POLS 436
Administrative Law
Lori Klein for Dr. Cheri Yecke
October 27, 2009
Standing and Environmental Agencies
Handouts for next week:
Two reading assignments on the Fairness Doctrine
 one pro, one con
Compare and Contrast the Documents
Two Pages, Double Spaced, due next week
An observation before we begin…
We are litigious weasels.
Step back and think of all the cases and examples in this chapter.
If you think the legislative branch is the definitive end-all for policy making, THINK AGAIN!
But, I digress…
Let’s talk standing.
Jurisdiction
Authority of a court to hear and pass judgment for a particular case
Federal jurisdiction is limited to “cases and controversies”
Standing is a jurisdictional pre-requisite
Two Main Types of Standing:
Constitutional
Cases and Controversies (Art. 3)
Three Components
Injury
Causation
Redressability
Prudential
Judicial Management
Can be altered or eliminated by statute
Lujan v. Defenders of Wildlife
504 U.S. 555,564-561 (1992)
Three requirements for Standing:
Injury in fact:
A) concrete and particularized
B) actual or imminent
Causal connection between the injury and the conduct complained of
Injury can be redressed by the court
Remember, Standing is a LIMIT on the Power of the Courts
For Example – Do taxpayers have standing to complain about how their money is spent?
Why not?
Because the group is too large, and the injury non-specific.
Instead, this problem is to be solved by the political processes.
Courts give individual relief
Injunctions, declaratory relief
Politics protects the public (i.e. group) interests
Something to Remember
What class are we in?
So who’s being sued here most of the time?
What did your government do to you, and when did it do it?
We are using our government to reign in our government. We are a nation of LAWS, not men.
To the Text!
I) Constitutionally Required Standing
A) Injury
B) Causation
C) Redressability
II)Representational Standing
III) Prudential Standing
IV)Statutory Standing
I) Constitutional Standing
A) Injury in Fact
FCC examples p. 218
Think…. Do both parties have to have standing?
1) Recreational, Aesthetic or Environmental Injury
Mere interest is not sufficient
Direct harm
Mouse example p. 220
The challenge for Animal Rights Groups – no loss of recreation
2) Risk
Is increased risk and injury?
Cancer risk p. 222
Difference in DC court
Generally, no
3) Fear
Does your reasonable fear cause a loss?
If it precludes you from recreational activity – fishing - Laidlaw
Reasonable fear
NOT speculative fear
Terrorist Surveillance Program, Vietnam p. 224
4) Procedural
Too “generalizable”
Thus political – you have other means of redress
Examples pp. 225-228
5) Informational
If I have a right to a document and am denied it, that’s injury.
Generalized injury made particular
If an agency is to collect information and does not, that’s trickier – is that just a procedural
failure or is there specific injury?
FEC example p. 229
ESA example, p. 230
6) Widely Shared Injury
Can still be particularized
Global Warming example p. 231
7) Injured States
Could be developing a special status
Or not…
B) Causation
OK, you’ve proven injury…
But, is the injury fairly traceable back to the alleged unlawful action?
Does the unlawful government action directly cause the injury? - That’s easy.
But there are two other situations that are more complex…
Causation
1) Procedural Violations
Again, is this a generalized complaint or can you show individualized injury?
Dam example p. 234
(I’m not cussing…)
Confused? So are the courts!
2) Third Party Actions
Does the issuance of the permit cause the injury, or does the permit-ee cause the injury?
If it’s the permit-ee, guess what?
3) Contribution
You don’t have to be the sole cause of the problem
You just have to be contributory
Global warming and Massachusetts shoreline
Charitable Hospital example p. 236
C) Redressability
OK, you’re injured, and we know who did the injuring…
But, will a favorable decision by the Court result in redressing or avoiding the injury?
Bob the Builder as Federal Justice - Can we fix it? Yes we can!
If not, your case is in trouble.
Redressability
1) Third Party Action
Look back at Causation issue – very similar
Endangered Species Act example p. 238
Would they build it anyway?
Think about the Charity Hospital – will they start taking poor patients or just become “for
profit”?
2) Procedural Violations
Agency Rulemaking example p. 239
Could the same outcome happen if they re-did things with the proper procedures in
place?
3) Partial Redress
Redress is not required to be complete
Could a favorable court decision slow or reduce injury?
II) Representational Standing
Can an organization bring suit?
Yes, IF:
1) It has a member with standing
2) The organization’s purpose is relevant to the case
3) The person injured is a party to the suit
Thus you are seeking injunctive or declaratory relief, not damages
III) Prudential Standing
This is a judicial creation and can be overridden by the Legislative Branch
Managerial attempts by the courts to assure that the courts are appropriately making the decision
You know, juris… prudence
IV) Statutory Standing
Did we mean to help YOU with this law?
Zone of interest
Goes to Legislative Intent
Ask me about my subpoena…
Examples, pp. 242-244
Post Office and Unions
ESA, ranchers and suckers
Clean Air Act and Honeywell
University Bookstore’s non-profit exemptions
What about Dred Scott?
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=60&page=393
But in this case it does appear that the plaintiff was born a slave; and if the facts upon which he
relies have not made him free, then it appears affirmatively on the record that he is not a citizen,
and consequently his suit against Sandford was not a suit between citizens of different States,
and the court had no authority to pass any judgment between the parties. The suit ought, in this
view of it, to have been dismissed by the Circuit Court, and its judgment in favor of Sandford is
erroneous, and must be reversed.
Jurisdiction, standing and diversity of citizenship.
Part Two:
Agencies of the Week The Environmental Alphabet Soup
Federal Agencies:
Department of the Interior 1825
Department of Agriculture 1889
Agriculture's US Forest Service 1905
Interior’s National Parks Service 1916
CCC – Civilian Conservation Corps 1933
Interior’s U.S. Fish and Wildlife Service 1940
EPA - The Environmental Protection Agency 1970
Not to mention HUD and DOT and the Corps of Engineers, and the military branches and on and
on and on!
Federal Legislation:
1970 NEPA – National Environmental Policies Act –
EIS – Environmental Impact Statements for Governmental Projects
1970 Clean Air Act
Set nationwide air quality standards
SIP - State Implementation Plans
1972 Clean Water Act
1973 Endangered Species Act
1974 Safe Drinking Water Act
1976 RCRA – Resource Conservation and Recovery
Solid Waste
State Agencies
State Parks
Game and Fish
Environmental Regulation
Natural Resources
Agriculture
Not to mention Community Development, Commerce, Transportation, PSCs, etc.
Local Agencies
Planning and Zoning
Parks
Public Utilities
Water
Power
Trash
Sprawling!
Special and Multi District Agencies
Water Management Districts
Conservation Districts
Waste Management
River Basins
How do you deal with that many layers?
The sub-specialty of Environmental Law
The developing industry of Compliance Specialists
One Stop Permitting
Do Transboundaries Make You Fat?
Will there eventually be another layer of icing on the cake?
UN Protocols
Montreal 1987
CFCs
Kyoto
Greenhouse gases
Two From Your Text
Endangered Species Act
http://www.fws.gov/endangered/policy/index.html
Environmental Impact Statements
http://www.epa.gov/compliance/nepa/eisdata.html
Yea, Verily, A MULTITUDE!
How Many Agencies?
http://www.epa.gov/compliance/nepa/eisdata.html
How Many Laws?
http://meso.spawar.navy.mil/law1.html
A Decidedly Non-Academic Source That Proves My Point One Last Time…
http://en.wikipedia.org/wiki/Category:United_States_federal_environmental_legislation