What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III

In this article, I have two principal goals. The first is to explain why Lujan‘s invalidation of a congressional grant of standing is a misinterpretation of the Constitution. It is now apparently the law that Article III forbids Congress from granting standing to “citizens” to bring suit. But this view, building on an unfortunate innovation in standing law by Justice William 0. Douglas, is surprisingly novel. It has no support in the text or history of Article III. It is essentially an invention of federal judges, and recent ones at that. Certainly it should not be accepted by judges who are sincerely committed to the original understanding of the Constitution and to judicial restraint. Nor should it be accepted by judges who have different approaches to constitutional interpretation.

My second goal is to discuss the many new issues that will arise in the aftermath of Lujan. Under what circumstances can citizens now prove that they are not mere citizens, but people with the requisite “injury” or “personal stake”? How does Lujan affect environmental and other regulatory cases? What might Congress do to respond to the decision? These will be the key questions in the next decade. They will have considerable importance for the development of environmental law and risk regulation, and indeed for administrative and regulatory law in general.