Standing to Sue

Chief Justice RobertsThe 2007 decision in Massachusetts v. EPA is reported at 549 U. S. 497 (2007) (see dissenting opinion by Chief Justice Roberts ( “Today’s decision in [Massachusetts v. EPA] is SCRAP for a new generation.”)) See also Linda Greenhouse, “For the Chief Justice, a Dissent and a Line in the Sand,” (“[A]ccording to Chief Justice Roberts, SCRAP is back.”) New York Times, April 8,2007.

The decision by Judge Charles Richey in SCRAP v. United States to deny the motion to dismiss for lack of standing to sue filed by United States and the ICC is unreported. The relevant portions of the decision are included in the book. The decision by Judge J. Skelly Wright (joined by Judges Richey and Flannery) is reported at 346 F. Supp.185 (D.D.C. 1972). Chief Justice Burger’s denial of a stay requested by the Nation’s Railroads and the ICC is reported at 93 S.Ct.1 (1972). The United States Supreme Court decision is reported at 412 U.S. 669 1973. In 1996, “the Supreme Court Historical Society selected an Ad Hoc Committee of distinguished legal scholars and Supreme Court practitioners to determine the most significant oral arguments heard by the Supreme Court from 1995 until 1993…” The Committee’s selection included the oral argument in SCRAP. See

scaliaIn 1983, then United States Court of Appeals Judge Antonin Scalia wrote: “I anticipate that the Court’s SCRAP-era willingness to discern breathlessly broad congressional grants of standing will not endure”. See “The Doctrine of Standing as an Essential Element of the Separation of Powers”, 17 Suffolk University Law Review 881, (1983) (not available on line). Justice Scalia joined Chief Justice Roberts’ dissent in Massachusetts v. EPA.

Some useful works of special interest concerning United States of America v. SCRAP, 412 U.S.669 (1973), and the Constitutional origins and judicial interpretations of “standing to sue” include, among others:

Jeffrey Bossert Clark, “Standing on the Shoulders of Scrap: Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 3 Environmental Law & Property Rights, The Federalist Society for Law and Public Policy Studies (Winter 2000).

Steven G. Davison. “Standing to Sue in Citizen Suits Against Air and Water Polluters Under Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.” 17 Tulane Environmental Law Journal 63 (Winter 2003).

John D. Echeverria, “Standing Up for the Environment: Justices Should Welcome Green Groups into Court”, Georgetown Environmental Law & Policy Institute (1999)

John Echeverria and Jon T. Zeidler, “Barely Standing: The Erosion of Citizen ‘Standing’ to Sue and Enforce Environmental Law” Georgetown Environmental Law & Policy Institute

David R. Hodas, Assoc. Professor at Widener University School of Law, “Standing and Climate Change: Can Anyone Complain About the Weather?”.

Tara A. Ohler, Seminar in Advanced Natural Resource Law, Prof. David Getches, “Extraterritorial Application of the Endangered Species Act: Does Section y Apply to Federal Agency Actions Abroad? Moving Beyond Standing to an Analysis of the Scope and Meaning of the Statute and Congressional Intent”, March 17, 2000.

Proto, Neil Thomas, “PERSPECTIVE: Roberts Took Narrow View of Court’s Power to Decide“, New York Law Journal (September 2, 2005).

Robert V. Percival and Joanna B. Goger. “Escaping the Common Law’s Shadow: Standing in the Light of Laidlaw”, 12 Duke Environmental Law & Policy F. 119.

William H. Rogers, Jr., “The Most Creative Moments in the History of Environmental Law: The Who’s”, 39 Washburn Law Journal 1(1999)

Philip Weinberg, “Are Standing Requirements Becoming a Great Barrier Reef Against Environmental Actions?” 7 N.Y.U. Environmental Law Journal 1(1999)