By Andrew H. Perellis and Patrick D. Joyce

Seyfarth Synopsis: U.S. Supreme Court: mere violation of a statute creating a private right of action is not itself sufficient to satisfy the standing requirement under Article III’s “case or controversy.” To establish federal jurisdiction a plaintiff must still establish an “injury in fact” that is both particularized and concrete. As a result, where an environmental citizen suit is brought to enforce a violation causing no or only intangible harm, it should be closely examined to determine whether standing exists.

Seyfarth recently blogged about the holding and implications of Spokeo v. Robins, No. 13-1339 (U.S., May 16, 2016), involving litigation under the Fair Credit Reporting Act (FCRA) for allegedly incorrect personal information appearing on an internet site. The issue in Spokeo concerned whether the plaintiff had Article III standing (a Constitutional requirement) to pursue a mere statutory violation without alleging how the alleged misinformation caused the plaintiff personal harm.

Here, we evaluate whether Spokeo undercuts the ability of private parties to sue under so-called “citizen suit” provisions found in many environmental statutes governing air, water, and hazardous waste, among others. Many alleged violations that are the target of citizen suits do not arise from an individual’s exposure to pollution but instead involve the failure of the regulated entity to provide statutorily mandated reporting, monitoring or recordkeeping. These are commonly referred to as “paperwork violations.” The harm caused to a plaintiff in such situations is intangible at best.

The district court dismissed Robins’ complaint, saying that Robins had not followed Article III’s requirement to plead injury in fact. 2011 WL 11562151, at *1.  However, on appeal, the Ninth Circuit Court of Appeals concluded that the mere “violation of a statutory right is usually a sufficient injury in fact to confer standing.”  742 F.3d 409, 412.

Prior to the death of Justice Scalia, many observers of the Supreme Court anticipated that the Court would use Spokeo as a vehicle to narrow the situations where Congress could create private rights of action for statutory violations causing a plaintiff no direct injury. However, with the death of Justice Scalia and the potential for a 4-4 deadlock, the ruling in Spokeo is not as definitive as these observers of the Court may have predicted.

Spokeo held that to establish standing, one must allege more than mere violation of a statute purporting to create a private cause of action. However, the Court observed, standing can be established by alleging that a statutory violation caused plaintiff an “injury in fact” that is both “particularized and concrete.” As such, the Court remanded the case to the Ninth Circuit to examine the existence of standing in Spokeo in light of the injury in fact requirement.

The Court in Spokeo acknowledged that an injury could be “intangible.” The Court also recognized that Congress may elevate “concrete, de facto injuries” that were previously inadequate in law to the status of legally cognizable injuries.

Within the context of environmental matters, however, the issue of what would constitute a concrete injury remains uncertain. For example, is the mere existence of a paperwork violation sufficient to cause harm to an environmental activist? Is a plaintiff harmed in a concrete way by not having access to the information that Congress had decided to make public?

We do not know for sure. However, in Spokeo, the Court observed that there are situations where no additional harm needs to be shown beyond a harm identified in a statute. In doing so, it cited two cases that appear to be analogous to paperwork violations. They are:

• Federal Election Comm’n v. Akins, 524 U. S. 11, 20–25 (1998), which confirmed that a group of voters’ “inability to obtain information” that Congress had decided to make public is a sufficient injury in fact to satisfy Article III.
• Public Citizen v. Department of Justice, 491 U.S. 440, 449 (1989), which held that two advocacy organizations’ failure to obtain information subject to disclosure under the Federal Advisory Committee Act “constitutes a sufficiently distinct injury to provide standing to sue.”

We view Spokeo as a slight tilt of the playing field in the context of environmental matters. While the tilt is slight, it is nonetheless a tilt that could provide an opening to challenge a citizen suit where a plaintiff cannot articulate or prove harm beyond the mere violation of a statute. After Spokeo, targets of environmental citizen suits are more likely to challenge a plaintiff’s standing. A plaintiff will need to do more than cite to the statutory paperwork violation, and to survive dismissal will need to allege and prove that it suffered a particularized and concrete injury from being denied access to records, monitoring results, or reports that Congress has determined are required from the regulated community.