Standing to Sue for Purposes of Securing Judicial Review of Exercise of Administrative Discretion in Route Location of Federal-Aid Highways

A SUMMARY IS PRESENTED OF RECENT DECISIONS IN THE FEDERAL COURTS SHOWING THAT CHANGES ARE OCCURRING WHICH MAY INDICATE THAT TRADITIONAL CONCEPTS OF STANDING TO SUE TO SECURE JUDICIAL REVIEW OF THE EXERCISE OF ADMINISTRATIVE DISCRETION IN RESPECT TO ROUTE LOCATION WILL NO LONGER GOVERN. A BRIEF REVIEW IS PRESENTED OF EARLY CASE LAW ON THE EXERCISE OF ADMINISTRATIVE DISCRETION IN DETERMINING ROUTE LOCATION. THE FIRST DEPARTURE FROM THE RULES LAID DOWN IN HISTORICAL CASES CAME IN ROAD REVIEW LEAGUE VS. BOYD, 270 F. SUPP. 650 (S.D. N.Y., 1967). IN THIS CASE THE COURT HELD THAT THE LANGUAGE OF THE FEDERAL POWER ACT GAVE PETITIONERS STANDING TO SUE, ALTHOUGH THEY DID NOT AND COULD NOT SHOW THAT THEIR OWN PROPERTIES WERE DIRECTLY AFFECTED OR THAT THEY WOULD SUFFER SOME ECONOMIC INJURY BY REASON OF THE ACTION TAKEN BY THE FEDERAL POWER COMMISSION. THE OPINION WAS BASED ON THE UNITED STATES CODE SECTION 702 OF TITLE 5 WHICH PROVIDES THAT A PERSON SUFFERING LEGAL WRONG BECAUSE OF AGENCY ACTION, OR ADVERSELY AFFECTED OR AGGRIEVED BY AGENCY ACTION WITHIN THE MEANING OF A RELEVANT STATUTE, IS ENTITLED TO JUDICIAL REVIEW THEREOF. CASES PERMITTING JUDICIAL REVIEW WITHOUT RESPECT TO AUTHORIZATION BY STATUTE ARE DISCUSSED. DECISIONS OF THE SUPREME COURT OF THE UNITED STATES ON STANDING TO SUE AND FEDERAL CASES DEALING WITH THE ADMINISTRATIVE PROCEDURE ACT ARE REVIEWED. IT IS HOPED THAT THIS COMMENTARY SHOULD PROVE USEFUL TO STATE HIGHWAY OFFICIALS IN UNDERSTANDING CHANGES THAT ARE OCCURRING WHICH CHALLENGE FORMERLY WELL-ESTABLISHED RULES CONCERNING STANDING TO SUE TO SECURE JUDICIAL REVIEW OF THE EXERCISE OF ADMINISTRATIVE DISCRETION IN ROUTE LOCATION. IF STATE HIGHWAY OFFICIALS UNDERSTAND THE TREND BEING ESTABLISHED AT THE NATIONAL LEVEL, THEY MAY TAILOR THEIR STATE'S HIGHWAY PLANNING PROCESSES IN A WAY TO MINIMIZE COSTLY DELAYS.