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Karl S. Coplan

Abstract

Although Article I of the Constitution vests legislative power in the Congress, the lawmaking process in this country has evolved to involve all three branches. Congress enacts regulatory programs, but delegates to the executive branch the task of formulating and legislating the details of implementation through regulations. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. In many cases, especially in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations-so-called "regulatory objects"-enjoy presumed standing to challenge the scope of agency regulations. Groups of individuals benefited by such regulations enjoy no such presumption of "standing," rather, their right to challenge depends on their ability to establish a specific injury-in-fact and the redressability of that injury through judicial decree. These injury-in-fact and redressability requirements are most difficult to establish in the context that underlies the modern regulatory schema (i.e., regulation of societal risks such as environmental and consumer risks). These regulations seek to protect the public against harms that may have a low probability of occurrence for any given individual but pose significant risks for society at large, or even for substantial groups of individual citizens. Courts have wrestled with the concepts of injury and redressability in the context of probabilistic harms and have split on the question of whether individuals, or combinations of individuals, can establish the requisites of justiciability based on low-probability events. Most recently, the United States Supreme Court rejected the use of probabilistic analysis to establish the likelihood of future injury, at least in the context of a challenge to procedural regulations. Many, if not most, rulemaking challenges by regulatory beneficiaries are brought by public interest organizations. These organizations usually have memberships ranging from thousands to millions of individuals. These organizational plaintiffs fall into the category of "ideological" plaintiffs-parties who invoke the judicial process to establish and enforce public rights for the benefit of many people, who are not primarily motivated by individual gain. Ideological plaintiffs-litigating everything from Religion Clause issues to consumers' rights to environmental and health concerns-have had mixed success in establishing justiciability in Article III courts. These organizations have been required by Supreme Court doctrine to rely on the individual interests of their members to establish standing. The traditional test for representative standing requires an organizational party to demonstrate that it has at least one member who would have standing in her own right. Under this approach, no single member of an organization may be able to show a significant injury to herself, even though, probabilistically, serious harm to at least one member of a large organization may be nearly certain. Although barely recognized by the courts, the Constitution contains a provision specifically meant to ensure the right of individuals to associate and seek remedies from all branches of the government, including the judicial branch. The First Amendment guarantees the "right of the people peaceably to assemble, and to petition the government for a redress of grievances." Like the First Amendment guarantees of speech and freedom of the press, this constitutional provision is designed to ensure public representation and participation in the lawmaking process. This Article argues for an expanded notion of organizational standing and injury-in-fact in judicial review of agency lawmaking action, based on the functional values implicit in the First Amendment right to assembly and petition for redress of grievances. Judge-made standing doctrine should recognize the difference between litigation to enforce individual rights-where inquiries into individual injury-in- fact and the relationship between an organization and its individually-injured members may be appropriate-and regulatory review litigation that is the ultimate step in the lawmaking process, where full airing of competing views is essential to the judicial review function, and the dangers to the constitutional assignment of functions is at a minimum.

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