Legislative/Statutory Standing – After Data Processing

1. Legislative/Statutory Standing – After Data Processing • Court asks: • Is the “interest sought to be protected by the complainants arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee.” • 2 part inquiry in APA '702 is now collapsed into 1 question • SCT has generously interpreted “zone of interests” requirement post-Data Processing • Only rarelyhas it held someone outside of the “zone of interests” • The “relevant statute” to which APA '702 refers to is much broader than the special review statute in the original approach

2. “Zone of Interests” after Data Processing • Zone of Interests – SCT’s generous interpretations • Are P’s interests “marginally related” and “not inconsistent” with the purposes of the statutes P seeks to enforce • SCT has been willing to look for implicit purposes of variety of relevant statutes (Clarke) – most often the organic/enabling Act • BUT SCT is unwilling to look at JUST ANY statute. Statutes must be related to issue over which P is suing (Air Courier) • Role of special review statute & APA legislative standing • If an organic/enabling statute has a broad standing provision (i.e., “any person” can bring a lawsuit), SCT has been willing to allow P to bring suit even if the lawsuit seems inconsistent w/the purpose of statute • E.g., Bennett v. Spear (p. 308) – citizen suit provision allows ranchers to sue to prevent implementation of the Act

3. Constitutional Standing – (Lujan v. Defenders of Wildlife) • Constitutional Standing: • A threshold requirement for all federal litigants – 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

4. Constitutional Standing - Injury-in-Fact (through the lens of Lujan) • What it means – 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 harms • Lujan Ps potentially 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. • Why didn’t LujanPs satisfy the injury-in-fact prong on these allegations? • What would they need to do to satisfy the majority? Does this make sense or is it an “empty formality” as the dissent argues?

5. Constitutional Standing – Causation (through the lens of Lujan) • What it means – injury must be fairly traceable to D’s conduct– need a causal connection between injury & D’s behavior • Assume the Lujan Ps did have plane tickets – so that they could have shown an injury-in-fact. • Could they have shown that their harm was “fairly traceable” to the government’s action? Consider the following: • If a consultation provision applies and USAID funds are stopped to overseas projects, what is likely to happen to the project if the those funds are stopped? How does that affect the causation issue? • How does SCT approach this issue as a causation or redressability issue?

6. Constitutional Standing – Redressability (through the lens of Lujan) • What it means - 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 requirements of consultation 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) • The ESA had a citizen suit provision giving “any person” the right to commence a civil suit for violations of the ESA • Textually this is a broad provision (as the appellate court seemed to read it) • But Lujan majority rejected standing because provision merely provided a procedural right in all persons to have agencies consult with the Secretary • Why did the Lujanmajority 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)? • Who is the court trying to protect? Why? Is it right? • Note: 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 or may result 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. • Two bases for majority’s finding that Massachusetts had standing: • Special solicitude for Massachusetts as a State • Lujan’s traditional 3-prong • After Mass. v. EPA, what kind of special status should/does a state have as a P in standing analysis?

9. Massachusetts v. EPA’s Approach to Traditional 3-Prong Constitutional Standing • Did Mass. have an injury-in-fact? • Does it matter that global warming is, well, global (e.g., widespread)? Does that mean the harm is not particularized as dissenters argue? • And thatharms of global warming are going to happen in the future rather than very soon? • To what extent do Ps have standing when they are bringing a lawsuit in the face of scientific uncertainty and with delayed effects? • Can Mass. show causation? • How direct must the EPA’s actions (failure to enact rule) be in the chain of causation? If they are on link in a complex web – is it enough? • Is Mass’s injury redressable? • Must court’s order actually reduce the harm (reduce greenhouse gases/save coastline) or simply aid D in taking steps to reduce harm to P?

10. Associational (representational) Standing • Organizations are often P’s in actions against agencies • Organizations can sue in their own right if gov’t action injures them “as organizations” • Organizations can also bring lawsuits on behalf of their members. Most of the cases in this section involve such suits. 3 conditions must be met: • A member satisfies constitutional standing • Purpose of the organization is relevant to the lawsuit – aka germaneness requirement • The lawsuit doesn’t require individual participation of members of the org. - e.g., it seeks injunctive/declaratory relief

11. Congressional Alteration of Standing • Special review statutes • Reminder – DON’T need these to have statutory/legislative standing. If no such statute exists, APA “zone of interests” test governs. • BUT they can broaden the available group who can sue by overriding APA test • Endangered Species Act: “Any person may commence a civil suit on his own behalf” to enjoin violations of the ESA • BUT special review statutesCANNOTgive P’s standing if they otherwise lack constitutional standing • Lujan makes clear that P’s must have constitutional standing in order to file suit. • Such statutes can eliminate prudential standing limitations (i.e., judge-made rules limiting standing) • Ex: The 3rd requirement in associational standing that ass’n seek equitable relief. Special review provision CAN provide for associations to seek damages