Concrete Private Interest in Regulatory Enforcement: Tradable Environmental Resource Rights as a Basis for Standing

Abstract

This Note proposes a novel solution to standing problems faced by environmental plaintiffs seeking to enforce, or to compel agencies to enforce, environmental regulation. It argues that environmental plaintiffs should be able to obtain standing to bring an Administrative Procedure Act review action or citizen suit based on ownership of private tradable environmental resource rights, created by increasingly popular environmental privatization programs, when they would otherwise be unable to meet standing requirements of individual injury, causation and redressability. Using tradable rights to environmental resources as a basis for standing in APA review actions or citizen suits would maximize the benefits of citizen participation while averting the concerns associated with broad grants of standing, including worries about constitutional limits on federal court jurisdiction, floodgates, and for whether plaintiffs are in the ‘zone of interests’ benefitted by the legislation.

Keywords: administrative law, environmental law, regulation, federal courts, property