Standing

1. Standing • The determination that a specific person/entity is the proper party to bring a matter to federal court • Standing requirements • Constitutional Standing (3-prong inquiry) • Minimal requirement in every case – must have it to bring a federal lawsuit – but it is only the first step – Congress can limit standing. • Legislative/Statutory standing • Congressional definition of a class of Ps who can sue • Only an issue with statutory claims

2. Constitutional Standing • Constitutional Standing: • Threshold requirement for all federal litigants – P must meet it to bring suit in federal court (but it’s only the first issue if suing under a statute) • 3 Requirements of Constitutional Standing: • Injury-in-Fact– concrete and particularized invasion of legally protected interest • Injury must be fairly traceable to D’s conduct– need a causal connection between injury complained of & D’s behavior • Injury must be one that can be redressed in court– must be likely that a favorable court decision will help P

3. Constitutional Standing - Injury-in-Fact (through the lens ofLujan) • P must show that he/she/they have sustained or is in real danger of sustaining concrete and particularized injury personal to them • What kinds of injuries suffice? • Injuries to common law, constitutional or statutory rights • Aesthetic, environmental, recreational harms and competitive economic injuries • Lujan Ps involve this second kind of harm– Ps wanted Sec’y of Interior to reissue a regulation requiring agencies to consult with Sec’y to ensure actions taken abroad would not jeopardize endangered species. Ps claim an interest in observing such species that will be harmed without consultation since might cause extinction.

4. Constitutional Standing - Injury-in-Fact (through the lens of Lujan) • Why didn’t Lujan Ps satisfy the injury-in-fact prong? • SCT accepts that there is “cognizable harm” to endangered species as a result of gov’t action – i.e., lack of consultation will increase rate of extinction. BUT “party seeking review [must] be himself among the injured.” • Ps claims that they “visited” or “may someday” travel to observe these species were insufficient to show injury. • Must show LIKELY to visit damaged ecosystems SOONish – SCT wants to see concrete plans. • What would they need to do to satisfy the majority? • NOT enough that Ps job involves endangered species (animal/vocational nexus) absent concrete allegation of harm to job by agency action. • If P’s purchased a plane ticket to show were imminently about to return to study animals, would that satisfy SCT?

5. Constitutional Standing – Causation (through the lens of Lujan) • Injury must be fairly traceable to D’s conduct – need a causal connection between injury & D’s behavior. • Assume LujanPs did have plane tickets – so have injury-in-fact. • Could they have shown their harm was “fairly traceable” to govt’s action? Consider: If a consultation provision existed/applied, and USAID funds were stopped to overseas projects, it’s likely other countries’ projects will continue with their own funds and that endangered species will still be threatened with extinction. (US doesn’t wield that big a stick.) • How can Ps claim that any harm to their interests was “fairly traceable” to the agency’s actions at that point? • Note - SCT approaches this issue as a redressability issue – it’s easy to frame questions as causation OR redressability.

6. Constitutional Standing – Redressability (through the lens of Lujan) • Can the injury complained of be redressed by a favorable court decision? • Why did the Lujan majorityhold that the injury alleged could not be redressed w/ court action? • USAID only provides minimal funding for foreign project. No reason to think cutting off funds for projects that endanger species will have little to no effect on the overall project. • Agencies funding the foreign projects weren’t parties to the lawsuit – a declaration/injunction binding the Secretary (requiring a revision of his regulation) has no effect on them • Is it plausible re the latter argument to assume that gov’t actors w/ knowledge of a court order and statutory consultation requirements wouldn’t perform that obligation (even if they weren’t parties to the lawsuit)?

7. The constitutional injury-in-fact requirement & procedural rights (through the lens of Lujan) • ESA had a citizen suit provision giving “any person” the right to commence a civil suit for violations of the ESA • Lujan majority rejected standing because provision merely provided a procedural right to all persons to have agencies consult with the Secretary • Why did the Lujan majority hold that the mere violation of procedural reqm’ts (e.g., reqm’t to consult w/ other agencies) did not confer standing on Ps (especially absent other injury)? • Protect the executive branch/sep’n of powers • SCT did note that P’s may have standing if can show violation of procedural reqm’t would injure another concrete interest • I.e., agency failure to follow procedures in a licensing hearing that results in denial of license • I.e., agencyfailure to issue environmental impact statement (EIS) before building a federal dam

8. Massachusetts v. EPA – more twists on constitutional standing • Mass. brought lawsuit to force EPA to begin rulemaking proceeding re greenhouse gases under CAA. SCT rules Mass has standing. • Two bases for majority’s finding: • Special solicitude for Massachusetts as a State • Lujan’s traditional 3-prong Unfortunately, it’s not clear from ruling how states get special solicitude – i.e., whether it’s easier for states in general to show standing, or whether court will apply Lujan more leniently or whether the issues that come up in Lujan will apply in other cases too.

9. Comparing constitutional standing in Lujan & Mass. v. EPA • Injury-in-fact – P must show that P is/will be injured • Whether P can show harm “particular” to them is critical • Lujan– not enough that animals are harmed if P has no concrete and particular interest in animals that will be affected – i.e., if P can’t show specific plans re animals that will be affected • Mass v. EPA – Mass. had particular harm to coastline. • But SCT intimated that even a widespread injury of global warming could be enough for standing although it harmed everyone because the injury to people would be ACTUAL - significant environmental damage that will everyone’s change way of life. • Dissent argued that harm was not “certainly impending” so P had no standing.

10. Comparing constitutional standing in Lujan& Mass. v. EPA • Causation – injury must be fairly traceable to D’s conduct • Usually difficult to show causation if D’s actions are part of a complex chain of events. Mass v. EPA majority found causation because science re harm of global warming was certain and D was a clear contributory cause. • Dissent argued “bit part” played in global warming by emissions combined with complexity of issue undermined causation arguments • Redressability – will favorable court decision redress P’s injury? • Must the court action be able to completely fix P’s harm or is it sufficient to take P in the right direction of fixing? Mass v. EPA majority says the latter. • Consistent with Lujan? Maybe, Court order in Lujan probably couldn’t have fixed anything much less a little bit of the problem. • Mass. v . EPA dissent, however, argues that court order is unlikely to make a dent in global warming so harm not redressable.

11. Associational (representational/organizational) standing • Organizations/associations are often Ps in lawsuits against agencies • Organizations/associations can sue in their own right if gov’t action injures them “as organizations” • Organizations/associations can also bring lawsuits on behalf of their members. Most cases in this section involve such suits.Three conditions: • At least one member must satisfy constitutional standing • Purpose of the organization must be relevant to the lawsuit – aka germaneness requirement • Lawsuit must not require individual participation of members of the organization – e.g., lawsuit seeks only injunctive/declaratory relief • This is a “prudential” limit on P’s standing

12. Congressional alteration of standing – the role of special review statutes with legislative/statutory &constitutional standing • Special review statutes (SRS) cannotconfer constitutional standing on Ps (Lujan) • But SRSs play a role re legislative/statutory standing: • Don’t need SRS to have statutory/legislative standing. But if they exist they govern that inquiry. • If no such statute exists, APA “zone of interests” test governs statutory/legislative standing inquiry. • SRS can broaden or narrow legislative standing • Broad citizen suit provision can override the “zone of interests”test and allow anyone to sueunder a statute– e.g., Bennett v. Spear • SRS can also limit the people who can enforce – Example: “Any person against whom a civil penalty is assessed ... Or who commented on a proposed assessment … may obtain review of a determination to assess.” • SRS can also eliminateprudential standing limits) • Ex: 3rd requirement in associational standing. SRS can allow associations to seek damages.

13. The Timing of Judicial Review Sometimes courts will consider a party’s lawsuit against an agency to be premature. They, thus, may rely on any number of doctrines to dismiss the suit: • Ripeness • Finality • Exhaustion of Administrative Remedies

14. Ripeness • Defined: Do D’s actions have a sufficiently immediate and direct adverse impact on P to justify bringing the case to court at this time. • Ripeness doctrine has its roots in Article III’s requirement of “concrete” cases & controversies. • But Abbott Labs also treated ripeness as a discretionary aspect of the Court’s equitable jurisdiction. • Thus, even if a case is “ripe” under Article III, a court can find it “unripe” for prudential reasons. • This prudential “ripeness” is usually an issue with pre-enforcement challenges to rulemakings. • Prior to Abbott Labs, parties generally couldn't’t challenge agency regs until they were applied to them – Abbott Labs changed all this

15. Abbott Laboratories v. Gardner – the facts • Federal law required drug manufacturers to print generic name on drug labels and advertisements • FDA issued regulation requiring generic name to be put on “each appearance” of the brand name • Drug manufacturing industry wanted to challenge validity of the regulation before complying with it/refusing to comply with it, claiming that the FDA had exceeded its authority under the statute • Why would the gov’t fight so hard to claim that the challenge was unripe? Wouldn’t it want to resolve this issue so that it could proceed to enforcement proceedings against companies? • Typically the answer to the last question is “yes.” BUT non-mutual collateral estoppel principles do not apply to the government as a litigator. Thus, the gov’t can re-litigate identical issues it has previously lost. Gov’t D has incentive to constantly litigate all issues through enforcement proceedings in hope that it wins one rather than resolve all issues in one pre-enforcement challenge.

16. Abbott Lab’s 2-part test (and application): • Are the issues fit for judicial decision? (Yes) • Purely a question of law (easy to resolve pre-enforcement) • Agency’s action is final (final rule after formal process – authoritative interpretation of the statute) • No benefit in reviewing multiple claims by manufacturers • Does withholding court consideration impose hardship on the parties? (Yes) • Ps must incur immediate cost to print new labels & ads to comply with new rules OR risk criminal/civil penalties by continuing as is • Requiring drug industry to challenge rules in an enforcement action could hurt consumer confidence, which is particularly important in this area • There is little harm to gov’t by delaying enforcement while resolving this issue. Resolution of the issue first will eventually speed enforcement and compliance

17. Toilet Goods Ass’n v. Gardner – an unripe pre-enforcement challenge • Toilet Goods • Abbott Labs • Statute: FDA must certify as safe all color additives to food, drugs and cosmetics – otherwise product is deemed adulterated. • FDA reg:If person appears to refuse access to facilities … related to additive process, inspector may immediately suspend certification service • Applying Abbott Labs test: • 1) Why is this admittedly purely legal issue unfit for judicial decision? • 2) Why does withholding court review not work the same hardship as in Abbott Labs? • Statute: required drug manufactures to print established name of drug half as large as proprietary name on labels • FDA reg: established name of drug must accompany each appearance of proprietary name on the label