QUESTION: I'm wondering about cases for declaratory relief and how this fits the "case or controversy" requirement and how ripeness is handled in these cases. I admittedly don't know much about suits solely for declaratory relief, but I can imagine a problem in which a Plaintiff peremptorily seeks declaratory relief. My question is how the court would deal with the case or controversy language (there is no controversy between the parties yet) and how ripeness might play in such a suit.
ANSWER: Terrific question. Actually, I think the tougher question is one of standing (and, in particular, redressability) rather than ripeness, but the two are closely related (and perhaps overlap in several cases). The essential problem is this: how does a mere declaration by a court that a certain law is unconstitutional possibly redress the plaintiff's injury? This was a very big question in constitutional law shortly after Congress enacted the Declaratory Judgment Act. (Depending on the case, there might be a ripeness issue if the plaintiff's injury had not yet come to fruition.) But the Court upheld the Declaratory Judgment Act. Why? In essence, the Court concluded that a declaratory judgment largely provides the same relief as an injunction (for if a court has declared that a law is unconstitutional, then the government's subsequent attempt to enforce it would be unlawful, much like violating the terms of an injunction). Thus, so long as a plaintiff has standing to pursue prospective relief generally, she will have standing to seek a declaratory judgment. As to the specific issue of ripeness, it is question of how imminent the injury is. Recall that the plaintiff need not have suffered an actual injury; it need only be imminent. Thus, in a preemptive type suit (e.g., the government has enacted new regulations, and the regulated party sues before complying) it really is a question of how soon the plaintiff will suffer some impact.
QUESTION: I'm wondering about situations in which a defendant creates a significant harm that everyone has an interest in preventing, but that either (A) doesn't affect a single person more than any other person or (B) affects a person who chooses not to sue. In either case, the population generally has an interest in bringing suit. But under Lujan, no one would have standing. I'm thinking of a pollution case in which there is massive amounts of pollution, but only the population generally is affected/has an interest in bringing suit. Is there a solution to this problem? Again, I don't know enough about environmental cases, but what I'm really trying to get at is a situation in which everyone is harmed equally, but under Lujan, no one has a right to sue. Is there a solution to this problem?
ANSWER: Terrific question. Actually, I think the tougher question is one of standing (and, in particular, redressability) rather than ripeness, but the two are closely related (and perhaps overlap in several cases). The essential problem is this: how does a mere declaration by a court that a certain law is unconstitutional possibly redress the plaintiff's injury? This was a very big question in constitutional law shortly after Congress enacted the Declaratory Judgment Act. (Depending on the case, there might be a ripeness issue if the plaintiff's injury had not yet come to fruition.) But the Court upheld the Declaratory Judgment Act. Why? In essence, the Court concluded that a declaratory judgment largely provides the same relief as an injunction (for if a court has declared that a law is unconstitutional, then the government's subsequent attempt to enforce it would be unlawful, much like violating the terms of an injunction). Thus, so long as a plaintiff has standing to pursue prospective relief generally, she will have standing to seek a declaratory judgment. As to the specific issue of ripeness, it is question of how imminent the injury is. Recall that the plaintiff need not have suffered an actual injury; it need only be imminent. Thus, in a preemptive type suit (e.g., the government has enacted new regulations, and the regulated party sues before complying) it really is a question of how soon the plaintiff will suffer some impact.
QUESTION: I'm wondering about situations in which a defendant creates a significant harm that everyone has an interest in preventing, but that either (A) doesn't affect a single person more than any other person or (B) affects a person who chooses not to sue. In either case, the population generally has an interest in bringing suit. But under Lujan, no one would have standing. I'm thinking of a pollution case in which there is massive amounts of pollution, but only the population generally is affected/has an interest in bringing suit. Is there a solution to this problem? Again, I don't know enough about environmental cases, but what I'm really trying to get at is a situation in which everyone is harmed equally, but under Lujan, no one has a right to sue. Is there a solution to this problem?
ANSWER: As to the first situation, I think FEC v. Akins largely answers this question. Notice what the Court says there: so long as the injury is sufficiently concrete, it is okay that it is not terribly particularized. I think this is in some tension with Lujan, and unsurprisingly Scalia dissented in Akins. But Akins was decided after Lujan, and Kennedy joined both opinions. So the two can be reconciled. In other words, there can be standing for widely shared harms, so long as the injury is sufficiently concrete (and not too abstract, such as a general interest that the government comply with the ESA).
As to the second situation, we should keep in mind that there are many constitutional violations for which no one will have standing to sue. (There are also many constitutional issues that are deemed "political questions," and thus non-justiciable even if some plaintiffs might have standing.) In fact, this is extremely common. (Who would have standing, for instance, to challenge the Obama administration's decision not to prosecute certain possessors of marijuana, even though they are clearly violating federal criminal law?) In these cases, the solution is not through adjudication. Rather, the solution (if there is one) is through the political process -- either in the other branches fighting one another, or ultimately through elections.