TransUnion LLC v. Ramirez poses a threat to the regulatory state. Just how existential that threat is, however, has been the subject of extensive academic debate. On the one hand, its reverberations threaten to reach every area of statutory law—ratcheting up the requirements to assert Article III standing by forcing litigants to analogize their injuries-in-fact to claims that could have been brought at the common law and historically. On the other hand, the Court has not made clear just how close a fit is required between the factual injury and the common-law comparator, leaving a glimmer of the status quo open. In its wake, scholars and lower courts have scrambled to answer the question—some taking a ruthless and literal approach and others acting like it is business as usual. This Article seeks to quell some of the agita surrounding the fate of Article III standing and the statutory cases that hang in the balance, by turning to the unlikely source of environmental law.

Rather than serve as the death knell many have feared, TransUnion’s analogical requirement is not the obstacle it seems for environmental litigants, and likely many other statutory dependent areas of law. Environmental law, heavily reliant on congressionally-created injuries, seems particularly vulnerable to this latest constitutional hurdle. Environmental plaintiffs have long faced stringent standards, asserting factual injuries from a Court fearful of the unharmed private attorney general model of claims. Through the last three decades of standing doctrine, the Court has held environmental plaintiffs to a higher standard of demonstrating harm to ensure the litigant herself has a concrete interest and is not merely an officious intermeddler. By raising the bar to assert Article III standing in environmental law, the Court unwittingly primed environmental plaintiffs for this latest battle.

Turning to private law, the Article disaggregates the harm and misconduct components of relevant torts like private nuisance and trespass and asks whether the setbacks experienced by statutory plaintiffs are similar to the common law complaints, and—accepting the gauntlet thrown by TransUnion— asks how similar they really need to be to get litigants into federal court. Taking a step back from environmental law, the Article concludes by offering a path forward for statutory plaintiffs attempting to assert Article III standing in the face of a Court that is increasingly hostile to the regulatory state.

Continue reading Line of Best Fit: Understanding Emerging Article III Standing Doctrine Through Environmental Law.