University of Tulsa College of Law TU Law Digital Commons Articles, Chapters in Books and Other Contributions to Scholarly Works 1992 Standing and Ripeness Revisited: The uprS eme Court's "Hypothetical" Barriers Marla Mansfield Follow this and additional works at: http://digitalcommons.law.utulsa.edu/fac_pub Part of the Law Commons Recommended Citation 68 N. D. L. Rev. 1 (1992). This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Articles, Chapters in Books and Other Contributions to Scholarly Works by an authorized administrator of TU Law Digital Commons. For more information, please contact [email protected]. STANDING AND RIPENESS REVISITED: THE SUPREME COURT'S "HYPOTHETICAL" BARRIERS BY MARLA E. MANSFIELD* I. Introduction ............................................. 2 II. The Law of Standing and Ripeness ..................... 6 A. HISTORY OF STANDING LAW AND GENERAL C RITIQUES .......................................... 6 1. "Narrow" Standing: Private Rights Model ..... 7 2. "Broadened"Access ............................. 8 3. "Causation" Limiting Systemic Relief .......... 11 4. The Agency Era ................................. 15 B. HISTORY OF RIPENESS LAW AND GENERAL CRITIQUES .......................................... 19 III. The Cases in Detail: Lujan and Air Courier Conference .............................................. 23 A. LUJAN V. NATIONAL WILDLIFE FEDERATION ........ 23 1. Factual and ProceduralBackground ............ 23 2. The "Injury in Fact" Decision ................... 25 3. The Nature of an "Action" and the "Ripeness" D ecision ......................................... 29 B. AIR COURIER CONFERENCE OF AMERICA V. POSTAL WORKERS UNION, AFL-CIO ........................ 33 1. Factualand ProceduralBackground ............ 33 2. The "Zone of Interest" Test ..................... 35 IV. Philosophical Pedigrees of the Decisions ............... 37 A. SEPARATION OF POWERS AS A DECISIONAL GUIDE 37 B. "BYSTANDER" STATUS RESURGENT ................. 46 C. CONSOLIDATION OF THE PRIVATE LAW MODEL AND FURTHER IMPLICATIONS ...................... 51 V. Impact on Lower Courts ................................. 54 V I. Conclusion ............................................... 62 APPEN D IX ................................................... 64 A. THE PURPORTED "BLACK LETTER" LAW OF STANDING ........................................... 64 B. THE PURPORTED "BLACK LETTER" LAW OF RIPENESS ............................................ 68 * Associate Professor, University of Tulsa, College of Law; Associate Director, National Energy Law and Policy Institute. B.A., Yale University, 1974; J.D., University of Wyoming, 1978. The views expressed herein are the author's and do not necessarily reflect those of the National Energy Law and Policy Institute. NORTH DAKOTA LAW REVIEW [Vol. 68:1 I. INTRODUCTION Recently, the Supreme Court decided two cases, namely Lujan v. National Wildlife Federation' and Air Courier Confer- ence of America v. Postal Workers Union, AFL-CIO.2 Both deal with access to the judiciary for review of agency action. Analysis of the cases might at first bring to mind the childhood chant of "Sticks and stones may break my bones but names will never hurt me," but with the ending transposed to "a hypothetical will never hurt me." In the legal setting, however, the bravado-laden asser- tion might not be true: when courts discuss "hypotheticals" the dicta created can influence the legal process. Dicta must be taken into account, especially when the digressing court is the Supreme Court.3 These recent cases dealing with judicial review exemplify this. In these two cases, the conservative majority4 forwarded its vision of the proper role of courts. The majority's view could tighten judicial access, making it harder for parties other than those directly regulated by an agency to challenge the agency's action. Nevertheless, as the justices objecting in Lujan' and Air Courier6 noted, what the majority did in each was to indulge in hypotheticals. The hypotheticals in these cases may hurt because they inappropriately limit review of agency action. By contrast, the direct holding of Lujan v. National Wildlife Federation does not change traditional standing doctrine, nor does it create too onerous a barrier to judicial access. Lujan only directly requires that the plaintiff employ specificity when expres- sing use of the particular land affected by agency action. This would enable the plaintiff to be counted among those with an "injury in fact" and therefore entitled to standing.7 The majority 1. 110 S. Ct. 3177 (1990). 2. 111 S.Ct. 913 (1991). 3. See, e.g., Public Interest Research Group, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 84 (3d Cir. 1990) (Aldiser, J., concurring) ("I am quick to recognize that Lujan [v. National Wildlife Fed'n] is not precise precedential authority, but it does nevertheless constitute a direction that the Court desires us to travel in environmental law cases."), cert. denied, 111 S.Ct. 1018 (1991). 4. Although "conservative" and "liberal" have numerous connotations, for the purposes of this article, "liberal" refers to those in favor of wide access to the judiciary, and "conservative" refers to those who would limit such access. To a certain extent, this dichotomy will correlate with those who espouse "liberal" and "conservative" philosophies as popularly delineated. 5. Lujan v. National Wildlife Fed'n, 110 S. Ct. 3177, 3201 (1990) (Blackmun, J., dissenting) (because the majority found no standing at all, this portion of majority opinion is "abstract" and inappropriately concerned with scope of relief). 6. Air Courier Conference of America v. Postal Workers Union, AFL-CIO, 111 S.Ct. 913, 922 (1991) (Stevens, J., concurring in result). 7. Lujan, 110 S.Ct. at 3189. 1992] STANDING AND RIPENESS REVISITED opinion, however, contains two additional propositions: a general "program" is not an "action" subject to appeal,8 and court inter- vention might not be "ripe" until actual earth-moving activity begins on the public lands.9 These ruminations can hamstring plaintiffs who want early and system-wide relief from illegal agency actions. Congressionally-granted protection may be eroded because of Justice Scalia's "abstract" discussion in Lujan. Similarly, Air Courier Conference of America v. Postal Work- ers Union, AFL-CIO 10 could have been a narrow decision with no general impact on standing law. The concurrence noted that the Administrative Procedure Act (APA) does not apply to the statute under which the challenge was brought, and the action was there- fore unreviewable. 1" Nevertheless, the majority denied standing under the so-called "zone of interest" test, 12 a prudential limita- tion on standing. The test demands a particular type of connec- 3 tion between the plaintiff's injury and the "relevant statute."'1 Strict application of the zone of interest test can limit access to courts, a phenomenon that changes the nature of the test from one previously described by the Court as "not... especially demand- ing." 4 Interestingly, those who merely concurred with the judg- ment in the opinion containing this easily-met depiction did so because they thought the case could have been resolved by simple use of precedent. 5 Therefore, they labelled the Court's com- ments on the liberality of the test "a wholly unnecessary exegesis on the 'zone of interest' test."' 6 Except for Justice Stevens,' 7 the two zone of interest cases reveal reversed fortunes in whether jus- 8. Id. 9. Id. at 3190-91. 10. 111 S. Ct. 913 (1991). 11. Air Courier Conference of America v. Postal Workers Union, AFL-CIO, 111 S.Ct. 913, 921 (1991) (Stevens, J., concurring in result). 12. Id. at 918-20. 13. Id. at 921. The test arose as a gloss on the Administrative Procedure Act's grant of standing to those "'suffering legal wrong ...or adversely affected or aggrieved... within the meaning of the relevant statute .. ." 5 U.S.C. 702 (1988). See Appendix, infra notes 432-36 and accompanying text. 14. Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399 (1987). Justice White wrote this opinion, which aligns it with liberal tendencies. He was among those who merely concurred in the original case imposing the zone of interest test. At that point, Justice White asserted that "injury in fact" should have been sufficient to confer standing, and the "zone" test unnecessarily tightened judicial access. Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 168 (1970) (Brennan, J., and White, J., concurring). 15. Clarke, 479 U.S. at 410 (Stevens, J., concurring, joined by Rehnquist, C.J. and O'Connor, J.). 16. Id. Two explanations of this urge to provide supplemental guidance may exist. One is systemic: limited opportunities to address problems may force the Supreme Court to respond to requests for clarification from commentators and lower courts. Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1103 4 NORTH DAKOTA LAW REVIEW [Vol. 68:1 tices are in the majority or dissent, and exemplify the change in the Supreme Court's philosophical orientation. In the earlier case, the more conservative justices, who desire less court access, bemoaned the expansive "hypothetical" of the more liberal justices.' 8 In the more recent Air Courier, those who were accused of engaging in hypotheticals before, now accuse the conservative justices of doing the