Excessive federal regulations can have a crippling effect on manufacturers. Today, more than ever, courts are a critical check on the regulators’ rapidly expanding authority. However, challenges to agency actions are easily tripped by increasingly amorphous standing hurdles. Most challenges to agency action take place in the DC Circuit because of its unique jurisdiction. In a recent decision, the DC Circuit took a different course from both its past precedent and other federal circuits (5th, 7th, 9th, 10th, 11th) on the issue of prudential standing, leaving plaintiffs exposed to standing challenges that the defendant waives.
The standing doctrine requires that a plaintiff demonstrate that they are injured by an agency action and that a court can remedy the injury, or in other words, that they are the appropriate party to challenge an agency’s action. There are two types of standing that plaintiffs must prove: constitutional and prudential standing. Constitutional standing requires that a plaintiff present a case or controversy within the courts Article III jurisdiction. Prudential standing encompasses judicial considerations beyond that Constitutional minimum.
In Grocery Manufacturer’s Association v. Environmental Protection Agency, the DC Circuit decided that prudential standing, like Constitutional standing, is a jurisdictional issue, and therefor always before the court and not capable of being waived by the defendant. If prudential standing were not jurisdictional, then a defendant that failed to raise the issue would forfeit the argument. The defendant, EPA, did not challenge the coalition’s standing, but a third party intervener raised standing arguments that EPA had waived by not already raising. The majority held that the coalition lacked prudential standing because the interest that they sought to protect through litigation was not within the “zone of interests to be protected or regulated by the statute.” The coalition was concerned with food prices, while the regulation was promulgated under the Clean Air Act and allegedly did not concern food prices. The dissent pointed to the decisions of the 5th, 7th, 9th, 10th, 11th, DC Circuits, and the Supreme Court, all of which have held that prudential standing is not jurisdictional.
The Supreme Court declined to hear the case in June 2013, leaving unresolved the confusing split of authority between the circuits, and even within the DC Circuit.
Thomas C. Kirby is a Legal Fellow for the Manufacturers’ Center for Legal Action, the leading voice of manufacturers in the courts. To read more about the Manufacturers’ Center for Legal Action, please click here.
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