Standing Doctrine from 1940s to 1970s

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Supreme Court’s development of the standing doctrine from the 1940s to 1970s accompanied a significant increase in the power of federal administrative agencies to regulate businesses and individuals.1 The rise of the administrative state raised the question of who could challenge various agency actions in federal court. During the first several decades of the administrative state, the Court’s standing test considered whether a litigant had suffered a violation of an explicit legal right. For example, in the 1939 case Tennessee Electric Power Co. v. Tennessee Valley Authority, the Court determined that a proprietor of a business lacked standing to object to the government helping businesses compete with the proprietor’s business.2 The Court held that the proprietor had failed to identify any explicit legal right that the government had allegedly violated that was “one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” 3 A year later in FCC v. Sanders Bros. Radio Station, the Court held that an existing radio station had “standing” to appeal the Federal Communication Commission’s grant of a license to a rival radio station.4 The Court determined that the existing station’s allegations of economic injury from increased competition qualified as a legal “injury” under the Communications Act of 1934, which authorized appeals of Commission orders by a “person aggrieved” or “whose interests [were] adversely affected” by grant or denial of a license.5 Thus, it appears that the Court’s constrained approach to standing during these early years resulted from its focus on whether the litigant had suffered injury to a specific legal right recognized by a federal statute or other source of law.6 Prior to the enactment of the Administrative Procedure Act7 and other federal statutes providing for judicial review of agency actions, litigants did not possess as many legal rights that could serve as a basis for standing.8

Although it is difficult to discern significant trends in the Court’s standing jurisprudence during this era, the Court generally adopted an even more permissive approach to standing in the 1960s and 1970s to facilitate challenges to actions by federal agencies. The Administrative Procedure Act, enacted in 1945, provided for judicial review of agency actions, for example, under federal consumer and environmental laws.9 The Court relaxed the legal injury requirement and allowed the private beneficiaries of those public interest protections to challenge federal agency action based on harms that were not specifically recognized by statute or at common law,10 including noneconomic harms to private individuals’ aesthetic or recreational interests.11 However, as discussed below, this permissiveness declined after the late 1970s, as the Court began to adopt a stricter approach to standing, characterizing it as a core Article III concern.12

In the early 1970s, the Supreme Court recognized that a litigant needed standing to maintain a lawsuit but adopted a flexible approach toward the standing inquiry. For example, in Sierra Club v. Morton, an environmental group sought an injunction prohibiting federal officials from approving the construction of a ski resort in the Mineral King Valley adjacent to Sequoia National Park.13 The Court found that the plaintiffs lacked standing, concluding that their abstract interest in environmental protection was insufficient to confer standing.14 However, the Court’s opinion allowed for the possibility that future litigants who claimed injury to their noneconomic interests (e.g., “recreational” injuries impacting their ability to use a park) might be able to establish standing, even if such injuries were widely shared among the public.15

The high-water mark for the Supreme Court’s permissive approach to standing came in United States v. Students Challenging Regulatory Agency Procedures (SCRAP).16 In that case, the Court held that a group of Georgetown law students, together with the Environmental Defense Fund and the Izaak Walton League, had standing to challenge the Interstate Commerce Commission’s (ICC’s) approval of an increase to nationwide railroad freight rates on the grounds that it would ultimately result in “economic, recreational and aesthetic harm” to the groups’ members.17 The Court permitted the plaintiffs to establish standing at the pleading stage by combining a series of inferences about how they would suffer injury as persons “aggrieved” by the new rates.18 The Court found it sufficient for standing that the plaintiffs had alleged that higher rail rates would discourage the use of recyclable materials because used materials were often transported by rail to be recycled.19 As a result, the plaintiffs alleged that the ICC’s rate increase would cause companies to extract more raw materials, such as lumber, from parks in the Washington Metropolitan Area, resulting in people dumping more trash in the area’s parks.20 Consequently, the plaintiffs alleged, the new rates would cause environmental damage to parks in the area that they frequented.21

The Court found this attenuated causal chain of inferences to be sufficient for standing purposes, determining that the plaintiffs would suffer “specific and perceptible” recreational and aesthetic harms,22 even if a large number of other people throughout the United States might claim similar harms from the agency’s approval of the rate increase.23 The Court’s decision in SCRAP thus exemplifies the Court’s broader view at that time of the types of injuries that could support a litigant’s standing at the pleading stage in challenges to government action (e.g., noneconomic injuries, such as recreational injuries), as well as the types of inferences that a plaintiff could allege to connect such injuries to the defendant’s actions to satisfy the standing requirement.

Although the Supreme Court demonstrated some flexibility in applying rules of standing during the 1970s, the Court did not wholly reject a more stringent standing requirement. For example, two years after its decision in SCRAP, it considered Warth v. Seldin, a case in which residents of Rochester, New York, sued the adjacent town of Penfield and members of its local government boards, claiming that a Penfield town ordinance and its enforcement “excluded persons of low and moderate income from living in the town” in violation of various provisions of the Constitution and federal law.24 In explaining its decision on the issue of standing, the Court adopted a more stringent definition of “injury in fact” than it had in SCRAP, determining that the plaintiffs failed to show a “distinct and palpable” injury to themselves from the ordinance.25 The Court further determined that the plaintiffs lacked standing because they had failed to demonstrate a “substantial probability” that their alleged inability to obtain affordable housing resulted from the enforcement of the town’s ordinance instead of other factors, such as the independent decisions of real estate developers not to build housing for low-income individuals in the town.26

The Supreme Court followed its decision in Warth a year later with Simon v. Eastern Kentucky Welfare Rights Organization, a case that introduced the concept of standing as a core Article III requirement.27 In Simon, a group of indigent plaintiffs challenged an Internal Revenue Service ruling that allowed nonprofit hospitals to reduce the availability of free services and still retain their charitable organization status. The Court held that the plaintiffs lacked standing to sue because their injury depended on the independent actions of parties not before the Court—i.e., the hospitals.28 Cases such as Warth and Simon began to rein in the more flexible standing test of the early 1970s29 but left unresolved some questions about the legal basis for the standing inquiry and how rigidly courts should apply standing requirements. Nonetheless, these cases became the building blocks for later decisions that would usher in an era of stricter standing requirements,30 ultimately culminating in the Court’s watershed decision in Lujan v. Defenders of Wildlife in the early 1990s.31

1: Cass R. Sunstein, Standing and the Privatization of Public Law, 88 Colum. L. Rev. 1432, 1437–43 (1988).
2: 306 U.S. 118, 144 (1939).
3: Id. at 137, 147.
4: 309 U.S. 470, 472, 477 (1940).
5: Id. at 472–73, 476–77.
6: Sunstein, What’s Standing After Lujan?, supra note 1, at 180–81.
7: 5 U.S.C. § 702 (stating that a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof” ).
8: See Sunstein, What’s Standing After Lujan?, supra note 1, at 180–81.
9: Id. at 183–84 ( “[C]ourts interpreted the ‘legal wrong’ test to allow many people affected by government decisions—including beneficiaries of regulatory programs—to bring suit to challenge government action. For example, courts concluded that displaced urban residents, listeners of radio stations, and users of the environment could proceed against the government to redress an agency’s legally insufficient regulatory protection.” ). For additional examples of the Court’s more permissive approach, see Duke Power Co. v. Carolina Envtl. Study Group Inc., 438 U.S. 59, 72, 74–78 (1978) (finding that individuals who lived near the site of a proposed nuclear plant had established standing to challenge a statute that would support the construction of the plant); Flast, 392 U.S. at 105–06 ( “[W]e hold that a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power.” ); Hardin v. Ky. Utils. Co., 390 U.S. 1, 6–7 (1968) (determining that a competing utility company had standing to challenge the Tennessee Valley Authority (TVA)'s supply of power. See also Inv. Co. Inst. v. Camp, 401 U.S. 617, 621 (1971) ( “Congress did legislate against the competition that the petitioners challenge.” ).
10: See, e.g., Hardin, 390 U.S. at 6–7.
11: See, e.g., United States v. SCRAP, 412 U.S. 669, 686–87 (1973) ( “[N]either the fact that the appellees here claimed only a harm to their use and enjoyment of the natural resources of the Washington area, nor the fact that all those who use those resources suffered the same harm, deprives them of standing.” ).
12: See, e.g., Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41–42 (1976) ( “[T]he ‘case or controversy’ limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” ).
13: 405 U.S. 727, 734–35 (1972).
14: Id.
15: Id. Under the Court’s current standing doctrine, such recreational or aesthetic injuries may serve as the basis for standing. See, e.g., Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) ( “While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.” ).
16: 412 U.S. 669 (1973). The Court later characterized the broad holding of the SCRAP case as extending standing “to the very outer limit of the law.” Whitmore v. Arkansas, 495 U.S. 149, 159 (1990). And the Court’s 2013 decision in Clapper v. Amnesty Int’l, in which the Court rejected standing based on chains of attenuated causal inferences, suggests that SCRAP is no longer good law. See 568 U.S. 398, 414 (2013).
17: Id. at 675–76.
18: Id. at 688–89 ( “Here, the Court was asked to follow a far more attenuated line of causation to the eventual injury of which the appellees complained—a general rate increase would allegedly cause increased use of nonrecyclable commodities as compared to recycled goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area.” ).
19: Id. at 688–89.
20: Id.
21: Id.
22: Id. at 686–89 ( “[N]either the fact that the appellees here claimed only a harm to their use and enjoyment of the natural resources of the Washington area, nor the fact that all those who use those resources suffered the same harm, deprives them of standing.” ).
23: Id. at 687 ( “To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion.” ).
24: 422 U.S. 490, 493 (1975).
25: Id. at 501.
26: Id. at 504–07.
27: 426 U.S. 26, 41–42 (1976) ( “[T]he ‘case or controversy’ limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” ).
28: Id. at 28.
29: See also, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 260–64 (1977) (adopting a broad view of the standing requirement as encompassing both “constitutional limitations and prudential considerations” ).
30: See, e.g., Allen v. Wright, 468 U.S. 737 (1984); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485 (1982).
31: 504 U.S. 555, 560 (1992).