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CRS Annotated Constitution

Article III -- Table of ContentsPrev | Next

Standing to Challenge Nonconstitutional Governmental Action.— Standing in this sense has a constitutional content to the degree that Article III requires a “case” or “controversy,” necessitating a litigant who has sustained or will sustain an injury so that he will be moved to present the issue “in an adversary context and in a form historically viewed as capable of judicial resolution.”395 Liberalization of the law of standing in this field has been notable. The “old law” required that in order to sue to contest the lawfulness of agency administrative action, one must have suffered a “legal wrong,” that is, “the right invaded must be a legal right,”396 requiring some resolution of the merits preliminarily. An injury–in–fact was insufficient.

A “legal right” could be established in one of two ways. It could be a common–law right, such that if the injury were administered by a private party, one could sue on it;397 or it could be a right created by the Constitution or a statute.398 The statutory right[p.669]most relied on was the judicial review section of the Administrative Procedure Act, which provided that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”399 Early decisions under this statute interpreted the language as adopting the “legal interest” and “legal wrong” standard then prevailing as constitutional requirements of standing, which generally had the effect of limiting the type of injury cognizable in federal court to economic ones.400

More recently, however, the Court promulgated a two–pronged standing test: if the litigant (1) has suffered injury–in–fact and if he (2) shows that the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statutory guarantee in question, he has standing.401 Of even greater importance was the expansion of the nature of the injury required beyond economic injury, which followed logically to some extent from the revision of the standard, to encompass “aesthetic, conservational, and recreational” interests as well.402 “Aesthetic and environmental well–being, like economic well–being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection[p.670]through the judicial process.”403 Thus, plaintiffs, who had pleaded that they used the natural resources of the Washington area, that rail freight rates would deter the recycling of used goods, and that their use of natural resources would be disturbed by the adverse environmental impact caused by the nonuse of recyclable goods, had standing as “persons aggrieved” to challenge the rates set. Neither the large numbers of persons allegedly injured nor the indirect and less perceptible harm to the environment was justification to deny standing. The Court granted that the plaintiffs might never be able to establish the “attenuated line of causation” from rate setting to injury, but that was a matter for proof at trial, whereas in the instant case the Court dealt only with the pleadings.404

Much debate has occurred in recent years with respect to the validity of “citizen suit” provisions in the environmental laws, especially in light of the Court’s retrenchment in constitutional standing cases. The Court in insisting on injury in fact as well as causation and redressability has curbed access to citizen suits,405 but that Congress may expansively confer substantial degrees of standing through statutory creations of interests remains true.

The Requirement of a Real Interest

Almost inseparable from the requirements of adverse parties and substantial enough interests to confer standing is the requirement that a real issue be presented, as contrasted with speculative, abstract, hypothetical, or moot issues. It has long been the Court’s “considered practice not to decide abstract, hypothetical or contingent questions.”406 A party cannot maintain a suit “for a mere declaration in the air.”407 In Texas v. ICC,408 the State attempted to enjoin the enforcement of the Transportation Act of 1920 on the[p.671]ground that it invaded the reserved rights of the State. The Court dismissed the complaint as presenting no case or controversy, declaring: “It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power.”409 And in Ashwander v. TVA,410 the Court refused to decide any issue save that of the validity of the contracts between the Authority and the Company. “The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the person complaining.”411

Concepts of real interest and abstract questions appeared prominently in United Public Workers v. Mitchell,412 an omnibus attack on the constitutionality of the Hatch Act prohibitions on political activities by governmental employees. With one exception, none of the plaintiffs had violated the Act, though they stated they desired to engage in forbidden political actions. The Court found no justiciable controversy except in regard to the one, calling for “concrete legal issues, presented in actual cases, not abstractions”, and seeing the suit as really an attack on the political expediency of the Act.413


Footnotes

395 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 151–152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101 (1968). “But where a dispute is otherwise justiciable, the question whether the litigant is a ‘proper party to request an adjudication of a particular issue,’ [quoting Flast, supra, 100], is one within the power of Congress to determine.” Sierra Club v. Morton, 405 U.S. 727, 732 n. 3 (1972).
396 Tennessee Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938); Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).
397 Joint Anti–Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). This was apparently the point of the definition of “legal right” as “one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” Tennessee Power Co. v. TVA, 306 U.S. 118, 137–138 (1939).
398 Joint Anti–Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). The Court approached this concept in two interrelated ways. (1) It might be that a plaintiff had an interest that it was one of the purposes of the statute in question to protect in some degree. Chicago Junction Case, 264 U.S. 258 (1924); Alexander Sprunt & Son v. United States, 281 U.S. 249 (1930); Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky Utilities Co., 390 U.S. 1 (1968), a private utility was held to have standing to contest allegedly illegal competition by TVA on the ground that the statute was meant to give private utilities some protection from certain forms of TVA competition. (2) It might be that a plaintiff was a “person aggrieved” within the terms of a judicial review section of an administrative or regulatory statute. Injury to an economic interest was sufficient to “aggrieve” a litigant. FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.), cert. dismd. as moot, 320 U.S. 707 (1943).
399 5 U.S.C. Sec. 702 . See also 47 U.S.C. Sec. 202 (b)(6)(FCC); 15 U.S.C. Sec. 77i (a) (SEC); 16 U.S.C. Sec. 825a (b)(FPC).
400 FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 83 (1958); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7 (1968).
401 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). Justices Brennan and White argued that only injury–in–fact should be requisite for standing. Id., 167. In Clarke v. Securities Industry Assn., 479 U.S. 388 (1987), the Court applied a liberalized zone–of–interest test. But see Lujan v. National Wildlife Federation, 497 U.S. 871, 885–889 (1990); Air Courier Conference v. American Postal Workers Union, 498 U.S. 517 (1991). In applying these standards, the Court, once it determined that the litigant’s interests were “arguably protected” by the statute in question, proceeded to the merits without thereafter pausing to inquire whether in fact the interests asserted were among those protected. Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp, 401 U.S. 617 (1971); Boston Stock Exchange v. State Tax Comm., 429 U.S. 318, 320 n. 3 (1977). Almost contemporaneously, the Court also liberalized the ripeness requirement in review of administrative actions. Gardner v. Toilet Goods Assn., 387 U.S. 167 (1967); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).

Supplement: [P. 669, add to n.401:]

See also National Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479 (1998) , in which the Court found that a bank had standing to challenge an agency ruling expanding the role of employer credit unions to include multi–employer credit unions, despite a statutory limit that any such union could be of groups having a common bond of occupation or association. The Court held that a plaintiff did not have to show it was the congressional purpose to protect its interests. It is sufficient if the interest asserted is “arguably within the zone of interests to be protected . . . by the statute.” Id. at 492 (internal quotation marks and citation omitted). But the Court divided 5 to 4 in applying the test. And see Bennett v. Spear, 520 U.S. 154 (1997) .

402 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970).
403 Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, said the Court, once a person establishes that he has standing to seek judicial review of an action because of particularized injury to him, he may argue the public interest as a “representative of the public interest,” as a “private attorney general,” so that he may contest not only the action which injures him but the entire complex of actions of which his injury–inducing action is a part. Id., 737–738, noting Scripps–Howard Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S. (1940). See also Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982) (noting ability of such party to represent interests of third parties).
404 United States v. SCRAP, 412 U.S. 669, 683–690 (1973). As was noted above, this case has been disparaged by the later Court. Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2139–2140 (1992); Whitmore v. Arkansas, 495 U.S. 149, 158–160 (1990).
405 See Lujan v. Defenders of Wildlife, 112Ct.2130 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).

Supplement: [P. 670, add to n.405:]

But see Bennett v. Spear, 520 U.S. 154 (1997) (fact that “citizen suit” provision of Endangered Species Act is directed at empowering suits to further environmental concerns does not mean that suitor who alleges economic harm from enforcement of Act lacks standing); FEC v. Akins, 524 U.S. 11 (1998) (expansion of standing based on denial of access to information).

406 Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).
407 Giles v. Harris, 189 U.S. 475, 486 (1903).
408 258 U.S. 158 (1922).
409 Id., 162.
410 297 U.S. 288 (1936).
411 Id., 324. Chief Justice Hughes cited New York v. Illinois, 274 U.S. 488 (1927), in which the Court dismissed as presenting abstract questions a suit about the possible effects of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future, and Arizona v. California, 283 U.S. 423 (1931), in which it was held that claims based merely upon assumed potential invasions of rights were insufficient to warrant judicial intervention. See also Massachusetts v. Mellon, 262 U.S. 447, 484–485 (1923); New Jersey v. Sargent, 269 U.S. 328, 338–340 (1926); Georgia v. Stanton, 6 Wall. (73 U.S.) 50, 76 (1868).
412 330 U.S. 75 (1947).
413 Id., 89–91. Justices Black and Douglas dissented, contending that the controversy was justiciable. Justice Douglas could not agree that the plaintiffs should have to violate the act and lose their jobs in order to test their rights. In CSC v. National Assn. of Letter Carriers, 413 U.S. 548 (1973), the concerns expressed in Mitchell were largely ignored as the Court reached the merits in an anticipatory attack on the Act. Compare Epperson v. Arkansas, 393 U.S. 97 (1968).
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