Standing Explained: Why the Crocodile Case Decides Who Can Sue a Federal Agency

Joyce Kelly's affidavit said she had traveled to Egypt in 1986, observed the traditional habitat of the endangered Nile crocodile, intended to do so again, and hoped to observe the crocodile directly. Another member of Defenders of Wildlife had visited Sri Lanka and wanted to return to see the elephants. They were suing the Secretary of the Interior because the department had taken the position that the Endangered Species Act didn't apply to federal projects overseas. The district court agreed with them on the merits and ordered the Secretary to rewrite the regulation. The Eighth Circuit affirmed. And then, in Lujan v. Defenders of Wildlife (1992), the Supreme Court held that the federal courts had never had the power to decide the case at all. Wanting to go back someday wasn't enough. No plane ticket, no booked trip, no date. The merits ruling was wiped out.

Standing is the first door in judicial review of agency action, and the crocodile case is where the modern test lives. This episode is the second in the season's judicial review arc — the first episode explained why so many agency challenges end upstream of the merits, and this one explains the doctrine that decides which challenges get through the first door at all. Standing doesn't sort on whether the agency got anything wrong. It sorts on who the plaintiff is, what kind of injury they suffered, and how concentrated the harm is. And the pattern of who gets through and who doesn't is not neutral.

The three-part test the Court laid out in Lujan is what every federal court now applies: injury in fact, causation, and redressability. Injury in fact has three sub-parts of its own — the injury has to be concrete, particularized, and actual or imminent. Causation means the injury has to be fairly traceable to the defendant's conduct rather than the choice of some third party. Redressability means a favorable ruling has to be likely, not merely speculative, to fix the problem. Each element on its own sounds reasonable. Applied together in a regulatory context, they systematically favor one kind of plaintiff. And the kind of plaintiff they favor happens to be the one most likely to want regulation limited.

The asymmetry works like this. A company the EPA writes a rule against has to spend money — concrete, particularized, imminent, directly caused, and cleanly redressable if the rule is struck down. Five for five on the Lujan test, and the company walks into the courthouse with standing established before it argues anything. Now flip the plaintiffs. Someone downstream from a factory the EPA is under-enforcing against gets sick from polluted water. Injury is easy — they're sick. But the causation runs through the factory, not the EPA. Redressability runs through the factory too — even an order against EPA doesn't guarantee the discharge drops enough to help this particular person. And on top of standing, Heckler v. Chaney makes an agency's decision not to enforce presumptively unreviewable. Same rule, opposite sides, sharply different results. The plaintiff with the more obvious moral case has the worse legal case.

The Lujan test isn't as old as it sounds. Injury in fact arrived as a named test in 1970. Sierra Club v. Morton (1972) told the Sierra Club it needed a member who had actually set foot in the affected valley — the direct ancestor of the crocodile affidavit twenty years later. Defenders of Wildlife did exactly what Sierra Club said to do, and it wasn't enough, because the requirement had moved again: not just that a member goes there, but that she has a concrete plan to go there. The full three-part apparatus consolidated in Lujan in 1992. The Court now calls it "the irreducible constitutional minimum of standing" — meaning it's the floor Article III sets, beneath which not even Congress can go. But the floor was assembled between 1970 and 1992. It's younger than a lot of the judges applying it. And it's not obviously what Article III's text requires. The Constitution says the judicial power extends to "all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made under their authority" and "to controversies to which the United States shall be a party." A citizen suit provision is a law of the United States. When the defendant is a federal agency, the United States is a party. On the face of the text, that's covered twice. The modern reading is that "cases" and "controversies" were terms of art in 1787 meaning something narrower than any dispute a person wants to put in front of a judge. That's a plausible reading. It isn't the one you'd get from reading the sentence.

The doctrine has kept moving since Lujan, and the biggest recent move is on concreteness. In TransUnion v. Ramirez (2021), the Court held 5-4 that Congress can't manufacture standing by creating a statutory right that plaintiffs can sue over. A credit reporting company had flagged thousands of consumers' names as possibly matching people on a federal terrorist and drug trafficker list. The Fair Credit Reporting Act says you can sue for that kind of misreporting. About 1,800 of the misreported people had their inaccurate reports actually transmitted to third parties. About 6,300 had reports that stayed in TransUnion's internal files. The Court said the first group had concrete reputational harm and the second group didn't, even though the statute said the violation itself was actionable. Congress can identify and elevate harms, the Court held, but the harm still has to be concrete enough to count as a case or controversy. The statute can't lower the constitutional floor.

The administrative-law overlay on top of Lujan adds one more filter. APA § 702 lets a person "adversely affected or aggrieved by agency action within the meaning of a relevant statute" seek judicial review. Courts have read that to require the plaintiff to fall within the "zone of interests" the underlying statute was designed to protect. If the challenge is under the Clean Air Act, the plaintiff has to be the kind of person that Act was meant to protect or regulate. It's a soft filter — the Court has said the plaintiff's interests only need to be "arguably" within the zone. But it means there are really three questions running side by side. Who is affected? That's a fact about the world. Who Congress authorized to sue, and for what? That's the statute. And whether the plaintiff has the constitutional stake Article III requires? That's Lujan. All three have to line up.

The episode closes on the White House East Wing case, which sits badly next to almost everything else standing doctrine has said. The National Trust for Historic Preservation sued to block construction, going in on associational standing under Hunt through one member, Alison Hoagland — a historic preservation professor who lives in D.C., visits the area about once a month, and objects to what the new construction looks like. The Court said the plaintiffs likely lack standing and stayed the injunction that was in place. The Chief Justice dissented, joined by the three liberal justices, and his sharpest line goes straight back to Joyce Kelly: after this ruling, "I want to look at a crocodile" can get you into federal court, but "I want to look at the White House" can't. The doctrine says one thing on paper and something else in the East Wing case, and next week's episode is where those two lines meet.

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What We Cover

Full Rough Transcript

Opening

Gwen: Hello, and welcome to Administrative Remedies, because you can't fix what you don't understand. Brought to you in part by the University of Tulsa College of Law's Mabee Legal Information Center. I'm Gwendolyn Savitz, an associate professor here at TU.

Marc: And I'm Marc Roark, a professor at the College of Law. We'll be breaking down complex doctrines with real-life analogies and examples, to demystify the world of administrative law for everyone trying to understand how government actually works.

Gwen: Agencies are the main way the federal government gets things done. It's not through Congress, for reasons we'll be addressing over the course of the series.

Opening hook

Gwen: Marc, read this. It's from an affidavit a woman named Joyce Kelly gave in the late 1980s, in a lawsuit against the Secretary of the Interior. Here's how the Supreme Court described it in 1992, in Lujan v. Defenders of Wildlife.

Marc: Ms. Kelly stated that she traveled to Egypt in 1986 and observed the traditional habitat of the endangered Nile crocodile there, and intends to do so again, and hopes to observe the crocodile directly.

Gwen: So Joyce Kelly was a member of Defenders of Wildlife. The organization was suing the Secretary of the Interior because the department had taken the position that the Endangered Species Act didn't apply to federal projects overseas. Her affidavit was there to establish that the case affected her personally — that she had standing.

Marc: Because she had been to Egypt, and she wanted to go back, and she wanted to see the crocodiles.

Gwen: Yes, that was the argument. And another member's affidavit said that she'd visited Sri Lanka in 1981 and wanted to return and observe elephants.

Marc: And the Court said no.

Gwen: Right. Justice Scalia, writing for the Court, said those affidavits did not establish injury in fact. Wanting to go back someday isn't enough. There's no plane ticket, no booked trip, no date. Just someday intentions, the Court said, don't show an injury that's actual or imminent. And the lower courts had already decided the merits. The district court ruled for Defenders and ordered the Secretary to rewrite the regulation, and the Eighth Circuit had affirmed. But instead, the Supreme Court held that the federal courts never had the power to decide the question, and that merits ruling was wiped out.

Marc: And that's the door we're talking about this episode.

Gwen: Right. It's the first one. Standing decides who gets to ask the question. And in doing so, it shapes what the entire administrative state looks like, because the people who can sue, sue, and the people who can't, don't. Whole categories of agency action only get challenged by particular kinds of plaintiffs. It's a selection mechanism. It picks who gets to be a plaintiff, and the picks aren't random.

Segment 1 — The three elements

Gwen: Lujan is where the Court laid out the test the way modern lawyers learn it. There are three elements.

Marc: You have to show injury in fact, causation, and redressability. And every one of those we cover in courses like con law.

Gwen: So injury in fact means that the plaintiff suffered an actual injury. Not a generalized grievance, not "I don't like this policy," but something that happened to them, or is about to. Causation means the injury has to be fairly traceable to the defendant's conduct. And redressability means a favorable ruling has to be likely to fix it.

And then the injury in fact part, the first one, has three parts of its own. It has to be concrete, particularized, and actual or imminent. Concrete means real, not theoretical.

Marc: Like Joyce Kelly's hope to see a crocodile.

Gwen: So her interest was real. The Court said the desire to observe an animal species, even for purely aesthetic reasons, is undeniably a cognizable interest. Her problem was the third piece. Particularized means that the injury has to affect you in a personal and individual way. That's not the same as asking how many people it affects. An injury doesn't stop being particularized just because thirty million people suffer it too. Lujan itself set mass torts and mass fraud aside. But a generalized grievance is something different — harm only to everyone's shared interest in the government following the law.

Marc: And that distinction isn't new, by the way. Property law has sorted it the same way for centuries. If my neighbor's runoff floods my lot, I can sue him. Somebody three towns over who just dislikes the drainage can't. You need an interest in the affected land — not an opinion about it, and not just a hope.

Gwen: So that tells you the doctrine isn't an admin law invention. It's the Court's instinct about who belongs in a lawsuit. But then the third part of it, the actual or imminent requirement. So the injury has to be happening now, or about to happen. Not someday, not maybe, not contingent on a long chain of events. The Court is allergic to speculative injuries.

Marc: And that's where Lujan dies. Someday isn't imminent.

Gwen: Right. The injury has to be fairly traceable to the defendant's conduct. Not produced by some independent third party, not the result of choices other people made for their own reasons. And this is especially tight in admin cases, because so much agency action regulates someone else, and the harm reaches the plaintiff through that third party. EPA writes a rule. The company has to comply. The plaintiff isn't the company. The plaintiff might be somebody downstream who'd benefit from compliance, or the would-be plaintiff. Is that injury fairly traceable to EPA's choice, or was it really the company's choice that did the harm?

Marc: So causation is actually where a lot of cases die. Hardest for beneficiaries, because the chain runs through somebody else.

Gwen: Right. Same thing with redressability. A favorable ruling has to be likely to fix the problem. Not maybe, not eventually — likely.

Marc: And that sounds like a tautology. The plaintiff has standing to sue if winning would help them.

Gwen: And it can function that way too. The classic case is Simon v. Eastern Kentucky Welfare Rights Organization. This one's from 1976. We have low-income plaintiffs who are challenging an IRS rule that lets hospitals keep their charitable tax status, even though they're offering less free care to poor patients. Their injury was real here. They'd been turned away by the hospital. But the Court said it was speculative whether undoing the IRS rule would change anything, because the hospitals might simply give up the tax benefit and keep turning people away. The decision that mattered belonged to someone who wasn't in the courtroom. Every standing case in federal court runs through those requirements. Here's the whole statement from Lujan.

Marc: So the Court said: Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is concrete and particularized, and actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. And third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Gwen: The irreducible constitutional minimum. So they're saying it's not a policy choice. It's not a docket management rule. This is the floor that Article III sets, beneath which nobody, including Congress, can go. Congress can write "any person may bring suit," but if the plaintiff doesn't satisfy the three elements, the provision doesn't do what it says.

Marc: Then where did the three come from? Because irreducible implies that they were always there, yet they're not anywhere in the Constitution.

Gwen: Right. Not surprisingly, they weren't always there. The older question was whether the plaintiff had a legal interest. This was usually one that a statute or the common law had handed them. And this made standing substantially a matter of what Congress had written. Injury in fact arrived as a named test in 1970. Then in Sierra Club v. Morton, in 1972, the Sierra Club challenged a ski development in a national forest and lost, because the organization asserted an institutional interest in conservation without alleging that a single member had actually set foot in the valley.

Marc: And that's the direct ancestor of the crocodile affidavit. They lost in Lujan in 1992 doing exactly what Sierra Club told them to do in 1972.

Gwen: Right. They figured they needed to find a member who goes to the place and put that in an affidavit. And it wasn't enough, because the requirement had moved again. Not that a member goes there, but that she has a concrete plan to go.

Lujan was also important for another reason. The Endangered Species Act has a citizen suit provision. Congress wrote that any person may commence a suit to enforce it. Scalia's opinion holds that Congress cannot convert the public's interest in lawful government into an individual right just by saying so. And the elements themselves weren't new. Scalia wrote that "our cases have established" them. The Court had been treating them as constitutional since roughly the 1970s. But Lujan did crystallize them into this three-part test that lawyers memorize. And it also said that Congress can't legislate around it, at least in suits against the government.

Marc: So "this is what Article III requires" is doing a lot of work in this opinion. The requirement that overrode an act of Congress got assembled between 1970 and 1992.

Gwen: Someone has to say what a case or controversy is, and that somebody is going to be a federal judge. But the doctrine that decides how much work the federal courts take on was written by the federal courts, mostly inside that twenty-two-year window. It's younger than a bunch of the judges who are now applying it.

But it didn't have to be this way. Let's look at what Article III actually says about the judicial power. I've pulled out the two clauses that matter.

Marc: The Constitution, in Article III, Section 2, Clause 1, says: 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 controversies to which the United States shall be a party.

That's not restrictive language. All cases arising under the laws of the United States. A citizen suit provision is a law of the United States. And when the suit is against a federal agency, the United States is a party. So on the face of the text, it seems to be covered twice.

Gwen: Right. That was substantially the older understanding. If Congress created a right and said who could enforce it, the enforcement was a case. The modern argument is that cases and controversies were terms of art in 1787. Not just any dispute a person wanted to put in front of a judge, but the kind of concrete adversary proceeding that courts have traditionally resolved. On that reading, the limit lives inside case and controversy, and Congress can't legislate past them.

Marc: Which is a plausible reading. It just isn't one you would get from the sentence I read.

Gwen: Right. We often say courts deal with cases and controversies, as though that's how it's laid out in the Constitution, and the courts are just stuck interpreting these vague terms without context. But there actually is a decent amount of context, and it doesn't point to an attempt to close the courthouse door.

There's also a structural argument underneath, though. If Congress can make anyone a plaintiff, Congress can hand the federal courts a roving power to supervise whether the executive is faithfully executing the law.

Marc: So the real limit isn't about the plaintiff at all. It's about keeping the courts out of a role that belongs to somebody else.

Gwen: Yeah, that seems to be kind of what it was intended to do — protecting the separation of powers. Some people get to sue to enforce something, and some don't.

Marc: So let's look at this through an example. The EPA finalizes a rule, and my factory has to install pollution controls.

Gwen: Okay, so you're the factory. Do you have an injury in fact?

Marc: Well, I have to spend money.

Gwen: Right.

Marc: That is a concrete, particularized, and imminent harm. Causation is direct. The rule produced the requirement. And as far as redressability, if the court strikes the rule, I don't install. So it seems like five for five on these tests.

Gwen: All right. So clean standing there. Now let's flip it. The factory is upstream of a town. EPA doesn't enforce something against the factory. And someone downstream gets sick from polluted water and wants to sue the EPA for under-enforcement.

Marc: Okay, injury's easy. They're sick. So again, it's concrete, particularized, and actual.

Gwen: Okay, but then it gets harder.

Marc: Yeah, we have that problem of causation, because the injury is really caused by the factory's pollution, not by the EPA's choice not to enforce. So the chain runs through a third party.

Gwen: Right. And redressability, because even an order against EPA runs through the factory. Whether its discharges drop enough to help this particular person is really out of the court's hands. And then there's a problem that isn't even standing at all. Under Heckler v. Chaney, an agency's decision not to enforce is presumptively unreviewable. So this person, who's clearly injured — injured in a tangible way — has a much harder path into court than the regulated company that's just been told to install equipment.

Marc: And the plaintiff with the more obvious moral case actually has the worse legal case.

Gwen: Right. The factory owners would probably disagree with that. But it's certainly true that many people the law might have intended to help can't sue to ensure it does.

Segment 2 — TransUnion and the concreteness fight

Gwen: The doctrine has moved since Lujan, and the biggest move is on concreteness. We have a couple of cases from within the last ten years, Spokeo v. Robins in 2016 and TransUnion v. Ramirez in 2021. Lujan had answered one version of the question for suits against the government, but it expressly left the private suit version open. Spokeo and TransUnion took that up. What happens when Congress creates a right, somebody sues saying the right was violated, and the violation didn't cause any tangible harm?

Marc: So, a bare procedural injury.

Gwen: Right. And this can matter for administrative law, because plenty of APA challenges look like that. Someone says the agency violated a procedure. They didn't give notice. They didn't consider comments. They didn't follow a statute. And they sue under the APA. Was the plaintiff actually hurt? Not always in a tangible sense.

So TransUnion isn't an APA case. It's a private suit. But it's the Court's most recent full statement on concreteness. It's a class action, and the credit reporting company had a system that flagged consumers' names as possibly matching people on a federal terrorist and drug trafficker list. Thousands of people got flagged who weren't actually on that list. And the Fair Credit Reporting Act says that you can sue for that kind of misreporting. So the class actually had two groups. There were about 1,800 people whose inaccurate reports had actually been transmitted to third parties, and about 6,300 whose inaccurate reports just sat in TransUnion's internal files.

Marc: And the ones whose reports actually went somewhere have a real injury, while the ones sitting in a file don't.

Gwen: Right. That's what the Court said, five to four. So Kavanaugh wrote that a bare statutory violation — Congress just saying you have a right, and somebody violating it — isn't automatically a concrete injury. There has to be actual harm. So the 1,800 whose reports had actually been transmitted had concrete reputational harm. But the 6,300 whose reports had just stayed internal to TransUnion didn't.

Marc: And that one I don't have much trouble with, because nobody outside the company ever saw those files. No employer, no lender, nobody. Whatever happened to those 6,300 people, it didn't happen where anyone could see it.

Gwen: So Kavanaugh's line is close to that. No concrete harm, so no standing.

Marc: Which is different from the crocodile case in kind, not just in degree. Joyce Kelly wanted something and couldn't have it. These plaintiffs are pointing at a database entry.

Gwen: So you can think TransUnion got the facts right and still think the principle it announces can have concerning implications.

Marc: Even though Congress had said in the statute that the violation itself was actionable.

Gwen: Right. So the Court's answer is that Congress can't override Article III. Congress can identify and elevate harms, but the harm still has to be concrete enough to count as a case or controversy. Citizen suit provisions in environmental statutes are Congress giving people the right to sue polluters, or to sue agencies that aren't enforcing. But the citizen still needs a concrete injury of her own to do it. Lujan settled that for suits against the government, and TransUnion shows how seriously the Court takes the concreteness half of it.

Marc: So the statute can't manufacture standing.

Gwen: Right. The Constitution sets the floor, and Congress can't lower it. For procedural plaintiffs, that floor has been in place since Lujan, and the Court restated it again in Summers v. Earth Island Institute in 2009. It said that a procedural right in the abstract isn't enough. The plaintiff has to connect the violation to a concrete interest of her own, although some informational rights can be concrete interests themselves. But once that connection is made, the rules actually loosen. Lujan says a procedural plaintiff doesn't have to meet all the normal standards for redressability and immediacy. The neighbor of a proposed federally licensed dam can challenge a missing environmental impact statement without having to actually prove that the statement would have changed the outcome. The hard part is the concrete interest. And it's part of why fewer people can challenge agency action than you'd expect, given how much agency action there is.

Segment 3 — The admin overlay

Gwen: Lujan and TransUnion are general standing cases. They apply to any plaintiff in any federal court. Administrative law also has some pieces on top of it. Section 702 says:

Marc: 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.

Gwen: Courts have read that to do two things. First, the APA itself grants a cause of action. You can sue under the APA. You don't need a separate statute. And second, they've said that the plaintiff has to be within the zone of interests that the underlying statute was designed to protect. So if the challenge is to agency action under, say, the Clean Air Act, the plaintiff has to be the kind of person that Act was meant to protect or regulate.

Marc: Okay, so property law has something similar, as you might expect. A restrictive covenant on a subdivision, or a rule about setbacks or fences, can only be enforced by someone the covenant was meant to benefit. A lot owner in the subdivision can sue. A stranger who drives past and dislikes the fence can't, even if the fence really does violate the covenant. The statute, like the covenant, comes with a built-in list of who it's for.

Gwen: So that's close, but yours is a lot easier to determine. With a covenant, the class of beneficiaries is written down. It's the other lots in the subdivision. With a statute, the class is inferred from purpose, and that can be a lot softer. The zone of interests test itself is a pretty weak filter. The Court has said that the test isn't especially demanding, and the plaintiff's interests only need to be arguably within the zone of interests.

But notice what the covenant separates: who is benefiting from a rule, and who is holding the power to enforce it. The Clean Air Act shows that these are different, almost experimentally. Congress wrote a citizen suit provision into it — that any person may sue a violator, or sue EPA for failing to perform a nondiscretionary duty. Congress was deliberately attempting to turn ordinary people into private enforcers. That's the legislature handing out enforcement power that the injury by itself would never have supplied.

That helps show there are really three questions here. Who is affected? That's a fact about the world. Who Congress has authorized to sue, and for what? That comes from the statute. And whether the plaintiff has the constitutional stake that Article III requires? That's Lujan.

Marc: And it cuts the other way too, presumably. You can be plainly harmed and still not have the statutory cause of action you're trying to use.

Gwen: So we can kind of see this in Bennett v. Spear. This one's from 1997. Here, ranchers and irrigation districts were about to lose water because of an Endangered Species Act biological opinion. So they plainly had an Article III injury, but that didn't answer how they could sue. The Court held that one claim fit the ESA's citizen suit provision. The others didn't, and had to proceed under the APA. So the injury tells you that they had a stake, but it doesn't tell you what cause of action Congress gave them.

And it could be why the cases are so hard to line up. Courts have been distinguishing beneficiaries from enforcers for centuries before anyone said injury in fact. But when the modern test got assembled around 1970, the older framework was sitting right there, and the Court built something else instead.

Marc: "You weren't really injured" sounds like a finding. "You're not the one entitled to enforce" sounds like a choice.

Gwen: Right. One of those invites an argument, but the other closes it.

Marc: So then there's associational standing — how the big organizations actually get into court.

Gwen: Right. An organization can sue on behalf of its members if it can show three things. That its members would have standing in their own right. That the interests at stake are germane to the organization's purpose. And that neither the claim nor the relief requires individual participation by each member.

Marc: That's how organizations like the Sierra Club and the Chamber of Commerce can get in when their members have standing. The members have the injuries; the organization consolidates them.

Gwen: Right. So Defenders of Wildlife was trying to use exactly that in Lujan. And they lost because the Court decided that the members themselves didn't have standing. Joyce Kelly couldn't establish her own injury, so the organization couldn't sue on her behalf. Associational standing reorganizes a case. It doesn't manufacture standing where none existed.

Marc: Anyone following the news right now has a question about that, right? The ballroom case.

Gwen: Yes, the White House East Wing litigation. The National Trust went in on associational standing under Hunt, through one member, Alison Hoagland — a historic preservation professor who lives in D.C., who visits the area about once a month, and who objects to what the new construction looks like. The Court said that's likely not a concrete and particularized injury, and stayed an injunction that was in place.

Marc: Which sits badly next to everything you just told me about aesthetic injury in Morton.

Gwen: Yeah. So it really doesn't work with a lot of the precedent. This was an emergency application, so the Court said that they likely lack standing. That's a prediction. It's not a holding. And the case is still live. And the Chief Justice dissented, joined by the three liberal justices, and his sharpest line goes straight back to Joyce Kelly. After this ruling, "I want to look at a crocodile" can get you into federal court. "I want to look at the White House" can't.

Marc: So the doctrine we've been teaching is still the doctrine.

Gwen: Yeah. So it's still the doctrine, but the ground under one part of it is definitely moving. Next week's episode is just going to be the ballroom case, and another standing case from January that went the other way.

Marc: So then back to the categories. There is a fourth one, isn't there? The states.

Gwen: Yes. So there is now, and has been for about twenty years. Massachusetts sued the EPA for refusing to regulate greenhouse gases, and the standing fight was the hard part of the case. In Massachusetts v. EPA in 2007, the Court said the state was entitled to what it called special solicitude in the standing analysis.

Marc: So, treating the state as a different kind of plaintiff than a person or a company. That seems to have real doctrinal consequences.

Gwen: Yes. So it's a different kind of plaintiff with a different kind of injury. The state's injury here was loss of coastline — a concrete physical harm to its own territory. And the Court stressed that Massachusetts was a sovereign that had given up some of its power when it joined the Union.

Marc: And the doctrine has been wrestling with whether that survives.

Gwen: Right. Lower courts have read it narrowly, and whether special solicitude survives at full strength is contested. So between Article III, the zone of interests, associational standing, and the special solicitude for states, the rules pull in different directions. The constitutional layer is narrow and hard. Zone of interests is soft. And in Lexmark in 2014, the Court said its old label, prudential standing, was misleading. It isn't standing at all. It was really a question of whether the statute gave the plaintiff a cause of action.

Marc: That's exactly the covenant question, asked about a statute.

Segment 4 — Whose injuries get standing

Gwen: So let's take all of it — Lujan, TransUnion, the APA, zone of interests, associational standing — and look at those questions. Regulated entities almost always have standing. The company a rule applies to satisfies Lujan without breaking a sweat. It's concrete, because they have to do something, or stop doing something, or pay something. Causation is direct, and redressability is clean.

Marc: So they walk into the courthouse with standing already established, and they don't even have to argue for it.

Gwen: Right. And the beneficiary of the rule is almost the opposite. The person who'd breathe cleaner air if EPA enforced. Or the community that would have safer drinking water. Or the worker who'd have safer conditions if OSHA pursued a violation. We have diffuse injuries, we have causation running through third parties, and we have uncertain redressability.

Marc: And none of those three failures is about whether the agency was wrong. They're all about the shape of the harm.

Gwen: Right. Each of Lujan's elements on its own is reasonable. Applied together in a regulatory context, they systematically favor one kind of plaintiff. And the kind of plaintiff they favor happens to be the one most likely to want regulation limited.

Marc: So let's take the doctrine's side for a minute, though. It's trying to make sure plaintiffs have real injuries. That doesn't seem partisan to me. That's just basic adjudication. You shouldn't be able to sue over things that don't affect you.

Gwen: Sure, the doctrine isn't necessarily trying to be one-sided. It's trying to do something neutral. But neutral procedural rules can definitely have non-neutral effects. The question isn't whether it intends to tilt one way. It's whether it produces a tilt. And the pattern is striking. Who's been bringing the major administrative law challenges that have changed doctrine in recent years? Loper Bright was a fishing company. West Virginia v. EPA was state governments and coal companies. Sackett v. EPA was a couple building a house. SEC v. Jarkesy, he was a hedge fund manager. Most of these recent cases where the agency lost were brought by a regulated party challenging agency action directed at them. Not all. The DACA case in 2020 and the census citizenship question in 2019 were agency losses brought by DACA recipients, states, and advocacy groups. But the pattern is pretty clear.

Marc: And that's not random. And it isn't that beneficiaries lack grievances. They can't reliably get into court with them.

Gwen: Right. The same doctrine that lets the fishing companies sue often keeps the people who benefit from environmental enforcement from suing the agency.

Marc: Though Massachusetts v. EPA cuts the other way. A state suing for environmental protection and winning the standing fight.

Gwen: Right. It was definitely a win for the beneficiary side, but a rare one. The Court bent the doctrine to let the state sue about climate. That's the whole reason for the extra special state standing. And notice how it's been treated since. Lower courts read it narrowly, and the Court hasn't extended its logic to non-state plaintiffs. It's pretty much the exception that proves the rule.

Marc: And the doctrine's been tightening, not loosening.

Gwen: Right. Although not in a straight line. In Friends of the Earth v. Laidlaw in 2000, people who'd stopped fishing and swimming in a river that a plant was polluting had standing to sue the polluter. The ballroom majority itself cited it. But several of the Court's recent standing decisions have turned away plaintiffs trying to force government action. In FDA v. Alliance for Hippocratic Medicine in 2024, doctors were challenging FDA's loosening of the rules on abortion pills, and the Court said they lacked standing. And that's the case the ballroom majority leaned on hardest.

Marc: So when somebody asks why nobody holds an agency accountable for failing to enforce, part of the answer is that nobody can.

Gwen: Right. In court, for that particular failure, no. Agencies stay accountable in other ways — through Congress, through the president, through the press. But judicial accountability for failing to act, or for under-enforcing, is largely unavailable to the people the enforcement was for. The courthouse doors open on one side of the regulatory dispute and mostly shut on the other. It isn't sorting on whether the agency got anything wrong. The fishing company and the man downstream from the factory might both be right about what the agency is doing, or they might both be wrong. Standing never reaches that. It sorts on the harm — how concentrated, how traceable, how reliably an order would fix it.

Marc: So I want to take a 10,000-foot view of this as well, and bring in another doctrine that we haven't really talked a lot about, and that's sovereign immunity.

Gwen: Right.

Marc: So the idea that the government gets to choose who gets to sue it is what's embedded into the Administrative Procedure Act.

Gwen: Right.

Marc: So in deciding how that's enforced, that's really what standing is doing. Is that a fair way of thinking about this problem?

Gwen: Yes and no. Yes, to the extent that we're thinking about people suing agencies for acting or failing to act. But we hit the same kind of constitutional requirements regardless of who's bringing the suit, and regardless of whether the government is a party.

Marc: So this season's questions really come out about as cleanly here as they're going to, right? Whose hand is on it? The judiciary's, nearly all of it, and recently. And what is it doing? It's deciding which kind of injury a federal court hears.

Gwen: So "rigged" would be wrong, but "neutral" is also pretty much just as wrong.

Closing

Gwen: Next week, we will stay at it. We'll do the ballroom case, then finality. Even with standing, the APA generally makes you wait for final agency action. And final here means more than done.

Marc: So that does it for today's episode of Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you're listening on. And be sure to tune in next time, where we'll continue to dive into the contours of administrative law. Because remember, you can't fix what you don't understand.

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Administrative Remedies is produced by Professor Gwendolyn Savitz and Professor Marc Roark at the University of Tulsa College of Law.