Standing and Separation of Powers in Massachusetts and Hein:

The Supreme Court decided two important standing cases during OT2006: Massachusetts v. EPA and Hein v. Freedom from Religion Foundation. Both cases are significant, but for quite different reasons -- one for what it did, the other for what it did not do. Massachusetts is important for how it departed from, and modified, existing standing doctrine in holding that the Commonwealth of Massachusetts had standing to sue the EPA for failing to regulate greenhouse gases under the Clean Air Act. Hein, on the other hand, is important because the Court stubbornly refused to depart from existing, and arguably quite unworkable, precedent regarding taxpayer standing to sue the federal government under the Establishment Clause.

Late last year I delivered the keynote address at a standing symposium, "Justiciability After Hein and Massachusetts: Where is the Court Standing?" sponsored by the Regent Law Review, in which I addressed the two cases. In addition to noting the cases' handling of prior precedent, I argued that the Court's holdings embody contrasting -- and arguably quite conflicting -- conceptions of the role of the judiciary in the separation of powers.

In both cases, the Court confronted the question of when to allow suits challenging executive conduct that caused rather generalized harms to the public -- the misuse of taxpayer dollars in Hein, the failure to regulate vehicular contributions to glboal climate change in Massachusetts. Given the lack of a traditional concrete and particularized injury in these cases, one underlying question is whether standing is necessary or desirable so as to facilitate judicial oversight of potential executive branch misconduct. Such judicial oversight may be desirable insofar as the legislature cannot be relied upon to police executive behavior. But if this is the rationale for allowing standing despite the lack of a traditionally recognized injury, the Court gets the two cases wrong.

It seems to me the risk of executive misconduct is greater in the Establishment Clause context, where the executive must comply with a constitutional rule designed to protect minority interests from majoritarian religious preferences, than in the environmental context where the executive is tasked with implementing a federal statute. Congress is fully capable of policing executive compliance with statutory mandates (if it chooses to do so), but Congress is very unlikely to police Executive compliance with the Establishment Clause, particularly where the executive acts to "establish" majoritarian religious preferences. Thus the Court has a greater "countermajoritarian" role to play in Establishment Clause cases. Yet Hein effectively forecloses taxpayer suits against executive actions that allegedly violate the Establishment Clause, and Massachusetts opens the door to greater litigation against executive actions that allegedly violate federal environmental laws. If the Court was only to find standing in one of the two cases (and I would not have found standing in either), I think Hein was a better candidate than Massachusetts.

I've turned my symposium remarks into a short paper, "God, Gaia, the Taxpayer, and the Lorax: Standing, Justiciability, and Separation of Powers after Massachusetts and Hein." It's a quick read that fleshes out the argument in a little more detail. A copy of the paper on SSRN here.

Tim Dowling (mail):
Hi Jonathan --

Regarding the assertion that the Petitioners in Mass v. EPA had no standing because their injury was widely shared and thus not adequately “particularized,” the Petitioners and the majority quoted FEC v. Akins, which holds that “where a harm is concrete, though widely shared, the Court has found ‘injury in fact.’” Why is there no mention of the case in the article? The Chief Justice's dissent on standing doesn't mention the case either, which struck me as odd when the ruling came down.

Massachusetts and other petitioners are suffering actual loss of state-owned coastline through erosion and flooding, with remediation costs allegedly running into the hundreds of millions of dollars. If Congress passed a law expropriating 1% of every parcel in the country without just compensation, on your view would no one have standing because the injury is widely shared and thus not sufficiently particularized?
1.28.2008 9:04am
Jonathan H. Adler (mail) (www):
Tim --

A few quick points. First, if Massachusetts satisfied the traditional elements of standing, there would have been no need for the majority to assert (invent) the doctrine of "special solicitude" for state standing. Further, there would have been no need to for the majority to assert that the petitioners could avail themselves of lowered scrutiny to the causation and redressability prongs as is typically done where a statute confers preocedural rights upon potential citizen plaintiffs.

Why don't I mention FEC v. Akins? Because it's not particularly relevant. Scalia's dissent in the case notwithstanding, Akins did not involve a generalized grievance of the sort at issue in taxpayer cases or Mass v. EPA. The plaintiffs in Akins had standing because the relevant statutes created a right to the relevant information (like FOIA, NEPA, etc.), and the plaintiffs could well argue that they would have acted on the relevant information as voters. Further, the Akins plaintiffs suffered a present concrete harm (as traditionally understood), whereas the petitioners in Massachusetts did not.

As for Massachusetts loss of coastline, as I note in this article (and my other writings on the subject), the Court has repeatedly stressed that distant, future injuries are not sufficient to establish an "injury-in-fact." Under Lujan, the injury must be both "actual or iminent" (i.e. in the here and now) and "concrete and particularized." As standing requirements have been traditionally applied, Massachusetts could not satisfy both of these prongs simultaneously.

Massachusetts' claim to loss of coastline due to to EPA's failure to regulate was a claim of marginal loss a century from now. Massachusetts could not -- and its supporting affidavits did not -- claim that the state was losing any measurable amount of coastline now due to the EPA's failure to regulate. Therefore, your hypothetical is simply not analogous.

[It's also worth noting here that Justice Stevens' majority opinion misquoted the relevant affidavits on sea-level rise in a way that overstated the estimated contribution on anthropogenic warming to sea-level rise.]

1.28.2008 9:50am
Simon Dodd (mail) (www):
At risk of too blatantly self-promoting, I have a paper on SSRN focusing more specifically on how Mass. fits into the redressability prong of Lujan here.
1.28.2008 10:54am
Tim Dowling (mail):
Hi Jonathan -- Thanks for the clarification. Just to push back a bit, the alleged injury in Akins was widespread, more so than the alleged injury in Mass. v. EPA. The statutory right to receive information applied to a larger class; couldn't virtually any voter argue that the information was necessary to make an informed vote? The loss of coastline alleged by Massachusetts was suffered only by coastal states. We can agree to disagree as to whether Akins is distinguishable, but I don’t see how one can view the case as irrelevant to the injury-in-fact issue, given the Petitioners’ and majority’s reliance on it. It seems pretty central to the discussion.

Although the affidavits discuss future injury, the Petitioners’ briefing relied on evidence of actual, on-going, present-day injury, including ongoing loss of state-owned coastline, ongoing increase in smog, and other present-day impacts. EPA did not dispute these assertions, which is probably why the SG conceded the injury-in-fact prong of the standing test. The Petitioners’ briefing and the oral argument make it clear that they did not rely principally on “a claim of marginal loss a century from now.”

The majority also makes clear that, notwithstanding the “special solicitude” it would give to States in standing analysis, the Petitioners’ submissions satisfied any standing test, even (as the court put it) “the most demanding” test, presumably the one that would apply to non-State actors. Some people disagree with the majority’s ultimate conclusion on standing, but it’s not accurate to say that absent the “special solicitude,” the majority would have bounced the case on standing. Because Petitioners met even the most demanding standing test, the arguments based on special solicitude for States and procedural standing might be best viewed as a fortiori arguments, no?

Best, Tim
1.28.2008 11:12am
Tony Tutins (mail):
So if the factory next door is belching a substance that has recently been observed to increase the risk of cancer by ten percent, I have no standing to sue the factory until I actually get cancer? Why should I be a lab rat in this instance?
1.28.2008 11:17am

And, absent jury abuse, you shouldn't win even if you do get cancer. Preponderance of the evidence, you know.
1.28.2008 12:13pm
advisory opinion:
Scotus taxpayer standing doctrine is a bit of a mess isn't it. Thanks for the article.
1.28.2008 4:25pm
Larry Fafarman (mail) (www):
Jonathan Adler said,
If the Court was only to find standing in one of the two cases (and I would not have found standing in either), I think Hein was a better candidate than Massachusetts.

I disagree. Hein involved only the "mental displeasure" (Justice Scalia's term) of seeing one's taxes being used to fund religion in an alleged violation of the establishment clause -- Hein was sort of a "right to not be offended" type of lawsuit. In contrast, the global warming at issue in Massachusetts has the potential for producing real, concrete, physical injury -- e.g., coastal flooding, more hurricanes, and widespread extinctions of species.

This whole idea of "standing to sue" is one of the dumbest in jurisprudence. It's like a court telling a plaintiff,

We understand that you have spent thousands of hours on this court case and have gone bankrupt by spending millions of dollars on it. But we are still wondering if you are really interested in this court case. Not just a little interested. We mean really really interested.

It is said that the "cases and controversies" clause of Article III of the Constitution requires that the plaintiff(s) be "injured-in-fact," but anything, even a hypothetical question, can be a "controversy."

The "citizen suit" provisions of environmental laws (e.g., 42 USC §7604) give any "person" standing to sue without necessarily requiring allegations of injury or potential injury to anyone or anything, let alone the plaintiff. California, though technically not a "person," used a citizen suit provision -- 42 USC §7604 -- to sue the US EPA for unreasonable delay in publishing a decision on California's request for a waiver of federal preemption of regulation of automotive greenhouse gas emissions (see this article and page 3 of the complaint). Maybe Massachusetts et al. could also have sued the EPA under this "citizen suit" provision.

In an opinion concurring in the judgment in Hein, Justice Scalia -- joined by Justice Thomas -- said, as summarized in the syllabus,

The Court's taxpayer standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent because they have inconsistently described the relevant "injury in fact" that Article III requires. Some cases have focused on the financial effect on the taxpayer's wallet, whereas Flast and the cases that follow its teaching have emphasized the mental displeasure the taxpayer suffers when his funds are extracted and spent in aid of religion. There are only two logical routes available with respect to taxpayer standing. If the mental displeasure created by Establishment Clause violations is concrete and particularized enough to constitute an Article III "injury in fact," then Flast should be applied to (at a minimum) all challenges to government expenditures allegedly violating constitutional provisions that specifically limit the taxing and spending power; if not, Flast should be overturned. Pp. 2-12
-- from pages 4-5 of syllabus

Justice Harlan's dissent in Flast v. Cohen sums up the meaning of "standing to sue":

I am quite unable to understand how, if a taxpayer believes that a given public expenditure is unconstitutional, and if he seeks to vindicate that belief in a federal court, his interest in the suit can be said necessarily to vary according to the constitutional provision under which he states his claim.

. . . .Apparently the Court, having successfully circumnavigated the issue, has merely returned to the proposition from which it began. A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested. (citation omitted)

I discuss Hein v. Freedom from Religion Foundation in this article on my blog.
1.28.2008 9:23pm