A policy decision in the high court: how global warming eroded the standing requirement: Massachusetts v. EPA.

AuthorSmelser, Brad


A litigant must be properly situated to be entitled to a judicial determination based on the merits of his claim. To have standing, the litigant must demonstrate an actual or imminent concrete and particularized injury that is traceable to the defendant's actions and that a favorable decision will likely redress that injury. (1) In Massachusetts v. Environmental Protection Agency, the United States Supreme Court held that the Commonwealth of Massachusetts had standing to sue the Environmental Protection Agency (EPA). (2) Massachusetts alleged that the EPA was not enforcing the Clean Air Act (3) (CAA) with respect to regulation of carbon dioxide emissions from new cars and light trucks. (4) Massachusetts could not invoke federal jurisdiction using traditional standing requirements. The Court's holding modified traditional standing requirements and allowed Massachusetts to proceed with its claim. This decision relaxed standing requirements for state litigants, which could open the floodgates of litigation.

The Court reached an incorrect result in Massachusetts. An analysis using traditional standing requirements shows that the injury to Massachusetts' coast is hypothetical, not certainly impending. Furthermore, Massachusetts cannot directly trace this hypothetical injury to the EPA's non-enforcement of the CAA. Finally, a judgment in favor of Massachusetts will not redress the injury. The Court should have held that the Commonwealth did not have standing to sue the EPA. Instead, the Court modified traditional standing requirements and found that states have a quasisovereign interest in protecting their land that grants them a special solicitude for purposes of invoking federal jurisdiction. (5) This holding relaxed standing requirements for states attempting to protect quasi-sovereign interests.

The first section of this paper discusses the evolution of traditional standing requirements. The second section recites the facts of the case, the procedural posture, and the Court's holding and reasoning. The third section analyzes: (1) the injury-in-fact requirement of standing and the hypothetical nature of the injury in Massachusetts; (2) the causation requirement of standing (traceability) and the failure of the Commonwealth to prove that the inaction of the EPA contributed to global warming; (3) the redressability requirement of standing and how the decision of the Court will not save the coast of Massachusetts; and (4) the relaxed standing requirements announced in this case and the potential impact on future litigation. The final section is a summary of the issues and a conclusion.


The Evolution of the Standing Requirement

Traditional standing requirements focus on the relationship between the litigant and the advancement of the claim. Essentially, standing asks whether a litigant has the right for a court to decide the merits of his or her case. (6) Initially, a plaintiff's right to access federal courts depended on the substantive law. (7) Federal courts would only hear a claim if a statute or common law authorized the plaintiff's cause of action. (8)

The emergence and proliferation of state regulatory and administrative agencies complicated the issue of standing. (9) Initially, a plaintiff only had standing to sue an agency if the common law granted a cause of action against a private party. (10) Therefore, litigants could sue an agency in property, contract, or tort under principles of the common law. (11) If, however, the action of the agency was unsupported by common law the plaintiff had no standing to sue. (12)

Standing based on common law rights favored those being regulated rather than the intended beneficiaries of the regulation. (13) For example, if an agency enacted a rule requiring a manufacturer to take safety precautions, the manufacturer could claim that the regulation violated his property rights. This gave the manufacturer standing to challenge the law. (14) However, if an agency failed to enforce a statute intended to benefit consumers, the consumers would not have a cause of action under common law. Thus, consumers would not have standing to challenge the agency's failure to enforce the statute. (15)

The Court addressed this inequity by incorporating statutorily created interests into case law. (16) This gave plaintiffs standing in federal court when agency inaction resulted in a loss of statutory benefits to the plaintiffs. (17) Prior to this change, plaintiffs challenged enforcement of statutes in federal courts. (18) After this change, plaintiffs also challenged the failure to enforce statutes in federal courts. (19)

Arguments for more zealous enforcement of statutes created new problems. (20) Courts often had difficulty determining whether a statute created a benefit that was dependent on agency action or inaction. (21) This determination required that courts interpret the statute involved. (22) This created an overlap between determining whether a statute created a legal interest and whether an agency had complied with the law. (23)

The Court altered the standing doctrine yet again in Association of Data Processing Service Organizations, Inc. v. Camp. (24) In that case, data processing companies challenged a ruling that allowed banks to offer data processing related services. (25) The companies filed suit claiming that the comptroller misinterpreted the National Bank Act. (26) The trial court found that the statute did not create a legal interest in favor of the companies and denied standing. (27) The Supreme Court reversed the ruling. (28) The Court announced a two-part test to determine whether a plaintiff had standing to bring an action. (29) The first inquiry under the test is "whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise." (30) Second, a litigant must show that the interest is one "within the zone of interests" that the statute regulates or protects. (31)

This test caused courts to shift their focus from legal to factual inquiries by asking whether agency action inflicted real-world harm on the claimants. (32) Courts could determine questions of fact more easily than they could determine questions of law (i.e. whether a statute created a legal interest for the claimant). (33) This shift also ensured that remotely harmed plaintiffs would not have standing to bring an action. (34) Courts required Plaintiffs to show that the interests they sought to protect were "arguably within the zone of interests" of the statute. (35) However, interpretation of "arguably" in the statutory language proved ambiguous. As written, the statutory language allowed plaintiffs to assert a general interest in enforcement of the statute, rather than having to prove that they were an intended beneficiary. (36)

The test did not clarify whether injury-in-fact was a requirement of standing. (37) The Court cleared up that uncertainty when it held that the plaintiffs had "the personal stake and interest that impart that concrete adverseness required by Article III," which suggested that the injury-in-fact test was indeed a constitutional requirement. (38) As the Court refined the test it added two more requirements. Plaintiffs must show that their injury is traceable to the conduct of the defendant and that a favorable decision by the court will likely redress the injury. (39) The alleged injury must be concrete and particularized and actual or imminent, as opposed to conjectural or hypothetical. (40)

Though the majority of injuries asserted over the years have been economic in nature, that is not the only type of injury that can support standing. (41) Injuries "may reflect aesthetic, conservational, and recreational as well as economic values." (42) For example, plaintiffs have successfully claimed redress for damage to the environment surrounding their homes and work. (43) However, government failure to follow the law does not necessarily create an injury-in-fact. (44) In other words, a litigant seeking to ensure that the government is acting lawfully does not have an injury-in-fact sufficient for standing. (45)


  1. Recitation of Undisputed Facts

    A group of private organizations petitioned the EPA to regulate the emissions of four gases, including carbon dioxide. (46) The petitioners based their claim on the opinion held by some in the scientific community that the rise in global temperatures is a result of the increased concentration...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT