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.