Watch out for more aggressive attempts by the states to assert their standing to pursue litigation. In permitting Massachusetts and other states to attack the federal Environmental Protection Agency’s policies on global warming, a five-justice majority of the U.S. Supreme Court held that states are entitled to “special solicitude” in the Court’s standing analysis.
The Supreme Court’s ruling in Massachusetts v. EPA, 05-1120 (Apr. 2, 2007), recently grabbed headlines for taking the EPA to task for its policy not to regulate greenhouse gas emissions. Several states and private organizations had sued the EPA alleging the agency had “abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide.” These parties sought a determination that the EPA has statutory authority to regulate greenhouse gas emissions from new motor vehicles and a ruling that the agency’s stated reasons for refusing to regulate such emissions are consistent with the statute. On the merits, the Supreme Court held that Clean Air Act authorizes such regulation and that the EPA’s decision not to regulate was “arbitrary, capricious and otherwise not in accordance with law.”
Although the importance of the case’s procedural issues may pale in comparison to its effect on global warming policy, the Court’s threshold determination that Massachusetts had standing to pursue its action against the EPA may alter the landscape of state standing. In order to establish standing to pursue litigation in federal courts under Article III of the Constitution, a plaintiff, whether a state or private litigant, must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. According to the EPA, these requirements were not satisfied by Massachusetts’ claim that global warming was causing the state a particular, imminent injury and that this injury could be traced to EPA inaction and redressed by EPA action on greenhouse gas emissions.
Justice Stevens’ opinion for the Court in Massachusetts v. EPA first highlighted two factors weighing in favor of finding that Massachusetts had standing. First, the parties’ dispute turned on the proper construction of a federal statute (the Clean Air Act), which is “a question eminently suitable to resolution in federal court.” Second, in enacting the Clear Air Act, Congress decided to provide litigants with a right to challenge agency action unlawfully withheld, and “a litigant to whom Congress has accorded a procedural right to protect his concrete interests … can asset that right without meeting all the normal standards for redressibility and immediacy.” Rather, “[w]hen the litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.”
These factors alone may not have been enough, however, to confer standing upon Massachusetts to challenge the EPA’s inaction on greenhouse gas emissions. Justice Stevens wrote that the Court must “stress” the “special position and interest of Massachusetts” and that Massachusetts’ status as a sovereign state, rather than a private individual, was of “considerable relevance” to the standing inquiry. Citing cases holding that states may pursue suits for an injury to its quasi-sovereign interests and under the parens patriae doctrine, Justice Stevens wrote that the Court has “recognized that States are not normal litigants for the purposes of invoking federal jurisdiction.” Indeed, in Massachusetts v. EPA, Massachusetts was entitled to “special solicitude” in the Court’s standing analysis.
Proceeding with a thumb on the standing scale because of Massachusetts’ status as a sovereign state, the majority held that Massachusetts had standing to sue the EPA. The majority found that the “EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both ‘actual’ and ‘imminent’” and, moreover, there is a “substantial likelihood that the judicial relief requested will prompt EPA to take steps to reduce that risk.” More specifically, the majority was convinced by evidence that a significant fraction of Massachusetts’ coastal property could be lost to rising sea levels and, furthermore, found that even incremental steps by the EPA to slow or reduce domestic automobile emissions would help to address global climate change.
It remains to be seen whether the standing analysis in Massachusetts v. EPA will be confined to the unique facts of the states’ challenge to the EPA’s policy not to regulate greenhouse gas emissions. However, the decision should encourage states to test the limits of the “special solicitude” the Court has conferred upon them for purposes of standing.