Academic journal article Boston College Law Review

Standing as Channeling in the Administrative Age

Academic journal article Boston College Law Review

Standing as Channeling in the Administrative Age

Article excerpt

Introduction

Congress authorizes citizen suits for the enforcement of certain federal laws, but the authorizing statutes do not delineate any criteria for parties to have standing to bring such suits.1 Courts have derived standing rules (ambiguous enough to be standards rather than actual rules) from the U.S. Constitution and jurisprudential concerns.2 Yet the judicial approach has proved unwieldy and yields inconsistent, unpredictable results even from the same court.3 This Article proposes a public solution, using recent environmental litigation as a hypothetical model as to how our thesis could achieve positive, and practical, solutions.

The need for Congress to give the courts guidance about standing for citizen suits has received mention in U.S. Supreme Court opinions and focused attention in academic articles.4 Numerous commentators have argued that Congress can, and perhaps should, address the issue.5 We take the next step and argue that Congress already has-albeit impliedly-authorized administrative agencies to give such guidance via promulgated regulations.6 Such agencies are in the best position, from the standpoint of our government's institutional design, to do so. And these agencies have primary enforcement authority, by statute, for the subject matter of the citizen suits.7

Suits brought from outside the agency, under the relevant statute, take two forms: citizen enforcement actions against private-sector violators,8 and suits against the agency to compel more enforcement or reg- ulation.9 There are legal distinctions between these two types of acii 'is, besides the obvious difference of the defendants in each instance. In the latter type, challenging agency inaction, the claims technically proceed under the Administrative Procedure Act (APA),10 but the substance of the claims depend on the same substantive statute as the first type of citizen suits. Even though the two types of actions are distinct, they relate to each other enough to discuss them together.

This dichotomy, however, leads to our bifurcated thesis. First, we make the rather bold suggestion that agencies can, and should, delineate some parameters regarding the injury-in-fact and causation elements of standing for citizen suits against third-party polluters. The second thesis is a more tentative suggestion: agencies should officially adopt the Supreme Court's "special solicitude for states"11 in the second type of case, suits challenging agency inaction. This second rule would not bar citizen suits against agencies, but would simply give a preference-in terms of standing to sue-to state attorneys general, and would use the state-brought suit as a benchmark to assess the legitimacy of other plaintiffs in public interest lawsuits against agencies.

As mentioned above, the Supreme Court has invited Congress to give guidance about standing for citizen suits, as citizen suits are one of the most significant contexts in which standing is an issue.12 In addition, there is an emerging scholarly consensus that Congress can, and should, accept this invitation.13 If we accept this premise, then it follows that Congress can delegate such authority to the appropriate government agencies to propose and adopt the guidelines for those cases over which the agency already has primary enforcement authority.

The most obvious argument supporting this suggestion is the agency's specialization and expertise.14 Judicial doctrines of deference to agency interpretation of statutes, which rest upon a presumption of agency expertise and resources, suggest that courts would also accede to an agency's rules about standing. The deference afforded under the Supreme Court's 1984 decision in Cheurón U.S.A. Inc. v. Natural Resources Defense Council, Inc. and its 1944 decision in Skidmore v. Swifi & Co. accurately presume that agencies have staff with relevant expertise and training, that agencies' specialized functions provide them with opportunities to analyze the issues deeply, and that they have a repeat-player's vantage point on the litigation surrounding their governing statutes. …

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