In his dissent, Chief Justice Roberts argues that the standing analysis adopted by the Court's majority in Massachusetts v. EPA "recalls the previous high-water mark of diluted standing requirements, United States v. Students Challenging Regulatory Agency Procedures (SCRAP)." In this 1973 opinion, the Supreme Court found standing for an environmental group to challenge an increase in railroad shipping costs because this would increase recycling costs and thereby increase litter in local parks. Roberts writes:
Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today’sdecision is SCRAP for a new generation.While I am not sure the bases for standing asserted by the petitioners in Mass v. EPA are more tenuous than those asserted by the plaintiffs in SCRAP, I think Chief Justice Roberts is correct that the Court's majority opinion lowered the bar for standing claims in some important respects.
First, Justice Stevens' majority opinion stresses "the special position and interest of Massachusetts" in the case. Justice Stevens writes that 'It is of considerable relevant that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual," and that courts should show a "special solicitude" to state standing claims. Why? Because states "are not normal litigants for the purposes of invoking federal jursidiction" because they may seek to protect "quasi-sovereign interests." The only real support for this cited by Justice Stevens is the 1907 case of Georgia v. Tennessee Copper. While the Supreme Court recognized that states have important "quasi-sovereign" interests in the lands of its citizens, and that they may sue on behalf of their citizens, this case did not involve Article III standing, nor did it suggest that the injury requirement should be lessened when a state is involved. Whether the majority wishes to acknowledge it or not, I think its opinion creates a special, lowered standing threshold for states seeking to challenge federal regulatory actions (or inaction).
Justice Stevens' majority opinion also takes steps to loosen the standing requirements where Congress has authorized citizen suits to force agency actions. Justice Stevens notes that because the case concerns statutory construction, it involves "a question eminently suitable to resolution in federal court," so many of the normal justiciability concerns are absent. Justice Stevens further empahsizes language from Lujan to the effect that
a litigant to whom Congtress has 'accorded a procedural right to protect his concrete interests' . . . 'can assert that right without meeting all the normal standards for redressability and immediacy.' . . . When a litigant is vested with a procedural right, that litigant has standing if there is somepossibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.While this specific passage quotes a footnote from Justice Scalia's majority opinion in Lujan, much of the relevant discussion in Justice Stevens' opinion draws upon (and repeatedly quotes) Justice Kennedy's Lujan concurrence, including his statement that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." In this way, I think the court's opinion further dilutes the standing requirements as articulated in Lujan.
As readers know, I participated in an amicus brief for the Cato Institute and several law professors arguing against standing in this case, so I find the Chief Justice's dissent more agreeable than the standing analysis in Part IV of Justice Stevens' opinion. Setting aside who is correct, my point in this post is that there is language and reasoning in Justice Stevens' opinion that future litigants will rely upon to establish cases in future challenges to federal agency (in)action, and that state litigants may be the primary beneficiaries of this latest twist in the law of standing.
More on the merits later.
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Just like the Justice Department, the Bush administration has filled the EPA with staffers whose first commitment is fidelity to the administration rather than fidelity to the law. The EPA's rulemaking decision in this case was pathetic, circular and incoherent. Suits like Massachusetts v. EPA strike me as the exact purpose of the citizen-suit provisions of the CAA.
The lack of seriousness is in Chief Justice Roberts comparison of SCRAP to this case. Does he really think the effects of global warming on ocean levels are analogous to the effects of railroad shipping rates on litter? If so, he's not telling the truth when he says he makes "no judgment on whether global warming exists, what causes it, or the extent of the problem."
What in the world does the magnitude of the injury claimed have to do with standing requirements? Standing is standing. In fact, the broader the injury claimed, the more tenuous the link to a particular party, and the more difficult it is to show traceability and redressability. This is Fed Courts 101 stuff. Your statement suggests that you're not that familiar with basic concepts of justiciability.
I don't follow your argument. Why does Roberts' position imply judgment that the effects of global warming on ocean levels are analogous to railroad shipping rates on garbage?
I think the Chief Justice was absolutely right in his standing analysis. What this case appears to do is empower 50 state attorneys general to sue the federal government any time they disagree with a federal regulation or the lack of regulation because states are "special."
How did the SC get so smart about carbon-based life forms and science?
The 21 experts that constitute the 'thousands' in the Goracle's mind must be chuckling to themselves about now, it's working, the dupes are falling for it. It's much easier when education is so bad that no one even knows history, much less science.
The standing dissent I understand - this ruling does expand standing requirements. But it is hardly a dramatic expansion of those requirements - there *is* a particularized injury, in the sense that Massachusetts *is* going to lose coastline over climate change. The fact that tons of other people are going to be harmed by climate change as well does not change the status of Massachusetts' injury. Today's verdict does seem to lower the standards of standing for state petitioners, but it is certainly not a pass for any state petitioner to bypass all standing requirements.
Actually, I believe conservatives would argue that the place to determine policy is through the elected branches of government and not the courts.
One concept of the "rule of law" is that the parties allegedly aggrieved must be actually harmed in more than a theoretical way—and thus have "standing."
For example, Michael Newdow doesn't like the words "Under God" used in the Pledge of Allegience. He sued using his daughter as the nominal plaintiff.
When it became apparent that she disagreed with the case being argued in her name, the Supreme Court vacated the lower court decisions based on lack of standing on Michael Newdow's part.
On a broader level, taxpayers generally do not have standing to sue, even if they believe their tax dollars are being spent in an illegal manner and even if they vehemently disagree with how their tax dollars are being spent.
You claim that the Court's test for standing is "extratextual" and "artificially narrow." I would be interested in hearing more from you in this respect. Are you claiming that constitutional interpretation should be limited solely to the text, regardless of its structural or historical context? On what basis did you come to the conclusion that the Court's standing requirements are "artificially narrow"?
No problem. But what if Congress has set the policy (that the EPA should control pollutants from vehicle emissions, say), and the EPA doesn't do it? Will the world end if the states can sue to enforce Congress's will? And if the EPA's defense is that Congress's will is not so clear, what's so terrible about letting the Court decide what Congress meant? And, has anyone suggested that there might be different rules of standing for statutory interpretation questions (for say, any likely beneficiary of the statute), than for Constitutional claims where standing might be less obvious?
I by no means think that constitutional interpretation should be limited solely to the text, but one should certainly acknowledge that the constitutional gloss established by the conservatives in its interpretation of Article III is of the same sort as the constitutional gloss established by liberals in their interpretation of other amendments. Within that constraint, once we agree that we are diverging from the text (and from the history as well, as frankcross notes) I think one needs a compelling structural, historical, or policy argument to interpret Article III so narrowly, and I do not find any such arguments very convincing.
The only problem with the UNIPCC is they forgot to tell you that CO2 rises following the temperature rises by about 600-800 years not the other way around. Looking at climate with 50 years of data is not what you would normally call science, but would call a hoax. Earth 2.0 has been around for about 4.5 billion years and the CO2 levels have been much higher and much lower than today. The temperature was rising in both cases.
Courts should stick to law and leave science policy to scientists. The 21 scientists that the Goracle cites as the consensus is not even close to the near 20 thousand scientists who say he is so full of hot CO2 that it is funny.
You can always tell the true believers in global warming by how strongly they back nuclear power — the only real answer to limiting CO2 emissions. The alternate fuels issue is so much BS it's not even worth going into.
Don't know much about law and standing, but do know my share about science and engineering.
Um, you're sort of proving his point, although misstating the asserted claim for relief in doing so (which is a critical error in a standing analysis).
First, the claim for relief isn't broad-based "regulation of greenhouse gases." It's a request for regulation of CO2 emissions from new automobile production. That's a significantly narrower claim for relief.
Second, to the extent you're saying that Chief Justice Roberts is saying that it's near conjecture to explain how requiring such narrow regulation will somehow lead to lower ocean levels -- well, yeah, that's the whole point. It's an extraordinarily attenuated chain of causation, with multiple intervening, independent factors that disrupt the chain (such as activity by China, India, and other countries, as well as the complexities attending emission of a greenhouse gas before it might cause a rise in ocean level).
Chief Justice Roberts is, in fact, accepting global warming -- as it commonly understood -- on its own terms, and saying that this simply doesn't satisfy the Court's longstanding justiciability requirements. I don't see what the controversy is in this.
Actually, the standing requirement has a rich common law history. See, e.g., Bradley S. Clanton, STANDING AND THE ENGLISH PREROGATIVE WRITS: THE ORIGINAL UNDERSTANDING, 63 Brook. L. Rev. 1001 (1997).
It's a complex chain of causation. It is emphatically not "a lawyer’s game."
Many of the Constitution's provisions no doubt seem vague when exmained out of context. This is why the meaning of many constitutioanl provisions can only be ascertained by examining them in their proper historical light and structural context. And to equate this interpretive process as "the same sort as the constitutional gloss established by liberals in their interpretation of other amendments" is patently ridiculous. Recognizing, for example, that the framers/founders used common law terms of art in the Constitution (and then consulting that history to aid in understanding the provision's meaning) is nothing like seeing non-existent penumbras in the document (from which constitutional rights are created out of wholecloth).
I realize that legal liberals like to play the "Constitution has no real meaning, and we're all making it up as we go along, so let's just do whatever we damn well please" game, but that dog ain't gonna hunt. In most cases, the Constitution's meaning can be reasonably ascertained by examining the text, history, and structural placement of the provision in question. I realize you find this frustrating, but if you don't like the Constitution we have, you can always draft a new one, which you can then submit to kindred spirits in power.
And if you believe that the Constitution's structure mandates that Massachusetts has no standing, do you also believe that, for instance, the petitioners in Grutter v. Bollinger and Gratz v. Bollinger do have standing when it's not clear that abolishing the affirmative action policy would have led to their harms redressed? And that such standing can also be discerned through "text, history, and structural placement"? Or maybe, just maybe, Justice Scalia found standing in the former and not the latter because his view of the substantive outcomes?
The Court's contorted standing jurisprudence strikes me as raw judicial policymaking.
See, e.g., AF's first comment in this thread.
Did he say it exactly those terms? No. But when he/she and SCOTUS Watcher start discussing "policy" in the context of a constitutional debate, it is abundantly clear that the Constitution's actual meaning is of little importance to them.
The law part, at least for me, comes when there is a real party suffering a real (as opposed to theoretical) harm. This concept has nothing to do with policy preferences and everything to do with the federal courts having limited jurisdiction.
The issue today is global warming. However, on some other day the issue will be something else.
I would feel the same way if, say, the State of Wyoming or Idaho or Utah disagreed with some federal policy or another--perhaps under a President H. Clinton Administration--and was complaining based solely based on its status as a state without identifying an actual direct harm.
Regardless of the issue, the parties complaining must have standing to do so. It is on that basis I agree with Chief Justice Roberts.
Congress is not powerless; they can pass a law saying specifically what they want, and (IIRC) can impeach if any given executive official is refusing to dispatch the law -- certainly they can do more than the courts.
And Congress has considerable power over the Supreme Court's ability to hear a case as well -- we now (since 1925) allow the Court to grant or deny certiorari, but historically the power belonged to Congress (otherwise the Judiciary Act of 1925 would be unconstitutional). They can also set the jurisdiction of courts (within the limits of the Constitution, of course).
Be careful of arguing that "no judgment exists". I just made a judgment that YOU do not exist. What counts is whether a judgment is correct, not that it exists. Chief Justice Roberts was saying that no "definitive" scientific judgment exists on that point, which is certainly true. Scientific fact is not created by taking a vote.
No, if you read the opinion, Roberts said he was making no judgment on whether global warming exists, not that science had made no such judgment.
The Congress says, you can file a petition for review in federal court. Period.
Are the dissenters saying that this provision is unconstitutional unless the petition raises a "case or controversy" by their definition?
In view of the Congressional directive, I would think the Court would have to work extra-hard to argue that there is no case or controversy &thus no jurisdiction, despite the efforts of the Congress to create same.
By those lights, and absent a persuasive explanation to the contrary from one of the posters here, I think the Court got this one right.
Which is just a reminder that you see standing issues argued most vehemently where the arguing party prefers not to see the case go up on the merits.
Standing doctrine is a policy judgment. I'm fine with that, the Court does that all the time. But if you think that it is only the liberals who are results-oriented or that conservatives are non-ideological, you are living in cloud cuckooland.
The above quote uses the word "certain" in the same sense that many writers use the word "literally"... That is, with no meaning whatsoever.
The extent of the flooding (or sea-level increase), even granting the worst case warming, is not certain. It's a complete unknown; it's even possible that the sea level could drop (although such a result would shock me), as increased rainfall drops more moisture on frozen areas.
I suggest you first read the law review article I highlighted above before further embarrassing yourself.
So raw sewage isn't a "pollutant" either in your opinion? Interesting.
Instead, it expressly created a form of jurisdiction that would seem to me to address some of the concerns often raised re: standing.
What the EPA does is in large part meant to avert future bad results. That's the P in EPA.
If Massachusetts doesn't have standing on the CO2 emissions issue, then no one has standing. Of course, I recognize that's the result some people want, but I can perhaps be forgiven for finding it implausible.
Disagree on the merits if you will, but don't pretend that MA has no genuine interest at stake.
Sure, MA has a genuine interest in the potential loss of its coastline. Claiming that the potential loss of its coastline is traceable to the EPA's failure to regulate carbon dioxide emissions in new automobile production is an argument only a lawyer could make.
Instead, the appropriate action is to apply to Congress and the Executive. Is it really so hard for you to believe that there are some issues better suited for the Executive and Legislative Branches? Isn't that inherent in the idea of Separation of Powers?
Perhaps you could enlighten us by quoting the paragraph from Chief Justice Robert's dissent where he says there was no definitive judgment that global warming exists. There might be context or definitional issues here which the quote would illuminate.
Is it likewise "bad form" to make a sweeping assertion without any authority whatsoever, and then, when given a citation questioning (I would maintain refuting) your assertion, to then once again make that assertion with no authoritative support? Also, is it bad form to tell the person with whom you are debating that he lives in "cuckooland"? Just wondering.
Also, Clanton's article contains plenty of authorities supporting his position on the common-law origins of the standing requirement, the legitimacy of which you can judge for yourself.
In other words, if only there were standing requirements to comment on standing...
I didn't say you were in cloud cuckooland, just that if you believed liberals were the only activists, that was tantamount to being in cloud cuckooland.
And I'm glad to see your argument style -- i.e., insulting people -- hasn't changed since your blogging at southern appeal days.
Secondly, that comparison to SCRAP seems ridiculous. SCRAP, based on what is written about it in the post, seems to be a fundamentally different situation, in which the injury (littering) was already illegal, and the remedy was tenuous despite there already being a prohibition on littering. So SCRAP was a dumb decision, because the direct and required remedy (littering being illegal) was already in place and just needed to be enforced more effectively.
The difference here is that there is no effective way to offer redressability without regulating CO2, since that actually is the ultimate cause. If we could catch the cascade of causation at some other point in the chain, then that would change things, but the most direct link that exists between rising global temperatures and a man-made, redressable activity is the emission of CO2 into the atmosphere. This is just like the regulation of any pollutant. It goes through a bunch of steps along its way to causing injury, and there are often many other causes and offenders.
Though i generally advocate the textualist approach, and generally do think that most textualist judges apply that approach honestly, Scalia's dissent in this case does bother me, although, again, I need to read the opinion and examine the applicable statutes myself before coming to a firm conclusion.
The point of my last comment to you was simply to note that your understated outrage at my "bad form" was a tad questionable given the tenor and substance of Frank's responses to me. In no way did I intend to insult you or Frank for that matter. I simply found it curious that Frank continued to make such a sweeping pronouncement in the face of historical evidence to the contrary. At the very least, it seems to me appropriate for him to concede that there is common-law history supporting the standing requirement outlined by the Court in Lujan and elsewhere.
Oh, and by the way, why exactly did the Gratz and Grutter petitioners have standing? They were challenging broad policy frameworks. It wasn't clear that they would be helped by a decision in their favor; actually, given that only 10% of the class was minority and the majority of applicants were not accepted to the law school, the chance that a decision in their favor would have redressed their harms was low. Can this be gleaned from an analysis of the 18th century writs, too? I don't particularly buy that an analysis of the writs should be our basis for determining who has standing 200 years later in an entirely different legal context (and I find it particularly frustrating when people call that "law" and any other method "policy" or "inventing rights" or whatnot) but even using that methodology, the current doctrine doesn't hold up.
But Clanton's article doesn't really win the common law claim, I don't think, because he doesn't come to grips with qui tam actions. Indeed, I think he hides the ball a little. He says that quo warranto actions that apparently lacked any standing were brought, not by private parties but by the King. However, those prosecuting such actions often were private parties, whom the government rewarded for winning enforcement actions.
There were some glimmers of ideas somewhat like standing in the cases, but no separate standing requirement declared as a matter of law. And certainly nothing like the three-pronged Lujan test. I think the first Supreme Court case to announce a standing requirement was not until the 1930s.
I understand completely. I cannot tell you how many times I've missed a comment or two in my many days of blogging and commeting.
As for the substance, I am afraid that we will have to agree to disagree. Although I agree that the common law origins Clanton notes do not directly support all three prongs of the Lujan test. I do think the authority Clanton cites in his article sheds a great deal of light on the issue (especially as to the injury prong). It is also my view that the Lujan test is consistent with the separation of powers concerns I outlined above.
In any event, I enjoyed the debate. I apologize if any of my comments to you were in "bad form" or "insulting." That certainly was not my intent. Sometimes my frustration can get the better of me.
The question, who shall be the relator . . . depends upon the object to be attained by the writ. Where the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the right enforced, must become the relator. . . . A stranger is not permitted officiously to interfere, and sue out a mandamus in a matter of private concern. But where the object is the enforcement of a public right, the People are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the laws executed, and the right in question enforced.
If the court likes your cause of action, you probably have standing, and if it doesn't you probably don't.
I'm not quite sure how that ties in to "case or controversy," but it must somehow, since it always seems to turn out that way.
As a trial court attorney, I assure you that it is quite possible AF and Scotus Watcher are not just lawyers, but litigators. They haven't mis-spelled anything yet. You won't believe some of the things that go across my desk. One of my lines is, "No attorney was harmed in the writing of this motion."
Have fun. I am a former federal-appellate clerk, and it was a grand two years.
I don't buy the dissent's standing argument at all. Why doesn't marginal mitigation of a harm confer standing?
Example: Power plant is emitting more NOx than allowed by the Clean Air Act. Citizen from the same town sues to force the plant to cut the emissions. For standing, the citizen claims that he has asthma and that smog makes his asthma worse.
This citizen has standing, without doubt. How is this different than Massachusetts v. EPA? The power plant is emitting only a tiny fraction of the emissions that cause smog in the citizen's town. So what?
The same would be true whenever a citizen sues regarding endangered species, or violations of the clean water act, etc. In every case, the defendant is causing only a tiny fraction of the overall problem, and can only redress that little bit. For example, stopping a highway project that destroys critical habitat is not going to save an endangered species. Forcing a single factory to filter its effluent is not going to clean a river. And on and on.
It seems to me that the dissent's standing argument would entail a massive change to standing doctrine that would eviserate citizen suits in almost all environmental cases, and probably in many other fields as well.
That's the norm, my judge is different than most. He likes to have at least one "senior" clerk stay on to teach the newbies the ropes (along with the permanent part-time clerk). Anyway, you'll love it. The only thing better would be clerking for one of the Supremes, and we all know hard those are to obtain. :)
Because Congress cannot legislate around a constitutional standing requirement any more than it could pass a statute authorizing the Court to issue advisory opinions to federal officials. Either the Constitution requires that a litigant have standing in order for his case to be justiciable or it doesn't.
Now, I suppose one could argue, as some in this comment thread have, that the Court's current standing test is not required by the Constitution's text, structure, or history, and therefore a more lenient standing requirement by Congress might be appropriate in some cases. The problem with this suggestion is that until the Supremes say otherwise, Lujan is the law of the land, and as the Court made clear in City of Boerne v. Flores, it is not real keen on Congress attempting to legislate around or change its constitutional tests or holdings.
In any event, I hope this response adequately address your excellent question.
I thought I was responding to a hypo, but perhaps you read Erasmus's question with more precision than I did.
As for your point, I am not sure that the Court's decision today modifies Lujan, so much as it appears to carve out an exception of sorts for states. I don't know though, I am in the process of reading the case again in preparation for a radio appearance tomorrow, so I may end up eventually agreeing with you on that particular point.
p.d.: I'm going to make a bold conjecture that AF and Scotus Watcher either haven't gone to law school yet or aren't lawyers. I don't want to consider the alternative...
Tom Holsinger: I assure you that it is quite possible AF and Scotus Watcher are not just lawyers, but litigators.
Tom Holsinger wins the pool. One clue that those of us defending the Court's standing analysis know what we're talking about is that we're . . . defending the Court's standing analysis. This isn't a fringe viewpoint people! Another clue is that we're above questioning the credentials of others. For my part, I'm not suggesting that standing was an easy question in this case. My point is that, contra CJ Roberts. it's a serious question.
By the way, Tom, here's the passage from Roberts' opinion that you're looking for:
Er. Frankly, that's a contra-indicator.
I'm heading for bed and won't look up the decision, but that paragraph by Roberts, standing alone, looks mighty like a conclusion that it is immaterial whether any definitive judgment on global warming exists, because the controversies before the Court are non-justiceable.
The fundamental problem with this decision is that it seems to prove too much. If the EPA must regulate automobile CO2 emissions, why does it not also regulate breathing?
The potential threat to American life and property from possession of nuclear weapons by the Iranian mullahs is enormous: do I have the standing to sue the U.S. government for not making war on Iran?