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Standing to Sue: Interest Group Conflict in the Federal Courts*

  • Karen Orren (a1)


The law of standing—rules by which judges find whether a party may bring suit—has been liberalized in the federal courts to permit interest group disputes not ordinarily possible. Following an historical pattern of conflict containment within judicial-style processes, consumer and environmental groups contest corporate business decisions by challenging the legality of their regulatory or legislative authorization. The vagueness and substantive emphasis of the new rules give groups more influence in determining when courts will intervene in the affairs of the other branches; and the doctrine's recognition of noneconomic injuries logically forces judges to consider whether they may find standing for some “public interest” beyond a specific plaintiff. Changes in standing equalize social power; but the entanglement of courts in the puzzles of interest representation may restrict protections for strictly private litigants, and may further remove the political system from the Rule of Law.



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1 It is customary in writing on standing to warn the reader that ProfessorFreund, Paul has said the concept of standing “is among the most amorphous in the entire domain of public law.” Hearings before the Senate Subcommittee on Constitutional Rights, 89th Cong., 2d Sess., (1966), pt. 2, p. 498. Frankfurter, Justice called it a “complicated speciality of federal jurisdiction. …” U.S. ex rel. Chapman, 345 US 153 (1953), 156. Justice Douglas remarked that “generalizations about standing to sue are largely worthless as such.” Association of Data Processing Service Orgs. v. Camp, 397 US 150 (1970), 151.

The student interested in standing primarily for its political implications will find nothing in the political science literature. This is a result not only of the relative newness of the standing changes, but of the general recent neglect of the role of judicial doctrine in the political system. Many entirely comprehensible articles on the subject of standing have been written by legal scholars, however. These concern a different range of questions from those of immediate interest here, but they are indispensable for an understanding of the doctrine and for references to additional cases, as well as for information bearing on political matters. The specific interpretation of standing in terms of the courts' definition of interest, however, is original to this essay and has been prompted by the problem of group conflict.

See Albert, Lee, “Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief,” Yale Law Journal 83 (01, 1974), 425–97; Davis, Kenneth C., Administrative Law Text, 3d ed. (St. Paul: West Publishing Co., 1972), Ch. 22; Jaffe, Louis L., Judicial Control of Administrative Action (Boston: Little, Brown, 1965), Chs. 12, 13; Jaffe, , “Standing Again,” Harvard Law Review, 84, (01, 1971), 633–38; Jaffe, , “The Citizen as Litigant in Public Actions: The Non-Holfeldian or Ideological Plaintiff,” University of Pennsylvania Law Review, 116 (04, 1968), 1033–47; Scott, Kenneth E., “Standing in the Supreme Court—A Functional Analysis,” Harvard Law Review, 86 (02, 1973), 645–92; and Sedler, Robert A., “Standing Judiciability and All That: A Behavioral Analysis.” Vanderhih Law Review, 25 (04, 1972), 479512. See also Bickel, Alexander M., The Least Dangerous Branch (Indianapolis: Bobbs Merrill, 1962) pp. 120ff.

2 Orren, Karen, “Corporate Power and the Slums: Is Big Business a Paper Tiger?” in Theoretical Perspectives on Urban Politics, ed. Hawley, Willis and Lipsky, Michael (Englewood Cliffs, N.J.:Prentice-Hall, 1976).

3 For some years before the general liberalization of standing by the Supreme Court in 1970 judges gave a liberal interpretation in cases concerning charges of racial discrimination. A summary is found in Sedler, pp. 499ff. Also see Barnes, Thomas J., “U.S. Government's Standing to Sue—A New Approach to Legal Assistance for Ghetto Residents or an Invitation to Executive Lawmaking?.” Wayne Law Review. 17 (Sept.–Oct.. 1971). 12871304. On the other hand, minorities have been notably unsuccessful in obtaining the right to challenge alleged racial exclusion through local zoning, zoning being a subject resistant generally to the broadening of standing. See, for example, Warth v. Seldin, 495 F. 2d, 1187 (2d Cir. 1974).

4 The NEPA requires, among other things, that all administrative agencies establish procedures to consider “environmental amenities and values in their decision making and to include an environmental impact statement with every recommendation.” It does not provide for judicial review but does state Congress's intention to preserve the natural environment for present and future generations. An excellent treatment of group strategy is Sax, Joseph L., Defending the Environment (New York: Knopf, 1971).

5 It may be the specific nature of these recent interests, particularly of the environmentalists, that has caused the recurrence in the doctrine of standing of conceptual formulations which, when put in practice in other policy-making contexts, are viewed skeptically by the courts. In particular, the coincidence of concrete circumstances—the scarcity of physical resources—with the growing recognition of human and natural interdependency and the mobilization of groups to speak on these issues, has provided new impetus to the prospect of giving representation to wholistic “public interests.” Also, these circumstances may have had a more subtle influence on standing, for example, the emphasis on effects of legislative policy rather than on the intentions of legislators.

6 See for example Wright, Charles Allen, Handbook of the Law of Federal Courts, 2nd ed. (St. Paul: West Publishing Co., 1970), pp. 43ff.

7 Consumers Union of U.S., Inc. v. Rogers, 352 F. Supp. 1319 (D.D.C. 1973).

8 By corporate business is meant industry, finance, and “agribusiness.” For a recent standing case concerning corporate farming, see Bowker v. Morton (N.D. Cal. Aug. 2, 1973), Environmental Law Reporter, 4, 20255.

9 Doe v. Bolton, 410 US 179 (1973); Flast v. Cohen, 392 US 83 (1968); Whitley v. Wilson City Board of Education, 427 F.2d 179 (4th Cir. 1970); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968); Reservists Committee to Stop the War v. Laird, 323 F. Supp. 833 (D.C. Cir. 1971).

10 For a suggestive discussion of collective bargaining see Wellington, Harry H. and Winter, Ralph K. Jr., The Unions and the Cities (Washington, D.C.: The Brookings Institution, 1971), pp. 150ff.

11 For a fuller discussion of these points see Orren, “Corporate Power and the Slums.”

12 See Keeton, Robert E., Venturing to do Justice (Cambridge, Mass.: Harvard University Press, 1969), Chaps. 1 and 7.

13 See McConnell, Grant, Private Power and American Democracy (New York: Knopf, 1966). Chap. 6 and passim; also Lowi, Theodore J., The End of Liberalism (New York: Norton, 1970), Chaps. 4, 5.

14 Quoted in Jaffe, , Judicial Control, p. 12 and McConnell, p. 284.

15 The Chicago Junction Case, 264 US 258 (1924), 271–73.

16 An interesting discussion of nineteenth-century law as it pertained to business can be found in Hurst, James W., Law and the Conditions of Freedom (Madison: University of Wisconsin Press, 1956), Chap. I.

17 For a consideration of standing within the context of a change in the court's philosophy of judicial review see Monaghan, Henry P., “Constitutional Adjudication: The Who and When,” Yale Law Journal, 82 (06, 1973), 1363–97, and Scharpf, Fritz W., “Judicial Review and the Political Question: A Functional Analysis,” Yale Law Journal, 75 (03, 1966), 517–97.

18 Examples of narrow provisions include the Federal Trade Commission Act's provision for review by “any person … required by an order of the Commission to cease and desist,” and the Federal Power Act confining review to parties who participated in Commission proceedings. Examples of broad provisions include “any party at interest” in the Interstate Commerce Act; “persons aggrieved” in the Federal Communications Act; “any person disclosing a substantial interest in such order” in the Federal Aviation Act; and see also the National Labor Relations Act and the Securities Act of 1933.

19 Intervention upon “good cause” is provided by the organic act of the Federal Trade Commission. See Gellhorn, Ernest, “Public Participation in Administrative Proceedings,” Yale Law Journal, 81 (01, 1972), 359404.

20 306 US 118 (1939), 137.

21 310 US 113 (1940), 125, 127.

22 See Albert, pp. 445–47.

23 264 US 258 (1924), 267.

24 281 US 249 (1930). For the view that the decision may have overlooked Sprunt's common law rights see Jaffe, , Judicial Control, pp. 511–12.

25 309 US 470 (1940)) 473, 477.

26 316 US 4 (1942), 20.

27 For an example of a case decided shortly before the liberalization of standing, where plaintiffs were found not to “have any real interests” in the litigation under way, see South Hill Neighborhood Association, Inc. v. Romney, 421 F. 2d 454 (6th Cir. 1969).

28 397 US 150 (1970) and 397 US 159 (1970).

29 397 US 150, 151, 152.

30 Section 10(a) of the Administrative Procedures Act provides: “Except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law … a person suffering legal wrong because of agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Section 10(c) provides: “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”

31 397 US 150 (1970), 156. The case Douglas cited was Arnold Tours Inc. v. Camp, 400 US 45 (1970).

32 369 US 186(1962), 204.

33 397 US 150(1970), 157.

34 397 US 159(1970), 177. For the view that the “zone of interests” test is meaningless in practice, see Sedler, pp. 486 and 511.

35 In Investment Company Institute v. Camp, 401 US 617 (1971), the Court found that the mutual funds suffered an injury “indistinguishable” from that of bank service companies in Data Processing without any study or discussion of the specific legislation whatever.

36 Professor Davis has long advocated the view that the APA refers to any persons “adversely affected” by agency action and not merely those “aggrieved” within the meaning of a relevant statute providing review. See Davis, pp. 436–37. For the view that the court has effectively obliterated the distinction between statutory and non-statutory review see Albert, p. 451.

37 Davis, p. 425.

38 Dissent in Sierra Club v. Morton, 405 US 727 (1972), 745.

39 Office of Communication of the United Church of Christ v. F.C.C., 425 F. 2d 543 (D.C. Cir. 1969) 547–48.

40 For a recent example see the remarks of Judge Skelly Wright: “Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.” Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Commission, 449 F. 2d 1109 (D.C. Cir. 1971).

41 359 F.2d 994 (D.C. Cir. 1966).

42 354 F.2d 608(2d Cir. 1965).

43 405 US 727 (1972), 734.

44 Nader v. Volpe, 320 F. Supp. 266 (D.C. Cir. 1970).

45 (D.C. Cir. March 3, 1972) Environmental Law Reporter, 2, 20235–36.

46 See Palisades Citizens Assn. v. CAB, 420 F.2d 188 (D.C. Cir. 1969); and Crowther v. Seaborg, 312 F. Supp. 1205 (D. Colo. 1970).

47 On the inadequacy, therefore, of present standing doctrine to fully protect the environment see Stone, Christopher D., “Should Trees Have Standing—Toward Legal Rights for Natural Objects,” Southern California Law Review, 45 (Spring, 1972), 450501.

48 405 US 727 (1972), 757–58, 734, 745, 760.

49 Office of Communications of the United Church of Christ v. F.C.C., 359 F.2d 994 (D.C. Cir. 1966), 1005.

50 Cf. Amalgamated Meat Cutters v. Rogers, 186 F. Supp. 114 (D.C. Cir. 1960); Associated Industries, Inc. v. Ickes, 134 F.2d 694(2d Cir. 1943); NAACP v. Button, 371 US 415 (1963).

51 In addition to cases cited elsewhere above, see, for example, West Augusta Historical and Genealogical Society v. Urban Renewal Authority (4th Cir., Jan. 22, 1974) Environmental Law Reporter, 4, 20229; West Virginia Izaak Walton League v. Butz, (N.D. W.Va. Jan 25, 1974), ibid.; West Va. Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir., 1971); and Upper Pecos Assn. v. Stans, 328 F. Supp. 332 (D.N. Mex. 1971).

52 National Helium Corp. v. Morton, 455 F.2d 650(10th Cir. 1971).

53 Reade v. Ewing, 205 F.2d 630 (2d Cir. 1953). More recently, see Duke City Lumber Co. v. Butz, in which twelve large lumber companies were permitted under provision of the NEPA to defend the “continuation of free competition,” an interest protected by the Small Business Act, against the S.B.A.'s small business timber setaside program. (D.D.C. August 28, 1974) Environmental Law Reporter, 5, 20080–86.

54 429 F.2d 725 (D.C. Cir. 1970).

55 See Moynihan, Daniel P., The Politics of a Guaranteed Income (New York: Random House, 1973), pp. 329 ff.

56 Cf. Joint Anti-Fascist Refugee Committee v. Me-Grath, 341 US 123 (1951); NAACP v. Alabama, 357 US 449 (1958); Citizens to Preserve Overton Park v. Volpe, 401 US 402 (1971).

57 See Jaffe, “The Citizen as Litigant in Public Actions.” Jaffe has been the leading scholarly proponent of the public action, and his views are often cited in court opinions. Professor Davis has been the leading and apparently victorious opponent, arguing for injury as a basic element in standing. See Davis, , Administrative Law Text, pp. 437–39. A student may follow the dialogue between these two through their respective journal articles over the last decade and thereby get an excellent view of the legal issues under debate inside the courts.

58 262 US 447 (1923), 487.

59 392 US 83 (1968), 99, 102.

60 U.S. v. Richardson, 94 US 2940 (1974); and Schlesinger v. Reservists Committee, 94 US 2925 (1974).

61 See above, p. 8.

62 316 US 4, 14.

63 134 F.2d 694 (2d Cir. 1943), 704.

64 But see International Union of Electrical Workers v. U.S., 280 F.2d 645 (D.C. Cir. 1960), where a group of labor unions were granted standing as aggrieved parties to appeal a decision of the Atomic Energy Commission to construct a nuclear reactor on the grounds that it endangered the safety of an area where union members as well as others lived, and thus the economic interests of both unions and members.

See also Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970) to the effect that doubts of standing for bidders for government contracts should be resolved in favor of standing; bidders, while they lack a protected private interest, may litigate the public interest in contracting procedures.

65 354 F.2d 608(2d Cir. 1965), 614, 616.

66 359 F.2d 994(D.C. Cir. 1966).

67 428 F.2d 1093(D.C. Cir. 1970), 1097.

68 405 US 727(1972), 739, 740.

69 405 US 727(1972), 741.

70 412 US 669(1973), 689.

71 405 US 727(1972), 740. And see Brennan's, Justice dissent in Barlow, especially 176–78.

72 412 US 669(1973), 723.

73 Coalition for the Environment v. Linclay Development Corp. 347 F. Supp. 634 (E.D.Mo. 1972). The Circuit Court of Appeals disagreed and reversed, acknowledging the “aesthetic and psychological benefit” of viewing the open space as one among other valid allegations for standing (8th Cir. July 31, 1974) Environmental Law Reporter, 4, 20717.

74 “Memorandum in Opposition to Defendants' Motion to Dismiss,” Consumers Union, Inc. v. Butz, Civil Action No. 2142–72, mimeo, pp. 8–9. Also see Natural Resources Defense Council, Inc. v. Environmental Protection Agency (9th Cir. November 11, 1974), Environmental Law Reporter, 5, 20032–37, where the right to challenge an Arizona air quality statute was found in an individual plaintiff, there being “no doubt, that [he] as a resident of Arizona will suffer injury if compelled to breathe air less pure than that mandated by the Clean Air Act,” while, in the same decision, standing was denied under Sierra Club to the National Resources Defense Council and the Arizona Nurses' Association, even though both have members residing, and presumably breathing, in Arizona.

75 409 US 205(1972), 368.

76 475 F.2d 325(D.C. Cir. 1973), 337.

77 A recent proponent has been Professor Lowi. See his The End of Liberalism, Chap. 10, and The Politics of Disorder (New York: Basic Books, 1971), pp. 58 61 and 180–85.

78 449 F.2d 1109(1971).

79 Potomac Passengers Association v. Chesapeake and Ohio Railroad Co., 363 F. Supp. 39 (D.C. Cir., 1973).

80 Certain groups in the environmental movement have proposed that blanket legislation be passed to establish standing for litigants seeking to protect the environment. See Sax, p. 247 ff. Such a law in Michigan was declared an unconstitutional delegation by the legislature of power to make the law. Roberts v. Michigan, Environmental Law Reporter, 2, 1612(1971).

81 On the question of allowing participation of additional parties in suits see Shapiro, David L., “Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators,” Harvard Law Review, 81 (02, 1968), 721–72. On limited rights for “third party” interests, see Sedler, Robert A., “Standing to Assert Constitutional Jus Tertii in the Supreme Court,” Yale Law Journal, 71 (03, 1962), 599660, and Albert, p. 465.

82 473 F.2d 745 (5th Cir. 1973). But see Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971), allowing local residents to contest federal highway funding. For a decision denying a corporation's right on the basis of pecuniary interest to enjoin the construction of a competing facility along a nearby aircraft flight path and thus in alleged violation of the NEPA and the Noise Control Act, see Clinton Community Hospital Corporation v. Southern Maryland Medical Center, 374 F. Supp. 450 (D. Md. 1974).

83 For an indication that “curese” to the discomforts ot interest representation could be worse than the disease, and no less familiar to students of American politics, see the suggestions advanced by Scott (who, in any case, thinks that the issue “may be exaggerated”), pp. 680–81.

84 von Hayek, Friedrich A., The Road to Serfdom (Chicago: University of Chicago Press, 1944), Ch. VI.

85 See Thio, S. M., Locus Standi and Judicial Review (Singapore: Singapore University Press, 1971), pp. 9 ff.

* I would like to thank Professors Sylvia Snowiss of California State University, Northridge and Robert Gerstein and Douglas S. Hobbs of the University of California, Los Angeles, who were kind enough to read and comment on an earlier draft of this essay.

Standing to Sue: Interest Group Conflict in the Federal Courts*

  • Karen Orren (a1)


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