Traffic Jams Are Not Enough: Administrative Standing in Permitting Challenges.

• Author: Stephens, Susan L.

The threshold issue of standing is a linchpin in the efficient and effective operation of the administrative and judicial systems. The test for standing varies slightly at the federal, state, and administrative levels, but in all systems the doctrine of standing ensures that only litigants with a substantial interest in a matter can invoke judicial powers to determine the merits of a case or controversy. In this way, the doctrine of standing operates to reduce court congestion and protect due process rights. The tests for standing have been refined over time in a litany of cases and decisions, but the fundamental purpose of the doctrine--limiting the scope of litigation--has remained constant. But what effect do shifting realities, such as population density and strained public infrastructure, have on this judicially imposed legal construct? Does use of a state road give rise to a proper interest for each of the hundreds of thousands of people who travel the road? What if use of that road was necessary for survival, such as evacuating during a natural disaster or securing emergency transportation? Where is the line of substantial interest drawn? The Second District Court of Appeal grappled with that question in the administrative litigation context in Wallace v. Florida Department of Transportation, 356 So. 3d 786 (Fla. 2d DCA 2023). (1)

The Evolution of the Agrico Two-Prong Test

Challenges to actions of an administrative agency are governed by Ch. 120 of the Administrative Procedure Act (APA). Individuals or entities whose substantial interests are adversely impacted by an agency's decision may petition for an administrative hearing under F.S. [section][section]120.569 and 120.57. (2) However, the APA does not define "substantial interest," and challengers must rely on established caselaw to parse the standard associated with this threshold issue. The seminal case defining the meaning of "substantial interest," and, therefore, standing to challenge administrative decisions, is Agrico Chemical Company v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981). Under the Agrico substantial interests test, challengers have to establish first, that they "will suffer injury in fact which is of sufficient immediacy;" (3) and second, that the "substantial injury is of a type or nature which the proceeding is designed to protect." The court went on to explain, "[t]he first aspect of the test deals with the degree of injury. The second deals with the nature of the injury." (4)

Since Agrico, several rulings have provided clarification of the Agrico two-prong substantial interest test. Under the degree of injury prong, for example, an injury cannot be "too remote and speculative in nature to qualify under the first prong of...