Solving Standing’s Corporate Bias: How Agencies Can Empower Advocates to Challenge Deregulation

July 8, 2021

When conservative administrations take illegal deregulatory actions, interest groups and advocates often have difficulty challenging the deregulation because they fail to meet constitutional standing requirements—that is, the requirements that must be met for them to bring a claim to court. Federal courts determine whether the plaintiff has established this “standing” and deserves to have the merits of their complaint considered: When a judge determines that a plaintiff lacks standing, the case is thrown out. However, constitutional standing doctrine, which works to ensure that federal courts only hear disputes from litigants who demonstrate a sufficiently “significant” stake in the outcome, biases regulated, corporate entities—like polluters and financial institutions—at the expense of interest groups and activists. In the resulting power asymmetry, corporate interests can almost always establish standing to challenge new regulations from a progressive administration, whereas interest groups and advocates often struggle to do the same when faced with a conservative deregulatory agenda.

In Solving Standing’s Corporate Bias: How Agencies Can Empower Advocates to Challenge Deregulation, authors Rachael Klarman and Will Dobbs-Allsopp outline the ways in which standing doctrine privileges corporate entities and recommend the introduction of “standing hooks” to help a regulation’s beneficiaries better fight possible future deregulation. These standing hooks include  information disclosure provisions and the incorporation of advocates in enforcement, and seek to draw non-governmental organizations into the heart of federal regulatory schemes. As Klarman and Dobbs-Allsopp show, these standing hooks can mitigate the bias toward corporate entities in legal standing doctrine, and solve some of the hurdles that have long bedeviled advocates battling deregulation.