Standing for the public: A lost history

Virginia Law Review

Volumn 95, Issue 5, 2009, Pages 1131-1199

  Magill, Elizabeth ^a  

^a NONE

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EID: 70349862121     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (410)

1. 3 Richard J. Pierce, Jr., Administrative Law Treatise §§16.2-16.4 (4th ed. 2002)
2. Massachusetts v. EPA, 549 U.S. 497, 516-18 (2007);
3. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
4. See Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. Rev. 1, 15-17 (1984);
5. William A Fletcher, The Structure of Standing, 98 Yale L.J. 221, 221-24 (1988);
6. F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 276 (2008)
7. Nancy C. Staudt, Modeling Standing, 79 N.Y.U. L. Rev. 612, 612-14 (2004);
8. Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond 147 U. Pa. L. Rev. 613, 639-41 (1999);
9. Cass R. Sunstein, Standing and the Privatization of Public Law, 88 Colum. L. Rev. 1432, 1464 (1988).
10. Sierra Club v. Morton, 405 U.S. 727, 735-736 (1972).
11. Lujan, 504 U.S. at 564;
12. City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983).
13. Allen v. Wright, 468 U.S. 737, 756 (1984);
14. Warth v. Seldin, 422 U.S. 490, 508 (1975);
15. Sierra Club, 405 U.S. at 740 n.16 (1972).
16. FEC v. Akins, 524 U.S. 11, 24 (1998).
17. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976).
18. Id.
19. See Massachusetts v. EPA, 549 U.S. 497, 516-17 (2007) ("We will not, therefore, entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws.") (internal citation omitted);
20. Akins, 524 U.S. at 24 ("[I]njury to the interest in seeing that the law is obeyed .. . deprives the case of the concrete specificity that characterized those controversies which were the traditional concern of the courts at Westminster.") (internal citation omitted);
21. Lujan, 504 U.S. at 573-74 ("We have consistently held that a plaintiff raising only a generally available grievance about . . . every citizen's interest in proper application of the Constitution and laws .. . does not state an Article III case or controversy.");
22. Lyons, 461 U.S. at 111 ("[A] federal court may not entertain a claim by any or all citizens who no more than assert that certain practices... are unconstitutional.").
23. See 3 Kenneth Culp Davis, Administrative Law Treatise §§22.03-22.04 (1958);
24. Louis L. Jaffe, Judicial Control of Administrative Action 505-531 (1965).
25. See, e.g., Act of Oct. 22,1913, ch. 32, 38 Stat. 208, 212 ("No interlocutory injunction suspending ... any order made or entered by the Interstate Commerce Commission shall be issued or granted . . . unless the application for the same shall be presented to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge, and unless a majority of said three judges shall concur in granting such application.").
26. Davis, supra note 11, at 215;
27. Food, Drug and Cosmetic Act, ch. 675, 52 Stat. 1055 (1938) ("In a case of actual controversy as to the validity of any order... any person who will be adversely affected by such order... [may] file a petition with the United States court of appeals-----");
28. Federal Water Power Act, ch. 687,49 Stat. 860 (1935) ("Any party... aggrieved by an order issued by the Commission... may obtain a review of such order in the United States Court of Appeals... by filing in such court... a written petition-----");
29. National Labor Relations Act, ch. 372, 49 Stat. 449, 455 (1935) ("Any person aggrieved by a final order of the Board ... may obtain a review of such order in any United States court of appeals... by filing in such court a written petition----");
30. Communications Act, ch. 652, 48 Stat. 1064, 1093 (1934) ("Appeals may be taken... (1) By an applicant... whose application is refused ... (2) By any other person aggrieved or whose interests are adversely affected by any decision of the Commission----");
31. Securities Act, ch. 38, 48 Stat. 80 (1933) ("Any person aggrieved by an order of the Commission may obtain a review of such order in the Circuit Court of Appeals... by filing in such court... a written petition---").
32. Alexander Sprunt & Son, Inc. v. United States, 281 U.S. 249, 256-257 (1930).
33. Tenn. Elec. Power Co. v. TVA, 306 U.S. 118, 137-38 (1939);
34. see Jaffe, supra note 11, at 511-512
35. Tenn. Elec. Power, 306 U.S. at 137 (holding a "legal right" can be "founded on a statute which confers a privilege").
36. See Stark v. Wickard, 321 U.S. 288, 289-90, 305 (1944) (granting standing to milk producers to challenge price levels set by Secretary of Agriculture and War Food Administrator);
37. Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 422 (1942) (granting standing to radio network to contest a regulation which "purported]... to alter and affect adversely appellant's contractual rights . . . with station owners.");
38. Perkins v. Lukens Steel Co., 310 U.S. 113, 125 (1940) (denying standing to contest administrative minimum wage determination affecting contractual bidding process);
39. Ala. Power Co. v. Ickes, 302 U.S. 464, 479-480 (1938) (denying standing to petitioner objecting to disbursement of federal assistance to competitor power companies).
40. Edward Hines Yellow Pine Trustees v. United States, 263 U.S. 143, 148 (1923).
41. Id.
42. The Chicago Junction Case, 264 U.S. 258, 259-262 (1924).
43. Id. at 267.
44. The Court bolstered its holding with two points. The parties had been permitted to intervene in the agency proceeding, indicating that the ICC thought they had a legally protected interest. More than that, the Court noted that if those who had participated in the proceeding had no standing, "there would in some cases be no redress for the injury inflicted by an illegal order."
45. Id. at 268.
46. 281 U.S. 249 (1930).
47. Id. at 255.
48. Id.
49. See Jaffe, supra note 11, at 510-512
50. See id. at 507.
51. 309 U.S. 470 (1940).
52. Id. at 477.
53. Communications Act of 1934, 47 U.S.C. §402(b)(2) (1940).
54. Sanders Bros., 309 U.S. at 477.
55. 309 U.S. 642 (No.499) (emphasis added) ("The opinion in this case is amended by inserting the word 'financially' between the words 'be' and 'injured' in the last line on page 5 ....");
56. FCC v. Sanders Bros., No. 499, slip op. at 5 (U.S. Mar. 25,1940).
57. 309 U.S. 642 (No.499) (referring to the striking of a sentence in the opinion that starts "In" and ends in "remedy").
58. The full sentence that was struck is discussed in a letter from Judge Jerome Frank to Justice Douglas dated March 31, 1942 and contained in Justice Douglas' case files on Scripps-Howard Radio, Inc. v. Federal Communications Comm'n, No. 41-508.
59. See FCC v. Sanders Bros., No. 499, slip op. at 6 (U.S. Mar. 25, 1940).
60. Harry P. Warner, Some Constitutional and Administrative Implications of the Sanders Case, 4 Fed. Comm. B.J. 214, 217-30 (1940);
61. see also Edwin Borchard, Challenging "Penal" Statutes by Declaratory Action, 52 Yale L.J. 445, 451 n.16 (1943)
62. Comment on Recent Decisions, Administrative Law-Federal Communications Commission, 26 Wash. U. L.Q. 121, 122 (1940);
63. Recent Cases, Administrative Law- Judicial Review of Decisions Under the Communications Act of 1934, 8 Geo. Wash. L. Rev 1106, 1107 (1940).
64. Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 11-13 (1942).
65. Id. at 20 (Douglas, J., dissenting) (citation omitted).
66. Id. at 14-15 (citations omitted).
67. 316 U.S. at 18-22.
68. Letter from Jerome N. Frank to Justice Douglas (Mar. 31, 1942) (William O. Douglas Papers, Files on Scripps-Howard Radio, Inc. v. Federal Communications Comm'n, No. 41-508, Box 65, Library of Congress, Manuscript Division, Washington, D.C.) [hereinafter Frank Letter 1];
69. letter from Jerome N. Frank to Justice Douglas (April 1, 1942) (William O. Douglas Papers, Files on Scripps-Howard Radio, Inc. v. Federal Communications Comm'n, No. 41-508, Box 65, Library of Congress, Manuscript Division, Washington, D.C.) [hereinafter Frank Letter 2].
70. Frank Letter 1, supra note 39, page 1 (marked "Personal"; "Dear Bill: Responding to your request, I write the following in haste.").
71. Footnote not in original text. In the first paragraph of the letter, Judge Frank had noted that "[u]nless there is an invasion of the citizen's individual interest, of a recognized character, any financial loss he suffers is damnum absque injuria." Frank Letter 1, supra note 39, at 1. Judge Frank provided the following citations for that proposition: "Massachusetts v. Mellon, 262 U.S. 447;
72. Ala. Power Co. v. Ickes, 302 U.S. 464;
73. Tenn. Elec. Power Co. v. T.V.A., 306 U.S. 118;
74. Perkins v. Lukens Steel Co., 310 U.S. 113, 125, 129;
75. Atlanta v. Ickes, 308 U.S. 517;
76. Muskrat v. United States, 219 U.S. 346;
77. Stearns v. Wood, 236 U.S. 75,78;
78. Radio Comm. v. General Electric Co., 281 U.S. 464, 469;
79. Radio Comm. v. Nelson Bros., 289 U.S. 266;
80. Fairchild v. Hughes, 258 U.S. 126;
81. Hayburn's Case, 2 Dall. 409;
82. Coleman v. Miller, 307 U.S. 433, at 460-66."
83. Id.
84. Frank Letter 1, supra note 39, at 2 (citation omitted).
85. Frank Letter 2, supra note 39.
86. Frank Letter 1, supra note 39, at 3-4.
87. Compare 316 U.S. at 20-21 (Douglas, J., dissenting) (noting that Sanders Brothers, properly construed, means that the Court of Appeals has jurisdiction, but that does not mean the litigant has a cause of action), with Frank Letter 1, supra note 39, at 3-4 (suggesting that the best reading of Sanders Brothers is that the provision confers jurisdiction but does not provide a cause of action).
88. 319 U.S. 239 (1943).
89. Id. at 259 (Frankfurter, J., dissenting).
90. Id. at 259-260
91. Id. at 260 (stating that the challenger failed to show that "its interests were substantially impaired").
92. Id. at 265 (Douglas, J., dissenting).
93. Id. (citation omitted).
94. Id.
95. 134 F.2d 694 (2d Cir. 1943).
96. Interior's rate-setting functions were performed pursuant to the Bituminous Coal Act of 1937. Those functions were initially performed by the Bituminous Coal Commission, but the Commission was abolished in 1939, and its authority was then transferred to the Bituminous Coal Division of the Department of Interior.
97. Id. at 697.
98. Id. at 700-701
99. Id. at 700, 705 (defining legal interest either as one of "'recognized' character, at 'common law' or a substantive private legally protected interest created by statute") (citations omitted).
100. Id. at 705.
101. Id. at 704.
102. See William B. Rubenstein, On What A "Private Attorney General" Is-And Why it Matters, 57 Vand. L. Rev. 2129 (2004).
103. Associated Industries, 134 F.2d at 704.
104. Sanders Brothers and its progeny are treated very briefly in the first Hart & Wechsler federal courts casebook. The cases are discussed, under the heading "Actions by competitors," with no reference made to the potentially broader significance that the cases apparently had outside the limited context of competitor suits.
105. See Henry M. Hart, Jr. & Herbert Wechsler, The Federal Courts and the Federal System 163-64 (1953).
106. Kenneth Culp Davis, Administrative Law 698 (1951)
107. (citing W. Pac. Cal. R.R. Co. v. S. Pac. Co., 284 U.S. 47 (1931)).
108. Professor Davis noted in his 1958 treatise that subsequent cases had confirmed this understanding. Davis, supra note 11, at 223.
109. Jaffe, supra note 11, at 517.
110. Id. at 517-524
111. This is a fair characterization of judicial opinions that explain the matter. But Judge Jerome Frank's letters to Justice Douglas about Sanders Brothers indicate that Judge Frank perceived a real conflict between the Sanders Brothers line of cases and earlier cases. See notes 39-45 and accompanying text.
112. 262 U.S. 447, 363 (1923).
113. James R. Baird, Jr., The Right to Judicial Review: An Analysis of Section 701(f)(1), 10 Food Drug Cosm. L.J. 286, 294 (1955).
114. Justice Harlan made a similar point in his dissent in Flast v. Cohen, decided in 1968.
115. See infra notes 120-122 and accompanying text.
116. 219 U.S. 346, 363 (1911);
117. see also Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 21 (Douglas, J., dissenting) ("Congress could have said that the holder of a radio license has an individual substantive right to be free of competition .... In that event, unlike the situation in Muskrat... there would be a cause of action for invasion of a substantive right.").
118. Dissenting in KOA, Justice Frankfurter put it this way: "Whatever doubts may have existed as to whether the ingredients of 'case' or 'controversy,' as defined, for example, in Muskrat v. United States... are present in this situation were dispelled by our ruling in the Sanders Brothers case----" 319 U.S. 239, 259-60 (Frankfurter, J., dissenting) (citation omitted). Justice Douglas put it slightly differently. He noted that he had doubts about "the constitutionality of a statutory scheme which allowed one who showed no invasion of a private right to call on the courts to review an order of the Commission" and then cited Muskrat.
119. Id. at 265 (Douglas, J., dissenting). In his next sentence, he observed, "But if we accept as constitutionally valid a system of judicial review invoked by a private person who has no individual substantive right to protect but who has standing only as a representative of the public interest, then I think we must be exceedingly scrupulous to see to it that his interest in the matter is substantial and immediate."
120. Id.
121. 5 U.S.C. §702 (2006).
122. See Duba v. Schuetzle, 303 F.2d 570, 574 (8th Cir. 1962);
123. Kansas City Power and Light Co. v. McKay, 225 F.2d 924, 932 (D.C. Cir. 1955);
124. U.S. Dep't of Justice, Attorney General's Manual on the Administrative Procedure Act 95-96 (1947);
125. see also Harrison-Halsted Cmty. Group, Inc. v. Hous. & Home Fin. Agency, 310 F.2d 99,104 (7th Cir. 1962).
126. Initially, Professor Davis shared the view that the APA codified existing law. Kenneth Culp Davis, Standing to Challenge and to Enforce Administrative Action, 49 Colum. L. Rev. 760, 767-68 (1949).
127. He subsequently changed his mind, concluding that the APA extended standing to parties "adversely affected in fact." Davis, supra note 11, at §22.02;
128. Kenneth Culp Davis, Standing to Challenge Governmental Action, 39 Minn. L. Rev. 353, 355 (1955). Professor Jaffe rejected Davis' position, adopting many of the arguments that Davis had initially supported.
129. Jaffe, supra note 11, at 529-30;
130. Louis Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv. L. Rev. 255,288 (1961).
131. Rural Electrification Admin, v. N. States Power Co., 373 F.2d 686, 692 n.9 (8th Cir. 1967);
132. Cobb v. Murrell, 386 F.2d 947, 952 (5th Cir. 1967);
133. Braude v. Wirtz, 350 F.2d 702, 707 (9th Cir. 1965);
134. Penn. R.R. Co. v. Dillon, 335 F.2d 292, 294 (D.C. Cir. 1964);
135. Harrison-Halsted, 310 F.2d at 104 (7th Cir. 1962);
136. Scolnik v. Conn. Tel. & Elec. Corp., 265 F.2d 133, 135 (2d Cir. 1959).
137. See Hardin v. Ky. Utils. Co., 390 U.S. 1, 5-7 (1968).
138. Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 Chi.-Kent L. Rev. 1039, 1075-78 (1997).
139. Scenic Hudson Pres. Conference v. Fed. Power Comm'n, 354 F.2d 608 (2d Cir. 1965).
140. Office of Commc'n of the United Church of Christ v. FCC, 359 F.2d 994, 1002 (D.C. Cir. 1966).
141. See Richard B. Stewart, The Reformation of American Administrative Law 88 Harv. L. Rev. 1669, 1728 (1975) (describing Scenic Hudson and United Church of Christ as "landmarks in the current expansion of standing rights");
142. see also Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe-Oi Politics and Law Young Lawyers and the Highway Goliath 308 & n.153
143. in Administrative Law Stories (Strauss ed., 2006) (describing Scenic Hudson's role in expanding standing doctrine);
144. Tom Turner, The Legal Eagles in Crossroads: Environmental Priorities for the Future 52 (Peter Borrelli ed., 1988) (same);
145. Sidney A. Shapiro, United Church of Christ v. FCC: Private Attorneys General and the Rule of Law, 58 Admin. L. Rev. 939, 955 (2006) (explaining United Church of Christ's role in expanding standing doctrine).
146. 354 F.2d 608 (2d Cir. 1965). Regarding the Scenic Hudson litigation generally, see Skip Card, Scenic Standing: The 40th Anniversary of Scenic Hudson and the Birth of Environmental Litigation, 77 N.Y. St. B.J. 10 (Sept. 2005);
147. David Sive, The Litigation Process and the Development of Environmental Law, 13 Pace Envtl. L. Rev. 1, 5
148. Scenic Hudson, 354 F.2d at 615 (2d Cir. 1965).
149. Id. at 616.
150. State of Wash. Dep't of Game v. Fed. Power Comm'n, 207 F.2d 391, 395 n.11 (9th Cir. 1953).
151. Scenic Hudson, 354 F.2d at 616. The Scenic Hudson court presented each element in its analysis as straightforward. Perhaps worrying that its holding was indeed exceptional, however, the court for good measure added that, in any event, "petitioners have sufficient economic interest to establish their standing" because one of the conservation groups that organized the Conference maintained trails that would be inundated by the reservoir.
152. Id.
153. Office of Commc'n of the United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966). Two books have been published that focus on the case.
154. See Steven D. Classen, Watching Jim Crow: The Struggles over Mississippi TV, 1955-1969 (2004);
155. Kay Mills, Changing Channels: The Civil Rights Case that Transformed Television (2004).
156. Parker reported that he was inspired to focus on television after a meeting with Reverend Martin Luther King in which Dr. King talked about the unfair coverage of the civil rights movement among southern broadcast stations and asked Parker, who had a background in broadcasting, to have the church "[p]lease do something about the TV stations." Mills, supra note 82, at 60. After a trip across the south where Parker watched television and looked for a good target for his efforts, Parker settled on Jackson because the station had a terrible record and also had the strongest signal in the South.
157. Id. at 65.
158. After hiring all white monitors to watch the station's broadcast, Parker's monitors reported that the station extensively covered efforts to maintain segregation but did not cover challenges to segregation. Id. at 69, 72.
159. United Church of Christ, 359 F.2d at 1000.
160. Id. at 1002.
161. Id. (citing Henderson v. United States, 339 U.S. 816 (1950) (passenger challenging legality of ICC rules on racial segregation in rail cars);
162. Bebchick v. Pub. Utils. Comm'n, 287 F.2d 337 (D.C. Cir. 1961) (public transit rider challenging rate increase);
163. Read v. Ewing, 205 F.2d 630 (2d Cir. 1953) (consumer of oleomargarine challenging order affecting ingredients);
164. United States v. Pub. Utils. Comm'n, 151 F.2d 609 (D.C. Cir. 1945) (electricity consumers challenging utility rates);
165. Associated Indus, of N.Y. State, Inc. v. Ickes, 134 F.2d 694 (2d Cir. 1943) (coal consumers challenging price order)).
166. United Church of Christ, 359 F.2d at 1002 n.16.
167. The court explained that listeners could be watchdogs of the agency. See United Church of Christ, 359 F.2d at 1003-1004 ("The theory that the Commission can always effectively represent the listener interests in a renewal proceeding without the aid and participation of legitimate listener representatives fulfilling the role of private attorneys general is one of those assumptions we collectively try to work with so long as they are reasonably adequate. When it becomes clear, as it does to us now, that it is no longer a valid assumption which stands up under the realities of actual experience, neither we nor the Commission can continue to rely on it."). The court also asserted that listeners could assist the Commission in doing its job.
168. See id. at 1005 (listeners needed to be heard because otherwise deficiencies would not be brought to the attention of the Commission, especially where there were no rivals for the license).
169. Id. at 1005.
170. Few observers thought the standing analysis in Scenic Hudson or in Church of Christ were straightforward applications of existing law. Professor Kenneth CuIp Davis described the standing reasoning in Scenic Hudson this way: "The Scenic Hudson opinion is filled with courageous leaps over intellectual chasms that might never be bridged." Kenneth CuIp Davis, Administrative Law Treatise, 1970 Supplement, §22.19 (1971). In Church of Christ, the court essentially admitted it was innovating.
171. Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153-154 (1970).
172. See Merrill, supra note 73, at 1076;
173. Sunstein, Standing and the Privitization of Public Law, supra note 3, at 1440-1442
174. 354 F.2d at 615.
175. Id.
176. Id. (footnote omitted).
177. Id. at 616.
178. Id.
179. This aspect of these two cases may have influenced the Supreme Court in its 1970 re-writing of standing law. The exact same analytic move is evident in the "zone of interest" test the Court invented in Data Processing as it interpreted the "party aggrieved" provision of the APA.
180. See infra notes 101-115 and accompanying text.
181. It seems most likely that the Court thought it was applying a kind of Sanders Brothers principle to the APA provision itself where the APA gave rise to the cause of action. But its test was not the Sanders Brothers principle. The zone of interest test required challengers to show that the statute recognized the interests of concern to the challengers and to allege that those concerns had been disregarded. This should sound familiar because, again, it is a trace of the legal right test. And this is what concerned the two dissenting Justices Brennan and White. They argued that the question of standing rested solely on an inquiry based on Article III. And, in their view, injury in fact was all the Constitution required. Ass'n of Data Processing Servs. Orgs. v. Camp, 397 U.S. 159, 167-68 (1970). To the dissenters, the requirement that the challengers demonstrate that their interests were regulated or protected by the statute at issue- even arguably-was the legal wrong test all over again.
182. Id. at 168 ("By requiring a second, nonconstitutional step, the Court comes very close to perpetuating the discredited requirement that conditioned standing on a showing by the plaintiff that the challenged governmental action invaded one of his legally protected interests.").
183. Sunstein views this as a salutary step, one that could have strongly liberalized standing. See Sunstein, Standing and the Privitization of Public Law, supra note 3, at 1440-1442
184. Merrill reads the courts to be doing this as well, but he expresses no view on it. Merrill, supra note 73, at 1076.
185. Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970).
186. The new test adopted in Data Processing was applied in Barlow v. Collins, 397 U.S. 159, 164 (1970), which was decided on the same day as Data Processing.
187. Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 406 F.2d 837, 843 (8th Cir. 1969).
188. Id. (quoting L. Singer & Sons v. Union Pac. R.R. Co., 311 U.S. 295, 303 (1940)).
189. Data Processing, 397 U.S. at 151.
190. Id. at 153-154 (citing Administrative Procedure Act, 5 U.S.C. §702 (1964 & Supp. IV)).
191. Data Processing, 397 U.S. at 152.
192. In the period immediately preceding Data Processing, the Court had asked whether the challenger had a "personal stake" in the outcome. This phrase came from Baker v. Carr, 369 U.S. 186, 204 (1962) ("Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.").
193. A search of the Westlaw United States Supreme Court Cases database shows three instances of the phrase "injury in fact" prior to 1970. None of these are in the context of standing. Professor Davis first proposed an "adversely affected in fact" test in 1955. His goal, he wrote, was to 1) broaden the availability of standing, 2) simplify standing doctrine, and 3) implement his interpretation of the Administrative Procedure Act. Davis, Standing to Challenge Governmental Action, supra note 70, at 354-55. He continued to support the novel test in subsequent work. Davis, supra note 11, §§ 22.03-22.04 (1958).
194. In 1970, when the Court adopted the "injury in fact" and "zone of interests" tests in Data Processing, Professor Davis wrote that the Court was "threequarters of the distance" toward a coherent standing doctrine. Kenneth CuIp Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev. 450, 450-51 (1970). Professor Davis would have required only "injury in fact."
195. Id.
196. The majority opinion is ambiguous, though Justice Brennan read the majority as treating "injury-in-fact" as an interpretation of Article III. See Data Processing, 397 U.S. at 167 (Brennan, J., concurring in part and dissenting in part). In subsequent cases, injury-in-fact was treated as an interpretation of the APA and in a pair of cases in 1974, injury-in-fact was treated as a gloss on Article Ill's case or controversy requirement.
197. See cases discussed in note 116, infra.
198. Data Processing, 397 U.S. at 153.
199. As many pointed out, the court did not really ask about "injury" without reference to unstated ideas about what sorts of injuries gave rise to standing-and hence this was not a "factual" inquiry at all. See Fletcher, supra note 3, at 231-233
200. The internal correspondence in Data Processing and the related case of Barlow v. Collins demonstrates that at least some Justices were anticipating future cases involving non-economic injuries. See Letter from Justice Douglas to Justice Brennan (Jan. 9, 1970) (William O. Douglas Papers, Files on Association of Data Processing Servs. v. Camp, No. 69-85, Box 212, Library of Congress, Manuscript Division, Washington, D.C.);
201. Letter from Justice Brennan to Justice Douglas (January 8, 1970) (William O. Douglas Papers, Files on Barlow v. Collins, No. 69-249, Box 215, Library of Congress, Manuscript Division, Washington, D.C.).
202. Data Processing, 397 U.S. at 152.
203. Id. at 153.
204. Id. at 154 (quotations omitted).
205. Id. at 155-156
206. In Data Processing, the majority identified the injury-in-fact requirement and the "zone of interest" test after it observed that while "[g]eneralizations about standing to sue are largely worthless," one generalization was acceptable-namely, that standing needed to be considered "in the framework of Article III." 397 U.S. at 151. In his partial concurrence and dissent in the companion case of Barlow v. Collins, Justice Brennan read the injury-in-fact test to be the constitutional minimum required by the case or controversy requirement of Article III. 397 U.S. at 167-68. Whether the injury-in-fact test was an interpretation of Article III took a couple of years to settle, however. In 1972, in Sierra Club v. Morton, the majority treated the injury-in-fact test as an interpretation of the APA.
207. See 405 U.S. 727, 733 ("[I]n Data Processing Service v. Camp... we held more broadly that persons had standing to obtain judicial review of federal agency action under §of the APA where they had alleged that the challenged action had caused them 'injury in fact'"). In dissent in 1972, Justice Douglas said that injury in fact was the test for whether there was an Article III case or controversy.
208. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 184 n.4 (1972) (Douglas, J., dissenting). In 1973, a Court majority again treated injury in fact as an interpretation of the APA.
209. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686 (1973) (reiterating that in Data Processing and Barlow v. Collins, "we held that §of the APA conferred standing to obtain judicial review of agency action only upon those who could show 'that the challenged action had caused them injury in fact'");
210. id. at 689 n.14 ('"Injury in fact' reflects the statutory requirement that a person be 'adversely affected' or 'aggrieved' and it serves to distinguish a person with a direct stake in the outcome of a litigation-even though small-from a person with a mere interest in the problem."). In 1974, however, a majority of the Supreme Court made clear that the injury-infact test was an interpretation of the case or controversy requirement of Article III and, more than that, it (re-)read Data Processing to have established this point.
211. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 218 (1974) ("[T]he Court... held that whatever else the 'case or controversy' requirement embodied, its essence is a requirement of 'injury in fact.'") (citing Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970)). And the point has been wellestablished law ever since. See, e.g., Sprint Commc'ns Co. v. APCC Servs., Inc., 128 S. Ct. 2531, 2535 (2008);
212. McConnell v. Fed. Election Comm'n, 540 U.S. 93, 225 (2003);
213. Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000), Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
214. The most significant place this occurred was in 1972's Sierra Club v. Morton.
215. See 405 U.S. 727, 736-38 (1972). See discussion, infra notes 119-130 and accompanying text. Explanations of the Sanders Brothers line of cases have suggested that it stood for the proposition that only those economically injured by administrative action were permitted to sue. For instance, this is how Richard Stewart explained these cases in 1979.
216. See Richard Stewart, Standing for Solidarity, 88 Yale L.J. 1559,1569 (1979). As the text states, this is the way the Supreme Court eventually started to explain Sanders Brothers, most notably in 1972 in Sierra Club v. Morton.
217. See 405 U.S. 727, 734 n.6, 736-738 But, as Part I explains, in the 1940s, the Supreme Court did not emphasize the economic nature of the injury as the central fact permitting the challenger to bring the rights of the public before the courts. Instead, the key point that the Court considered, and answered in the affirmative, was whether Congress could authorize an aggrieved party without any cognizable legal rights to challenge administrative action. The court put very little emphasis on what counted as aggrievement-the key point was that the aggrievement had nothing to do with any recognized legal rights of the challenger.
218. See Sierra Club v. Morton, 405 U.S. at 733 ("Early decisions under [the APA judicial review provision] interpreted the language as adopting the various formulations of 'legal interest' and 'legal wrong' then prevailing as constitutional requirements of standing.");
219. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 39 (1976) ("Reduction of the threshold requirement [in Data Processing] to actual injury redressable by the court represented a substantial broadening of access to the federal courts over that previously thought to be the constitutional minimum under [the APA].").
220. The statutes governing the Forest Service did not contain a statutory review provision permitting "aggrieved parties" to sue, and Sierra Club relied on the judicial review provisions of the Administrative Procedure Act. 405 U.S. at 734. Data Processing, in reading the APA the way it did, had elided the distinction so important in prior law between APA actions and special statutory review actions.
221. Sierra Club, 405 U.S. at 733-734
222. See, e.g., United States v. Richardson, 418 U.S. 166, 175-76 (1974)- Flast v Cohen, 392 U.S. 83, 106 (1968).
223. Sierra Club, 405 U.S. at 734.
224. Id.
225. Id.
226. Sierra Club, 405 U.S. at 736 ("The Club apparently regarded any allegations of individualized injury as superfluous, on the theory that this was a 'public' action involving questions as to the use of natural resources, and that the Club's longstanding concern with and expertise in such matters were sufficient to give it standing as a 'representative of the public.'") (footnote omitted).
227. Id. at 737-738
228. Id. at 738.
229. Id. at 735. According to the Sierra Club, it was forced to argue this way at this stage of the litigation. In its view, it could not seek a preliminary injunction while asserting a "private injury," because such an injury could never outweigh the government's interest in going forward with the project. As the Club put it in its reply brief: The Government seeks to create a 'heads I win, tails you lose' situation in which either the courthouse door is barred for lack of assertion of a private, unique injury or a preliminary injunction is denied on the ground that the litigant has advanced private injury which does not warrant an injunction adverse to a competing public interest.
230. See also Robert H. Freilich, Editor's Comments, Sierra Club v. Morton, No Standing in Our National Parks-Move Over for the Special Interests, 4 Urb. Law. vii, ix (1972).
231. Sierra Club, 405 U.S. at 739.
232. Id. at 740.
233. Flast v. Cohen, 392 U.S. 83,120 (Harlan, J., dissenting). Here is how Harlan defined public actions: We must recognize that these non-Hohfeldian plaintiffs complain, just as the petitioner in Frothingham sought to complain, not as taxpayers, but as 'private attorneys-general.' The interests they represent, and the rights they espouse, are bereft of any personal or proprietary coloration. They are, as litigants, indistinguishable from any group selected at random from among the general population, taxpayers and non taxpayers alike. These are and must be, to adopt Professor Jaffe's useful phrase, 'public actions' brought to vindicate public rights.
234. Id. at 119-120. Louis Jaffe defined public actions as situations where the plaintiff "is not able to satisfy the requirement of special interest, when he brings his action as a representative of the general public." Louis L. Jaffe, Judicial Control of Administrative Action 459 (1965).
235. 392 U.S. 83 (1968).
236. Hein v. Freedom From Religion Found., 551 U.S. 587, 596-97 (2007);
237. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 333 (2006), Bowen v. Kendrick, 487 U.S. 589, 618 (1988), Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 479 (1982);
238. United States v. Richardson, 418 U.S. 166, 173 (1974).
239. Flast, 392 U.S. at 119 n.5 (Harlan, J., dissenting);
240. Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. Pa. L. Rev. 1033 (1968).
241. Flast, 392 U.S. at 119-120 (Harlan, J., dissenting).
242. Id. at 120.
243. Id.
244. Id. (citing FCC v. Sanders Bros., 309 U.S. 470 (1970);
245. Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942);
246. United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966);
247. Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608 (2d Cir. 1965);
248. Reade v. Ewing, 205 F.2d 630 (2d Cir. 1953);
249. Associated Indus, of N.Y. State v. Ickes, 134 F.2d 694 (2d Cir. 1943)).
250. Flast, 392 U.S. at 120 (emphasis omitted).
251. Id. at 131-32 (footnote omitted). In the footnote, Harlan then attempted to reconcile the Sanders Brothers' principle with Article III of the Constitution. He explained that he would not abrogate Article III restrictions upon actions that could be properly brought in federal court when "Congress has authorized a suit." He explained, however, the primary problematic case, Muskrat v. United States, could be distinguished because in that case, the United States "evidently had 'no interest adverse to the claimants.'"
252. Id. at 132 n.21.
253. Id. at 112.
254. 405 U.S. 727 (1972).
255. Brief for the Respondent at 17, Sierra Club v. Morton, 405 U.S. 727 (1972) (No.70-34).
256. Id. at 17, 20-21.
257. Id. at 21-22 (emphasis added);
258. see also Sierra Club v. Morton, 405 U.S. 727, 732 & n.3 (1972).
259. Sierra Club, 405 U.S. at 732.
260. Id. at 732 n.3.
261. Id.
262. 418 U.S. 166 (1974).
263. Id. at 193 (Powell, J., concurring).
264. There are several other examples that reinforce the point. Justice Douglas, writing in Data Processing, explained the Sanders Brothers case in the following way: "The third test mentioned by the Court of Appeals, which rests on an explicit provision in a regulatory statute conferring standing and is commonly referred to in terms of allowing suits by 'private attorneys general' is inapplicable in the present case." Ass'n. of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 n.1 (1970).
265. Flast, 392 U.S. at 132 n.21.
266. See 418 U.S. at 196 n.18 (Powell, J., concurring) ("[M]y objections to public actions are ameliorated by the congressional mandate. Specific statutory grants of standing in such cases alleviate the conditions that make 'judicial forbearance the part of wisdom.'"
267. (citing Justice Harlan's dissent in Flast v. Cohen)).
268. See United States v. Richardson, 418 U.S. 166, 194 (1974) (Powell, J., concurring) ("[D]espite the diminution of standing requirements in the last decade, the Court has not broken with the traditional requirement that, in the absence of a specific statutory grant of the right of review, a plaintiff must allege some particularized injury that sets him apart from the man on the street.") (emphasis added); id. ("The Court has confirmed the power of Congress to open the federal courts to representatives of the public interest through specific statutory grants of standing."
269. (citing Sanders Brothers)); Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973) ("Although the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.") (emphasis added) (footnotes omitted).
270. United States v. Richardson, 418 U.S. 166, 188-193 (1974) (Powell, J., concurring); id. at 192 ("[W]e risk a progressive impairment of the effectiveness of the federal courts if their limited resources are diverted increasingly from their historic role to the resolution of public-interest suits brought by litigants who cannot distinguish themselves from all taxpayers or all citizens.").
271. 422 U.S. 490 (1975).
272. Id. at 499.
273. Id. at 500.
274. Id.
275. Id. at 501.
276. Id.
277. Id.
278. Warth v. Seldin, No.73-2024, Opinion, First Draft, p. 9.
279. Lewis F. Powell, Jr. Papers, 1921-1998, Ms 001, Lewis F. Powell, Jr. Archives, Washington and Lee University, Lexington, VA (emphasis added).
280. Warth v. Seldin, No.73-2024, Correspondence from Chief Justice Burger to Justice Lewis Powell, June 5,1975, Lewis F. Powell, Jr. Papers, 1921-1998, Ms 001, Lewis F. Powell, Jr. Archives, Washington and Lee University, Lexington, VA.
281. Warth v. Seldin, No.73-2024, Opinion, Fourth Draft, p. 9.
282. Lewis F. Powell Jr. Papers, 1921-1998, Ms 001, Lewis F. Powell, Jr. Archives, Washington and Lee University, Lexington, VA.
283. Warth, 422 U.S. at 507. The Court relied heavily on Linda R.S. v. Richard D., 410 U.S. 614 (1972), where the Court held that the mother of an illegitimate child did not have standing to bring a class action designed to force enforcement of the child support laws in Texas. In the 1972 case, however, the Court made clear that cases where a statute explicitly authorized suit would be different.
284. See id. at 617 ("[W]e have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.").
285. See supra note 154 and accompanying text.
286. 426 U.S. 26 (1976).
287. Id. at 29-32.
288. Id. at 58 (Brennan, J., dissenting) (regarding challengers who bring action under the Administrative Procedure Act).
289. Data Processing Serv. Org. v. Camp, 397 U.S. 150 (1970).
290. The Court made clear in a footnote that its decision did not rest on the "zone of interest" test also established in Data Processing. Simon, 426 U.S. at 39 n.19. Justice Powell was not a fan of the zone of interest test.
291. See Warth v. Seldin, No.73-2024, Correspondence from Justice Lewis Powell to Chief Justice Burger, June 6, 1975, Lewis F. Powell, Jr. Papers, 1921-1998, Ms 001, Lewis F. Powell, Jr. Archives, Washington and Lee University, Lexington, VA.
292. Simon, 426 U.S. at 38-39 ("In Data Processing . .. this Court held the constitutional standing requirement under this [APA] section to be allegations which, if true, would establish that the plaintiff had been injured in fact by the action he sought to have reviewed.") (citation omitted); id. at 39 ("The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art[icle] III requirement. A federal court cannot ignore this requirement without overstepping its assigned role in our system of adjudicating only actual cases and controversies.").
293. Id. at 40 (holding that organizations devoted to advocating for indigents cannot have standing based on their "abstract concern with a subject that could be affected by an adjudication"
294. (citing Sierra Club v. Morton, 405 U.S. 727, 738 (1972))).
295. Simon, 426 U.S. at 38 (explaining an injury required by Article III is injury to challenger that can be redressed by a court); id. at 41-46 (stating challengers cannot show that injury of denial of hospital care is caused by defendant 1RS, as opposed to hospitals who are not before the court, and thus cannot show that action by court would redress injury).
296. Simon v. E. Ky. Welfare Rights Org., No.74-1123, Memo from Lewis F. Powell, Jr. to Phil Jordan, Feb. 16, 1976, Lewis F. Powell, Jr. Papers, 1921-1998, Ms 001, Lewis F. Powell, Jr. Archives, Washington and Lee University, Lexington, VA.
297. Simon, 426 U.S. at 41.
298. Id. at 41 n.22 (referencing that a statute expressly conferring standing "was in recognition of Congress' power to create new interests the invasion of which will confer standing. When Congress has so acted, the requirements of Article] III remain: '[T]he plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants'") (citation omitted).
299. See Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973).
300. United States v. Richardson, 418 U.S. 166,194-195 (1974) (Powell, J., concurring).
301. Simon, 426 U.S. at 41 n.22.
302. 426 U.S. at 58-59 (Brennan, J., concurring);
303. see also id. at 59 n.7 ("[I]t is distressing that the Court should mechanically apply the approach developed [in Linda R.S. and Warth v. Seldin] to a case brought under the Administrative Procedure Act without any analysis ... of the only constitutional dimension of standing-the requirement of concrete adverseness flowing from a personal stake in the outcome.") (citation omitted).
304. Id. at 60.
305. Id. at 64.
306. 422 U.S. at 499.
307. 504 U.S. 555 (1992).
308. Data Processing, with its creative reading of the APA provision, blurred the line between APA cases and special statutory review cases. See supra text accompanying notes 99-113.
309. Lujan, 504 U.S. 555.
310. A Westlaw search reveals that Sanders Brothers was cited in four cases between Warth in 1975 and the 1992 decision in Lujan v. Defenders and never for the "standing for the public" principle in this Article.
311. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 584-85 n.36 (1990)
312. (citing Sanders Brothers for the principle that direct federal control over discrete programming decisions is unwise);
313. Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 394 n.8 (1987)
314. (citing Sanders Brothers as an example of a case that involved a statute that gives review to all persons adversely affected or aggrieved by agency action);
315. FCC v. WNCN Listeners Guild, 450 U.S. 582, 588-89, 589 n.14 (1981) (repeating FCCs citation of Sanders Brothers and citing Sanders Brothers' statement that broadcasters are not common carriers);
316. FCC v. Nat'l Citizens Comm. for Broad., 436 U.S. 775, 803-04 (1978) (citing Sanders Brothers for skepticism about the utility of widespread divestiture of ownership of newspaper-broadcast combinations);
317. id. at 805-06 n.24
318. (citing Sanders Brothers for the irrelevance of private losses under the Communications Act when there is no adverse effect on broadcasting service to the public). After 1990, Sanders Brothers was not cited again in a Supreme Court opinion until eighteen years later, when the majority opinion in Federal Election Comm'n v. Akins relied on Sanders Brothers and its progeny to read the special statutory review provision at issue as one that, because it used the "party aggrieved" language, "cast[s] the standing net broadly-beyond the common-law interests and substantive statutory rights upon which 'prudential' standing traditionally rested." 524 U.S. 11, 19 (1998).
319. For a general description and critique of the work of many of these groups, see Michael W. McCann, Taking Reform Seriously: Perspectives on Public Interest Liberalism (1986).
320. With respect to the environmental movement and its successes in this period, see Richard N. L. Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy (1999);
321. Robert Gottlieb, Forcing the Spring: The Transformation of the American Environmental Movement pt. II (1993);
322. Richard J. Lazarus, The Making of Environmental Law ch. 4 (2004).
323. Rachel Carson, Silent Spring (Houghton Mifflin 1962).
324. Lazarus, supra note 190, at 43.
325. Pub. L. No.88-577, 78 Stat. 890 (1964).
326. Federal Insecticide, Fungicide, and Rodenticide Act, Pub. L. No.88-305, 78 Stat. 190 (1964).
327. National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No.89-563, 80 Stat. 718 (1966);
328. Jerry L. Mashaw and David L. Harfst, The Struggle for Auto Safety ch. 3 (1990).
329. National Environmental Policy Act of 1969, Pub. L. No.91-190, 83 Stat. 852 (1970) (to be codified at 42 U.S.C. 4321-4347).
330. Lazarus, supra note 190, at 44.
331. Clean Air Amendments of 1970, Pub. L. No.91-604, 84 Stat. 1676 (1970).
332. Reorganization Plan No.3 of 1970, available at http://www.epa.gov/ history/ org/origins/reorg.htm;
333. Alfred A. Marcus, EPA's Organizational Structure, 54 Law & Contemp. Probs. 5, 9-21 (1991).
334. Occupational Safety and Health Act, Pub. L. No.91-596, 84 Stat. 1590 (1970).
335. Press Release, EPA, DDT Ban Takes Effect (Dec. 31, 1972), available at http://www.epa.gov/history/topics/ddt/01.htm.
336. Pub. L. No.92-500, 86 Stat. 816 (1972).
337. Federal Environmental Pesticide Control Act of 1972, Pub. L. No.92-516, 86 Stat. 973 (1972).
338. Consumer Product Safety Act of 1972, Pub. L. No.92-573, 86 Stat. 1207 (1972).
339. Endangered Species Act, Pub. L. No.93-205, 87 Stat. 884 (1973).
340. In 1977, Congress passed the Mine Act, which created and now governs the successor agency, the Mine Safety and Health Administration (MSHA). Federal Mine Safety and Health Admendments Act of 1977, Pub. L. No.95-164, 91 Stat. 1290 (1977).
341. Safe Drinking Water Act, Pub. L. No.93-523, 88 Stat. 1660 (1974).
342. Resource Conservation and Recovery Act, Pub. L. No.94-580 (1976).
343. Kefauver-Harris Amendments, Pub. L. No.87-781, 76 Stat. 780 (1962).
344. Wilderness Act, Pub. L. No.88-577, 78 Stat. 890 (1964).
345. National Traffic and Motor Vehicle Safety Act of 1966 §103(a), Pub. L. No.89563, 80 Stat. 718, 719.
346. Id. §105(a)(1).
347. H.R. Rep. No.1776, at 20-21, reprinted in 2 NHTSA, National Traffic and Motor Vehicle Safety Act of 1966: Legislative History 126-127 (1985).
348. Cong. Rec. 19650-19651 (1966) (statement of Rep. MacDonald), reprinted in 2 NHTSA, National Traffic and Motor Vehicle Safety Act of 1966: Legislative History 125 (1985).
349. Occupational Safety and Health Act of 1970, Pub. L. No.91-596, § 6(f), 84 Stat. 1590, 1597 (1970).
350. OSHA § 11(a), 84 Stat, at 1602 (1970).
351. Conf. Rep. to accompany S. 2193, H. Rep. 91-1765, at 39, reprinted in Legislative History of the Occupational Safety and Health Act of 1970, Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, Committee Print, at 1192 (1971).
352. Pub. L. No.91-604, 84 Stat. 1676 (1970).
353. Pub. L. No.91-604, § 304(a), 84 Stat, at 1706. The provision authorized courts to award injunctive relief. Unlike the later-enacted Clean Water Act, the provision did not authorize civil penalties, which would have permitted citizens to seek relief for past violations. Courts were, however, permitted to award litigations costs, including attorneys' fees and expert witness fees, "whenever the court determines such award is appropriate."
354. See Pub. L. No. 91-604, § 304(d), 84 Stat, at 1706.
355. Senate Debate, in Legislative History, v. 1, p. 277.
356. Senate Debate on S. 4358, Sept. 21, 1970, reprinted in Legislative History, v. 1, pp. 273-281 (Hruska-Muskie exchange).
357. Senate Debate, in Legislative History, v. 1, p. 352;
358. see also id. ("Citizen enforcement may add to the burden of the courts-but in a democracy, the answer cannot lie in the denial of citizen access to the courts-in a society of Government of and by the people we foreclose participation by citizens at our peril.").
359. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.92-500, § 505, 86 Stat. 816, 888 (1972).
360. MPRSA of 1972, Pub. L. No.92-532, § 105(g)(1), 86 Stat. 1052, 1057 (1972).
361. Noise Control Act of 1972, Pub. L. No.92-574, § 12, 86 Stat. 1234, 1243 (1972).
362. ESA of 1973, Pub. L. No.93-205, § 11(g), 87 Stat. 884, 900 (1973).
363. TSCA of 1976, Pub. L. No.94-469, § 20, 90 Stat. 2003, 2041 (1976).
364. SMCRA of 1977, Pub. L. No.95-87, § 520, 91 Stat. 400, 503-504 (1977).
365. Consumer Product Safety Act, Pub. L. No.92-573, § 7, 86 Stat. 1207, 1212-1215 (1972).
366. CPSA §11(a), 86 Stat, at 1218.
367. See Karen O'Connor & Lee Epstein, Rebalancing the Scales of Justice: Assessment of Public Interest Law, 7 Harv. J.L. & Pub. Pol'y 483, 484-485 (1984).
368. Robert L. Rabin, Lawyers for Social Change: Perspectives on Public Interest Law, 28 Stan. L. Rev. 207, 224-231 (1976).
369. Handler defines a public interest law firm as one that is 1) part of the voluntary sector; 2) uses primarily legal tools such as litigation; 3) involved primarily in actions that, if successful, have a substantial external benefits component or a high public interest ratio. Handler, infra note 234, at 49. Handler's definition would include lawyers working in the legal aid area as well as lawyers working on issues such as consumer or environmental protection or occupational and auto safety.
370. Joel F. Handler, Betsy Ginsberg, & Arthur Snow, The Public Interest Law Industry, in Public Interest Law: An Economic and Institutional Analysis 42,50 (Burton A. Weisbrod ed., 1978).
371. Council for Public Interest Law, Balancing the Scales of Justice: Financing Public Interest Law in America 79 (1976). This figure excludes legal aid and legal services lawyers and includes only "policy-oriented" groups.
372. Lewis A. Kornhauser & Richard L. Revesz, Legal Education and Entry into the Legal Profession: The Role of Race, Gender, and Educational Debt, 70 N.Y.U. L. Rev. 829, 839 (1995). Kornhauser and Revesz count legal aid oriented firms as well as lawyers working on issues like environmental or consumer protection. Justin Martin, Nader: Crusader, Spoiler, Icon 64 (2002).
373. Id. at 70-73.
374. Id. at 73.
375. Id. at 75 (quoting from letter to Nader from Harvard Law students Robert FeIlmeth and Andrew Egendorf). The Summer of 1968 group included Fellmeth and Egendorf, as well as William Howard Taft IV, Edward Finch Cox (a Princeton senior), Peter Bradford, Judy Areen, and, the oldest of the bunch, John Schultz, a 29year-old assistant professor of law at University of Southern California Gould School of Law.
376. Id. at 76.
377. Craig, Courting Change, infra note 244, at 12-22;
378. Martin, supra note 237, at 8085.
379. Letter from John Gardner Announcing the Formation of Common Cause (Aug. 18, 2007) available at http//www.commoncause.org/site/pp.asp?c= dkLNKlMQIwG&b=189955;
380. see also John W. Gardner, In Common Cause 15 (1973).
381. Martin, supra note 237, at 123.
382. Barbara Hinkson Craig, Courting Change: The Story of the Public Citizen Litigation Group, chs. 5 and 6 (2004).
383. Joel Handler, Social Movements and the Legal System: A Theory of Law Reform and Social Change 74 (1978).
384. Robert Cameron Mitchell, Angela G. Mertig, & Riley E. Dunlap, Twenty Years of Environmental Mobilization: Trends Among Environmental Organizations, in American Environmentalists The U.S. Environmental Movement, 1970-1990, at 1114 (Riley E. Dunlap & Angela G. Mertig eds., 1992).
385. Tom Turner, Sierra Club: 100 Years of Protecting Nature 190-191 (1991).
386. Michael P. Cohen, The History of Sierra Club: 1892-1970, at 452 (1988);
387. Oliver Houck, Unfinished Stories, 73 U. Colo. L. Rev. 867, 920 (2002).
388. Westlaw search (on file with author).
389. Karen O'Connor & Lee Epstein, Public Interest Law Groups: Institutional Profiles 68-70 (1989).
390. Thomas R. Dunlap, DDT: Scientists, Citizens, and Public Policy 143-154 (1981).
391. Westlaw search (on file with author).
392. Gottlieb, supra note 190, at 193-96;
393. Philip Shabecoff, A Fierce Green Fire: The American Environmental Movement 116 (1993).
394. Westlaw search (on file with author).
395. Handler, Ginsberg & Snow, supra note 234, ch. 4.
396. Epstein, supra note 231, at 486-487
397. Gottlieb, supra note 190, at 138-39 (EDF);
398. id. at 140-142 (NRDC);
399. Cohen, supra note 248, at 452 (Sierra Club LDF).
400. Westlaw search (on file with author).
401. See Brief for Respondent, United States v. Richardson, No.72-885 (1973).
402. Justice Powell, "Summer Memorandum," at 7, United States v. Richardson, No.72-885 (August 15, 1973) (Powell is confident that country would be handicapped in "its foreign policy and national defense posture if the plaintiff prevails in this case," but Powell is not "equally clear at the moment as to the principles that control or how these principles may be applied soundly to this particular case") (on file with author);
403. see also Justice Powell's handwritten notes on Diamond's "Preliminary Memo," at 9, in United States v. Richardson, No. 72-885 ("Our country could not function in international affairs if every citizen could bring an idiot suit like this!") (on file with author).
404. Sierra Club v. Morton, 405 U.S. 727, 739-40 (1971);
405. see also United States v. Richardson, 418 U.S. 166, 194 n.16 (1973) (Powell, J, concurring) (same).
406. Richardson, 418 U.S. at 188-197
407. Id. at 192.
408. Warth v. Seldin, 422 U.S. 490, 498 (1975) (standing "is founded in concern about the proper-and properly limited-role of the courts in a democratic society"); id. at 500 (without prudential limitations on standing, courts would be "called upon to decide abstract questions of wide public significance even though over governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights");
409. see also Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37-38 (1976) ("No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. The concept of standing is part of this limitation. Absent such a showing [of standing], exercise of its power by a federal court would be gratuitous and thus inconsistent with the Art. III limitation.") (citations omitted); id. at 39 ("A federal court cannot ignore [the requirement that the plaintiff have some personal interest] without overstepping its assigned role in our system of adjudicating only actual cases and controversies.") (citation omitted).
410. Sierra Club, 405 U.S. at 740.