Standing as Channeling in the Administrative Age

By Stevenson, Dru; Eckhart, Sonny | Boston College Law Review, September 2012 | Go to article overview

Standing as Channeling in the Administrative Age


Stevenson, Dru, Eckhart, Sonny, Boston College Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Standing as Channeling in the Administrative Age
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.