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In the short span of eight years, the Supreme Court has issued two seemingly opposite answers to the question of whether Congress has free reign to provide private citizens with standing to redress violations of federal environmental law, when those violations have not produced any discernible harm to the claimants. In his prior scholarship, Professor Maxwell Stearns has developed a model of standing based upon the theory of social choice, which focuses primarily upon constitutional standing rules. The recent doctrinal transformation from Lujan v. Defenders of Wildlife, to Friends of the Earth v. Laidlaw Environmental Services, Inc., has provided a valuable opportunity for Professor Stearns to expand his social choice model and to apply it in the context of statutory standing. In this article, which develops a preliminary model of environmental standing, Professor Stearns considers how bargaining over standing expands the issue spectrum for legislative bargaining as it affects the optimal compliance level under a proposed environmental statute. He then considers the differential signaling value of a citizen suit versus agency enforcement as a proxy for the optimal compliance level of the median member of the enacting Congress. The model of statutory standing, which grows out of this analysis, provides several valuable insights into recent environmental standing cases, and suggests a plausible means of reconciling Lujan and Laidlaw.[*pg 322]
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The Supreme Court's standing doctrine has undergone a sea change in the past three decades. Initially conceived in the New Deal as a presumptive set of rules that operated to limit federal judicial interference with progressive regulatory programs,1 since the 1970s, standing has been transformed into a constitutional litmus test in virtually every civil federal court action.2 The Supreme Court now demands as a precondition to litigating in federal court that each civil claimant allege a demonstrable injury in fact, caused by the defendant, that can meaningfully be redressed through judicial relief.3 The Court has applied these rules to presume against standing in cases in which claimants seek to vindicate the claims of others; claims that are diffuse; and claims that seek to invalidate an unconstitutional or otherwise illegal market-distorting rule, which if corrected, will produce more favorable market conditions.4
The various standing rules have provoked sharp controversy within the legal academy. Legal historians have convincingly demonstrated that, as an historical matter, these relatively recent standing rules have little or no foundation in either the framing period or the earliest period of post-constitutional litigation.5 Legal [*pg 323] scholars have also argued that the various standing requirements (most notably injury in fact, but more recently including redressability)6 have proved sufficiently malleable, indeed manipulable, as to justify seemingly inconsistent outcomes. As a result, scholars have argued that the standing rules appear to have been motivated largely by political concerns, including the desire to avoid deciding difficult cases, or the opposite, namely the desire to issue a preliminary and low cost signal of likely future rulings.7
I have previously used the theory of social choice to develop a model of standing, targeted primarily to the evolution of constitutional standing rules.8 The social choice model explains the conditions under which the Supreme Court transformed standing from its New Deal roots into its present form. The model is positive, and is therefore not focused on providing a critique of present doctrine. Instead, it attempts to identify the dynamics of Supreme Court decision making that created the doctrine. In this article, I will extend the model to explore some of the recent developments in statutory standing. To do so, I will first explain the relationship between constitutional and statutory standing.
The model of constitutional standing, which is briefly summarized in the first part of this article, reveals that standing is inextricably linked to the doctrine of stare decisis. Within the framework of social choice, stare decisis can best be understood as a rule that limits reconsideration of defeated alternatives. Under [*pg 324] specified conditions, with stare decisis in place, the order in which cases are presented has the potential to affect not only on the timing of doctrine, but also its substantive development. This is prone to occur when the preferences of the Supreme Court justices are intransitive with respect to the dispositive issue and outcome resolutions over two or more cases, and thus when there is no available Condorcet winner.9 Within the Supreme Court, stare decisis has the potential to render the evolution of constitutional doctrine dependent upon the order, or path, of cases presented. Under specified conditions, described below,10 case A followed by case B has the potential to produce opposite results from case B followed by case A. Stare decisis thus provides a powerful incentive to ideological interest groups to try to manipulate the order of case decisions in the federal judiciary generally, and in the Supreme Court in particular.
The Supreme Court's articulated standing rules have the effect of significantly limiting the power of litigants to exert a disproportionate influence over doctrine by picking and choosing cases to affect the critical path of doctrinal development. While the resulting doctrine remains path dependent (meaning that the order of cases continues to influence the evolution of doctrine with standing in place), standing improves the overall fairness of constitutional law making by grounding that path in fortuitous factors presumptively beyond the control of the litigants themselves. The social choice model also explains that unlike the Supreme Court, Congress has the institutional wherewithal to avoid undue path manipulation by deflecting certain questions for which no adequate legislative consensus has yet formed. That is because Congress has superior mechanisms for avoiding the forced resolution of issues that give rise to intransitive preferences. These include both the power to remain inert and the power to commodify preferences through vote trading and logrolling. As a result, many potential intransitivities in Congress are of relatively little consequence. Within this framework, we can understand the Court's constitutional standing rules as facilitating the choice of forum for the resolution of certain issues, based upon the relative decision making competence of the federal judiciary, on the one hand, and Congress, on the other.
The Supreme Court's evolving doctrine of statutory standing, and especially environmental standing, at least as it has developed [*pg 325] since 1992, however, presents a considerable anomaly. In my prior work, I have joined the growing chorus of scholars, several of whom were involved with this symposium, who are highly critical of the Court's sudden departure from a more relaxed set of standards when plaintiffs have relied for standing upon a federal statute.11 The social choice model of constitutional standing rests upon the intuition that the Court will be disinclined to allow ideological litigants to select cases as the vehicle for exerting a disproportionate influence over developing doctrine when the resulting law might be the product of path dependent, and thus arbitrary, decision making. By limiting judicial law making in this manner, standing preserves the power of Congress to resolve the underlying issues if and when it develops an appropriate consensus. The anomaly of modern statutory standing is that when litigants rely for standing upon a federal statute, they appear to be relying upon the product of the very legislative consensus that the constitutional standing doctrines are designed to facilitate. Thus, when Congress confers standing upon a private attorney general, but the Court denies that person standing, the Court is preserving Congress's power to achieve a legislative consensus in the future by thwarting its legislative consensus achieved in the past. And yet, that is precisely the direction in which the Lujan Court had moved statutory standing doctrine.
While the Court has long required that plaintiffs be among the injured,12 the Court had generally applied a more relaxed conception of injury when the claimant relied for standing upon a federal statute than when she relied instead upon the Constitution.13 The critical [*pg 326] point of departure was the 1992 decision, Lujan v. Defenders of Wildlife.14 In Lujan, the Court denied standing to claimants who sought to enforce the procedural requirements of the Endangered Species Act, and who relied for standing upon a provision that allowed for enforcement by private attorneys general. Until that case, the Court had generally adopted a deferential stance in allowing Congress to define novel injuries and even in allowing plaintiffs to advance claims that intuitively belonged to others. While the Court had distinguished its prudential and constitutional standing requirements, suggesting that Congress could avoid the former, but not the latter, until Lujan, the Court had provided Congress with the latitude to define the critical standing elements more broadly than when a claimant relied for standing solely upon the Constitution, or the Administrative Procedure Act (as opposed to a statute affording substantive rights).15 In contrast, the Lujan Court insisted that when a claimant relies upon the broadly worded citizen standing provision of the Endangered Species Act, she must allege an injury that, if not identical, is closely analogous to one recognized at common law. In short, the Lujan Court suggested that with respect to the question of injury, Congress lacks the power to opt out of its literally enforced constitutional standing requirements.
Not only did Lujan meet with a flurry of academic criticism,16 but also it provoked sharp criticism within the Court. While the Court has issued several interim decisions,17 its most important statement on Congress's power to confer standing by statute was recently announced in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.18 The Laidlaw Court afforded standing under the Clean Water Act for the failure of a polluter to comply with the [*pg 327] requirements of an emissions permit, and did so even though the individual claims of injury seemed no more concrete, and the prospect of meaningful redress seemed no less remote, than in Lujan.19 In a short span of just eight years, the Court appears to have issued a major retrenchment upon Lujan's logic, if not its holding.20 As much as Lujan has been vilified, Laidlaw appears poised to be commended as a restoration of sound principles of standing. And yet, as with Lujan, one is hard pressed to predict whether Laidlaw represents a final and stable solution to the difficult questions that statutory standing cases have posed in recent years.
While the Supreme Court has recently addressed statutory standing in other contexts,21 the most recent major skirmishes over statutory standing have been fought on the environmental battleground. This might not be surprising. As Justice Scalia, who authored the majority opinion in Lujan,22 later observed (admittedly with some irony), the environment is "a matter in which it is common to think all persons have an interest."23 Among the major questions that environmental standing cases present is the power of Congress to confer standing upon all persons to redress violations of federal environmental law, even when the claimants have suffered no injury distinct from the harm to the public at large as a result of those violations. That was among the central issues in both Lujan and Laidlaw. The doctrinal teeter-totter on statutory standing has likely occurred on the environmental playing field because such doctrinal elements as injury, causation, and redressability are most susceptible to competing intuitions in that context.
If the Supreme Court has developed its constitutional standing doctrine in a manner that preserves the power of Congress, which is better suited to resolve intransitive preference orderings, to regulate if and when it achieves an appropriate level of consensus, the most recent standing cases demand a further extension of the model. This article will provide a preliminary sketch of such a model. The extended model begins with the intuitions developed from the social choice model of constitutional standing. It then identifies the conditions that likely generate broadly worded statutory standing provisions and the concerns that the resulting regime poses for judicial construction. My objective is not to provide a normative critique, or to argue that one or the other of Lujan and Laidlaw is necessarily wrong. Instead, my objective is to provide a positive model that exposes the tradeoffs that these and other environmental standing cases present, and to explain why neither of those cases necessarily presents a stable solution.
This article will develop three insights into the law of statutory standing. First, the model reveals that the Supreme Court is likely motivated in its analysis of statutory standing by two competing intuitions. On the one hand, the justices seek to defer to legislative consensus, at least inasmuch as that consensus signals the preferred resolution of such difficult questions as compliance obligations and optimal enforcement level. On the other hand, broad statutory standing provisions might evince avoidance, rather than resolution, of these very questions. So viewed, broad standing provisions are analogous to once-illicit delegations to administrative agencies of lawmaking powers, without the requisite "intelligible principle."24 The unusual feature of this form of delegation is that the object of the delegation is private citizens working through the federal judiciary, rather than a lawmaking agency. The Court's rejection of citizen standing thus reflects a concern that the citizen suit might promote an unanticipated level of enforcement, even assuming no technical departure from the specified compliance requirements, if the benchmark for optimal enforcement is the probable preference of the median member of the enacting Congress. So viewed, the divergence between the level of regulatory enforcement and citizen-suit enforcement might signal a likely departure from the contemplated enforcement level of the median member of the enacting Congress. In response to these divergent signals, the Court imposes stricter [*pg 329] standing limits as a means to hedge against overly zealous enforcement, while allowing for the future possibility of a legislative corrective in the form of a statutory amendment or of more ambitious regulatory agency enforcement under the existing statutory scheme.
Second, the model explains why a federal regulatory agency that itself would signal a less ambitious level of enforcement than would those bringing the citizen suits, might nonetheless support citizen standing. As citizen standing comes to be regarded by business interests as overly zealous relative to agency enforcement, the effect is to increase support for agency enforcement, not merely among pro-environmental interests who we might expect to see supporting agency enforcement, but also by interest groups who generally seek to limit the reach of environmental regulation.25 The agency, which would often prefer more zealous enforcement, is able to encourage this result by endorsing citizen standing, while focusing on its own more moderate enforcement objectives.
Finally, the model provides insights with which to evaluate some historical arguments concerning the constitutional legitimacy of strict judicial limits upon statutory standing. The analysis reveals that the early equity actions that appear to have defied modern standing norms were likely the product of motivations that set them quite apart from many, and perhaps most, of the modern citizen standing suits. Early exceptions to these norms were likely the product of restrictive prosecutorial resources and information asymmetries with respect to local injuries resulting from violations of law. In contrast, modern statutory standing allows the private vindication of claims that the enforcement agency has chosen not to pursue for policy reasons, even after receiving the required notice by the would-be private attorney general and being afforded an opportunity to litigate in her place. As a result, early cases that defy modern justiciability norms might be of limited value in assessing the conditions under which the Court has recently developed its statutory standing rules.
In Part I, I will briefly summarize the social choice model of constitutional standing, which provides the starting point for analyzing statutory standing. In Part II, I will develop a preliminary model of statutory standing. Finally, in Part III, I will consider five [*pg 330] recent statutory standing cases -- four involving environmental standing, and one involving standing to challenge the Line-Item Veto Act -- based upon the insights developed from these two models.
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The social choice model of standing begins with the seminal insight that under specified conditions, groups of three or more persons each possessing fully transitive (rational) preference orderings, may possess intransitive (irrational) preferences by unlimited majority rule. While we generally assume transitivity of preferences (A preferred to B preferred to C implies A preferred to C) as a precondition to individual rationality, we cannot make the same assumption with respect to groups of three or more decision makers. If three persons are selecting among options ABC, and each ranks his preferences as follows: 1 (ABC); 2 (BCA); and 3 (CAB), an intransitivity exists, such that in a regime of unlimited binary comparisons in which we assume sincere voting, the group as a whole prefers A to B (persons 1 and 3 winning) and B to C (persons 1 and 2 winning), but not C to A (persons 2 and 3 winning). This phenomenon is not universal. Thus, if the preferences were instead: 1 (ABC); 2 (BCA); and 3 (CBA), such that only the second and third ordinal ranking of person 3 had been changed, then option B would represent a stable and dominant outcome that could defeat both A and C in direct comparisons. In the language of social choice, option B is known as a Condorcet winner.
Because the Supreme Court is a multimember institution, which presently has nine justices, one can posit conditions under which its members are susceptible of possessing collective intransitive preferences. While I have previously provided illustrations based upon actual cases,26 I will now illustrate using a hypothetical and stylized pair of environmental standing cases.
Imagine that the Court faces two cases presenting difficult questions of statutory standing, Citizens for Clean Water v. Polluters, Co. and Citizens for Clean Air v. Emissions, Inc. Assume that at the district court level, both cases were dismissed on the ground that the plaintiffs had failed to demonstrate any direct injury resulting from [*pg 331] the defendants' stipulated permit violations. As a result, the lower courts denied the plaintiffs standing, and the respective courts of appeals affirmed. The first case, Clean Water, involves a statutory standing provision that is slightly broader than that at issue in the second, Clean Air. The former confers standing to "all persons," while the latter provides it to "injured persons." Further assume that the two cases are sufficiently close on the facts and on the law that only a minority of three justices, group A, believes that they should be distinguished. Imagine that another group of three justices, group B, believes that the two cases are indistinguishable and that both should be reversed, thus allowing standing. And a final group of three justices, group C, agrees that the cases are indistinguishable, but concludes that both should be affirmed, thus continuing to deny standing.
Based upon these assumptions, any two of the three groups of justices contain the requisite number of votes to form a majority. Assume that the two cases arrive at the Supreme Court at the same time. Further assume that group A concludes that because the statute at issue in Clean Water confers standing more broadly than that at issue in Clean Air, standing should have been granted in Clean Air, resulting in a reversal, but not in Clean Water, resulting in an affirmance. Group B believes that standing is sufficiently strong under either statute, and that the pervasive interest in the environment renders any concerned citizen "affected" when federal environmental law is violated. Thus, group B concludes that both dismissals should be reversed. Finally, group C reaches conclusions opposite group B in both cases. Group C believes that because the stipulated permit violations produced no actual harm to the plaintiffs in either case, any hypothesized "affect," psychological or otherwise, is inadequate to justify standing. Group C would affirm in both cases. Because these two cases arise simultaneously, assume that the justices vote consistently with their preferred resolution in each case, and thus without regard to how the other case is resolved. In other words, because the two cases are decided simultaneously, none of the justices is assumed to treat one case as a precedent in the other. In this situation, the result will be to reverse the dismissal in Clean Air, with groups A and B forming a majority, and to affirm the dismissal in Clean Water, with groups A and C forming a majority. This holds, even though groups B and C form a thwarted majority that believes that there is no distinction between the two cases.
Now assume that the cases come up one year apart, rather than at the same time. If Clean Air is decided first, the dismissal of standing will again be reversed, with groups A and B forming a majority. When Clean Water comes up the following year, those justices who thought the cases indistinguishable (the members of groups B and C), will not inquire how they might rule on the merits of the case in the absence of a governing precedent. Instead, they will inquire as to whether Clean Air is controlling. Assuming that the justices vote sincerely,27 then based upon their resolution of this limited and potentially controlling question,28 they will then form a majority to reverse the dismissal in Clean Water.
Finally, assume that the cases arise in opposite order. If Clean Water is decided first, the standing dismissal will be affirmed, with groups A and C forming a majority. Subject to the same assumptions, when Clean Air arises the following year, groups B and C, which determine that Clean Water is a controlling precedent in Clean Air, will affirm that case as well.
In these two variations on the initial hypothetical, the outcomes of both cases depended fully upon the order in which they were presented. In social choice, this phenomenon arises when, as here, a group of decision makers possesses intransitive preferences and the rules disallow the requisite number of comparisons to formally codify a cycle.29 The intransitivity is highlighted when we identify the three overlapping majorities across these two cases that cannot simultaneously be satisfied:
| Groups A and B: | reverse Clean Air |
| Groups A and C: | affirm Clean Water |
| Groups B and C: | (affirm Clean Water and Clean Air) or |
| (reverse Clean Water and Clean Air) |
Because only two of the three majorities can be satisfied at any [*pg 333] one time, the combination of preferences allows us to infer intransitive preferences, such that for any resolution, there exists a dissatisfied majority that would prefer to substitute that resolution with another. In this case, the intransitivity arises because it is not possible to satisfy the first two majorities, which would decide the cases in opposite fashion, while also satisfying the third majority, which would decide them the same way.
While the written opinions and the votes cast in such paired comparisons allow us to make assumptions from which we can reasonably infer lurking intransitive preferences, when the cases arise separately, stare decisis prevents the formal codification of a doctrinal cycle, in which for any chosen outcome or set of outcomes, another has majority support.30 Thus, if the cases were decided one after the other and if we assume principled voting and adherence to precedent, then those deciding the second case would limit their inquiry to the narrow question whether the first case governs the second. If the answer is yes, that answer will be controlling in the second case, without regard to how this group would have decided the second case on its merits. In effect, stare decisis limits one of the options from consideration once a governing precedent has been decided. The stare decisis regime produces the benign effect of improving the stability of legal doctrine. At the same time, however, it produces the unintended consequence of rendering the substantive evolution of doctrine in the two cases dependent upon the order in which they are presented. In a legal system that adheres to precedent, the phenomenon of path dependency is inevitable, at least when the judges possess intransitive preferences as in this hypothetical. Even though the Court might have decided the second case differently absent a controlling precedent, those who view the two cases as indistinguishable will eschew a formal and controlling inquiry into the merits of the second case.31 It is only by allowing a formal and controlling consideration of the now foreclosed merits determination in the second case that the Court would risk codifying a voting cycle.
While this example involved only two cases, I have previously provided several examples of important bodies of substantive constitutional law that have evolved in path dependent fashion [*pg 334] through a series of discrete distinctions over a larger set of cases and over a longer period of years.32 Introducing additional variables, including changes in Court personnel, changes in political conditions, and more complicated background precedent, increases the difficulty of formalizing any presentation of path dependency.33 Nonetheless, the presence of multiple factors does not undermine the main point: Even if we assume these other factors away, and imagine a regime in which the Court has stable personnel and confronts minimal background precedent, stare decisis creates a strong incentive among ideological interest groups to try to manipulate the critical path of case decisions as a means to exert a disproportionate impact on the substantive evolution of doctrine. Adding variables that improve the likelihood of success in producing this result serves to enhance, rather than to undermine, this already powerful incentive.34
While stare decisis introduces an arbitrary element into the evolution of legal doctrine, the real problem with stare decisis is not path dependence.35 Path dependence is an inevitable byproduct in a regime that seeks to use precedent as a means with which to produce stable legal doctrine. The greater difficulty is that stare decisis creates a strong incentive among interest groups to try to favorably manipulate the order of case decisions as a vehicle for exerting a disproportionate influence over the evolution of substantive doctrine. Thus, revisiting the prior hypothetical, if a pro-environmental group had complete control of the order of cases, it would present Clean Air first, on the ground that its more restrictive standing provision is [*pg 335] easier to defend than is the completely open-ended provision at issue in Clean Water. A pro-industry group seeking to limit the application of citizen standing, in contrast, would take the opposite approach, with opposite results.
It will now be helpful to consider the nature of the Supreme Court's articulated standing rules, which combine to raise the cost of path manipulation. As stated in the introduction, the Court's standing cases can be divided into three general groupings: 1) no right to enforce the rights of others; 2) no right to prevent diffuse harms; and 3) no right to an undistorted market. The first two categories are most important in considering the question of statutory standing. These two rules limit path manipulation by presumptively preventing the easiest vehicles for favorably ordering cases. The third category proves helpful in assessing the Court's recent analyses of redressability.
The easiest way to manipulate the order of presently live claims, as opposed to claims that are not yet ripe or that are moot,36 is to identify available claims that affect other people, and then raise them on their behalf.37 This would allow ideological interest groups to litigate the most favorable live claims first, and then to use the resulting precedents in an effort to work toward preferred resolutions of cases with increasingly difficult facts or law. If the judiciary presumes against allowing such claims on the ground that the affected individual should pursue his or her own claim, the ideological litigant can then take a second mode of attack. He or she can instead allege that the suit does not seek to vindicate the claim of another person. Rather, by knowing the law has been violated, he or she is suffering a harm, albeit one that is diffuse.38 This analytical play on words, which [*pg 336] transforms a third party harm into a first party injury, would suffice to create standing but for the presumptive rule that proscribes standing to litigate diffuse harms.39 Together, these two rules operate fairly well in directing courts to hear cases that are presumptively motivated by the desire to resolve concrete disputes even if doing so requires the courts to make new law, rather than by the desire to create law in spite of the absence of a concrete dispute adversely affecting the claimant.
The analysis thus far helps to explain two features of modern standing doctrine. First, while many commentators have observed that the various standing elements are sometimes applied in an inconsistent manner, we can now intuit the essential logic of including such elements as injury in fact, causation, and redressability as constitutional prerequisites to standing. Each serves as a proxy for the conditions under which courts are ordinarily called upon to resolve disputes, and in the course of doing so, to occasionally make new law. In contrast, the Supreme Court intuits that suits that fail to possess these characteristic features are more likely the product of an ideological litigant's desire to favorably manipulate the order of case decisions as a vehicle for exerting a disproportionate influence over the evolution of legal doctrine, even if there is no concrete dispute in immediate need of judicial resolution. In other words, while the Court presumes it proper to resolve concrete disputes in spite of the need to make law, it presumes it improper to resolve created disputes as a purposeful vehicle to make new law.
1. The Zealous Advocacy Anomaly
The analysis further explains why the law presumes against allowing interest groups to have standing on their own, rather than as conduits for the interests of specific members.40 For critics of [*pg 337] standing, this presents the following anomaly: While the Court, and some commentators, have linked the constitutional standing requirements to the desire for zealous advocacy,41 the interest groups themselves would generally present the claims at least as zealously as an adversely affected individual. And yet, unless an individual member would have standing, the organization cannot present the claim. The social choice model of standing readily explains this anomaly. If the function of standing is to limit the judicial creation of law to those instances in which the resolution of a legal dispute demands it, rather than in response to well timed litigation, then the Court will prefer an actual litigant to an organizational litigant, without regard to the relative litigational competence of the potential claimants. Otherwise, organizations like the Sierra Club Legal Defense Fund, which have the resources with which to monitor violations of the federal environmental laws, would be able to pick and choose which cases to bring, and in what order, with the ultimate goal of providing the maximum environmental protection under those laws. Under such a regime, the federal judiciary, including the Supreme Court, might unwittingly expand the reach of federal environmental statutes well beyond that which a majority of the enacting Congress would have preferred had Congress addressed and resolved the issue of the optimal level of enforcement, rather than avoiding this question in part through the mechanism of liberalized standing.42
Among the benefits of a regime that imposes barriers to third party or diffuse harm standing is that it does not prevent the enforcement agency from pursuing a more ambitious level of enforcement in the future. Nor does it preclude Congress from tightening enforcement relative to that presently undertaken by the agency. If, at some future time, Congress possesses the requisite consensus with which to require a stricter level of enforcement, or [*pg 338] with which to impose stricter compliance obligations, a prior standing denial will not prevent it from doing so.
One of the benefits of decision making in Congress, relative to the federal courts, is that Congress need not resolve issues over which opinions are sharply divided and for which there is no consensus in the form of a Condorcet winner. Congress has the power to remain inert. Social choice thus reveals a critical distinction between the Supreme Court, or appellate courts generally, and Congress, when those institutions are confronted with certain controversial issues.43 Setting aside the possibility of a rare dismissal on the ground that certiorari was improvidently granted, and assuming that a case is properly on the Court's docket, the Court is presumed obligated to resolve the case by a collective judgment. As a result, it has developed a set of decision making rules that are consistent with that obligation. The Court thus lacks the institutional power with which to employ rules that would formalize cyclical preferences and thus provide a foundation for failing to issue a collective judgment.44
In contrast, if Congress is confronted with a variety of proposed solutions to an identified problem in the form of competing bills or of competing amendments to a pending bill, and if none of those is a Condorcet winner, then Congress retains the power to identify the cycle and then to decline to act.45 Unlike appellate courts, Congress possesses the institutional power to remain inert. Perhaps more importantly, even if members of Congress reveal the presence of cyclical preferences, Congress retains one additional means of [*pg 339] arriving at a rational outcome. Unlike appellate courts, Congress condones vote trading, or logrolling. This practice allows Congress to relegate many potential intransitivities to an inconsequential status. Provided that the members possess disparate intensities of preference, they have the wherewithal to reach a collective resolution by expanding the issue space to include a larger package of issues, even when preferences regarding one or more of these issues are cyclical. In contrast, in the Supreme Court vote trading is widely understood to be an improper mechanism for case resolution.46 Moreover, various institutional rules within the Supreme Court, including most notably the practice of written opinions, inhibit vote trading, by encouraging statements of justification for a given vote, which would be contradicted if justices were then to vote differently based solely upon strategic considerations.47
These institutional distinctions between the Supreme Court and Congress prove significant in assessing standing. The effect of a regime in which the justices are presumed obligated to resolve individual disputes properly before them and to adhere to precedent when a new case falls within the ambit of a previously announced holding, is sometimes to thwart the preferences of an existing majority on the Court. Thwarted majorities can arise within a single case,48 or through path dependence, over groups of cases over time.49 The two standing rules described thus far -- no right to enforce the rights of others and no right to prevent diffuse harms -- have the beneficial effect of encouraging the resolution of divisive issues in Congress, a branch that has a comparative advantage in the resolution of issues even when its members possess intransitive preferences.50
Before concluding this part, it will be helpful to briefly consider the final constitutional standing rule, no right to an undistorted market. The analysis will be helpful in assessing the Supreme Court's recent standing decisions, Steel Company v. Citizens for a Better Environment, and Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. I will first describe the general posture of the standing cases in this category, and then summarize two such cases in which the Court achieved opposite outcomes on standing.
In each case in this category, the claimant identifies a law or regulatory policy, which she alleges violates either a statute or a constitutional provision. The most notable examples involve alleged violations of equal protection. The allegedly illegal rule can take, for example, the form of an IRS operating policy, as in Allen v. Wright,51 or an affirmative action program, as in Board of Regents v. Bakke.52 The claimant alleges that if the illegal rule were struck down, then through a series of causal linkages, she would ultimately benefit. In Allen, for example, a nationwide group of parents of African-American school children challenged an IRS policy that, among other things, afforded private schools tax exempt status based upon that of any umbrella organization of which they were a part. The claimants alleged that in some instances, the schools receiving tax exempt status based upon this policy were engaging in racially discriminatory admissions policies. As a result, they alleged, if these schools were assessed on their own merits, they would have been denied tax exempt status. The claimants thus sought to have the tax policy struck down as a means to remove an unconstitutional subsidy to white flight, and thus to improve the possibility of racial integration at the public schools that their children attended. The Allen majority denied standing, concluding that the plaintiffs had failed to articulate a constitutionally adequate injury. The Allen Court observed first that the claimants' children had not applied for admission into, and were not attending, the private discriminatory schools in question, and second that multiple links in the chain of causation made speculative [*pg 341] whether a decision to strike down the policy would lead to the actual integration of the public schools.53
In contrast, in Bakke, a nonminority applicant alleged that a race-based quota system for affirmative action violated equal protection. As in Allen, his ultimate relief -- admission to medical school -- was dependent upon a host of causal linkages involving decisions by private actors who were not party to the suit.54 Thus even without the affirmative action program in place, Bakke could not have known that he would have been among the next group of nonminority admittees. But unlike in Allen, the Bakke Court granted standing on the theory that Bakke was injured in his inability to compete for all seats.
These two cases illustrate an inevitable tension in the application of the Court's constitutional standing elements. As a conceptual matter, one could translate the Allen claim into opportunity-injury [*pg 342] terms, thus justifying a grant of standing. At the same time, one could translate the Bakke claim into ultimate-relief terms, thus justifying a denial of standing. As William Fletcher has shown, if we set aside the largely irrelevant case of the lying plaintiff, we cannot resolve difficult questions of standing by asking whether or not a plaintiff is injured.55 Instead, determining which among a broad potential class of injuries provide the basis for justiciable claims is the difficult policy question that lurks behind the Supreme Court's standing doctrine. The analysis is particularly important in the context of these two cases because both sets of facts can be presented according to the Supreme Court's announced standing criteria in a manner that is consistent with identifying either a justiciable opportunity injury or a nonjusticiable claim to ultimate relief. These cases are not distinguishable in kind. Both cases involve an identified law or policy, which is allegedly illegal, and which if struck down would produce more favorable market conditions for the claimants.56 But if one focuses on the underlying function of the Court's constitutional standing criteria, which is to limit judicial law making to those cases in which the obligation to make law grows out of the need to resolve actual and concrete disputes, rather than out of the desire to affect favorable doctrine, then much of the apparent inconsistency dissipates. In each case, the Court has implicitly identified those characteristic features that correlate more or less strongly with either the likelihood of using the case as a vehicle to make law, on the one hand, or the desire for concrete relief, on the other.57
While this final standing category is important in illustrating the inevitable malleability of the Court's standing elements and in assessing some recent innovations in redressability doctrine, it is generally less significant than third party and diffuse harm standing in the statutory context. When a claimant relies for standing upon a federal statute, he or she is generally trying to enforce the very statute for which standing has been conferred.58 As a result, such claimants will rarely invoke a statutory conferral of standing to challenge a statute as unconstitutional or to challenge a regulation as violating a federal statute. Stated differently, when a plaintiff relies upon a [*pg 343] federal statute for standing, she generally seeks to have enforced the apparent desire of Congress to remove whatever distortion she agrees does not belong in the market place. As a result, most statutory standing claims will fall into the third party and diffuse harms categories. The question then arises: To what extent can Congress vest individuals with the power to raise claims that intuitively belong to others or that are diffuse? As explained in the introduction, the Court has recently provided two seemingly opposite answers. In the next part, I will expand upon the model developed above to explain the tradeoffs involved with broad or restrictive rules of statutory standing. In the part that follows, I will review some of the more recent statutory standing cases in light of the model developed below.
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In virtually every statute in which Congress confers standing broadly, it is either affording individuals the power to litigate the claims that under traditional analysis would be better understood as residing with others, or to litigate claims that will redress a diffuse harm. Cases that fall into these two categories present fairly low cost mechanisms for manipulating the order of precedents. By further developing the social choice model to account for the conditions under which Congress might be motivated to confer broad standing by statute, and the conditions under which the Court might be resistant to such broad standing conferrals, we can better understand the apparent inconsistency in the Court's most prominent recent statutory standing decisions, Lujan and Laidlaw.
In the prior part, I explained that modern standing doctrine is consistent with certain intuitions, revealed by social choice, about the relative institutional competence of the Supreme Court and Congress to resolve disputes. The critical difference is that in contrast with the Supreme Court, which is presumed obligated to issue a collective judgment in cases properly before it, Congress can remain inert when it is faced with collective intransitive preferences. One implication of this analysis is that Congress's power to remain inert systematically favors the status quo relative to other options when majority dissatisfaction with the status quo is split among many potential options, none of which is persistently favored by a majority in a series of direct comparisons with all others.59 Thus, if in the course of [*pg 344] construing a statute the Court produces a change in the law that a majority of Congress disfavors, that result might well remain stable, if Congress lacks Condorcet-minority support for a particular change from the judicially created status quo. The risk of entrenching the new status quo might well explain why under certain conditions, the Court is disinclined to confer standing as broadly as federal statutes allow. In this analysis, the Court's disinclination to allow Congress to define the outermost limits of standing is a function of the mixed signals it receives concerning intended compliance obligations. These mixed signals arise from differential enforcement between the private attorneys general on the one hand, and the regulatory agency on the other. Simply put, the Supreme Court has hesitated in its willingness to allow the federal judiciary to become the vehicle for resolving certain important, and only partially resolved, questions of environmental policy.60
When confronted with intransitive preferences, Congress not only has the options to remain inert or to commodify preferences, but also it has the option to delegate decision making authority to another institution. When Congress exercises the latter option, it avoids (quite likely intentionally) resolving some of the most contentious features of the underlying issue. Most commonly, Congress delegates lawmaking power to regulatory agencies. But in recent decades, Congress has also effectively delegated difficult questions of regulatory enforcement to the federal judiciary through the liberalization of standing. Setting aside a brief flirtation with the nondelegation doctrine in the New Deal, the Supreme Court has generally allowed extremely broad agency delegations.61 And until Lujan, the Court appeared to treat private attorneys general [*pg 345] delegations in much the same manner. Two questions then arise. First, why has the Court recently retrenched upon the latter form of delegation? And second, why has it vacillated in doing so? The model of statutory standing, which focuses upon the disparate signals between agency enforcement and private attorney general enforcement with respect to the preferred enforcement level of the median member of the enacting Congress of an environmental statute, will help to resolve these questions.62
I will now provide an illustration of legislative bargaining that will allow us to develop a model of statutory standing. In the model, I will present three forms of bargaining in sequence: (1) substantive bargaining; (2) nonsubstantive bargaining; and (3) bargaining over standing.63 By substantive bargaining, I mean bargaining over the compliance provisions of the relevant environmental law bill. By nonsubstantive bargaining, I mean bargaining that involves matters unrelated to the substance of the bill in question, which can include adding special interest items to the same bill, negotiating special interest items into other bills, or negotiating over the substance of other bills. Finally, bargaining over standing involves negotiating the extent to which parties other than the relevant federal agency can seek redress for statutory violations in federal court. These three modes of bargaining can occur in any sequence, and not every mode of bargaining need accompany every bill. The sequence of bargaining presented below is intended solely for expositional purposes.
Assume that a pro-environmental congressman introduces a bill calling for a significant and costly reduction in the emissions of [*pg 346] specified chemicals into all waterways. In an effort to gain the necessary support for the bill, the congressman will be called upon to engage in some substantive compromises, for example, by extending the compliance time frame or by softening the ultimate compliance requirements. Assume that the bill, as initially proposed, represents the sponsor's preferred resolution of the underlying policy issues, and thus her ideal point. The process of substantive bargaining will move the bill from that ideal point closer toward the preferred position of the median member of the enacting Congress. Figure 1 depicts the relevant issue spectrum.
| Liberal | Median | Conservative |
|
| Figure 1: Statutory Compliance Spectrum |
Along this issue spectrum, it is assumed that liberals generally favor strict compliance and conservatives generally favor lax compliance.64 The median voter theorem predicts that to the extent that support will be determined by substantive compromise along a single issue dimension, the dominant position necessary to gain majority support will be at or near the median voter.65 As the substantive compliance provisions move toward the preferred position of the median legislator, those members whose preferences are closer to the sponsor's ideal point, and who thus favor the initial bill, will still prefer the relatively stricter timing offered in the watered down bill and compliance requirements to the status quo. At the same time, the substantive compromise will gain the support of those marginal legislators who are positioned closer to the median, and who would not have supported the bill in the sponsor's ideal form.66
The bill sponsor could of course water the bill down completely, such that it entirely ratifies present emissions requirements. Doing so, however, would turn the bill from an environmental protection bill into a bill that protects industry from further environmental regulation. At some point, the votes that the sponsor would gain among those who are interested in protecting industry against further environmental regulation will at least partially offset the lost membership from her initial coalition. In addition, and perhaps more obviously, the sponsor will not likely turn her pro-environmental bill into the opposite simply because doing so might increase its prospects for passage.67 All of this simply underscores that substantive bargaining has an implicit limit. Where this limit lies with respect to any particular bill, environmental or otherwise, is a function of two factors. The first is the need to create, or at least move toward, a successful majority coalition to pass the bill. The second is the need to move the law sufficiently in the favored direction relative to the status quo with respect to the regulatory issue in question to retain the initial impetus in support of the bill. The more critical point is that wherever this limit lies, it might not allow for the requisite support for passage. Simply put, if the only mechanism for gaining support were to water down the bill, the sponsor might have to move unacceptably far from her ideal point to secure passage.
The bill's sponsor has other methods of securing support. For example, the sponsor can also negotiate matters unrelated to the bill's substance. She can promise support for separate legislation, whether general or special interest, in exchange for the support of the sponsor of that legislation for her proposed bill. Alternatively, the sponsor can agree to include nonsubstantive additions to her bill, in the form of special interest items, that will add to the cost of the bill, but that will not modify its substantive content.68 Through either of these [*pg 348] alternative forms of bargaining, the bill sponsor can trade her support for unrelated legislation, either public or special interest, or for attaching unrelated special interest items to her bill, as the price for gaining additional support. Because this mode of bargaining takes place along a nonsubstantive dimension, the resulting coalition in support of the bill might not line up neatly based upon political ideology. For those legislators seeking the benefits of securing special interest legislation, the environmental bill might present a better vehicle for success than available alternatives.69 Certainly those who are more inclined toward the substantive merit of the bill will have a stronger preference for this particular bargain than those who are not. While the bargain involves something separate from the content of this bill, we can still intuit internal limits to this form of negotiation. To the extent that it adds special interest items to the bill, it increases the cost of passing that legislation. The cost alone might make the bill less attractive to the sponsor. In addition, the added cost will increase the risk of a presidential veto. As a result of these combined concerns, the bill's sponsor might also be unwilling to negotiate along this dimension sufficiently to secure passage.
There is at least one additional mechanism for gaining support. Assuming the substantive requirements for compliance are determined, and that all nonsubstantive bargaining is agreed to,70 the bill sponsor can negotiate over who has the power to enforce the statute's substantive provisions.71 In selecting the appropriate [*pg 349] enforcement arrangement, the bill sponsor can choose from various points along a spectrum. At one extreme, the bill sponsor can limit enforcement to the relevant executive agency, which in most instances will be the Environmental Protection Agency, the Department of the Interior, or various state environmental agencies. At the opposite extreme, she can confer standing broadly upon "all persons." In between, she can elect from various private attorneys general provisions that are more or less restrictive in scope. This can include limiting standing to citizens, affected persons, injured persons, or even persons who live within a specified distance of the regulated facility or end point of the emissions flow.72 A simplified spectrum of options on the supply side is depicted in Figure 2 below:
| Standing in "all persons" |
Standing in "injured persons" |
Standing in "agency only" |
|
| Figure 2: Statutory Standing Options |
Like nonsubstantive bargaining, this form of negotiation does not involve a direct change in the bill's compliance requirements. But compromises over standing might well have the same effect on the ultimate regulated conduct as compromises over substantive compliance. Indeed, by conferring standing more or less broadly, the sponsor can substantially affect the anticipated optimal compliance level among those who are subject to the regulation. And the sponsor [*pg 350] can do so in a relatively more obfuscatory manner than is the case with substantive bargaining.
While seemingly technical, there is little question that the selected level of standing will affect the substantive construction of and the incentives for compliance under the statute. Indeed, the statute is of little value but for its potential to be enforced. And to a considerable extent, the enforcement level will be a function of who has standing to bring suit to redress a violation. There is, however, a critical difference between the questions of compliance level and standing. While negotiations over compliance level are likely as a general matter to fall along predictable ideological lines, negotiations over standing have the potential to thwart conventional ideological expectations. Certainly we can expect a positive correlation between those who support strict enforcement and those who seek to liberalize standing. But there might well be conditions under which those who are generally more conservative, and even those who are subject to the bill's substantive regulations, might favor broad standing.
Some conservatives might assume, as Bennett v. Spear73 ultimately demonstrated, that broad standing might inure to the benefit of those seeking to limit, rather than to further, the ultimate objectives of environmental statutes, at least if the claimants can demonstrate that regulatory enforcement is overly zealous or fails properly to weigh the economic impact, as required by statute, of the chosen method of enforcement.74 Others might consider the standing issue as part of a tradeoff for negotiations over the substantive compliance requirements, such that the broader the standing provisions, the more lax the imposed emissions restrictions. This tradeoff might well be worth the risk, especially in a period in which the Court's standing jurisprudence is in flux.75 In addition, some [*pg 351] conservatives might view citizen standing the way they view delegation generally. In an era when the Court is restricting standing generally, broadening statutory standing might allow them to claim credit if the Court expands its restrictive standing jurisprudence into the statutory area, as in Lujan, while they can pass blame, if the Court does the opposite, as in Laidlaw.76 For example, some might favor citizen standing simply because the results of such litigation would appear to be further from their oversight control. While industries can call upon members of Congress to engage in regulatory oversight when enforcement is too strict, this is less likely when a federal agency is not responsible in the first instance for the chosen level of enforcement. Finally, as Professors Barnett and Terrell observe, some regulated businesses might prefer broad standing as part of an enforcement scheme to raise barriers to entry.77
Liberals will also have a broad set of reasons for supporting liberalized statutory standing. Some liberals might seek broad standing because they correctly anticipate that those who are likely to bring private attorney general suits will tend to have a stronger pro-environmental bias and will likely seek more zealous enforcement than will the EPA. Others might prefer liberal standing because it will deflect pressure from the enforcement agency, thus strengthening the support for the now more moderate federal or state regulatory enforcement. And some liberals might prefer broad standing to hedge against changes in future administrations, which could have the effect of retrenching upon expected governmental enforcement. Finally, among both liberals and conservatives, there will be members who must respond to both industry and pro-environmental constituents. For those members, broad standing allows support for a more modest specified level of substantive compliance, but creates a vehicle for more zealous private enforcement actions. Members can thus claim credit for slight beneficial alterations to substantive compliance levels in the original statute, and blame the courts for enforcement that is more ambitious than their industry constituents [*pg 352] would prefer.
The critical point is that unlike choosing the compliance level, which can generally be expected to divide legislators along traditional ideological lines, choosing the level of standing has the potential to produce common interests among some who are generally pro-environmental and some who are generally pro-industry. In this respect, conferring broad standing in environmental statutes is quite like delegating to agencies. But there is a critical difference as well. A delegation to private enforcers removes at least some enforcement power from the agencies. In many statutes, this is not a complete removal. Once a suit is filed, the claimant must notify the relevant agencies, state and federal, which then have the power to intervene or even take over the suit.78 Even though the possibility of private standing at least removes some power to control the selection and timing of cases, it is quite plausible to intuit conditions under which a liberal EPA would favor liberalized standing. Under such a regime, the EPA can to some extent deflect blame for the most ambitious enforcement actions, thus allowing such suits to proceed, while appearing more moderate in its own enforcement. It is not surprising, for example, that the EPA favored citizen standing in Laidlaw.79
The preceding discussion analyzed the supply side of statutory standing. We must now consider how the Court, behaving as a group of rational actors, might respond when confronted with a citizen suit that relies upon a broad based standing provision within an environmental statute. To keep the exposition simple, we can imagine a case that presents the common features of the two most significant recent statutory standing cases, Lujan and Laidlaw. Assume that the defendant, whether a governmental agency or a private company, has engaged in a series of technical statutory violations. Further assume these technical violations have not produced, and are not likely to produce in the future, any discernible injury to the claimants other than the psychic harm associated with being committed to a safer environment and knowing that technical violations of federal environmental laws are taking place.
By assumption, these are cases that federal enforcers have elected not to prosecute after receiving appropriate notice. If the private attorney general had not sued, the technical violations would have proceeded unabated. The Supreme Court justices understand that in addition to the substantive compliance provisions, enforcement affects overall deterrence under the statute. Some justices might seek to limit the reach of the statute, including its standing provisions, while others might seek to further the reach of the statute, in part by allowing liberalized standing. Setting aside these two opposed groups, at least a subgroup within the Court might try to gauge the appropriate response based upon their best proxy for legislative expectations, which we can cast as those of the median member of the enacting Congress.80 If ambitious interest group-driven litigation prompts a level of enforcement that varies considerably from that of the median legislator, then the effect of allowing liberalized standing would be to skew enforcement toward the sponsor's ideal point, even though the result would not have garnered majority support of the enacting Congress.81
Based upon this analysis, we can now consider why the Court, confronted with a broad statutory standing provision, might seek to impose limits drawn from its constitutional standing requirements, specifically injury in fact, causation, and redressability. In a statute that contemplates only agency enforcement, the agency has considerable enforcement discretion. The regulated industry will attempt to gauge its conduct according to the compliance requirements under the statute times the probability of agency enforcement. Rarely, if ever, will optimal statutory enforcement be one hundred percent.82 The appropriate analogy is one of triage. [*pg 354] Given its resource limitations and political pressures, the enforcement agency is likely, as a general matter, to pursue the most egregious violations first, often failing to attend to minor or technical violations.
Like the enforcement agency, organizations that seek to monitor and redress violations in the capacity of private attorneys general also have limited resources, which are offset by the reimbursement provisions under the statutes themselves.83 Those organizations that are inclined to bring such suits will most likely be motivated by a combination of two objectives: (1) the desire to increase the level of environmental enforcement under the relevant statute; and (2) the desire for reimbursement of expenses and fees.84 The statutes are generally structured to limit reimbursements such that if the agency has already pursued the action, then the organization will not recover.85 We may assume that those who are willing to invest the considerable resources to gather the information necessary to identify a prima facie statutory violation, retain an attorney, and then bring the suit, are those who are most ideologically committed to strict enforcement. If so, then we can anticipate that a regime allowing both agency and private enforcement risks sending mixed, and perhaps inconsistent, signals to the federal judiciary concerning the preferred level of enforcement of the median member of the enacting Congress. Although there will certainly be exceptions, based upon fairly simple intuitions drawn from public choice, it seems probable that the EPA will prosecute claims that are closer to those favored by the median member of the enacting Congress than will the private litigant. That is because the federal agency, which has a general mandate to enforce the federal environmental statutes, is subject to [*pg 355] significant political pressures and resource constraints. As a result, the agency is motivated to pursue the most severe violations first, and to leave the minor violations for later, if at all.
When confronted with this divergence, the question for at least some justices, those who lie in the median position on the Court, is likely to be which of the competing signals should receive the Court's imprimatur. While the justices on the wings of the Court might be motivated in part by their views of the merits of the underlying claim, for the median justice, the analysis is more likely to focus upon some proxy for the anticipated level of enforcement of the median member of the enacting Congress. As the Lujan Court made plain, in devising a judicial response to these disparate signals, the choice among standing rules is not binary, although they can be cast along a single normative spectrum. Just as Congress has a broad range of choices in conferring standing, the Court has a range of standards to impose upon Congress as a precondition to allowing statutory standing. In Lujan, the Court identified three points along this spectrum.86 While there might be additional points along the spectrum, considering these three is sufficient for purposes of developing the model.
Justice Scalia, writing for a majority, suggested that statutory standing is permissible only when the claimants present an injury that is closely analogous to one recognized at common law. Because such injuries result in harm to the affected individual, caused by someone else, and which a federal court can redress, this requirement, like the constitutional standing elements generally, tends to discourage ideologically motivated litigation. Not surprisingly, this position would appear to correspond with a conservative policy preference against the merits of the underlying claim in the kind of environmental litigation described above. And yet, this rule might well disallow the preferred level of enforcement of the median member of the enacting Congress.87 Because the Court's rulings have the potential to remain in force even if they are not consistent with what Congress intended, at least some members of the Court might fear that this strict requirement would have the potential to entrench too limited a level of statutory standing.
Justice Kennedy, joined by Justice Souter, expressed this concern in his separate concurring opinion, in which he suggested that while Congress does not have entirely free reign to define injuries for standing purposes, it must at the very least define the relevant injury and relate that injury to an identified class of potential claimants.88 While this would allow broader standing than would Scalia, it does not afford Congress complete discretion. Moreover, this position abstracts from any inquiry into the merits of the underlying claim. While the rule might provide a means of simultaneously broadening statutory standing and limiting the divergent signals from that preferred by the median member of the enacting Congress, at this point it remains to be seen whether the Kennedy position will emerge as dominant.89
Finally, Justice Blackmun, who dissented in Lujan, suggested that the Court can allow Congress to confer standing broadly, even if in doing so it allows suit by a claimant who has suffered no discernible injury beyond knowing that a federal environmental law has been violated. As with the Scalia position, which correlates with a conservative policy preference on the underlying issue of law, this position correlates with a liberal policy preference favoring the merits of the same underlying issue. Justice Ginsburg essentially embraced this position in her majority Laidlaw opinion.90 While this would allow Congress to choose broad standing, it again risks endorsing a more ambitious level of enforcement than that which the median member of the enacting Congress might have selected if forced to determine the preferred level of compliance in the absence of liberalized standing. The spectrum is depicted in Figure 3 below:
| Allow novel injuries |
Allow novel injuries linked to identified class of claimants |
Require common law injury |
|
| Figure 3: Judicially Imposed Limits on Statutory Standing |
While earlier statutory standing cases suggested that the Supreme Court would condone broad statutory standing, the Lujan majority instead embraced the extreme opposite position. Most recently, the Laidlaw Court appears to have endorsed, once again, the broad standing position. In the next and final part, which reviews these and other environmental standing cases in greater detail, I will apply this model of statutory standing to identify those factors that might have caused the Court to slide back and forth along this justiciability spectrum.
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In this part, I will provide a brief overview of some of the Supreme Court's most significant recent statutory standing cases as they relate to the model of statutory standing developed in the prior part. While I will focus in particular upon Lujan and Laidlaw, given their unique doctrinal significance to modern environmental standing, I will also discuss three other cases, Raines v. Byrd, Bennett v. Spear, and Steel Company v. Citizens for a Better Environment. Raines v. Byrd, which did not involve environmental standing, is nonetheless significant to the model developed in Part II. Raines highlights the Court's implicit concern in identifying a meaningful proxy for the views of the median member of the enacting Congress when enforcing federal statutes. Bennett provides an intriguing example of how superimposing the constitutional standing elements onto a statutory context can lead the Court to prefer the views of those who oppose enforcement to those of the median member of the enacting Congress. And Steel Company reveals some of the recent limits that the Court has imposed under the guise of redressability, which provide a means beyond injury in fact of linking the statutory justiciability criteria to the preferences of that median member. The discussion in this part will be limited both in its selection of cases, and [*pg 358] in the presentation of those cases that are discussed.91 The purpose of the analysis, however, is not to provide a comprehensive presentation of statutory standing case law, but rather is to provide a preliminary assessment based upon prominent recent standing decisions of the social choice model developed in this article.
With the exception of Raines, which I will discuss first, I will employ chronology as an organizing principal. I will begin with Raines, a case which denied standing to five then-present members and one former member of Congress, who challenged the constitutionality of the Line-Item Veto Act. By focusing on whether losing members of Congress can sue to challenge the constitutionality of a statute, Raines highlights the implicit concern of centrist jurists, those most likely to eschew resolutions that might be regarded as ideologically motivated, about gauging standing rules in statutory cases according to how those rules further the preferences of the median member of the enacting Congress.
In Raines v. Byrd,93 the Supreme Court issued a seven-to-two decision denying standing to five present members and one former member of Congress, who challenged the constitutionality of the Line-Item Veto Act (the "Act").94 In doing so, the Supreme Court reversed a long-standing practice of the United States Court of Appeals for the District of Columbia Circuit, which had afforded standing to members of Congress who challenged statutes that they alleged compromised their constitutionally established lawmaking powers.95 At the same time, the Raines Court infused uncertainty into the underlying ground rules of legislative bargaining in Congress,96 for [*pg 359] a period that lasted until the Court finally reached the merits of the issue presented in Raines, in Clinton v. City of New York.97 In City of New York, the Court struck down the Act as violating the requirements of Article I, § 7.
While the Act nowhere used the term "veto," it provided the President with the authority to "cancel" certain spending and tax benefits after he signed them into law.98 Under the Act, a cancellation became effective when the House and Senate received the President's "special message" providing notice of the cancellation. The Act further established that within thirty days of receipt of the special message, Congress could disapprove a cancellation through ordinary legislation, meaning a simple majority vote in both houses.99 Consistent with the requirements of Article I, § 7, the Act specified that if the President then vetoed the disapproval bill, Congress would need to override with a two-thirds majority of both houses.100
The Act included two provisions to expedite judicial review of the Act. First, the Act afforded members of Congress with standing. Thus, the Act states that "[a]ny member of Congress or any individual adversely affected by [this Act] may bring an action, in the United States District Court for the District of Columbia, for declaratory judgment and injunctive relief on the ground that any provision of this part violates the Constitution."101
Second, it provided for expedited judicial review in the District Court for the District of Columbia and for direct appeal and expedited review of any order concerning the Act by the district court to the United States Supreme Court.102
The Raines plaintiffs alleged that the Act injured them in their capacity as members of Congress by altering their constitutional role in the drafting and repeal of legislation.103 The Government moved to dismiss on the grounds of ripeness and standing. On direct appeal from a district court judgment, which rejected the motion to dismiss and then struck down the Act as unconstitutional, the Supreme Court reversed. Writing for a majority of six, with Justice Souter concurring separately, Chief Justice Rehnquist held that plaintiffs lacked standing.104 The Court issued four separate opinions. For our purposes, the most significant are those authored by Chief Justice Rehnquist for a majority, and by Justice Stevens in dissent. Together, these two opinions squarely present the difficulty in defining injury in the context of a statute that confers standing broadly, other than by identifying proxies for the expectations of the median member of the enacting Congress.
Chief Justice Rehnquist defined the claimed injury as the failure to have one's vote properly counted in the legislative process with respect to future legislation subject to the line-item veto. For the sitting members of Congress seeking standing, this had yet to occur. The difficulty according to Rehnquist was twofold. First, as members of Congress, plaintiffs did not allege a personal injury. Instead, they alleged an injury in their official capacities. Second, even assuming that they were personally injured or that injury in their official capacity sufficed for standing purposes, Rehnquist reasoned that members of Congress suffered no concrete harm in their ability to perform their legislative function.105 Rehnquist explained that each of [*pg 361] the plaintiffs had initially opposed the proposed Line Item Veto Act, but simply lost. As a result, Rehnquist found no justiciable injury to support standing.
In contrast, Justice Stevens maintained in dissent that the members' claimed injury was their then-present inability to anticipate the consequences of negotiating legislation, and of voting for or against proposed legislation.106 This difficulty was a direct consequence of the President's power under the Act to effectively alter legislative bargains once bills were signed into law. In this analysis, the members suffered an ongoing injury respecting the consequences of present legislative bargaining.107
What makes Raines particularly interesting is that from the perspective of constitutional standing, it appears to make little sense. If the Court is using its standing doctrine as a means of preventing path manipulation, it would appear to elevate form over substance to demand that an actual victim of a line-item veto present the constitutional challenge to the Act, as ultimately occurred in City of New York. After all, the question of whether the Line-Item Veto Act is constitutional was neither terribly difficult, nor likely to be affected in any significant manner by whatever decisions the Court would issue between the time of Raines and the next case to present a constitutional challenge without a standing defect. But as a consequence of denying standing, the Raines Court, as Stevens made plain in dissent, continued to infuse a considerable degree of uncertainty into the background rules of legislative bargaining. The uncertainty resulted from the absence of a clear rule. If the Act were upheld, members of Congress could secure agreements from the President's designated Congressional agents that particular items would not be subject to the Act, or they could exempt particular statutes expressly from the Act, as preconditions to exchanging votes.108 If, instead, as ultimately occurred, the Act were struck down, then members could continue to negotiate as they had before, with the clear understanding that the President could accept or veto entire bills, but that beyond that, he could not alter legislative bargains. It is [*pg 362] only with a regime of uncertainty -- which lasted from the passage of the Line-Item Veto Act to City of New York -- that members were unable to anticipate the future consequences of their present conduct. And yet, by denying standing, the Raines Court continued this regime of uncertainty respecting Congressional bargaining. The question is "to what end?" I would suggest that, whether or not Raines was rightly decided,109 the model of statutory standing developed above helps to explain the tradeoffs that the majority perceived in its standing analysis.
Chief Justice Rehnquist's analysis focused on the fact that those who challenged the Act had also voted against it and lost. The inclusion of a provision for expedited judicial review, which allowed for congressional standing, was apparently necessary to gain the support of at least some members of the winning coalition that enacted the Act. But, as the Chief Justice observed, it is equally obvious that those members who challenged the statute on constitutional grounds were not part of the ultimately successful coalition. Allowing those who voted against the statute to control the timing of the decision to determine its constitutionality would appear to vindicate the preferences of those who were inframarginal and opposed above those who were marginal and supportive. It is, of course, possible that the marginal and supportive member preferred expedited resolution of the Act's constitutionality, and insisted upon the inclusion of the congressional standing provision as a precondition to supporting the Act. Nonetheless, in attempting to assess the likely preferences of the median member of the enacting Congress, the Court is only able to work with imperfect proxies. It is not surprising, therefore, that the Raines majority relied upon the fact that those who brought suit had voted against the bill to intuit that the timing of the requested decision might have thwarted the expectations of that median member. And because this would hold true generally in cases in which Congress afforded its own members standing, it might not be surprising that the Court used Raines to end the longstanding contrary practice of the United States Court of Appeals for the District of Columbia Circuit.
In contrast with Raines, in most statutory standing cases, the Court does not have such a clear indication that those seeking to advance a given claim at a particular time are advancing an agenda at odds with the median member of the enacting Congress. As a result, [*pg 363] just as the Court employs proxies in the constitutional standing context to determine if the case presents a necessary, rather than opportunistic, vehicle for the creation of substantive law, so too it uses proxies to determine if those seeking to advance claims under a variety of federal statutes, even those that include broad standing provisions, are doing so in a manner that furthers or undermines the expectations of the median member of the enacting Congress. Until Laidlaw, the most prominent recent decision that focused on the identification of such proxies was Lujan v. Defenders of Wildlife.110
In Lujan, the Supreme Court denied standing to environmentalist plaintiffs under the citizen-suit provision of the Endangered Species Act ("ESA"). Under the ESA, which divides the responsibilities for protecting endangered species between the Secretary of the Interior and the Secretary of Commerce, federal agencies whose activities might endanger such species are required to consult with the Secretary of the Interior.112 Reversing a prior joint regulation requiring interagency consultation for all agency activities that might jeopardize endangered species in the United States, on the high seas, and in foreign nations, the Secretary of the Interior and the Secretary of Commerce issued a revised joint rule reinterpreting the ESA.113 In the revised rule, the two departments limited the geographic scope of the statute for purposes of interagency consultation to those activities within the borders of the United States or on the high seas. The plaintiffs, environmental organizations and two citizens interested in preserving the habitats of particular endangered species abroad, sued the Secretary of the Interior. They claimed that federal agencies were funding projects that jeopardized the habitats of particular endangered species abroad without having engaged in the statutorily required interagency consultation. The plaintiffs claimed that the revised joint rule, which did not require interagency consultation, given that the threatened habitats were within foreign nations, violated the ESA's substantive provisions requiring such consultation.114
As a basis for standing, plaintiffs relied upon the following citizen-suit provision contained in the ESA: "[A]ny person may commence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter."115 In denying the plaintiffs standing, Justice Scalia, writing in part for a majority and in part for a plurality of four, determined that plaintiffs had failed to satisfy both the injury and redressability prongs of the Court's standing formulation.116 The majority rejected each of three injury theories: first, an actual injury grounded in the plaintiffs' interest in the species whose habitats were endangered by projects that received partial funding from federal agencies; second, a procedural injury resulting from the failure of the relevant agencies to consult with the Secretary of the Interior as required by statute; and third, and most importantly, three nexus theories under which individuals with an interest in endangered species or who use any part of a contiguous ecosystem, are afforded standing when the habitats of those species, or any part of their ecosystems are endangered.117
One petitioner averred by affidavit that she had traveled to Egypt in 1986, where she "observed the traditional habitat of the endangered [N]ile crocodile," and that, although she did not see the crocodile directly, she hoped to do so when she next traveled to Egypt.118 She admitted, however, that she had no specific plans to return. Another petitioner averred that she had traveled to Sri Lanka, where she observed the habitat of the Asian elephant and the leopard, which, she alleged, was threatened by a project funded by the federal Agency for International Development ("AID").119 In a subsequent deposition, the same petitioner admitted that, although she hoped to return to Sri Lanka, she had no specific plans because that country was engaged in a civil war. Both petitioners alleged that the failure of the agencies funding the programs abroad to consult with the Secretary of the Interior, as required by statute, had injured them.
Writing for a majority, Justice Scalia stated that, even assuming, which he found questionable, that "these affidavits contained facts [*pg 365] showing that certain agency-funded projects threaten listed species," the petitioners lacked the requisite injury to justify granting them standing under the statute.120 Justice Scalia held for the Court that "'some day' intentions -- without any description of concrete plans, or indeed even any specification of when the some day will be -- do not support a finding of the 'actual or imminent' injury that our cases require."121 Justice Scalia also rejected the petitioners' claim that the ESA's citizen-suit provision, quoted above, created in all persons a right to challenge the failure of a funding agency to consult with the Secretary of the Interior.122
Scalia criticized the analysis used by the United States Court of Appeals for the Eighth Circuit, which had denied the government's motion for summary judgment on standing. He stated:
To understand the remarkable nature of [the Eighth Circuit] holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e.g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them). Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government's benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental "right" to have the Executive observe the procedures required by law. We reject this view.123
The Lujan Court presented no fewer than three competing visions of the appropriate contours of statutory standing doctrine. At the opposite end of the spectrum from that of Scalia, Justice Blackmun, writing in dissent and joined by Justice O'Connor (who authored the Allen decision), explained why the standing denial actually undermines, rather than furthers, separation of powers:
The Court expresses concern that allowing judicial enforcement of "agencies' observance of a particular, statutorily prescribed procedure" would "transfer from the President to the courts the [*pg 366] Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed,' Art. II, § 3.". . . In fact, the principal effect of foreclosing judicial enforcement of such procedures is to transfer power into the hands of the Executive at the expense -- not of the courts -- but of Congress, from which that power originates and emanates.124
In this analysis, the relevant test of standing is whether it furthers the enforcement objectives of the enacting Congress. Critical to the analysis, however, is Blackmun's implicit assumption that the median member of the Congress that passed the ESA supported the most ambitious citizen-suit enforcement action that could be presented under its liberal standing provision. In contrast, Justice Scalia is dismissive of the citizen standing provision, unless the claimant relying upon it presents an injury that is more akin to one recognized at common law. This need not be a substantive injury. But for Scalia, a procedural injury must also satisfy a traditional model of limited judicial lawmaking, in which rectifying the claimed deficiency has some meaningful linkage to an underlying substantive injury. On the case facts, Scalia found the claimed procedural injury wanting.
Finally, Justice Kennedy offered a third, intermediate position:
In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view. . . . In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.125
While Kennedy tried to strike a middle ground between the Scalia and Blackmun opinions, his suggested compromise would appear to render Lujan fairly inconsequential.126 It might appear that even if the Court had not retrenched from its holding in Lujan in the more recent Laidlaw decision, Congress could have avoided the Lujan result. To do so, Congress only needed to define as injured persons who are interested in visiting locations in which federal agency funding, in violation of the ESA, threatens the habitats of endangered species, and who have even de minimus evidence of an intent to travel to those locations. While the Kennedy opinion appears to represent a plausible middle ground, and perhaps the [*pg 367] median position on the Lujan Court, the fact remains that with the exception of the part of his opinion that addressed the issue of redressability, Justice Scalia wrote for a majority in Lujan.
Lujan appears anomalous in that it limits judicial lawmaking in an effort to protect Congress's power to achieve an appropriate consensus on the underlying environmental policy questions in the future. But it does so by thwarting Congress's consensus with respect to environmental policy -- in the form of a liberal grant of standing -- achieved in the past. In doing so, the Lujan opinion appears to blur -- perhaps deliberately -- the historical distinction between constitutional and statutory standing. This is perhaps most evident when we compare a well known assertion about statutory standing made by Justice Marshall in the 1973 decision, Linda R.S. v. Richard D.,127 with an assertion by Justice Scalia in Lujan itself. In Linda R.S., Justice Marshall stated that: "Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute."128 In effect, Justice Marshall recognized the peculiarity of using the Court's emerging limits on standing, which operated to prevent the Court from creating law in place of Congress and which Congress might find itself unable to supplant,129 to prevent Congress itself from defining novel statutory injuries. In marked contrast, in Lujan, Justice Scalia asserted that "there is absolutely no basis for making the Article III inquiry [on injury in fact] turn on the source of the asserted right."130 In effect, Justice Scalia thwarted the legislative compromise that produced citizen standing by insisting upon an injury analogous to one at common law.
It is more difficult in Lujan than in Raines to determine whether the litigation is consistent with or in violation of expectations of the median member of the enacting Congress simply because those presenting the suit were not obviously on the losing side of the approved legislation. In fact, by bringing a suit that furthered the overall objectives of the ESA (albeit more ambitiously than the median member of the enacting Congress might have preferred), the Lujan claimants sided with the successful coalition that enacted the [*pg 368] statute. But because the suit sought to force interagency consultation, the Court might well have used the reluctance of the agency itself to construe the statute as the litigants preferred as a proxy -- albeit an imperfect one -- for median legislative expectations. At one level, any citizen suit would appear to defy agency preferences if for no other reason than that the agency had been notified and had declined to act in place of the private litigant. But in Lujan, the Secretary of the Interior was the defendant. As a result, the agency had lined up in direct opposition to the preferred resolution sought by the citizen plaintiff. In that context, the Court might have been particularly reticent to allow a citizen-suit plaintiff, even with the statutory standing conferral, to supplant what appeared to be a valuable proxy for Congressional expectations. As discussed below, one difficulty with Lujan's doctrinal resolution is that by imposing rigorous common law-based requirements for injury, the Court invited, as shown in Bennett v. Spear,131 a result that risked thwarting Congressional expectations in the opposite direction, thus allowing suits that actually undermine rather than further the overall purpose of the environmental statute, when the claim satisfies a common law understanding of injury.
In the 1997 decision, Bennett v. Spear,132 Justice Scalia, writing for a unanimous Court, applied a zone of interest analysis to confer standing using the same statutory standing provision under which the Lujan Court denied standing. And in doing so, he allowed the claimants to undermine, rather than further, the overall objectives of the ESA.
The Bennett Court granted standing to two Oregon irrigation districts and to the operators of two ranches within those districts who sought to use the ESA to restrict the authority of the Fish and Wildlife Service (Service), as delegated to the Secretary of the Interior, to protect the habitats of endangered species. In Bennett, the Service had issued a Biological Opinion (Opinion) in accordance with the ESA concerning the operation of the Klamath Irrigation Project (Project) by the Bureau of Reclamation and the impact of that project on two listed endangered species of fish, the Lost River [*pg 369] sucker and the shortnose sucker.133 The Secretary of the Interior undertook the Project and the Bureau of Reclamation (Bureau) administered it under the Secretary's jurisdiction. In 1992, the Bureau notified the Service that the Project might adversely affect the two listed species of fish. After the required consultation with the Bureau, the Service issued its Opinion, as required under the ESA, concluding that the "long-term operation of the Klamath Project was likely to jeopardize the continued existence of the Lost River and shortnose suckers."134 The Opinion further identified "reasonable and prudent alternatives," most notably maintaining minimum water levels in the Clear Lake and the Gerber reservoirs, which the Service concluded would avoid this danger. After receiving the Opinion, the Bureau notified the Service that it intended to operate the Project in compliance with the recommendations.135
The petitioners, who claimed a competing interest in the water that the Opinion declared necessary to the preservation of the endangered fish, alleged that the required maintenance of minimum water levels for the Clear Lake and the Gerber reservoirs violated § 7 of the ESA.136 Petitioners alleged that the Service had implicitly determined the critical habitat of the endangered fish without first giving adequate consideration to the economic impact of that designation, in violation of § 4 of the ESA.137 Petitioners sued the regional director of the Service and the Secretary of the Interior, relying for standing upon both the ESA's broadly worded standing provision and § 10 (a) of the Administrative Procedures Act.138
The District Court dismissed for lack of jurisdiction and the United States Court of Appeals for the Ninth Circuit affirmed, holding that only litigants seeking to preserve endangered species or their habitats fell within the zone of interest of the ESA's citizen-suit provision.139 The Supreme Court reversed, rejecting the Ninth Circuit's zone of interest analysis, and further rejecting three alternative defenses offered by the government to deny standing.140 While the Ninth Circuit construed the scope of the citizen-suit [*pg 370] provision in light of the overall purpose of the ESA, Justice Scalia strictly construed the terms of the citizen-suit provision, eschewing any inquiry into how that provision fit within the overall scheme of the statute.141 The citizen-suit provision states in relevant part:
any person may commence a civil suit on his own behalf --
(a) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or
. . .
(c) against the Secretary [of Commerce or the Interior] where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary.142
Writing for the Bennett Court, Justice Scalia described the citizen-suit provision's "remarkable breadth," as compared with statutory standing provisions generally, and even when compared with the generally broader environmental standing provisions.143 Justice Scalia's rejoinder to the Ninth Circuit's reliance upon his own opinion in Lujan is at the very least ironic. The Ninth Circuit relied upon Lujan for the proposition that, its broad language notwithstanding, the ESA citizen-suit provision was not intended to confer standing upon any conceivable litigant. Thus, the Ninth Circuit stated: "As Lujan makes clear, Congress may not permit suits by those who fail [*pg 371] to satisfy the constitutionally-mandated standing requirements. For that reason, suits under the ESA, no less than suits under any statute, are clearly not available to 'any person' in the broadest possible sense of that term."144
In contrast, Justice Scalia, writing for the Bennett Court, relied upon Trafficante v. Metropolitan Life Insurance Co.,145 a case which vindicated a nontraditional statutory injury of the sort called into question in Lujan, this time to confer standing upon plaintiffs whose interests, he admitted, were generally inconsistent with the ESA's overall purpose.146
This irony might help to explain the decision of the liberal and moderate justices to join Scalia's decision in Bennett. While the Lujan Court denied standing to environmental plaintiffs on the ground that none of the three articulated nexus theories sufficed to establish a meaningful interest in furthering the habitats of endangered species abroad, the Bennett Court expressly rejected such limitations on environmental injuries. Thus, writing for the Bennett Court, Justice Scalia stated:
Our readiness to take the term "any person" at face value is greatly augmented by two interrelated considerations: that the overall subject matter of the legislation is the environment (a matter in which it is common to think all persons have an interest) and that the obvious purpose of the particular provision in question is to encourage enforcement by so-called "private attorneys general". . . .147
One difficulty with the Bennett analysis is that whether or not it is common to think that all persons have an interest in the environment, the Bennett Court conferred standing to plaintiffs seeking to limit the application of a federal statute to protect the environment. Thus, in rejecting standing, the Ninth Circuit reasoned:
We do not believe that in setting forth the factors to be weighed in formulating a plan for protecting species, Congress intended to do [*pg 372] more than ensure rational decision-making by providing guidance for government officials. Certainly, it did not intend impliedly to confer standing on every plaintiff who could conceivably claim that the failure to consider one of those factors adversely affected him. To interpret the statute [otherwise] would be to transform provisions designed to further species protection into the means to frustrate that very goal.148
In contrast, Justice Scalia relied upon administrative law principles to assert that one need not allege an ultimate injury to claim the protections of a procedural statutory provision.149 Instead, Scalia reasoned that petitioners had standing to challenge the failure of the Service, in issuing its Opinion, to consider the environmental impact of its decision, as required by statute.
The model developed above suggests that Bennett likely thwarted the expectations of the median member of the enacting Congress, given that she would not have supported the ESA with the understanding that the citizen standing provision would be used to frustrate, rather than to advance, the central purpose of the statute. In effect, by limiting the zone of interest analysis to the particular provision upon which claimants relied for standing and then coupling that analysis with a common law understanding of injury, the Bennett Court identified a justiciable injury for purposes of standing that had a perverse connection with the statute's overall purpose. At the same time, however, Justice Scalia's analysis could be read to endorse a more liberal understanding of citizen standing provisions generally, thus encouraging the liberal and moderate members of the Court to join. While the decision might have appeared to be a defeat for those seeking to use the ESA to further environmental interests, by endorsing Trafficante and suggesting a generalizable interest in the environment, it also had the effect of suggesting that Congress retains some of its pre-Lujan powers to define injury in a novel manner.150 Moreover, because the decision was largely based upon the prudential zone of interest analysis, it left the door open for Congress to revisit the holding and to restrict standing according to whether future claimants sought to further or undermine the statute's overall objectives.
We will now consider the Supreme Court's two most recent prominent statutory standing decisions. In Steel Company v. Citizens for a Better Environment,151 the Court focused upon redressability to deny standing, while in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,152 the Court issued an about-face with respect to much of its restrictive post-Lujan statutory standing jurisprudence.
While Steel Company v. Citizens for a Better Environment was decided by a majority and was unanimous on the judgment, it was sharply divided on an antecedent jurisdictional question. The Court splintered on whether it had the authority to resolve the relatively easy question whether respondent had stated a valid statutory cause of action prior to resolving the substantially more difficult question of Article III standing.153 For present purposes, the Court's less than definitive resolution of this question concerning the doctrine of "hypothetical jurisdiction," is less important than is the merits of the Article III standing issue. The constitutional standing question presents a valuable illustration of the potentially divergent enforcement signals presented by the EPA on the one hand and private litigants on the other.
Respondents, an association of private persons interested in environmental protection, brought a private enforcement action [*pg 374] under the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), against a small manufacturing company in Chicago.154 The EPCRA sets out a number of reporting requirements for users of specified toxic and hazardous chemicals, including annual filings.155 While the EPA is actively involved in enforcing the EPCRA, the Steel Company Court explained that "[f]or purposes of this case, . . . the crucial enforcement mechanism is the citizen-suit provision."156
After receiving the required notice of intent to sue, the EPA declined to sue on its own behalf, although the United States later filed an amicus supporting the citizen suit.157 By the time the citizen-suit complaint was filed, Steel Company's filings were current. Steel Company therefore moved to dismiss, alleging that the court lacked jurisdiction under Article III and that because the statute does not allow suit for purely historical violations, respondents had failed to state a claim upon which relief could be granted.158 The District Court granted the motion, agreeing with Steel Company on both grounds.159 The United States Court of Appeals for the Seventh Circuit reversed.160 The Supreme Court granted certiorari and reversed.161
In part IV of his opinion, which was written for a majority of six, and which did not prompt the separate opinions among those who joined and wrote separate concurrences, Justice Scalia declined to reach the question whether being deprived of information that was supposed to have been disclosed in the company's filings constitutes a justiciable injury.162 Instead, Justice Scalia concluded that the allegations did not satisfy the Article III requirement of redressability. After reviewing the allegations in the complaint, Justice Scalia concluded: "None of the specific items of relief sought, and none that we can envision as 'appropriate' under the general request, would serve to reimburse respondent for losses caused by the [*pg 375] late reporting, or to eliminate any effects of that late reporting upon respondent."163 Because there was no question that petitioner had filed reports late, Scalia concluded that a declaratory judgment was valueless, not only to the respondents, but to "all the world."164 More importantly, the claimed damages would not redress respondents' injuries because under the statute they were payable to the U.S. Treasury rather than to the respondents. In rejecting this claim to redress, Scalia stated:
[A]lthough a suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated, that a wrongdoer gets his just deserts, or that the nation's laws are faithfully enforced, that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.165
In an opinion concurring in the judgment, Justice Stevens, who had argued against reaching the merits of the Article III standing question, given that respondents had not stated a valid cause of action under the statute,166 went on to reject the Court's redressability analysis on two grounds. First, he noted that in all prior cases in which the Court had suggested a problem of redressability, the root of the difficulty was that the claimant was seeking relief from a government law or practice, the ultimate effect of which involved the conduct of nonlitigants.167 Never before had the Court imposed this requirement as a barrier to litigation against a present private litigant. Second, and more importantly, Justice Stevens rejected the argument that payment to the U.S. Treasury did not create a meaningful form of redress. Thus, he stated: "When one private party is injured by another, the injury can be redressed in at least two ways: by awarding compensatory damages or by imposing a sanction on the wrongdoer [*pg 376] that will minimize the risk that the harm-causing conduct will be repeated."168
To support the latter point, Justice Stevens relied upon the well supported claim of legal historians that modern notions of justiciability have no antecedents in the framing or early-constitutional periods.169 Thus, Justice Stevens explained:
History supports the proposition that punishment or deterrence can redress an injury. In past centuries in England, . . . and in the United States, private persons regularly prosecuted criminal cases. The interest in punishing the defendant and deterring violations of law by the defendant and others was sufficient to support the "standing" of the private prosecutor even if the only remedy was the sentencing of the defendant to jail or to the gallows.170
Stevens concluded that "[g]iven this history, the Framers of Article III would surely have considered such proceedings to be 'Cases' that would 'redress' an injury even though the party bringing suit did not receive any monetary compensation."171 Finally, Justice Stevens observed that because the EPCRA also provides enforcement authority to state and local governments, the Court's constricted understanding of redress would appear to prevent those governments from having standing, given that any resulting fines would be paid to the U.S. Treasury.172
The Steel Company case helps to focus on two important anomalies in recent statutory standing jurisprudence. First, as stated in the introduction and summarized in the excerpts from Justice Stevens's opinion, modern justiciability concepts appear to be in tension with early litigation which allowed private persons to enforce, among other claims, criminal laws for which the litigant would not receive any direct form of redress, other than knowing that the wrongdoer is punished. And yet, Justice Scalia, who has fashioned himself as an originalist, has implicitly rejected just this historical argument, stating that the "psychic satisfaction" associated with knowing that a "wrongdoer gets his just deserts, or that the nation's [*pg 377] laws are faithfully enforced," is insufficient to support redressability under Article III.173 Second, from a policy perspective, as Justice Stevens notes, it is not clear why allowing direct compensation, if only of a peppercorn, should matter for Article III purposes.174
As before, considering this case from the perspective of the differential signal that EPA versus citizen-suit enforcement sends to the Court relative to the preferences of the median member of the enacting Congress might help to explain these anomalies. While a detailed historical analysis is beyond the scope of this article, it is worth considering whether those categories of cases that are often relied upon to refute modern standing developments involve the kinds of claims that are plausibly intended to create favorable paths of case law or to create a greater level of enforcement than anticipated under the law. Instead, local private prosecutions that defied modern justiciability norms were likely the product of an historical period before the professionalization of prosecutorial functions, which generally began to emerge around the 19th century.175 Such suits might also have reflected the relatively weaker communications of local offenses to the sovereign than is routine