In defiance of President Carter's promise to consumers, the Justice Department has begun raising legal technicalities that threaten to cripple the power of public interest groups to sue the government.
The Justice Department's tactics, public interest lawyers in Washington warn, could limit severely the authority of public interest groups to sue the government over environmental, consumer and civil rights issues.
What the Justice Department is doing is attacking the "standing" of public interest organizations to sue on behalf of the public.
As a result, lawsuits are being decided on the narrow legal question of whether the plaintiffs have the right to sue rather that on the broader issues involved.
Questioning the standing of groups to sue, "raises a technicality that can prevent us from participating in the case and not permit us to raise substantive issues," complained Mark Cymrot, an attorney for Consumers Union, one of the organizations whose standing has been attacked.
White House consumer advocate Esther Peterson and top officials of the Food and Drug Administration and the Department of Health, Education and Welfare have criticized the Justice Department's action, which they say contravenes President Carter's 1978 consumer message.
"The government has too often routinely invoked the 'standing' defense when it is challenged in court," Carter said last April. "The Department of Justice will work with my special assistant for consumer affairs, Esther Peterson, and with the Congress toward legislation to reform this practice," Carter promised.
Since then, Justice Department lawyers have written a bill guaranteeing the right of public interest groups to challenge government actions and the legislation has been introduced in both the House and Senate.
In the meantime, however, other Justice Department attorneys have not only "routinely invoked the 'standing' defense" but also have raised the issue in cases where it had not come up before.
Citing a recent ruling by U.S. District Court Judge John J. Sirica, Justice Department lawyers are contending that self-appointed public interest groups have no legal basis for claiming to speak for the people as a whole.
Sirica ruled last month that Health Research Group, an organization founded by Ralph Nader, had no authority to sue the Food and Drug Administration to try to stop the sale of drugs that have not been proven effective. Since Sirica's ruling, Justice Department lawyers have raised similar objections to a lawsuit filed by Consumers Union against the Federal Reserve Board over consumer credit regulations. The government also had challenged the standing of the business-backed Pacific Legal Foundation to sue the Department of Interior over rules protecting endangered species.
The same issue has come up in legal actions initiated by the Environmental Defense Fund, the Sierra Club, Common Cause, the NAACP Legal Defense Fund and other volunteer groups. In the past decade, these and other public interest groups have filed hundreds of lawsuits and raised dozens of policy issues in court.
Public interest lawyers have taken the Deparment of Agriculture to court and prevented it from cutting the number of persons eligible for food stamps. They have sued the American Bar Association and the Commonwealth of Virginia over the right of lawyers to advertise. They have won court cases requiring the Federal Reserve to make more information about interest charges available to consumers.
Although they are reluctant to admit publicly that their growing power has been weakened by the Sirica decision and the Justice Department's actions, a group of Washington public interest lawyers are planning a conference soon to discuss how to handle the challenge.
"One of the biggest problems," said attorney William Schultz of Health Research Group, "is that we wind up spending so much money and time briefing the issue of standing that we never get to the merits of the case."
It is not only the public interest lawyers who are suing the government who are upset about the Justice Department's use of the standing defense. The government agencies that are defendants in lawsuits brought by public interest groups also have complained about the tartics. Aides to FDA Commissioner Donald Kennedy, HEW Secretary Joseph Califano, and consumer adviser Peterson have complained to their Justice Department counterparts about the moves.
At the Food and Drug Adminstration, there is a long-standing policy against such legal technicalities. FDA regulations, an official pointed out, are meant to encourage legal issues to be raised and specifically allow citizens who might otherwise lack standing to sue the agency.
Justice Department lawyers "are tempted to do anything they can to win their cases," complained one agency official. But he sought to minimize the dispute between the Justice Department and Califano, Kennedy and Peterson by suggesting that "some lawyer over there decided" to raise the issue.
Justice Department spokesman Terry Adamson said the decision to raise standing as a defense in the Consumers Union case was "approved at the assistant secretary level" and "does not represent any policy change."
He said the department "does not regard it as inconsistent" to sponsor legislation extending standing at the same time it is seeking to limit standing in particular cases.
In the FDA case involving Consumers Union, it was not the Justice Department that raised the standing issue, it was lawyers for the over-the-counter drug industry, who intervened for the case on behalf of The Proprietary Association, an industry trade group.
Judge Sirica ruled that since the Nader group had no dues paying members and no elected officers, it lacked any constituency that it could claim to be speaking for. Nader himself picked the officers of the organization, who in turn decided what cases to raise, Sirica noted.
"Mr. Nader would hardly be in a position to seriously argue that his contributors or supporters exercise any substantial degree of even indirect control over his organizations," Sirica said in a ruling that appeared to apply not only to Health Research Group, but also to all the other organizations founded by Nader.
Although Naderite groups pioneered the concept of public interest law firms and have been among the most active litigants, business-oriented organizations also face standing issues.
"The Justice Department has raised standing in every case we've been involved in," said Raymond Momboisse, managing attorney of the Washington Office of Pacific Legal Foundation, a six-year-old agency that now has 16 lawyers here and in California.
The long-term solution, public interest lawyers and Justice Department officials agreed, is the legislation pending in Congress to rewrite the law on standing. CAPTION: Picture, JUDGE JOHN SIRICA