Can administrative agencies grant common law public interest standing?

• Author: Driedzic, Adam

Whether administrative agencies can grant public interest standing the way that courts do is an unsettled question. This question usually arises at environmental agencies whose enabling legislation provides standing based on affected personal interests. Multiple court cases have found that specific agencies have "no jurisdiction" to grant a discretionary form of standing, but these cases have not produced principles of broader applicability. Diving into this debate requires familiarity with the principles of public interest standing developed by the courts and covered in the article "Public Interest Standing and the Bedford Case" in this issue of Law Now.

The Environmental Front

Environmental agencies are ground zero for the question because their decisions impact public interests, but the legislation under which they operate often requires that persons be directly affected to receive standing. Environmental impacts are usually indirect, so often, no one is directly affected and issues go unheard. On public land where few citizens have property or economic interests, industrial developments can sometimes be approved with no hearing, even if they impact landscapes, drinking water, air quality, wildlife, recreational opportunities and countless other public values. Conversely, some hearings with open standing such as the Northern Gateway Pipeline hearings suggest that there can be too much public participation. The appeal of public interest standing is its ability to "strike a balance" between broad and narrow standing. Despite this appeal, the debate over public interest standing at agencies is not about what works but rather about maintaining the institutional roles of courts, legislatures and administrative agencies.

Standing in Court vs. Standing at Administrative Agencies

The question originates from the difference between courts and administrative agencies. Courts are independent institutions with constitutional status alongside the legislative and executive branches of governments. Their role is to decide legal questions through the adversarial model and to uphold the rule of law. Administrative agencies are extensions of the executive branch of government. Their decision-making mandates are delegated through ordinary legislation and vary immensely. This institutional difference raises two sub-questions. One is whether agencies have authority ("jurisdiction") to grant a discretionary form of standing where legislation provides for...