#16399 - Legislation Regulation Administrative Law Exam Outline -

When the plaintiff is themselves the object of the action or forgone action, there is ordinarily little question of standing. But when the asserted injury arises from the government’s regulation or non-regulation of someone else, much more is needed (Lujan).

A state receives “special solicitude” in asserting standing to challenge an agency action in federal court, such that the traditional requirements are relaxed (Mass. v. EPA).

After Data Processing, standing to challenge an agency decision requires that the plaintiff satisfy Article III requirements and prudential requirements. The Article III requirements are that (1) the plaintiff must show an injury in fact, (2) the injury must have been caused by the challenged action, and (3) it must be possible for a victory on the merits to redress the injury.

To meet the injury in fact requirement, the injury must be concrete and particularized, and, if it has not already occurred, must be actual and imminent (Lujan).

Procedural rights: Under Lujan, a person accorded a procedural right to protect their concrete interests can assert that right without meeting all the standards of redressability and immediacy. Thus, the plaintiff may have standing to challenge the agency’s failure to carry out [procedure in question] without showing that [the procedure] would cause the agency to change [agency action], and even if the results of the [agency action] would not come to fruition for many years.

Here, plaintiff may argue that the injury in fact is [XYZ], which is concrete (rather than abstract or ideological), and affects plaintiff particularly.

Concrete
- The injury does not need to be economic or physical. It can be a dignity interest, for example.
- Lujan forecloses citizen suits where the interest is purely ideological.
- Abstract stigmatic injuries, without more, are insufficient to establish concrete injury (Allen).
- Aesthetic injury can be concrete (Duke Power).
Particular
- The injury is particular if it affected the plaintiff in a personal and individual way (Lujan).
- While the dissent in Mass. v. EPA states that the particularity requirement means that injury cannot be widely shared, under Akins “where a harm is concrete, though widely shared, the Court has found injury in fact.”
Actual or imminent
- Under Lujan, injuries are speculative unless the plaintiff “bought the ticket to see the critters.” Showing that the plaintiff regularly [goes to some place or does something] could be sufficient. Otherwise, the plaintiff may need to have actually [purchased the ticket, made plans or done whatever] in order for the injury to be actual and imminent.
- The injury must be certainly impending, and actions taken to avoid a merely probably harm are insufficient to constitute an actual or imminent injury.
Heightened risk or lost opportunity
- A substantially increased risk of harm and a substantial probability that the harm will in fact occur can constitute an injury in fact (Public Citizen). Other cases have indicated that a “reasonable probability” of harm resulting from the agency action was sufficient (Monsanto). This is particularly true where the purpose of the regulation is to reduce risk, not certainty of harm.
- However, a statistical likelihood that at least one member of an organization will suffer actual injury is not sufficient for standing (Summers).

The injury must also meet the “nexus” requirements of causation and redressability.

Causation:
- The injury will meet the causation requirement since it is fairly traceable to the challenged action of the defendant, and does not result from the independent action of some third party (Simon).
- The case may not meet the causation requirement, since the connection between [injury] to [mediator] to the [agency action] is attenuated and may not be fairly traceable to the challenged action (Simon).
Redressability
- The case will satisfy redressability, since a favorable decision would [reduce the risk even a little (Mass v. EPA)/cause X to do Y/prevent the injury].
- The case may not meet the redressability requirement, since it is unclear that [effect of favorable decision] would cause [desired change to occur] (Allen).
  - If subsidy/tax: However, as in the Allen dissent, the plaintiff could argue that there would be at least some redress on the margins. If [injuring activity] becomes more[/less] expensive, there will be less[/more] of it.

The prudential requirements are that the plaintiff is (1) arguably within the zone of interests to be regulated by the statute or constitutional guarantee in question, (2) not asserting a generalized grievance, and (3) alleging a violation of their own legal rights.

The zone of interests test is met when the plaintiff themselves is the subject of the regulatory action.
For zone of interests, where the plaintiff is not themselves the subject of regulatory action, the inquiry is whether Congress intended for the plaintiff’s class to be relied upon to challenge agency disregard of the law. Here, the zone of interests requirement will be met since the plaintiff’s interests are sufficiently related or consistent with the purpose of the statute that it can be assumed Congress intended to permit the suit (Clarke).

The generalized grievance requirement will [not] be met for much the same reasons as the particularization requirement, and the requirement that the plaintiff is asserting their own rights will be met since they themselves[/at least some of their members] suffer the injury.

There is a strong presumption in favor of reviewability of agency action (Abbott Labs), except to the extent that the statute precludes judicial review or agency action is committed to agency discretion by law (APA §701).

The statute’s explicit preclusion of review may present some difficulty. However, Courts have read the preclusion by statute exception very narrowly (Block). Accordingly, the court will likely find that the exception does not apply to judicial review of [xyz agency action], since the exception covers [abc agency action], and, narrowly read, [xyz action] is outside of that category (Johnson).
Although there is no explicit preclusion in this statute, a statute may implicitly preclude review where there is a complex regulatory scheme with no valid role for the plaintiff (Block). But this must be shown clearly and convincingly, and may preclude only one type of review and another. [XYZ statutory language is ambiguous/applies to one type of review and not another] Accordingly, here we do not have a sufficiently strong indication that the statute as a whole implicitly precludes review.

The standard view is that agency action is committed to agency discretion when there is “no law to apply.”

Where the plaintiff is alleging a constitutional violation, there is always law to apply – namely, the Constitution.
Where the plaintiff is alleging a misconstruction of a statute, there are at least standards to apply that relate to interpretive principles (such as the presumption against retroactivity) and legislative history. Given the strong presumption in favor of reviewability, this should be sufficient for the court to evaluate [alleged misconstruction].
Where the plaintiff alleges an erroneous finding of fact or abuse of discretion, the court will typically find there is no law to apply when the statute is too broad for judicially manageable standards. For example, “wherever he shall deem such termination necessary or advisable in the interests of the United States” (Webster) was found to commit the action to agency discretion. On the contrary, the standard of “feasible and...

#16399 - Legislation Regulation Administrative Law Exam Outline - Administrative law: Legislation and Regulation

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