There and Back Again: Will the Supreme Court return to pre-Lujan standing requirements? Georgetown Environmental Law Review

image4535There and Back Again: Will the Supreme Court Return to Pre-Lujan Standing Requirements?

By Anna Deffebach, Staff Contributor

The Supreme Court recently granted certiorari in a case with broad implications for the future of the Court’s standing jurisprudence. This case, Spokeo Inc. v. Robins, presents the Court with the question “Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.”[1] The Court’s forthcoming decision on the limits of the injury-in-fact requirement in the context of citizen suits could either open the courthouse doors for plaintiffs with a strong interest in environmental protection or raise the hurdles that potential plaintiffs must overcome to gain access to the courts.

Standing has been an important issue in environmental law for decades. Many of the Court’s most influential decisions on standing arose in the context of environmental disputes, frequently brought by individuals or organizations with an interest in environmental protection or preservation.[2] The standing doctrine has had particularly broad ramifications in the field of environmental law because courts historically focused on whether a litigant had a cause of action under the traditional rights at common law, such as personal injury or property damage—which are often absent in the environmental context.[3] The original model of the doctrine of standing in the federal courts, a doctrine born out of the New Deal period as courts were faced for the first time with a flood of regulatory litigation brought by regulated entities, did not confer standing on beneficiaries of regulation who did not assert interests legally cognizable at the common law. [4]

In the 1970s, there was a transformation of causes of action towards more liberalized standing requirements, largely as a result of the proliferation of citizen suit provisions in many statutes, including most environmental statutes. [5] The citizen suit provisions of environmental statutes sought to address environmental risks that might affect large swaths of people, risks that the common law was not well suited to addressing.[6] In 1970, the Supreme Court for the first time conferred standing on the beneficiary of a regulation, thus “signal[ing] a departure from the private-law underpinnings of previous law.”[7] This broad acceptance of non-traditional common law rights of action continued throughout the 1970s and 1980s in cases like United States v. Students Challenging Regulatory Agency Procedures (SCRAP) (holding that environmentalist law students had standing to challenge a freight rate increase that the students worried would discourage the use of recycled materials) and Sierra Club v. Morton (holding that, although the Sierra Club itself did not have standing to challenge Disney’s plan to develop a former wilderness area into an amusement park, any individual person who had an aesthetic interest in preserving the wilderness for their own enjoyment would have standing).[8]

However, beginning in 1990 Justice Scalia led the charge to return to the private rights model of standing.[9] Decisions like Lujan v. Defenders of Wildlife, in 1992, required that plaintiffs must prove an injury that is imminent.[10] Even though plaintiffs were bringing suit under the provision of the Endangered Species Act, an act designed to preserve ecosystems upon which threatened and endangered species depend, the Court nonetheless found that the concerned plaintiffs were not “perceptibly affected by the unlawful action in question.”[11] In an important concurring opinion however, Justice Kennedy indicated that he believed that Congress could always confer new legal rights, giving rise to new causes of action not traditionally recognized under common law.[12] Since Defenders of Wildlife in 1992, the standing doctrine has waxed and waned, adopting both more liberal standing requirements in Laidlaw, holding that plaintiff’s fears of using a nearby river could confer standing even when there no indication of actual environmental harm[13], and very stringent ones in Clapper, where the Court held that plaintiffs, challenging the constitutionality of the Foreign Intelligence Surveillance Act could not prove that their injury (being illegally wiretapped) was “certainly impending”.[14]

This brings us back to the forthcoming Supreme Court decision in Spokeo, which would give the Court an opportunity, once and for all, to clarify the extent of an injury suffered by a plaintiff who is alleging an injury-in-law as conferred by a citizen suit provision.[15] In Spokeo, the defendant operates a “people search engine” aggregating information about people and entering it into a database that is searchable on the Internet.[16] The defendant allegedly posted false information about the plaintiff in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. The Ninth Circuit held that “the violation of a statutory right is usually sufficient to confer standing.”[17] Because “the statutory cause of action does not require a showing of actual harm when a plaintiff sues for willful violations,” the court reasoned, “actual harm is unnecessary to establish injury in fact.”[18] The defendant, Spokeo Inc., understands the implications of the Court’s decision in its case, arguing that “[the Ninth Circuit’s] holding has the practical effect of collapsing the three-part standing inquiry into the single question whether the plaintiff has been subjected to a statutory violation.”[19] This could have broad ramifications for environmental law in particular, allowing plaintiffs to bring lawsuits pre-emptively based on a bare statutory violation rather than being forced to wait for an environmental catastrophe to occur. Some scholars argue that perhaps greater emphasis on the statutory cause of action is warranted from a position of institutional competence—that Congress can create new causes of action better than the courts can.[20] This decision could be the vindication of various arguments that Congress’s deliberations in creating a statutory cause of action reflects the valuation and importance of the inherent injury as perceived by Congress.[21]

The Court’s standing jurisprudence in recent years has been called many things, from “fragmented” to “problematic” to “lawless.”[22] Many eyes will be watching Spokeo closely to see whether the Court can finally clean up the mess it’s made.[23]


[1] Petition for Writ of Certiorari, Spokeo Inc. v. Robbins, No. 13-1339.

[2] See Sierra Club v. Morton, 405 U.S. 727 (1972); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, (1973); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs, Inc., 528 U.S. 167 (2000); Summers v. Earth Island Inst., 555 U.S. 488 (2009).

[3] Robert v. Percival and Joanna B. Goger, Citizen Suits and the Future of Standing in the 21st Century: From Lujan to Laidlaw and Beyond: Escaping the Common Law’s Shadow: Standing in the Light of Laidlaw,,12 Duke Envtl. L. & Pol’y F. 119, 121 (2001).

[4] Id. at 122.

[5] See, e.g., Federal Water Pollution Control (Clean Water) Act, 33 U.S.C. § 1365 (1994); Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1540(g) (1994); Air Pollution Prevention and Control (Clean Air) Act, 42 U.S.C. § 7604 (1994); Resource Conservation and Recovery Act, 42 U.S.C. § 6972 (1994); Toxic Substances Control Act, 15 U.S.C. § 2619 (1994); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9659 (1994).

[6] See Percival and Gover, supra note 2, at 129.

[7] See Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970); see also Cass R. Sunstein, Standing and the Privatization of Public Law, 88 Colum. L. Rev. 1432, 1445 (1988).

[8] See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 690 (1973); Sierra Club v. Morton, 405 U.S. 727, 739-49 (1972)

[9] Justice Scalia’s judicial opinions on the standing doctrine were foreshadowed by a law review article he wrote many years before ascending to the Court. Antonin Scalia, The Doctrine of Standing as an Essential Element of Separation of Powers, 17 Suffolk U. L. Rev. 881, 894


[10] Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)

[11] Id.

[12] Id. at 579 (Kennedy, J. Concurring)

[13] Friends of the Earth, Inc. v. Laidlaw Envtl. Servs, Inc., 528 U.S. 167 (2000)

[14] See Richard H. Fallon, Jr., The Fragmentation of Standing, 93 Tex. L. Rev. 1061 (2015); but see Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 142, (2010), (holding that farmers who had a “reasonable probability” of injury had standing to challenge producer of genetically modified seeds.)

[15] See Paul A. Scrudato, Brittany Robbins, and Thomas M. Crispi, No Injury? No Problem- Spokeo v. Robbins, The National Law Review, May 31, 2015,

[16] Id.

[17] Robbins v. Spokeo Inc., 702 F.3d 409, 413 (9th Cir. 2014).

[18] Id.

[19] Petition for Writ of Certiorari, Spokeo Inc. v. Robbins, No. 13-1339

[20] See William W. Buzbee, Citizen Suits and the Future of Standing in the 21st Century: From Lujan to Laidlaw and Beyond: Standing in the Statutory Universe, 11 Duke Envtl. L. & Pol’y F. 247, 279-80 (2001); see also Mark Seidenfeld & Allie Akre, Standing in the Wake of Statutes, 57 Ariz L. Rev. 745 (2015).

[21] See Buzbee, supra note 20; see also Seidenfeld & Akre, supra note 20.

[22] See Fallon, supra, note 13; Buzbee, supra note 18, at 260; John Paredes, The Lawlessness of Standing, 26 Loy. Consumer L. Rev. 247 (2014).

[23] See Paul A. Scrudato, Brittany Robbins, and Thomas M. Crispi, No Injury? No Problem- Spokeo v. Robbins, The National Law Review, May 31, 2015,