To bring a lawsuit, a plaintiff must, before all else, demonstrate standing under the Constitution. Article III requires a plaintiff have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Lujan and other U.S. Supreme Court decisions have clarified that cause-oriented organizations get no shortcuts; they must meet roughly the same standing requirements as individuals to bring lawsuits in federal court. A recent U.S. District Court for the District of Columbia decision, Environmental Working Group et al. v. Food and Drug Administration, exactingly applied those requirements to deny two environmental groups standing to sue, while at the same time signaling that D.C. Circuit organizational standing precedents should perhaps be reconsidered.
As discussed in a 2017 WLF Legal Opinion Letter, activist groups have long chafed against the prevailing standing requirements and consistently work to broaden what constitutes “injury in fact.” Environmental Working Group involved the opposition of two organizations, Environmental Working Group (EWG) and Women’s Voices for the Earth (WVE), to the use of formaldehyde-producing chemicals in hair-straightening products. They submitted a Citizen Petition with the Food and Drug Administration (FDA) asking it to investigate alleged deceptive labeling of such products and consider banning those chemicals in hair-care products. The plaintiffs later sued FDA, contending that the Administration was legally required to act on their petition.
In addition to both plaintiffs asserting organizational standing, WVE argued it had associational standing because at least one of its members has standing to sue, that the interests it seeks to protect are germane to the organization, and that individual members of the organization are not required to participate.
The plaintiffs claimed they suffered injury because they had to advocate a ban on these hair products; EWG and WVE argued FDA’s “inaction” on their petition forced them to expend advocacy resources that would otherwise have gone to other causes. They claimed they were in the business of educating the public, and that FDA’s inaction negatively affected those efforts.
The court dismissed these claims fairly expeditiously, holding the organizations did not have standing to sue. WVE lacked associational standing, the court concluded, because it could not “establish a real and immediate threat that the harm-producing conduct would recur.” All of the alleged injuries occurred in the past, and WVE had not speculated about possible future injuries (though future injuries would be equally insufficient in this case).
That the group sought injunctive relief, demanding that FDA review and grant their petition, pointed up that they sought a remedy for possible future harm. The court also noted that WVE itself, in its report on hair straighteners, explained that consumers could avoid harm by using alternative products.
In holding that EWG and WVE lacked organizational standing, the court stated that a plaintiff must suffer a concrete injury to its interests and use its resources to counteract that harm. The plaintiff must allege more than “a mere setback to its abstract social interests.” As such, asserting an injury that arises solely from its lobbying efforts is not sufficient. EWG and WVE offered no evidence that they were forced to spend anything beyond their typical expenditures due to the defendants’ inaction on the petition, so their claims were denied.
The court distinguished this case from a D.C. Circuit Decision, PETA v. USDA, 797 F.3d 1087 (D.C. Cir. 2015), relied on by the plaintiffs, where the court held PETA had standing to challenge the Agriculture Department’s failure to apply the Animal Welfare Act’s general regulations to birds. There, USDA’s actions foreclosed the formal complaint procedures and deprived PETA of important investigatory information, hampering PETA’s own protection efforts. The court here found that nothing similar was alleged, as no complaint procedures were foreclosed and no informational injury was asserted.
The Environmental Working Group court found that both organizations were “squarely focused on warning the public about health hazards in consumer products.” They would have lobbied FDA against these hair products and educated their members on this issue regardless of whether the petition was granted. Advocacy organizations choose to spend money on their pet projects.
If a plaintiff could demonstrate standing based on lobbying expenses and resource allocation, special interests would be able to bring unlimited lawsuits on any cause, rendering Article III’s constitutional limitations meaningless. Courts are in place to enforce the law and redress actual injuries; it is not their job to help lobbyists recoup money simply because they did not get everything on their wish list.
In distinguishing PETA from the case before him, Judge Terry McFadden labeled the D.C. Circuit’s organizational standing jurisprudence as “permissive.” He underscored that characterization by referencing Judge Patricia Millett’s dubitante opinion in PETA, a case in which Judge Millett grudgingly joined the majority ruling. She stated:
If circuit precedent has brought us to the point where organizations get standing on terms that the Supreme Court has said individuals cannot, then it may be time, in an appropriate case, to revisit the proper metes and bounds of ‘organizational standing.’
Decisions like Environmental Working Group, where the plaintiffs clearly lacked standing, may not provide that “appropriate case” for standing-jurisprudence reconsideration, but the D.C. Circuit should pay heed to Judge Millett’s call when that opportunity arises.
Also published by Forbes.com on WLF’s contributor page.