Standing

• Pages: 133-151
• Author: Richard J. Pierce, Jr.

133

Chapter 9

STANDING

A. Introductory Overview

The law go verning standing to obtain judicial review of agency

actions answers only one question—who can obtain review of an

otherwise reviewable agency action. It should be a relatively simple,

readily accessible area of law. It is the opposite. The Supreme Court

has issued over 650 opinions in which it has resolved over 300

standing disputes. The opinions are characterized by complexity and

inconsistency. Standing law has become so politicized that it is easier

for a political scientist than a lawyer to predict the outcome of a

standing dispute. A political scientist can refer to just a few simple

and reliable predictors of the outcome of a standing dispute, e.g.,

conservative Justices always vote to confer standing on busine ss

associations and not on individuals who rely on environmental

injuries. By contrast, lawyers can refer only to highly malleable

doctrines that can be, and have been, interpreted to have a wide

variety of meanings in differen t contexts.

1

Since this book is written

for lawyers and law students, however, it will focus on the legal

doctrines that comprise the law of standing.

The modern law of standing began with the Supreme Court’s

landmark 1970 o pinion in Association of Data Processing v. Camp

(ADP).

2

The Court announced a two-part test to determine whether

a petitioner has standing to obtain review of an agency action. The

first step is based on the Court’s interpretation of Article III of the

Constitution. A petition for review creates a case or controversy

within the jurisdiction of a court only if “the plaintiff alleges that the

challenged action has caused h im injury in fact, economic or

otherwise.” The second part of the test is based on the Court’s

interpretation of the APA. After recognizing that Congress can

resolve the standing question “one way or another, save as the

requirements of Article III dictate otherwise,” the Court interpreted

the APA to confer standing on any petitioner who seeks to protect an

interest that is “arguably within the zone of interests to be protected

or regulated by the statute or constitutional guaran tee in question.”

The constitutional part of the ADP test is discussed in section B.

Section B4 discusses an important element of the law of standing that

was implicit in ADP and that arises in a high proportion of standing

1

Richard Pierce, Is Standing Law or Politics?, 77 N.C.L. Rev. 1714 (1999).

2

397 U.S. 150 (1970).

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STANDING

Ch. 9

disputes—standing of associations to represent the interests o f their

members. The statutory part of the test is discussed in section C.

B. Constitutional Limits on Standing

In order to satisfy the case or controversy restriction on the

jurisdiction of federal courts, the agency action that is the subject of

the petition for review must cause injury in fact to the petitioner, and

that inj ury must be redressable by a court. Each of these terms—

injury in fact, causation, and redressability—is a term of art that can

be, and has been, interpreted in a variety of ways by the Court. In

subsections 1, 2, and 3, we will describe the ways in which the Court

has interpreted each of the three critical terms. In section 4, we will

discuss the closely related doctrine of associational standing. In

section 5, we will try to make the meaning of the three terms more

accessible by discussing the ways in which the Court has interpreted

them in each of six co ntexts—economic injuries, environmental

injuries, informational injuries, procedural injuries, future injuries,

and injuries to states.

1. Injury in Fact

Not all injuries qualify as injuries in fact for standing purp oses.

“Concrete” and “particu larized” injuries count, while “abstrac t” or

“generalized” injuries do not. The Justices agree with respect to some

parts of the meanings of these terms. Thus, for instance, all agree

that injury in the form of anger at the governme nt for violating the

law is too abstract to qualify as an injury for standing purpo ses. The

Justices disagree with respect to other important aspects of the

meaning of these terms, however. One of the most important areas of

disagreement is with respect to “injuries shared by the many.” The

Court sometimes says that such injuries qualify for standing

purposes and sometimes says that they do not. A 2007 standing

dispute discussed in § 5b produced a five-to-four division on that

question.

3

The question arises with co nsiderable frequency in the

context of environmental injuries, informational injuries, and

injuries to states, so the disagreements amo ng the Justices will be

discussed in detail in §§ 5b, c, and e.

All Justices are reluctant to recognize for standing purposes

injuries that stem from arguable violations of pr ovisions of the

Constitution that are not specifically designed to protect individual

rights. Thus, for instance, the Court held that taxpayers a nd voters

lack standing to challenge the constitutionality of the longstanding

practice of many members of Congress to retain their reserve

commissions in the armed forces even though that practice arguably

3

Massachusetts v. EPA, 549 U.S. 497 (2007).