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1996]STANDING AND RIPENESS129decades. 28 Thus, the APA recognized two basic sources for challenges toagency action: infringement of a common-law right ("a person sufferinglegal wrong"29), and infringement of a statutory interest ("a person .adversely affected or aggrieved within the meaning of the relevant stat ute,,30).31 The reference to "the relevant statute" recognized, as the Courthad, that not every public law could serve as a basis for challenging agen cy action, but only those from which it plausibly could be inferred thatCongress intended to create an enforceable statutory duty.32 The term"person" was defined to include corporations,33 which had litigated thelion's share of the Court's standing cases---even, through the doctrine ofsurrogate standing, the ones where public rights were at issue.On the other hand, the word "person" also means people, and thisraised the question of whether the APA gave individuals standing to en force statutory rights on their own behalf. Beginning with Reade v. Ew ing34 in 1953, the federal circuit courts began to hold that it did. 3s Bythe late 1960s, suits by individual statutory beneficiaries became common;for example, television viewers had standing under the Federal Communi cations Act to protest a broadcast license renewal,36 victims of housingdiscrimination had standing under the Housing Acts of 1949 and 1954 tosue an urban renewal agency,37 and users of the environment had stand ing under the Federal Power Act to protect their interests against activitiesof a federal power agency.38 In each of these cases, the court examined28. See Fletcher, supra note 13, at 226-27 (citing legislative history of the APA).29. 5 U.S.c. § 702.30. 5 U.S.C. § 702.31. Professor Sunstein argues that the phrase "legal wrong" referred to both common-law andstatutory rights, and that "aggravated or aggrieved" referred only to surrogate standing under statuteswith their own judicial review provisions. See Sunstein, Privatization. supra note 13, at 1440-41. Hemay be right; certainly neither the APA nor its legislative history is a model of clarity. At this latedate, the important concept is that the APA recognized that Congress could create judicially enforce able statutory rights, either explicitly or by implication.32. See Sunstein, Privatization. supra note 13, at 1440-41. See generally Stark v. Wickard, 321U.S. 288, 308 (1944) (holding that the existence of an implied right to judicial review varies with thestatutory context).33. 5 U.S.c. § 701(b)(2); 5 U.S.C. § 551(2).34. 205 F.2d 630 (2d Cir. 1953) (upholding standing of consumer of oleomargarine to chal lenge regulations allowing synthetic vitamin A to be used in that product). Not coincidentally, theplaintiff was also a producer of natural vitamin A; however, the court expressly based standing on hisstatus as a consumer. Id. at. 631-32.35. Some support for the proposition can also be found in Associated Industries v. Ickes, 134F.2d 694 (2d Cir. 1943), vacated as moot, 320 U.S. 707 (1943).36. Office of Communication of United Church of Christ v. Federal Communications Comm'n,359 F.2d 994, lOOO-Q6 (D.C. Cir. 1966).37. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 932-37 (2d Cir. 1968).38. Scenic Hudson Preservation Conference v. Federal Power Comm'n, 354 F.2d 608, 615-17(2d Cir. 1965).

130PUBLIC LAND & RESOURCES LAW REVIEW[Vol. 17the relevant statute to detennine whether Congress intended to create ajudicially cognizable interest in the plaintiff. 39 This approach, based onthe APA, became known as the "legal interest test.,,403. Injury in FactIn a 1970 case, Association of Data Processing Service Organizationsv. Camp,41 the Supreme Court abandoned the legal interest test. TheCourt was quite explicit about its motive for doing this: It wished to con tinue the trend toward more expansive grants of standing, and feared thatthe legal interest test had become a fonnalistic impediment to plaintiffswith legitimate grievances. 42 From now on, the Court announced, stand ing would extend to all plaintiffs who could show an "injury in fact.,,43Once this rudimentary threshold had been met, courts were to examine thelegal interests at stake as part of the merits. 44Ironically, the ink was hardly dry on Data Processing before theCourt began to use that decision to restrict the law of standing. The firstcase, Sierra Club v. Morton,4S seemed a relatively innocuous refinementof the injury-in-fact requirement, holding that the Sierra Club could notchallenge a proposed ski development on environmental grounds becauseit had not alleged that any of its members actually "used," or visited, thearea in question. 46 Beginning with Warth v. Seldin 47 however, the Courtbegan to make the test harder by requiring injury to be "distinct and pal pable"48 and "actual or imminent, not 'conjectural or hypothetical. .'4939. See, e.g., id. at 613-16 (finding the Federal Power Act gave plaintiff a "legal right" to pro tect its recreation and aesthetic interests).40. Some commentators, including Professor Sunstein, seem to interpret these cases as an ex pansion of the "legal wrong" language in the APA, and therefore sometimes refer to the expanded"legal wrong test." See Sunstein, Privatization, supra note 13, at 1441-42.41. 397 U.S. 150 (1970).42. Data Processing, 397 U.S. at 153, 156.43. Id. at 152. The Court also requited the plaintiff to satisfy a second element, that he have aninterest "arguably . within the zone of interests" protected by the statute. Id. at 156. Although thiselement suggested a liberalized remnant of the legal interest test, in practice it has proved so lenient asto be essentially irrelevant. See Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 231n.4 (1986). However, in recent years, courts have relied on this requirement to deny standing to ranch ers and other "user-group" plaintiffs who have challenged agency actions under environmental statutesfor alleged economic harms. See, e.g., Nevada Land Action Ass'n v. Forest Service, 8 F.3d 713,715 16 (9th Cit. 1993) (holding that economic injuries are not within the "rone of interests" protected byNEPA).44. Data Processing, 397 U.S. at 153.45. 405 U.S. 727 (1972).46. Morton, 405 U.S. at 735. But see United States v. Students Challenging Regulatory AgencyProcedures, 412 U.S. 669 (1973) for an illustration of just how lenient the injury-in-fact test can be solong as a plaintiff alleges damage to a "use" interest. See also infra notes 103-09 and accompanyingtext for a discussion of the inherently manipulable nature of the injury-in-fact test.47. 422 U.S. 490 (1975).48. Warth, 422 U.S. at 501.

1996]STANDING AND RIPENESS131And in a line of cases that began with Linda R.S. v. Richard D.,50 theCourt added the closely related requirements of "causation" and"redressability" to the injury-in-fact analysis. Linda R.S. held that a wom an could not bring an action seeking to compel criminal prosecution of thefather of her illegitimate child for refusing to pay child support (suchprosecutions were routinely brought against the fathers of legitimate chil dren) because, the Court reasoned, even if the father were prosecuted, hemight elect to go to jail rather than make the payments. 51 Thus, the fail ure to prosecute was not necessarily the cause of the failure to make pay ments; or, stated another way, there was no guarantee that a court-orderedprosecution would redress the plaintiff's injury.52 Also in this vein wereSimon v. Eastern Kentucky Welfare Rights Organization (EKWRO),53which denied the standing of indigents to challenge the Internal RevenueService's removal of tax breaks for hospitals that served the poor, andAllen v. Wright,s4 which denied minority parents standing to challengetax breaks for private segregated schools on the grounds that they indi rectly hindered desegregation efforts. In each case, the Court reasoned thata favorable ruling would not necessarily produce the relief the plaintiffssought-health care and integrated schools, respectively.55The ideas behind the Court's heightened standing requirements werenot new. A crude form of the redressability argument, for example, hadbeen made over thirty years earlier in Federal Power Commission v. Pa cific Power & Light CO. 56 What was new was the Court's increased fasci nation with the notion that restrictions on standing are constitutionallybased. The injury-in-fact requirements were said to be necessary to satisfythe Article III "case or controversy" limitation on jurisdiction.57 Perhapsmore fundamentally, the Court seemed to fear that excessively liberalizedstanding would violate the principle of separation of powers by allowingcourts to constantly second-guess agency judgment.58 These ideas, too,49. Allen v. Wright, 468 U.S. 737, 751 (1984) (quoting Los Angeles v. Lyons, 461 U.S. 95,102 (1983)).50. 410 U.S. 614 (1973).51. Linda R.S., 410 U.S. at 614-18.52. Id.53. 426 U.S. 26 (1976).54. 468 U.S. 737 (1984).55. EKWRO, 426 U.S. at 42-43; Wright, 468 U.S. at 758-59.56. 307 U.S. 156, 159-60 (1939) (rejecting the argument that a court order vacating the ICC'sdecision not to approve a utility merger would not provide a remedy because only the agency itselfcould actually approve the merger: "For purposes of judicial finality there is no more reason for as suming that a Commission will disregard the direction of a reviewing court than that a lower courtwill do so.").57. See Wright, 468 U.S. at 750-51.58. See id. at 760.

132PUBLIC LAND & RESOURCES LAW REVIEW[Vol. 17were hardly novel-the latter had been a central theme of New Deal-eraopinions by Justices Brandeis and Frankfurter, who sought to protect ad ministrative agencies from judicial attempts to restrict regulatory and con gressional action. 59 For the fIrst time, however, the Court emphasized thatinjury in fact could be a limit on congressional power to create standing;that is, the Court could deny standing on Article III grounds even whereCongress sought to create it,604. RipenessBesides standing, plaintiffs challenging agency action under the APAface one additional burden: The action must be a "fInal" agency action. 61This requirement is often referred to as the ripeness doctrine. 62Ripeness is a jurisdictional requirement that is determined by thenature of the issue before the COurt,63 whereas standing focuses on theplaintiffs rather than the issues. The primary purpose of ripeness is:to prevent the courts, through avoidance of premature adjudication, fromentangling themselves in abstract disagreements over administrative poli cies. and also to protect the agencies from judicial interference until anadministrative decision has been formalized and its effects felt in a con crete way by the challenging parties.64Agency action is defined as "the whole or part of an agency rule,order, license, sanction, relief, or the equivalent or denial thereof, or fail ure to act.'065 According to the legislative history of the APA, agencyaction "includes the supporting procedures, findings, conclusions or state ments of reasons or basis for the action or inaction.'066 According to the59. See. e.g. Ashwander v. Tennessee Valley Authority. 297 U.S. 288. 345-48 (1936)(Brandeis, J., concurring). See also Winter. supra note 13. at 1455.60. See. e.g. Warth, 422 U.S. at 501 ("Congress may grant an express right of action to per sons . [o]f course Art. Ill's requirement remains: the plaintiff still must allege a distinct and palpa ble injury to himself .").61. 5 U.S.C. § 704.62. See, e.g., NWF, 497 U.S. at 890 n.2. See also Paul N. Sheridan, The Injustice of Environ mental [njusticiability: Public Citizen v. Office of the United States Trade Representative, 17FORDHAM INT'L LJ. 1115 (1994); Bridget A. Hust, Ripeness Doctrine in NEPA Cases: A Rotten Juris dictional Barrier, II LAW & INEQ. J. 505 (1993).63. Standing, ripeness, and exhaustion of administrative remedies all tend to overlap in theirpurpose and their requirements. For instance, NWF seems to be a ripeness case, but is cited in deci sions analyzing standing. See. e.g., Sierra Club v. Robertson, 28 F.3d 753, 758-59 (8th Cir. 1994). Seealso Hells Canyon Preservation Council v. Richmond, 841 F. Supp. 1039, 1044 (D. Or. 1993) (statingthat the requirement for final agency action is also known as the exhaustion doctrine).64. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967).65. 5 U.S.C. § 551(13).66. S. Doc. No. 248. 79th Cong., 2d Sess. 255 (1946).

1996]STANDING AND RIPENESS133leading case on ripeness, Abbott Laboratories v. Gardner,67 finality of theagency action is to be interpreted in a "pragmatic" way.68 A reviewingcourt should "evaluate both the fitness of the issues for judicial decisionand the hardship to the parties of withholding court consideration. , 69 Likethe separation of powers theory of standing, the notion of ripeness origi nated in the early public law period at the hands of judges who wished toprotect the regulatory state from a largely hostile judiciary.70At this point, we can summarize the law of standing and ripeness asit existed prior to NWF and Defenders. To have standing, a plaintiff mustallege an injury in fact. This injury must be distinct, palpable, and immi nent, not hypothetical or conjectural. In addition, the plaintiff must showthat the defendant caused the injury, and that a favorable ruling wouldredress it. Finally, a plaintiff challenging agency action under the APA,rather than under a substantive statute with its own provisions for judicialreview, must show that the action is a final agency action.B. NWF and Defenders1. Lujan v. National Wildlife FederationIn NWF,71 an environmental organization challenged the Bureau ofLand Management's (BLM) "land withdrawal review program.' 72Plaintiffs averred that reclassification of certain lands used by its memberswould result in those lands being mined, which would thereby result inenvironmental damage. 73 This case arose under the Federal Land Policyand Management Act of 1976 (FLPMA)74 and NEPA, neither of whichcontain a citizen-suit provision. Judicial review therefore arose under theAPA. 75 The Court made two general holdings: first, that two of plaintiff'smember's affidavits were not specific enough as to the areas beingused,76 and second, that the "land withdrawal review program" was not67.68.387 U.S. 136 (1967).Abbott Laboratories, 387 U.S. at 149-50.69. Jd. at 149.70. See, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 49-50 (1938). See alsoSunstein, Privatization, supra note 13, at 1437.71. Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990).72. Jd. at 875.73. /d. at 879-80.74. 43 U.S.C. §§ 1701-1784 (1988 & Supp. V 1993).75. NWF, 497 U.S. at 882.76. /d. at 882-89. In one affidavit, the affiant asserted that she used the South Pass-GreenMountain area in Wyoming. The district court observed that the BLM reclassification decision as tothat area opened up to mining approximately 4,500 acres in a two-million acre area. The court heldthat asserting use of lands in the vicinity of such a large area was only a "bare allegation of injury,"insufficient to overcome summary judgment. /d. at 887-88 (citing the district court opinion, NationalWildlife Fed'n v. Burford, 699 F. Supp. 327, 331 (D.D.C. 1988)). The Supreme Court agreed. NWF,

134PUBLIC LAND & RESOURCES LA W REVIEW[Vol. 17an agency action under section 702 of the APA, let alone a final agencyaction under section 704. 77 It is this second holding that is implicated inforest plan challenges.78In NWF, the Court held that the land withdrawal review program wasnot an agency action because it did not "refer to a single BLM order orregulation, or even to a completed universe of particular BLM orders andregulations.' 79 Abbott Laboratories was mentioned in NWF only as anexception to the general rule that "a regulation is not ordinarily consideredthe type of agency action 'ripe' for judicial review" until it has been"fleshed out, by some concrete action."80 The balancing test enunciated inAbbott Laboratories was not mentioned. In a footnote, the Court distin guished the land withdrawal review program from other judicially review able actions:If there is in fact some specific order or regulation, applying some partic ular measure across the board to all individual classification terminationsand withdrawal revocations, and if that order or regulation is final, andhas become ripe for review . it can of course be challenged under theAPA by a person adversely affected. 81The Court went on to discuss ripeness as occurring when "the scopeof the controversy has been reduced to more manageable proportions, andits factual components fleshed out, by some concrete action applying theregulation to the claimant's situation in a fashion that harms or threatensto harm him.,,82 Here, the Court found, the BLM was engaging in "rulesof general applicability[,]" some of which might threaten plaintiffs in thefuture and some of which might not,83 In an extensive footnote, the Courtdiscussed the speculative nature of plaintiff's harm, noting that until amining pennit was actually granted, "[I]t is impossible to tell where orwhether mining activities will occur."84 "Indeed," the Court continued, "itis often impossible to tell from a classification order alone whether miningactivities will even be pennissible.,,85 The Court also quoted a BLM497 U.s. at 888.77.[d. at 890.78. This is not to say that plaintiffs' affidavits do not have to be specific; they do. But theForest Service's challenges to plaintiffs' standing have not generally addressed the specificity ofplaintiffs' affidavits; instead, the agency usually contends that forest plans are not "final agency ac tions."79.NWF, 497 U.S. at 890.80.[d. at 891.81. [d. at 891 n.2.82. [d. at 891 (emphasis added).83.[d. at 892.84. [d. at 892-93 n.3.85.[d.

1996]STANDING AND RIPENESS135official's uncontested affidavit, which stated that the "subsequent discre tionary actions [that may lead to mining or some other outcome] requireseparate and independent decisionmaking that, obviously, are divorcedfrom the prior revocation decision."86The general rule as stated in NWF is that "[e]xcept where Congressexplicitly provides for our correction of the administrative process at ahigher level of generality, we intervene in the administration of the lawsonly when, and to the extent that, a specific 'final agency action' has anactual or immediately threatened effect.,,87 That determination is made ona case-by-case basis. 882. Lujan v. Defenders of WildlifeTwo years after NWF the Court issued a second opinion with farmore profound effects on administrative law. Defenders, like NWF, wasauthored by J

National Wildlife Federation (NWF) and Lujan v. Defenders of Wildlife (Defenders) were authored by Justice Antonin Scalia, who has written . Missoula. Montana. The authors would like to thank Jack Tuholske, Joan Card, and Steve Place for their invaluable . See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 MARv. L. REv .