A place-based theory of standing

UCLA Law Review

Volumn 55, Issue 6, 2008, Pages 1508-1558

  Farber, Daniel A ^a,b  

^a Department of Law ^*

^b UNIVERSITY OF CALIFORNIA   (United States)

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EID: 53349152022     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (262)

1. Sierra Club v. Morton, 405 U.S. 727, 760 n.2 (1972) (Blackmun, J., dissenting).
2. 127 S. Ct. 1438 (2007). For discussion of the decision's implications for standing doctrine, see Access to Courts After Massachusetts v. EPA: Who Has Been Left Standing?, 37 ENVTL. L. REP. 10692 (2007).
3. The state's claim of injury was as follows: According to petitioners' unchallenged affidavits, global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming. These rising seas have already begun to swallow Massachusetts' coastal land. Because the Commonwealth "owns a substantial portion of the state's coastal property," it has alleged a particularized injury in its capacity as a landowner. The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be "either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events."
4. Massachusetts v. EPA, 127 S. Ct. at 1457 (internal citations and quotations omitted).
5. Id. at 1463 (Roberts, C.J., dissenting).
6. William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 222 (1988).
7. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992);
8. Gene R. Nichol, Jr., Rethinking Standing, 72 CAL. L. REV. 68, 71-73 (1984).
9. Judge William Fletcher refers to "the apparent lawlessness of many standing cases when the wildly vacillating results in those cases are explained in the analytic terms made available by current doctrine." Fletcher, supra note 5, at 223.
10. See Nichol, supra note 6, at 71 (also remarking that the "law of standing is dominated by slogans and litanies").
11. See Richard J. Lazarus, Restoring What's Environmental About Environmental Law in the Supreme Court, 47 UCLA L. REV. 703, 749-52 (2000).
12. This argument is cogently presented in Cass R. Sunstein, What's Standing After Lujan? Qf Citizen Suits, "Injuries," and Article III, 91 MICH. L REV. 163 (1992). For citations to a raft of eminent authorities on federal jurisdiction who reject the "injury in fact" test in favor of an alternative approach,
13. see id. at 166 n.15. William Hetcher presents a particularly noteworthy argument for this alternative approach, under which the key question is not the plaintiffs injury but rather the existence of a cause of action.
14. See Fletcher, supra note 5.
15. 528 U.S. 167 (2000).
16. Massachusetts v. EPA, 127 S. Ct. 1438 (2007).
17. 405 U.S. 727 (1972).
18. Id. at 728. One shudders to imagine ski guides with Mickey Mouse costumes cm the slopes of this pristine locale.
19. See Petition for Writ of Certiorari at 12-13, Sierra Club v. Morton, 405 U.S. 727 (1972) (No. 70-34).
20. Id. at 33. The desirability of appointing guardians to represent future generations is discussed in CHRISTOPHER D. STONE, SHOULD TREES HAVE STANDING?: AND OTHER ESSAYS ON LAW, MORALS, AND THE ENVIRONMENT 65-80 (1996).
21. Brief for Petitioner at 33, Sierra Club, 405 U.S. 727 (1972) (No. 70-34).
22. Id. at 34.
23. Sierra Club, 405 U.S. at 753 (Douglas, J., dissenting) (quoting from the Solicitor General's oral argument).
24. Id. at 734 (majority opinion). For an incisive contemporaneous critique of the Sierra Club Court's insistence on a showing of interference with the interests of users of the resource, see Joseph L. Sax, Standing to Sue: A Critical Review of the Mineral King Decision, 13 NAT. RESOURCES J. 76 (1973).
25. Sierra Club, 405 U.S. at 744-45 (Douglas, J., dissenting).
26. Id. at 757 (Blackmun, J., dissenting).
27. Robert V. Percival, Environmental Law in the Supreme Court: Highlights From the Blackmun Papers, 35 ENVTL. L. REP. 10637, 10657 (2005).
28. 412 U.S. 669 (1973).
29. Id. at 676.
30. RICHARD J. PIERCE, JR., SIDNEY A. SHAPIRO & PAUL R. VERKUIL, ADMINISTRATIVE LAW AND PROCESS 148 (4th ed. 2004).
31. SCRAP, 412 U.S. at 687.
32. Id. at 688.
33. See infra Part III. A.
34. Massachusetts v. EPA, 127 S. Ct. at 1458 n.24.
35. SCRAP, 412 U.S. at 689 n.14 (quoting K. Davis, Standing: Taxpayers and Others, 35 U. CHI. L REV. 601, 613 (1968)).
36. Id. at 689.
37. 438 US. 59 (1978).
38. Id. at 102 (Stevens, J., concurring).
39. See id. at 103 (Stevens, J., concurring) (arguing that the Court's decision serves the national interest in removing doubts about the statute's constitutionality).
40. See id. at 77-78 (majority opinion).
41. William W. Buzbee, The Story of Laidlaw: Standing and Citizen Enforcement, in ENVIRONMENTAL LAW STORIES 201, 215 (Richard J. Lazarus & Oliver A. Houck eds., 2005).
42. Whitmore v. Arkansas, 495 U.S. 149, 158, 159 (1990).
43. 497 U.S. 871 (1990). National Wildlife Federation involved a Bureau of Land Management (BLM) review of past executive orders protecting many public lands from resource development. Id. In 1976, the U.S. Congress directed the BLM to review existing withdrawals in eleven western states and to decide whether the lands should be reopened for development.
44. Id. at 879. The plaintiff alleged that the BLM had violated the required statutory procedures in numerous respects, and that the BLM's action would open the lands to mining.
45. Id. Between SCRAP and National Wildlife Federation, the Court did not decide any major environmental standing case, but rather it did offhandedly uphold the standing of an environmental group to challenge whaling rules in Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221 (1986). The standing discussion occupied one sentence in a long footnote about whether the plaintiffs had a cause of action.
46. Id. at 230 n.4.
47. Not'l Wildlife Fed'n, 497 U.S. at 888-89.
48. Id. at 890-91. According to the Court, unless a statute specifically permits broad regulations to be directly reviewed, a plaintiff can only challenge some "concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him."
49. Id. at 891. The opinion then points out that exceptions exist when provided by statutes such as the Clean Air Act or when a rule "as a practical matter requires the plaintiff to adjust his conduct immediately." Id. Thus, this requirement seems not to be constitutionally based, since it can be modified by Congress.
50. 504 U.S. 555 (1992).
51. Buzbee, supra note 37, at 216.
52. Defenders of Wildlife, 504 U.S. at 562-64.
53. Id. at 577.
54. PIERCE, SHAPIRO & VERKUIL, supra note 26, at 151. For another extensive critique of the opinion,
55. see Sunstein, supra note 10, at 202-22.
56. Defenders of Wildlife, 504 U.S. at 564.
57. The adjectives novel and creative are seldom compliments when judges use them to refer to legal theories.
58. 504 U.S. at 565.
59. Id. at 566.
60. Id.
61. Id. at 567.
62. See infra text accompanying notes 80-82.
63. 504 U.S. at 580 (Kennedy, J., dissenting) (citations omitted).
64. 523 U.S. 83 (1998).
65. See Buzbee, supra note 37, at 222-24.
66. 528 U.S. 167 (2000). For an explanation of how Laidlaw fits into the prior line of standing cases,
67. see Michael P. Healy, Standing in Environmental Citizen Suits: Laidlaw's Clarification of the Injury in Fact and Redressability Requirements, 30 ENVTL. L. REP. 10455 (2000).
68. See Laidlaw, 528 U.S. at 167.
69. See id. at 176-79.
70. See id. at 176.
71. See id. at 181.
72. Buzbee, supra note 37, at 227.
73. Id. at 227.
74. After Friends of the Earth gave notice of its intent to file a citizen suit, the company contacted the state environmental agency and arranged a sweetheart deal under which it agreed to make every effort to comply with the permit and paid a modest fine. Friends of the Earth nevertheless filed a citizen suit, and the violations continued long afterwards, though they ceased before judgment was entered. While the case was on appeal, the plant was allegedly closed permanently and the site put up for sale. Laidlaw, 528 U.S. at 189.
75. Buzbee, supra note 37, at 227.
76. Id.
77. Id.
78. Loidlaw, 528 U.S. at 181.
79. Id. at 181-82.
80. Id. at 182. Other affidavits were similar.
81. See id. at 182-83.
82. Id. at 201 (Scalia, J., dissenting) (citation omitted).
83. See id. at 183-86 (majority opinion).
84. See id. at 199 (Scalia, J., dissenting) (citing Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983)).
85. Id. at 184-85 (majority opinion);
86. see also Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 74 (1978) ("[E]mission of non-natural radiation into appellees' environment [without any proof of health risk] would also seem a direct and present injury, given our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions like those concededly emitted by nuclear power plants.").
87. Sierra Club v. Morton, 405 U.S. 727, 745 (1972) (Douglas, J., dissenting). Douglas's dissent is better known for his advocacy of granting standing to the inanimate objects themselves.
88. 204 F.3d 149 (4th Cir. 2000).
89. Id. at 155.
90. 230 F.3d 1141 (9th Cir. 2000).
91. Id. at 1149. More recently, the D.C. Circuit applied Laidlaw to uphold an environmental organization's standing to challenge mies exempting certain sources from rules governing hazardous air pollutants (HAPs): Two members of the petition organizations live near PCWP [plywood and composite wood products] facilities that are exempt as low-risk facilities from all HAP controls. Holly Clark, a member of NRDC, states that she lives near the exempt facility in Rocklin, California. She monitors the air quality reports and on particularly polluted days she cuts back on her outdoor activities, including her gardening, and she does not drive her car. In the past 17 years she has seen the horizon become visibly smoggier; although she was once able to see the Sacramento skyline, she no longer can.... These are the kinds of harms that the Supreme Court in Laidlaw determined were sufficient to show injury-in-fact.... Natural Res. Def. Council v. EPA, 489 F.3d 1364, 1370-71 (D.C. Cir. 2007). For more on the implications of Laidlaw,
92. see Daniel A. Farber, Environmental Litigation After Laidlaw, 30 ENVTL. L REP. 10516 (2000).
93. More than half of the oral argument in Massachusetts v. EPA, 127 S. Ct. 1438 (2007), focused on the standing issue.
94. See Oliver A. Houck, Standing on the Wrong Foot: A Case for Equal Protection, 58 SYRACUSE L. REV. 1, 1 n.2 (2007).
95. 127 S. Ct. 1438, 1449-51 (2007) (referencing 42 U.S.C. § 7521 (2000)).
96. Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005).
97. 127 S. Ct. at 1453.
98. Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring)).
99. Id. at 1454.
100. Id. at 1453 (quoting Defenders of Wildlife, 504 U.S. at 580 (Kennedy, J., concurring)).
101. See infra text accompanying notes 120-151.
102. 127 S. Ct. at 1453 (citations omitted).
103. For instance, see Earth Island Inst. v. Ruthenbedc, 490 FJd 687 (9th Cir. 2007) (finding that organizations had standing to challenge regulations that precluded administrative appeals of certain Forest Service decisions).
104. 127 S. Ct. at 1454-55. This portion of the discussion has some significant implications for federalism issues in climate change regulation. See Daniel A. FariSer, Climate Change, Federalism, and the Constitution, 50 ARIZ. L. REV. (forthcoming 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1081664.
105. It should be noted that some lower courts have recognized distinctive types of injuries relating to state governments in environmental cases. See, e.g., Nat'l Ass'n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1227-28 (D.C. Cir. 2007) (finding that state agencies have standing when a new EPA rule would allow increased pollution from some sources and thereby make it more difficult for them to establish state implementation plans; citing Massachusetts v. EPA as well as earlier circuit authority).
106. 127 S. Ct. at 1455 (citations omitted).
107. Id. at 1456.
108. Id.
109. Id. at 1457.
110. This element of standing had loomed increasingly large after Defenders of Wildlife. Causation had posed a fatal stumbling block to standing for environmental plaintiffs in various contexts. For example, in Friends of the Earth, Inc. v. Crown Central Petroleum Corp., 95 F.3d 358 (5th Cir. 1996), the court denied standing to plaintiffs who birdwatched and fished at a lake eighteen miles (and three tributaries) away from the pollution source. The plaintiffs had offered no evidence that the pollution actually affected the lake.
111. See also Texas Indep. Producers &. Royalty Owners Ass'n v. EPA, 410 F.3d 964, 974 (7th Cir. 2005) (noting that the National Resources Defense Council (NRDC) failed to show causation in a challenge to a permit allowing storm water discharges by construction sites into numerous water bodies, where it failed to name any specific construction sites);
112. Fa. Audubon Soc'y v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996) (en banc) (finding as too speculative the claim that a tax credit for a fuel additive would increase corn and sugar production, resulting in environmental harms).
113. 127 S. Ct. at 1457.
114. Id.
115. Id. at 1458.
116. Id. The reliance on the plaintiffs' affidavits reflects an ambiguity in the opinion-usually the Court's statements about climate change are framed as judicial notice of scientific fact, but here the Court merely recited the litigants' assertions.
117. The EPA had argued that carbon dioxide is not a pollutant within the meaning of the Clean Air Act. The Court found this view incompatible with the plain language of the statute: The statutory text forecloses [the] EPA's reading. The Clean Air Act's sweeping definition of "air pollutant" includes "any air pollution agent or combination of such agents, including any physical, chemical... substance or matter which is emitted into or otherwise enters the ambient air...." §7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word "any." Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt "physical [and] chemical... substance[s] which [are] emitted into... the ambient air." The statute is unambiguous.
118. Id. at 1460 (internal footnote omitted). The Court also found that the EPA had considered impermissible extraneous factors in making its determination: Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment. In particular, while the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws.
119. Id. at 1463.
120. Fundamentally, the dissent contended, the majority had subtly distorted the application of the standing test: The Court's sleight-of-hand is in failing to link up the different elements of the three-part standing test. What must be likely to be redressed is the particular injury in fact. The injury the Court looks to is the asserted loss of land. The Court contends that regulating domestic motor vehicle emissions will reduce carbon dioxide in the atmosphere, and therefore redress Massachusetts's injury. But even if regulation does reduce emissions-to some indeterminate degree, given events elsewhere in the world-the Court never explains why that makes it likely that the injury in fact-the loss of land-will be redressed. Schoolchildren know that a kingdom might be lost "all for the want of a horseshoe nail," but "likely" redressability is a different matter. The realities make it pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land. Id. at 1470 (Roberts, C.J., dissenting).
121. Id. at 1466.
122. Id. at 1467.
123. Id. Justice Roberts seems to have overlooked the fact that climate change will have differential impacts in different locations. For example, only coastal areas will lose land as a direct result of sea level change.
124. Id. (internal quotation marks and citations omitted).
125. Id.
126. Id. at 1468.
127. Id.
128. Id. at 1469.
129. Id.
130. Id.
131. Id. This claim is a common argument in climate change debates, but it is mistaken to think that U.S. emissions will have no significant effect even if other emissions are not controlled.
132. See Daniel A. Farber, The Case for Climate Compensation: Doing Justice m a Complex World, UTAH L. REV. (forthcoming).
133. Massachusetts, 127 S. Ct. at 1470 (Roberts, C.J., dissenting).
134. Id.
135. Id. (internal quotation marks omitted). Prior to his appointment, Chief Justice Roberts had written an article arguing that the injury requirement is necessary to keep the courts within their prescribed role in the separation of powers.
136. See John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKEL.J. 1219 (1993). The article's core argument seems to be that a generalized desire to enforce the law should not be a basis for invoking the powers of the courts. But apart from precedent, he did not offer any justification for why "injury" should be the defining basis for judicial action. To some extent the place-based approach developed in infra Part IV might satisfy his desire for some demarcation of the limits of judicial authority.
137. The elements of the current standing test are rather reminiscent of tort law: duty toward the plaintiff, causation, proximate cause, and damages. It is unclear, however, why anyone would think that the elements of tort law have constitutional status via Article III's definition of "case or controversy."
138. 504 U.S. 555 (1992).
139. 405 U.S. 727 (1972).
140. Brief for the Respondent at 17, Sierra Club v. Morton, 405 U.S. 727 (1972) (No. 70-34) (emphasis added) (footnote omitted).
141. Sierra Club, 405 U.S. at 732 n.3 (citation omitted).
142. Antonm Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L REV. 881 (1983).
143. id. at 896.
144. Id. at 897.
145. Id. at 891.
146. Id. at 894. It is not clear why protecting the majority from lawless public servants should be considered undemocratic.
147. Id.
148. Id. at 895-96.
149. Id. at 897.
150. Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992).
151. Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 209 (2000) (Scalia, J., dissenting).
152. Id.
153. Id. at 210 (citation omitted).
154. Justice Scalia's theory about standing has a complex relationship with his approach to the Chevron doctrine. See Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) (noting that courts must defer to an agency interpretation when the statutory language and legislative history are unclear and the agency has adopted a reasonable interpretation). That doctrine requires courts to defer to administrative interpretations of ambiguous statutes. As Professor Anne Joseph O'Connell once pointed out to me, Justice Scalia tends to find statutory language clear and leaves no room for agency discretion, whereas his standing theory would suggest that agencies should have considerable leeway to stretch statutory language, particularly when doing so reduces regulatory scope and therefore retreats from congressional goals. Yet, Justice Scalia's standing theory resonates with another aspect of his approach to statutory interpretation. He has resisted contraction of Chevron's domain and instead emphasized executive power to resolve statutory ambiguities as a means of combating statutory ossification.
155. See United States v. Mead Corp., 533 U.S. 218, 247 (2001) (Scalia, J., dissenting).
156. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849,859-60 (1989). Why, one wonders, are only patent inconsistencies with republican principles sufficient to curb executive power? Why not less obvious but nonetheless real inconsistencies?
157. Id. at 858.
158. Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L REV. 723, 736 (1988).
159. For a debate about the correct reading of the historical record, see Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L REV. 1 (1994);
160. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541 (1994).
161. Monaghan, supra note 135, at 736.
162. Id.
163. Cass R. Sunstein, Article II Revisionism, 92 MICH. L. REV. 131, 135 (1993). As Sunstein pointed out, In fact, [the Framers] allowed Congress considerable power to structure implementation as it saw fit. We know, for example, that in the period after the Founding, much prosecution under federal law took place without presidential control. Neither the President nor the Attorney General controlled the district attorneys. Citizens could enforce federal law in state court. Moreover, both the Comptroller General and the Postmaster were immunized from the general control of the President.
164. Id.
165. If the president is constitutionally entitled to forgive violations of law by refusing to prosecute, and if (as Justice Scalia and others insist) he has control of all law enforcement, then it is hard to see why he needs the pardon power.
166. See 2 SIMON SCHAMA, A HISTORY OF BRITAIN: THE BRITISH WARS 1603-1776, at 308 (2001).
167. Id. at 317-18.
168. 524 U.S. 11 (1998).
169. Id. at 21.
170. Id. at 24-26.
171. 389 F.3d 536 (6th Cir. 2004).
172. Id. at 546.
173. Massachusetts v. EPA, 127 S. Ct. 1438, 1462 (2007).
174. Id.
175. The Court noted: [The] EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate. For example, EPA said that a number of voluntary executive branch programs already provide an effective response to the threat of global warming, that regulating greenhouse gases might impair the President's ability to negotiate with "key developing nations" to reduce emissions, and that curtailing motor-vehicle emissions would reflect "an inefficient, piecemeal approach to address the climate change issue" ....
176. Id. at 1462-63 (citations omitted).
177. Id. at 1463.
178. A more modest theory is that the president should have the ability to interpret the laws and hence to refuse enforcement when he believes the law is inapplicable. The Chevron doctrine, which mandates judicial deference to the executive's interpretations of statutes, seems to provide adequate protection to this executive prerogative without the need to impose artificial restrictions on standing.
179. See, e.g., Main People's Alliance v. Mallinckrodt, Inc., 471 F3d 277, 285 (1st Cir. 2006) (finding standing after an extensive discussion, on the basis of expert testimony that the court paraphrased as saying, "in effect, that the presence of a great deal of smoke justified looking for a fire");
180. Ecological Rights Found, v. Pac. Lumber Co., 230 F.3d 1141 (9th Cir. 2000) (considering carefully the degree of past recreational use, combined with possible residential proximity, needed to establish standing);
181. Humane Soc'y v. Babbitt, 46 F.3d 93 (D.C. Cir. 1995) (analyzing painstakingly whether an organization or its members had standing to challenge the transfer of an elephant as a possible violation of the Endangered Species Act);
182. Nat. Res. Defense Council v. EPA, 464 F.3d 1, 7 (D.C. Cir. 2006) (deciding on rehearing that an increased lifetime risk of about 1 in 200,000 of skin cancer was enough to justify standing). Some additional lower court opinions are cited supra Part II.
183. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 97 n.2 (1998) (finding that courts must always address standing prior to addressing the merits).
184. Westlaw search, Apr. 2, 2008, for "standing to sue" of federal appeals courts and Federal Circuit databases.
185. Patricia Wald, Environmental Postcards From the Edge: The Year That Was and the Year That Might Be, 26 ENVTL. L REP. 10182 (1996). More recently, the D.C. Circuit seems to have launched a campaign to quantify risks in order to determine the presence of standing, leading to, at least in one notable case, embarrassing mathematical errors.
186. See Cassandra Sturkie & Nathan H. Seltzer, Developments in the D.C. Circuit's Article 111 Standing Analysis: When Is an Increased Risk of Future Harm Sufficient to Constitute Injury-in-Fact in Environmental Cases?, 37 ENVTL. L. REP. 10287 (2007). Fortunately, the place-based approach in this Article would free judges from the awkwardness of performing mathematical calculations in order to determine the limits of federal jurisdiction.
187. Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies-And Their Connections to Subsamtive Rights, 92 VA. L REV. 633, 664 (2006).
188. For instance, in Bennett v. Spear, 520 US. 154, 161-62 (1996), the Court upheld a "zone of interests" requirement, despite the lack of constitutional basis.
189. 497 US. 871 (1990).
190. See Arnold W. Reitze Jr., Controlling Greenhouse Gas Emissions From Mobile Sources: Massachusetts v. EPA, 37 ENVTL. L REP. 10535, 10538 (2007).
191. The reason for the qualification ("probable") is that there might be offsetting behavioral changes - the lower price of fuel per mile driven might lead to an increase in miles driven, and over time, decreased pollution from automobiles might be offset by increases in pollution from other sources (keeping within the ceilings imposed by other sections of the Clean Air Act). See Linda Baker, On the Rebound: Discouraging People From Using More Energy Just Because It Costs Less, SCI. AM., Aug. 2007, at 24, 24. The possibility of a complete offset, however, does not seem so great as to defeat a claim of standing. Note that the plaintiff may not have wanted to pursue this theory of standing for fear that it would reinforce the defendant's arguments that the standards governing automobile mileage took precedence over the EPA's regulatory jurisdiction for carbon dioxide.
192. Massachusetts v. EPA, 127 S. Ct. 1438 (2007).
193. Dulce Power v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978).
194. The point is not to fault the plaintiffs for tailing to make this argument-they would no doubt have run into zone-of-interest problems in terms of their environmental claims. But the reality of their injury thus presented could hardly be denied. Thus, the injury-in-fact requirement presents genuine procedural challenges to plaintiffs but does nothing in principle to keep the courts free from certain kinds of claims.
195. Or the organization might need help from Congress in eliminating the statutory zone-of-interest requirement, which itself has no Article III foundation.
196. See Robin Kundis Craig, Removing "The Clock of a Standing Inquiry": Pollution Regulation, Public Health, and Private Risk in the Injury-in-Fact Analysis, 29 CARDOZO L. REV. 149 (2007) (advocating greater use of risk analysis as a basis for standing).
197. Sierra Club v. Morton, 405 U.S. 727 (1972).
198. Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L REV. 1432, 1462 (1988);
199. see also F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 CORNELL L. REV. 275 (2008) (arguing that the injury-in-fact requirement should not apply when Congress confers a right on private individuals).
200. Sunstein, supra note 167, at 1475.
201. Sunstein, supra note 10, at 167.
202. Id. at 171-78.
203. Id. at 175. For an argument that the Court's willingness to accept qui tarn actions renders standing doctrine an exercise in artificiality,
204. see Jonathan R. Siegel, A Theory of Justiciability, 86 TEX. L. REV. 73, 105-08 (2007).
205. See also id. at 136-37 (suggesting that standing serves little or no function in cases of widespread injury). Other scholars argue that the Court's approach to standing is based on earlier distinctions between public and private rights,
206. see Ann Woolhandler & Caleb Nelson, Does History Defeat the Standing Doctrine?, 102 MICH. L. REV. 689 (2004),
207. or is derived from limits on judicial power that were inherent in common law doctrines, Anthony J. Bellia, Article III and the Cause of Action, 89 IOWA L. REV. 777 (2004). As is so often the case, history on this matter is ambiguous. Even if these scholars are right, about the most that can be said is that a plaintiff must have some stake in a lawsuit beyond the desire to defend the public interest or to enforce federal law. That conclusion may be a barrier to those who view Congress as having plenary power to confer standing. However, the place-based standing advocated in this Article does not fall afoul of these concerns.
208. Sunstein, supra note 10, at 185.
209. As Sunstein and others have suggested, the idea that the existence of injury is a factual question is also in tension with the ability of Congress to create new causes of action. For instance, whenever Congress creates a new liability, it creates an injury-the refusal of the defendant to pay the plaintiff money that is owed under the statute. Suppose, for example, that Congress created a bonus for anyone reporting a violation of law to the federal government. The government's failure to pay the money on demand would be an injury in fact. The only apparent way of avoiding this argument is to argue that Congress's power to create new forms of liability is limited to cases in which courts are willing to identify a preexisting injury to be remedied. The basis for such a limitation presumably would be along the lines argued by Justice Scalia, as an implication of Article IPs reliance on the executive branch as die enforcer of federal law. This argument is made in Harold J. Krent & Ethan G. Shenkman, Of Citizen Suits and Citizen Sunstein, 91 MICH. L. REV. 1793 (1993). But as Part I indicates, the Article HI argument is bootless. In any event, if taken seriously, this argument would seem to deprive the federal courts of jurisdiction to hear claims that federal benefits such as social security were unlawfully withheld, since the plaintiff has no claim of a prior harm from the federal government (prior in the sense of predating the claim for benefits itself)-
210. Richard Fallon argues that the results in standing cases are often influenced by remedial concerns. Fallon, supra note 156, at 664-73. If this assertion is correct, then the Court would do better to confront the remedial concerns directly.
211. This recommendation is demonstrated by procedural injury cases, where it is unnecessary for the plaintiff to show that correcting the procedural error will actually improve the plaintiff's situation.
212. See Bell Atlantic Co. v. Twombly, 127 S. Ct. 1955, 1964 (2007).
213. 127 S. Ct. 1438 (2007).
214. Westlaw search on July 29, 2007 (the search included both "injury in fact" and "injury-in-fact"). For comparison purposes, the phrase "establishment clause" appeared in 137 Supreme Court opinions and 1010 court of appeals decisions. Another author reports 64 cases since 1970 in which standing was an issue and 27 in which it was treated with significant discussion, of which nine were environmental. Houck, supra note 79, at 20 n.118. This figure is still a significant amount of precedent.
215. See supra note 171. Standing doctrine may serve some purpose where a group of people enjoys constitutional rights that as a practical matter can only be enforced jointly, if most members of the group would prefer to waive or at least not to exercise the right.
216. See Eugene Kontorovich, What Standing Is Good For, 93 VA. L. REV. 1663 (2007). This rationale seems weaker when Congress has created a right to review for statutory violations by an agency, but perhaps it provides some support for continued insistence on an identifiable link between the plaintiff and the defendant's conduct.
217. The place-based approach supports this function to some extent. By requiring that those who object to a policy find a plaintiff who is linked with the affected region, the place-based approach makes it difficult to challenge administrative actions that enjoy a consensus of support among the impacted community.
218. PIERCE, SHAPIRO & VERKUIL, supra note 26, at 147.
219. Id. at 161.
220. Id.
221. Sierra Club v. Morton, 405 U.S. 727, 760 n.2 (1972).
222. As William Hetcher pointed out, unhappiness about government policy can have very real consequences. In the case of welfare cutbacks, for example, a person may feel "so strongly about the matter that he occasionally loses sleep after walking past homeless people sleeping in the streets, and he spends money he would not otherwise spend to support a private charity providing aid to the homeless." Fletcher, supra note 5, at 232. But sleepless nights
223. See id. at 232.
224. Lujan v. Defenders of Wildlife, 505 U.S. 555, 576 (1992). As we have already seen, Article II is a red herring in the context of standing law-but those who disagree should find my standing proposal acceptable nonetheless.
225. Indeed, two prominent defenders of Justice Scalia's approach have agreed that Congress can unproblematically allow suit to be brought by those who have not themselves suffered an injury, but are acting on behalf of others who have been so injured, provided that those who bring the suit are appropriate representatives of those who have suffered injury. Krent & Shenkman, supra note 173, at 1817-18.
226. 497 U.S. 871 (1990).
227. For instance, in the National Environmental Policy Act, Congress "recognize[ed] the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man," and declared a national policy to "create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." 42 U.S.C. § 4331(a) (2000).
228. Similarly, in the Clean Air Act, Congress found that "the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation." 42 U.S.C. § 7401(a)(2).
229. A recent Ninth Circuit decision provides a helpful discussion: Daily geographic proximity, for instance, may make actual past recreational use less important in substantiating an "injury in fact," because a person who lives quite nearby is likely to notice and care about the physical beauty of an area he passes often.... On the other hand, a person who uses an area for recreational purposes does not have to show that he or she lives particularly nearby to establish an injury-in-fact due to possible or feared environmental degradation. Repeated recreational use itself, accompanied by a credible allegation of desired future use, can be sufficient, even if relatively infrequent, to demonstrate that environmental degradation of the area is injurious to the person.... An individual who visits Yosemite National Park once a year to hike or rock climb and regards that visit as the highlight of his year is not precluded from litigating to protect the environmental quality of Yosemite Valley simply because he cannot visit more often. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 2000).
230. Sierra Club v. Morton, 405 U.S. 727, 743 (1972).
231. Sierra Club, 405 U.S. at 743 (Douglas, J., dissenting).
232. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,181 (2000).
233. Laidlaw teaches that harm to the environment is not a requirement for standing. See 528 U.S. at 181 ("The relevant showing for purposes of Article III standing, however, is not injury to the environment but injury to the plaintiff."). This teaching is respected by the place-based theory, which requires that the place be involved but not necessarily harmed.
234. Administrative Procedure Act, 5 U.S.C. § 702 (2000).
235. This point seems to have been muddled by the Loidlaw majority.
236. For similar reasons, if we take the injury-in-fact language too literally, we would believe that an acquittal in a criminal case would result in dismissal for want of Article III jurisdiction, since the defendant did not in fact cause any harm to the government's sovereign interests.
237. Requiring that the court find an actual injury creates procedural difficulties when appellate courts exercise direct review over agency actions, since the court is not well suited for conducting a trial on the merits about the existence of the harm. Also, the question of whether a particular harm exists is often part of the issue that the agency itself is charged with deciding, so that by making a definitive finding on that fact the court would be prejudging the appropriate outcome of the administrative process. For example, in Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the plaintiffs standing claim was that carbon dioxide emissions from automobiles were causing harm to their interests, but the question of whether the emissions harm human welfare is also the statutory trigger for regulation, which the agency must apply on remand.
238. As a general matter, Bell v. Hood, 327 U.S. 678 (1946), establishes that the existence of a valid cause of action is not necessary to federal jurisdiction, unless the claim is a "wholly insubstantial and frivolous,"
239. id. at 682-83;
240. it is enough to establish jurisdiction that the plaintiffs claim arguably arises under federal law. See also City of Chicago v. Atchison, Topeka & Santa Fe Ry. Co., 357 U.S. 77, 83-84 (1958) (noting that standing "could hardly depend" on whether the plaintiff's claim was actually valid).
241. Although no more than this should be required for federal jurisdiction, the Court's recent decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), suggests that some degree of factual development may be needed to survive a motion to dismiss for failure to state a claim-but of course, that is a merits issue rather than a jurisdictional one.
242. Eliminating these elements is not as fundamental to this proposal, however, as focusing on place rather than plaintiff. A modified form of the proposal would require that the plaintiff have the requisite tie with a geographic area, and that the plaintiff show an injury to the area caused by the defendant that is redressable by the court.
243. We might want to leave this as an option for plaintiffs who for whatever reason prefer to proceed along this avenue.
244. For similar reasons, the Ninth Circuit was correct in holding that an Indian tribe had standing to protest a geothermal project, when it had "used the lands in question for cultural and religious ceremonies 'for countless generations.'" Pit River Tribe v. United States Forest Serv., 469 F.3d 768, 779 (9th Cir. 2006) (quoting brief for petitioner).
245. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
246. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).
247. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998).
248. See supra text accompanying notes 47-50.
249. See supra text accompanying notes 39-40.
250. See 523 U.S. at 87-88.
251. See id. at 105.
252. See id. at 105-06.
253. 523 U.S. at 104-05.
254. United States v. Students Challenging Regulatory Agency Procedures, 412 US. 669 (1973).
255. Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 US. 59, 74 (1978).
256. See supra text accompanying notes 24-25.
257. In this sense, place-based standing reinforces a tendency that Professor Ann Carlson has identified in standing law more generally, which is to encourage environmental groups to emphasize the connections between humans and their local environments. Ann E. Carlson, Standing for the Environment, 45 UCLA L REV. 931, 972-88 (1998) (discussing human-centered standing in contrast to resource-centered standing). However, the current approach does not retain what Professor Carlson sees as an important feature of the current approach-the encouragement to detail the specific interdependencies between people and their environments. Rather, under the place-based approach, courts would essentially presume this interdependence. As Professor Carlson suggests, however, it may nevertheless be useful for environmental groups to investigate and to publicize the specific interdependencies relevant to particular cases.
258. Id. at 1002-03.
259. As Mark Sagoff says, A natural landscape becomes a place-"a shape that's in your head"-when it is cultivated, when it constrains human activity and is constrained by it, when it functions as a center of felt value because human needs, cultural and social as well as biological, are satisfied in it.... This contrasts entirely with the attitude of the outsider... for whom "[n]othing has a drift or relation; nothing has a history or a promise. Everything stands by itself, and comes and goes in its turn, like the shifting scenes of a show, which leaves the spectator where he was."
260. Mark Sagoff, Settling America or The Concept of Place in Environmental Ethics, 12 J. ENERGY NAT. RES. & ENVTL. L 349, 358 (1992) (quoting MARK TWAIN, LIFE ON THE MISSISSIPPI 38 (1911);
261. JOHN HENRY NEWMAN, THE IDEA OF A UNIVERSITY 99 (Frank M. Turner ed., 1996)). Sagoff also presents an evocative quote from Alan Gussow: "'A place is a piece of the whole environment that has been claimed by feelings.'"
262. Id. at 359.