“Standing” Law

It is time to expand the rights of citizens to hold government officials accountable for misdeeds or unacceptable behavior.

Americans have a right to hold companies and government officials accountable when there are violations of the laws of this country — laws protecting the environment, prohibiting racial discrimination or otherwise effecting the purposes of the people, acting through their elected representatives in Congress.

Unfortunately, a series of wrong-headed Supreme Court decisions has twisted the law of “standing” — the court rules that determine whether a particular person or group has the right to bring a lawsuit — in a manner that has undermined the intent of Congress, the provisions of the Constitution and the will of the people.

What has emerged from the Supreme Court is a complex and convoluted body of “standing” law that is too arcane for most citizens to want to even try to understand — and too demanding to allow legitimate grievances to be heard in court. Using such esoteric terms of art as “injury in fact,” “redressability,” “logical nexus” and “zone of interest,” the law of standing has become an obstacle to ensuring that the public will, as enacted by Congress, is carried out. Much court time is spent on preliminary skirmishes over this complex, confusing and often contradictory “standing” law instead of proceeding to decide the actual merits of a lawsuit. Moreover, there are many instances in which no citizen would have standing to complain even if the Executive Branch of the Government or a private party openly and deliberately violated laws passed by Congress.

This is no way to promote official compliance with the law or citizen confidence in the operation of Government.

In the environmental area, Congress has enacted a series of “citizen suit” provisions to improve enforcement. Recognizing that federal enforcement resources would never be a match for the sprawling activities and enormous resources of industry, Congress decided to fill the gap by allowing citizens who detected violations of law — either by regulated industries or by the regulatory agency itself — to bring suit to fix the problem. Nearly every major environmental statute contains a citizen suit provision. The Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, the Community Right-to-Know Act, the Toxic Substances Control Act, and at least nine other environmental statutes have such a provision.

Professor Cass Sunstein, a respected constitutional law scholar, has proposed a legislative solution that should meet the Supreme Court’s most demanding and formalistic approach to the constitutional requirements of standing. This proposal is the basis of the Citizens’ Bounty Act.

The Citizens’ Bounty Act simply provides that anyone who sues either the Government or a private party under the “citizen suit” provision of a statute and prevails in the suit will receive a $250 cash bounty. (Few people will bring a suit for just $250 dollars — this provision is designed to overcome the obstacles to getting standing.) Such a provision would give any citizen suit plaintiff a direct financial interest in the outcome of the suit, thus providing a concrete basis for standing — the first step in allowing a citizen to have his or her day in court.

Such an approach is similar to that undertaken in qui tam provisions, such as the False Claims Act, under which a citizen who exposes wrongdoing against the Government by a government contractor and prevails in court is entitled to a share of the recovery. People using the False Claims Act have gone after defense contractor boondoggles, medicaid rip-offs and other misuses of taxpayer dollars.

This simple fix will eliminate the need to waste valuable time arguing about standing and allow cases to proceed efficiently and on their actual merits. It will allow citizens who can prove that private parties or the government are violating federal law to make their case in court and enforce the will of the people, as reflected in the laws enacted by Congress.