The Supreme Court's Global Warming Ruling May Not Slow Global Warming, But it Does Restore Some Common Sense to Standing Doctrine

By MICHAEL C. DORF

Monday, Apr. 09, 2007

Last week, in Massachusetts v. EPA, the Supreme Court ruled 5-4 that the state of Massachusetts has legal standing to sue the Environmental Protection Agency (EPA) for its failure to regulate the emission of greenhouse gases by new automobiles. After finding standing, the Court rejected the EPA's claim that it lacked authority to regulate greenhouse gases under the Clean Air Act.

Although clearly a victory for environmentalists, the ruling may not lead to any action on global warming by the Bush Administration. That's because it leaves the EPA some wiggle room to decide not to regulate automobile emissions, so long as the agency offers a justification rooted in the Clean Air Act. And even if the Court would ultimately reject any decision by the EPA not to regulate, that might not occur until after the end of President Bush's term.

Accordingly, the most important practical effect of Massachusetts v. EPA may be what it does to standing doctrine. And on that point, the decision marks a welcome turn away from recent precedents that imposed gratuitous obstacles to courts' reaching decisions on the merits.

The Standing Issue in Massachusetts v. EPA

The Constitution's Article III permits the federal courts to decide "cases" and "controversies." As I explained in a previous column written just after the oral argument in Massachusetts v. EPA, the Supreme Court has interpreted this language to restrict federal court jurisdiction to concrete, as opposed to merely hypothetical, questions. Specifically, when a plaintiff comes to court seeking an order directing a party to comply with some legal obligation--rather than coming to court seeking an award of money as compensation for a past legal wrong--the Court's cases impose a number of stringent standing requirements.

Most relevant in the Massachusetts case, the plaintiff must establish that the harm for which it seeks a remedy is: 1) imminent; 2) particularized; and 3) redressable. For the doctrinal details of these requirements, I refer readers to my earlier column. Suffice it to say here that the majority found all three criteria satisfied. In doing so, the opinion developed the law of standing in several important ways.

Numbers and Particularization

The first important development concerns particularization. The Court's standing rules forbid a plaintiff from airing a mere "generalized grievance." In my earlier column on this case, I gave the following example of a generalized grievance: Someone whose own electronic communications have not been intercepted cannot sue to enjoin enforcement of the National Security Agency's program of electronic surveillance on the ground that he finds it offensive to live in a land where such threats to privacy exist. That would be a general complaint about government policy that does not have a particular impact on the plaintiff.

However, some of the Court's statements also appeared to go further, by suggesting that even someone who has suffered particular harm (if his own phone was tapped, for example) cannot sue in federal court if a vast number of other people have suffered the same harm (if the government tapped everybody's phone, for example).

In his dissent from the global warming decision (for himself, Justice Scalia, Justice Thomas, and Justice Alito), Chief Justice Roberts appeared to endorse this notion that the federal courts cannot address very widespread harms. "The very concept of global warming seems inconsistent with th[e] particularization requirement," the Chief Justice wrote, because it is "harmful to humanity at large."

Notably, the majority rejected the idea that a harm can affect so many people as to deprive all of them of the right to complain. Justice Stevens, writing for the Massachusetts majority, explained that the particularized harm requirement ensures that the plaintiff has a personal stake in the outcome. Such a stake, he added, can exist even if a vast number of other potential plaintiffs have a similar stake.

Suits Against the Government and the Unitary Executive

The Court's ruling on the standing question was notable in a second respect as well. In prior cases, the Supreme Court had indicated that it is especially difficult for a plaintiff to establish standing in future harm cases where the plaintiff seeks an order to the government to take regulatory action. In a 1992 case involving the Endangered Species Act, Lujan v. Defenders of Wildlife, Justice Scalia wrote for the Court that when Congress authorizes citizens to sue the government to demand administrative action, it risks violating the principle of separation of powers. Invoking (without expressly mentioning) the "unitary executive" theory, Justice Scalia warned that under the Constitution's Article II, it is up to the President and the President alone to "take Care that the Laws be faithfully executed."

But, of course, in cases like Lujan and Massachusetts the very complaint of the plaintiffs is that the President and his agents have not executed the law at all, much less faithfully executed it. Taken to its logical conclusion, then, the Lujan approach affords only political remedies for persons who suffer injury as a consequence of executive inaction: Vote for a different candidate in the next Presidential election, or seek the President's removal through the impeachment process. Yet requiring such a drastic response ensures that Presidents have virtual carte blanche to ignore their duty to enforce the law, except in the most extreme cases.

It is not exactly clear to what extent the Massachusetts decision repudiates the Lujan leave-everything-to-the-President approach. Two of the Justices in the Massachusetts majority--Justices Kennedy and Souter--also joined Justice Scalia's opinion in Lujan, and Massachusetts purports to apply, rather than overrule, Lujan.

Critically, however, Justice Kennedy wrote a concurring opinion in the Lujan case, in which Justice Souter joined, making clear that when Congress identifies an injury arising out of Presidential inaction, the federal courts can entertain a case to require the Administration to act. The lead opinion in the Massachusetts case repeatedly invokes the Kennedy concurrence in Lujan, and thereby renders it authoritative.

Does Presidential Power Trump Federalism?

The Massachusetts majority opinion offers another reason for permitting standing: It was brought by a state, rather than just an individual. Although the opinion does not say that an individual owner of coastal property would lack standing, it does make clear that the quasi-sovereign status of Massachusetts provided an additional reason for recognizing standing.

Justice Stevens explained that when Massachusetts and other states entered the Union, they forfeited certain prerogatives of sovereignty. He wrote that "Massachusetts cannot invade Rhode Island to force reductions in greenhouse gases, it cannot negotiate an emissions treaty with China or India," and even its efforts to limit greenhouse gas emissions from inside Massachusetts can be preempted by federal law. In exchange for this sacrifice of sovereignty, the majority said, states need to be able to count on the assurances of federal protection that their Senators and Representatives are able to extract. In this case, that includes a right to petition the EPA to do something about global warming, and a concomitant right to sue in federal court if the agency refuses.

This argument appears to have been tailor-made to appeal to Justice Kennedy, a generally strong supporter of states' rights, and indeed it did. The mystery is why it did not appeal to the dissenting Justices, all of whom--and especially Justices Scalia and Thomas--have also been strong defenders of states' rights.

Chief Justice Roberts articulates one possible answer in his dissent. He contends that the precedents on which the majority relies for its approach to state standing make it no easier for a state than for an individual to sue in federal court.

But it's not clear why that should be a sufficient answer for the dissenters. Even if there is no clear precedent for affording special solicitude to states, there may be good reasons based in federalism for doing so. And because the very standing limits in question were themselves largely invented by the Court, there would be nothing illegitimate in inventing an exception to those limits in the service of the constitutional value of federalism.

Thus, the dissenters' refusal to grant Massachusetts standing, despite their usual solicitude for the states, may best be explained by the fact that (with the exception of Justice Kennedy, who joined the majority) the Supreme Court's current defenders of states' rights care less about protecting the states than they care about the powers of the President.

That doesn't necessarily make these Justices hypocrites. The vertical division of power between the states and the federal government, and the horizontal separation of power among the branches of the federal government, are both important constitutional principles, and there can be legitimate reasons to favor one principle over another when they conflict, as they arguably do in Massachusetts v. EPA.

My objection to the stance of the dissenting Justices in Massachusetts amounts, instead, to a charge of arrogance. In choosing one constitutional principle over another they cannot, by definition, simply rely on the Constitution, which establishes both. Yet the Court's conservatives--and its liberals, for that matter--rarely acknowledge what is clear to all but the most naÏve observer: that they make value choices, even in seemingly dry technical areas like that of legal standing doctrine.

Happily, in Massachusetts v. EPA, five Justices made a sensible choice--not because state sovereignty necessarily trumps executive power, but because the strict standing doctrine of the previous cases was an unnecessary obstacle to reasonable efforts by plaintiffs to hold the government accountable to the law.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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