Should states have greater standing rights than ordinary citizens? Massachusetts v. EPA's new standing test for states.

• Author: Mank, Bradford

ABSTRACT

In Massachusetts v. EPA, the Supreme Court for the first time clearly gave greater standing rights to states than ordinary citizens. The Court, however, failed to explain to what extent or when states are entitled to more lenient standing. This Article concludes that the Court has historically given states preferential status in federal courts when a state files a parens patriae suit based on the state's quasi-sovereign interest in the health and welfare of its citizens or the natural resources of its inhabitants and territory. A quasi-sovereign interest is inherently less concrete and particularized than the types of injuries that individual citizens need for standing, yet the Court has allowed states standing to protect their general interest in their citizens' health and welfare. This Article proposes that courts relax the immediacy and redressability prongs of the standing test when states bring patens patriae suits to protect their quasi-sovereign interest in the health, welfare, and natural resources of their citizens. This proposed standing test would be similar to the relaxed standing test for procedural rights plaintiffs but is based on the Court's historic parens patriae decisions. By using and refining the Court's procedural rights standing test as a model, this Article proposes a workable standing test for states.

TABLE OF CONTENTS INTRODUCTION I. A BRIEF INTRODUCTION TO STANDING A. Constitutional Standing B. Generalized Injuries C. Relaxed Standing in Procedural Rights Cases II. THE COURT OF APPEALS' DIVIDED OPINION IN MASSACHUSETTS A. Judge Randolph B. Judge Sentelle C. Judge Tatel III. THE SUPREME COURT'S NEW STANDING TEST FOR STATES A. Justice Stevens' Majority Opinion on Standing 1. Congress May Broadly Define What Constitutes an Injury 2. The Special Standing Rights of States 3. Massachusetts Meets the Tests for Injury, Causation, and Redressability B. Chief Justice Roberts' Dissenting Opinion 1. Massachusetts Lacks Standing Because Global Warming Is a Generalized Grievance 2. States Do Not Have Greater Standing Rights Under the Parens Patriae Doctrine 3. Massachusetts Failed To Prove Injury, Causation, or Redressability 4. Chief Justice Roberts Accuses the Majority of Intruding upon the Role of the Political Branches C. Analysis 1. The Court Does Not Provide a Clear Test for State Standing 2. It Is Questionable Whether Massachusetts Is a Procedural Rights Plaintiff, but the Court Has Never Provided a Good Definition of When Footnote Seven Applies 3. Did Massachusetts Meet the Traditional Three-part Standing Test? IV. DOES THE PARENS PATRIAE STANDING DOCTRINE SUPPORT BROADER STANDING RIGHTS FOR STATES? A. The Historical Development of Patens Patriae B. Patens Patriae and Quasi-sovereign Interests C. Parens Patriae and Suits To Enjoin Public Nuisances D. Patens Patriae Actions Other than Public Nuisances E. Justice Brennan's Broader Concurring Opinion in Snapp F. Standing in Public Nuisance Cases G. States Are Entitled to Greater Standing Rights in Parens Patriae Cases Involving Quasi-sovereign Interests H. Can States File Parens Patriae Suits Against the Federal Government? I. Limits on Patens Patriae Suits V. A PROPOSED STANDING TEST: RELAXING THE IMMEDIACY AND REDRESSABILITY REQUIREMENTS FOR STATES VI. POLICY IMPLICATIONS CONCLUSION INTRODUCTION

In Massachusetts v. EPA, (1) the Supreme Court held that carbon dioxide (C[O.sub.2]) and other greenhouse gases (GHGs) are air pollutants within the meaning of the Clean Air Act (CAA). (2) The Court determined that the U.S. Environmental Protection Agency (EPA) has a presumptive statutory duty under the Act to issue regulations for emissions of GHGs from new motor vehicles and remanded the case so that the EPA can reconsider its denial of a petition to regulate GHGs from new vehicles. (3) Although its decision on the merits is important, the Court's conclusion that Massachusetts had standing to file suit because states are entitled to more lenient standing criteria may have a greater impact in the long-term on legal doctrine. (4) In Massachusetts, the Supreme Court clearly gave, for the first time, greater standing rights to states than ordinary citizens. (5) The Court, however, failed to explain to what extent or when states are entitled to more lenient standing. This Article proposes that courts relax the immediacy and redressability prongs of the standing test when states bring patens patriae suits to protect their quasi-sovereign interest in the health, welfare, and natural resources of their citizens. (6) This proposed standing test would be similar to the relaxed standing test for procedural rights plaintiffs but is based on the Court's historic parens patriae decisions. (7)

In Massachusetts, twelve states, with Massachusetts as lead petitioner, joined other plaintiffs in challenging the EPA's denial of a petition to regulate GHGs from new vehicle emissions on the grounds that the EPA lacked authority under the Act to regulate those gases. (8) Before reaching the question of whether the EPA had statutory authority to regulate GHGs, the Court had to first decide the difficult issue of whether the petitioners had standing. The Constitution does not by its terms require that a plaintiff have standing to file suit in federal court, but since 1944 the Supreme Court has explicitly imposed standing requirements that it has inferred from Article III's limitation of judicial decisions to cases and controversies to ensure that the plaintiff has a genuine interest and stake in a case. (9) Because GHGs from vehicles or other sources have global rather than localized impacts, there are serious questions about whether any individual has sufficiently unique harms to justify standing. (10)

In his majority opinion, Justice Stevens, who was joined by Justices Kennedy, Souter, Ginsburg, and Breyer, "stress[ed] ... the special position and interest of Massachusetts." (11) He stated that "[i]t is of considerable relevance that the party seeking review here is a sovereign State and not ... a private individual." (12) Justice Stevens contended that the Court, in its 1907 decision in Georgia v. Tennessee Copper Co., (13) "recognized that States are not normal litigants for the purposes of invoking federal jurisdiction." (14) In Tennessee Copper and several other cases, the Court recognized a special standing doctrine of parens patriae standing to allow states to protect certain quasi-sovereign interests including the health, welfare, or natural resources of their citizens. (15) Just as Georgia had a right to invoke federal jurisdiction to protect its quasi-sovereign interest in protecting the health of its citizens from air pollution emanating from another state, Justice Stevens maintained that "Massachusetts' well-founded desire to preserve its sovereign territory today" gave it standing to invoke federal jurisdiction. (16) In light of both its statutory right to petition the EPA and "Massachusetts' stake in protecting its quasi-sovereign interests," Justice Stevens concluded that "the Commonwealth is entitled to special solicitude in our standing analysis." (17) Because only one petitioner needed to have standing for the case to go forward on the merits, the Court concluded that the Commonwealth of Massachusetts' allegations that increasing levels of GHGs from vehicles were causing rising sea levels that were damaging its coastline was sufficient to meet standing requirements. (18) The Court did not clearly explain whether Massachusetts could have met normal standing criteria or needed to rely on the special standing criteria for states. (19)

In his dissenting opinion, Chief Justice Roberts, who was joined by Justices Scalia, Thomas, and Alito, criticized the majority for relaxing standing requirements for states because he argued that there was no basis in the Court's precedent for applying a more lenient standard for states. (20) He maintained that, in Tennessee Copper the Court treated states differently from private individuals with regard to available remedies, but that the case did not address Article III standing. (21) Chief Justice Roberts acknowledged that the Court had recognized the doctrine of parens patriae standing to permit states to protect certain quasi-sovereign interests, but he contended that this type of standing requires a state to prove the additional requirement of having a quasi-sovereign interest and still requires the state to show that its citizens meet Article III standing. (22) He argued that Massachusetts was not asserting a quasi-sovereign interest, but rather a "nonsovereign interest" as the owner of coastal property. (23) Further, he claimed that parens patriae standing is not allowed against the federal government. (24)

Finally, Chief Justice Roberts contended that the majority applied a relaxed standing analysis because Massachusetts could not meet the three requirements for Article III standing: (1) injury in fact, (2) causation, and (3) redressability. (25) He was especially concerned that the majority weakened precedent concerning causation and redressability. (26) He accused the majority of adopting weakened standing criteria that inappropriately allowed federal courts to hear complex policy disputes more appropriately addressed by the political branches of government. (27)

This Article concludes that the Court has historically given states preferential status in federal courts when a state files a parens patriae suit based on the state's quasi-sovereign interest in the health and welfare of its citizens or the natural resources of its inhabitants and territory. (28) There are sound reasons to apply lesser standing requirements to enable states to protect their quasi-sovereign interest in the health and welfare of their citizens or the natural resources of their inhabitants and territory. Chief Justice Roberts' dissenting opinion is correct on many details, but fails to understand that the...