Standing Doctrine Through Environmental Law

NIKA D. SABASTEANSKI*

ABSTRACT

TransUnion LLC v. Ramirez poses a threat to the regulatory state. Just how

existential that threat is, however, has been the subject of extensive academic

debate. On the one hand, its reverberations threaten to reach every area of stat-

utory law—ratcheting up the requirements to assert Article III standing by forc-

ing litigants to analogize their injuries-in-fact to claims that could have been

brought at the common law and historically. On the other hand, the Court has

not made clear just how close a f‌it is required between the factual injury and

the common-law comparator, leaving a glimmer of the status quo open. In its

wake, scholars and lower courts have scrambled to answer the question—some

taking a ruthless and literal approach and others acting like it is business as

usual. This Article seeks to quell some of the agita surrounding the fate of

Article III standing and the statutory cases that hang in the balance, by turning

to the unlikely source of environmental law.

Rather than serve as the death knell many have feared, TransUnion’s ana-

logical requirement is not the obstacle it seems for environmental litigants, and

likely many other statutory dependent areas of law. Environmental law, heavily

reliant on congressionally-created injuries, seems particularly vulnerable to this lat-

est constitutional hurdle. Environmental plaintiffs have long faced stringent stand-

ards, asserting factual injuries from a Court fearful of the unharmed private attorney

general model of claims. Through the last three decades of standing doctrine, the

Court has held environmental plaintiffs to a higher standard of demonstrating harm

to ensure the litigant herself has a concrete interest and is not merely an off‌icious

intermeddler. By raising the bar to assert Article III standing in environmental law,

the Court unwittingly primed environmental plaintiffs for this latest battle.

Turning to private law, the Article disaggregates the harm and misconduct

components of relevant torts like private nuisance and trespass and asks

whether the setbacks experienced by statutory plaintiffs are similar to the

* J.D., 2023, New York University; M.P.H., 2020, Columbia University. © 2024, Nika D.

Sabasteanski. Endless thanks to John Goldberg for providing structural feedback and torts expertise

extraordinaire; to Kirti Datla for the cup of coffee that led to this Article and for sending me caselaw and

reading the early stages of this piece; to Barry Friedman and Emma Kaufman and the Furman Seminar

at large for workshopping this piece for the better part of a year. Thank you as always to Ricky Revesz

for being an endless source of wisdom and conf‌idence. Finally, thank you to the Georgetown

Environmental Law Review editors for your hard work and excellent edits.

447

common law complaints, and—accepting the gauntlet thrown by TransUnion—

asks how similar they really need to be to get litigants into federal court.

Taking a step back from environmental law, the Article concludes by offering a

path forward for statutory plaintiffs attempting to assert Article III standing in

the face of a Court that is increasingly hostile to the regulatory state.

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448

I. The Dead Hand Comes For Article III Standing . . . . . . . . . . . . . . . . . . . 451

A. Permissive Standing: 1960s–1992. . . . . . . . . . . . . . . . . . . . . . . . . 453

B. Lujan: 1992–2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456

C. Spokeo & TransUnion: 2016–Present . . . . . . . . . . . . . . . . . . . . . . 459

II. Environmental Law As the Key to Modern Article III Standing . . . . . . . 463

A. Tangible Harms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465

B. Intangible Harms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467

1. Possessory Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468

2. Non-Possessory Interest ............................... 475

3. Risk of Physical Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479

4. Emotional Injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483

5. Informational Injuries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488

III. A Line of Best Fit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489

A. Goldilocks and the Three Bears: What Makes an Analogue Just

Right?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490

1. Imperfect Setbacks & Missing Elements . . . . . . . . . . . . . . . . . . 490

2. Controversial Torts & Parasitic Analogues ................ 493

B. Post-TransUnion State of Affairs . . . . . . . . . . . . . . . . . . . . . . . . . 495

C. Court’s Motivations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500

INTRODUCTION

In 2021, outside of the spotlight trained on 2022’s landscape altering decisions,

Justice Kavanaugh writing for the majority held in TransUnion LLC v. Ramirez

that in order to establish the f‌irst prong of Article III standing, injury-in-fact,

plaintiffs must demonstrate that the injury they experienced had a close relation-

ship with a harm “traditionally recognized as providing a basis for a lawsuit in

American courts.”

1

The Court held that Congress’ views are “merely instructive”

when it creates causes of action for novel injuries. Courts must independently es-

tablish whether the plaintiff has suffered a concrete harm. What counts?

Traditional, tangible injuries like physical and monetary harms, certainly, and

1. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021).

448 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 36:423

intangible harms so long as they have the requisite “close relationship.” Building

on precedent,

2

the Court formally redef‌ined Article III standing—reinforcing its

position that Congress is constrained in its ability to confer standing by statutes

that “identify and elevate intangible harms” and, even more worrisome, requiring

a common-law basis to satisfy the injury-in-fact component of Article III

standing.

TransUnion, if taken at its word, threatens the regulatory state.

3

Even if some

of its broadest language is taken with a grain of salt, the decision continues the

Court’s trend toward a regressive approach to standing doctrine.

4

Before environ-

mental law existed as a cohesive doctrinal sphere, environmental litigants relied

on the common law

5

and were susceptible to the shortcomings intrinsic to ex post

liability regimes.

6

In search of a more satisfactory framework, the formative envi-

ronmental statutes shifted the incentive structure to an ex ante, prophylactic

approach and def‌ined new injuries that had not existed at common law—specif‌ically

injuries incurred by the environment and people who are subjected to pollution,

commonly referred to as breathers, as a result of government underenforcement

and polluters. Requiring common-law analogues for Article III standing threat-

ens both rationales—narrowing the scope of injuries to those that existed at com-

mon law and reducing the prophylactic impact by insisting on more traditional

injuries-in-fact. But this is where the Court has landed.

How then to proceed? One approach is simply to reject the Court’s approach to

standing, which critics characterize as regressive and deceptively binary in pur-

porting to draw a sharp distinction between tangible and intangible harms.

7

Others have questioned the Court’s insistence that Congress cannot recognize

2. See Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (holding that plaintiffs must distinguish between

concreteness and particularization in their injuries-in-fact).

3. See Erwin Chemerinsky, What’s Standing After TransUnion LLC v. Ramirez?, 96 N.Y.U. L. REV.

ONLINE 269, 270 (2021) (“Such an approach to standing signif‌icantly changes the law and places in

doubt the ability to sue to enforce countless federal laws, ranging from the Freedom of Information Act

to civil rights statutes, to environmental laws, to even the prohibitions of child labor in the Fair Labor

Standards Act.”).

4. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); see also Nancy C. Staudt, Modeling

Standing, 79 N.Y.U. L. REV. 612 (discussing how incoherent standing doctrine has evolved in line with

judicial political philosophies).

5. See, e.g. Denise E. Antolini & Clifford L. Rechtschaffen, Common Law Remedies: A Refresher, 38

ENV’T L. REP. 10114, 10114 (2008) (discussing litigants’ reliance on trespass, nuisance, negligence, and

strict liability claims).

6. Richard L. Revesz & Lewis Kornhauser, Regulation of Hazardous Wastes, in THE NEW PALGRAVE

DICTIONARY OF ECONOMICS AND THE LAW 239 (Peter Newman ed., 1998) (discussing the limitations of

an ex post liability scheme in the context of the Superfund statute such as the inability to transmit

incentives as to several key components of the statutory regime that a prospective liability regime could

incentivize).

7. See Rachel Bayefsky, Constitutional Injury and Tangibility, 59 WM. & MARY L. REV. 2285,

2290–91 (2018) (arguing that “the line between tangible and intangible harm is not a deep-seated or

clear-cut feature of empirical reality, but a contextually sensitive boundary that ref‌lects normative

principles about which kinds of harm should count for standing purposes”).

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