Standing Up for Industry Standing in Environmental Regulatory Challenges

Abstract

Article III of the U.S. Constitution limits courts to hearing only cases and controversies. To address this limitation, federal courts have developed the doctrine of standing, which requires a litigant to have suffered a cognizable injury in fact, which was caused by the challenged conduct and that will be redressable by a favorable outcome. Courts have struggled to balance these components and, in practice, different requirements have developed for meeting standing depending on the nature of the case and the type of party bringing suit. This Article explores the U.S. Court of Appeals for the District of Columbia Circuit’s recent decisions in Coalition for Responsible Regulation, Inc. v. EPA, Grocery Manufacturers Ass’n v. EPA, and Alliance of Automobile Manufacturers v. EPA. It argues that the D.C. Circuit’s findings in these cases—that industry petitioners lacked standing to sue—are the result of the court’s overly narrow analysis of EPA rulemakings as individual acts, without regard to the broader effect of the regulatory scheme of which the rulemakings are a part. In so doing, the D.C. Circuit has precluded industry petitioners from accounting for the practical financial harms they have suffered. The authors conclude that the consequence of this narrow review is a higher bar to establish standing for industry petitioners than for environmental plaintiffs. Ultimately, the D.C. Circuit’s decisions raise the specter that a regulatory program that has tangible impacts on a regulated industry will nonetheless be shielded from judicial review.