Has the Supreme Court Changed the Law of Standing?
May 25, 2016
By: Blair M. Gardner
“Standing” is a legal principle which is fundamental to every environmental case filed in federal courts. Because the Constitution grants federal courts power to hear only actual “cases and controversies”, a litigant must allege facts to demonstrate why the federal court has the authority to hear the case. Those facts must identify 1) a legal injury suffered, 2) that is traceable to the defendant’s conduct, and 3) that can be redressed by a favorable decision of the court. The first element – legal injury – is the principle normally challenged in litigation. The alleged injury must be shown to be a legally protected interest which is both “concrete and particularized”. If standing is challenged and shown not to exist, a case ends and its merits are never presented.
The terms that demonstrate standing have become somewhat formulaic over time. For example, the phrase “concrete and particularized” has typically been analyzed by courts as a single concept demonstrating that a claimant was harmed in a personal and individual way. On May 16, 2016, the Supreme Court’s decision in Spokeo, Inc. v. Robins, No. 13-1339, signaled that standing has changed. The case involves a class action challenge under the Fair Credit Reporting Act. The plaintiff alleged that a company was a “consumer reporting agency” within the meaning of the statute, and that he was injured when the company generated an inaccurate profile. For the company’s willful failure to comply with the law, the plaintiff alleged that his statutory rights were violated. The district court dismissed the case for lack of standing, and the Ninth Circuit reversed.
Although the Supreme Court has coupled the words in numerous cases, for the first time it explained that they embody different aspects. “Concreteness, therefore, is quite different from particularization.” (Slip Op. at 8). A concrete injury may be intangible, and for this reason Congress may “identify intangible harms that meet minimum Article III requirements”[.] (Slip Op. at 9). Nevertheless, because the Constitution requires a concrete injury to invoke the jurisdiction of a federal court, it remains outside of Congress’ power to create standing to bring a case even if a statutory right is created and subsequently violated.
The Fair Credit Reporting Act obviously is not an environmental statute. Nevertheless, nothing in the opinion suggests that its application is confined to that statute or to consumer credit statutes generally. What is intriguing is that many environmental claims are purely procedural claims which arise under statutes such as the Natural Environmental Policy Act (NEPA) or the Endangered Species Act (ESA). It will be interesting to observe whether this new decision applies any restraint to the growing number of citizen suits brought under federal environmental statutes.
This article was authored by Blair M. Gardner, Jackson Kelly, PLLC.