Of Standing & Sovereignty
On Monday April 2, the SCOTUS decided Massachusetts, et al. v. EPA, No. 05-1120 (pdf). Although the case involved issues of greenhouse gases and global warming, the case is, from a litigator's perspective, far more notable for its treatment of Article III standing. In a nutshell, Justice Stevens's majority opinion strongly suggests (one might even say "holds") that states may possess Article III standing to pursue litigation in the federal courts even in circumstances where private citizens would not:
It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual.
(emphasis added). The Court also noted "the special position and interest of Massachusetts" as well as its inclination to display a "special solicitude" for the arguments of states when it comes to Article III standing. This strikes me as strong stuff and a significant departure from the Court's prior Article III jurisprudence.
As a textual matter, Article III in no way discriminates between private litigants and states. Under Article III, you either have a case or controversy over which the judicial power may be exercised or you do not. In an apparent effort to account for the Court's emphasis on sovereignty in a manner consistent with Article III's heretofore "irreducible" standing requirements, at least one commentator has suggested that the Court's holding relies on a species of "a fortiari argument." In other words, the Court's opinion must be understood as implicitly holding that the private plaintiffs also have Article III standing. Accordingly, the argument runs, Massachusetts' sovereign nature is but further grist in the same mill, i.e., it further tips scales that already weigh decisively in Massachusetts' favor.
I'm not persuaded for the reasons that (1) the Court did not address the standing of private plaintiffs (2) the Court unambiguously stated that Massachusetts' sovereign character was of "considerable relevance" to its analysis and (3) the Court relied on the sovereign character of Massachusetts to distinguish the case from Lujan. Whatever else might be said of the Article III analysis in this case, one cannot say that Massachusetts' standing was of a piece with that of the private plaintiffs.
So what's it all mean? For one thing, it seems likely that Massachusetts v. EPA will encourage states to take a more active role in the federal regulatory process. As I read the case, an injury to a sovereign or quasi-sovereign interest will confer Article III standing even where the injury at issue (here, the continuing erosion of Massachusetts' coastline due to global warming) may not be (1) imminent in the traditional sense of the word or (2) redressible in anything other than a token sense by the regulatory action a state seeks to compel. As I see it, Massachusetts v. EPA is something of a state's rights case, conferring on the states, through the mechanism of a relaxed Article III standing requirement, a measure of oversight authority with regard to federal agency action. And that would be a significant development indeed.
Parting Shot: Johnathon Adler has more thoughts on the already-much-blogged Article III issue. As usual, SCOTUSBlog has much more, including posts authored by numerous counsel involved in the case. And, finally, here is Linda Greenhouse's NYT article on the greenhouse gas case, which I link for no other reason than to recognize the perfect confluence of writer and subject matter.
