The following discussion board post is from Gary Feinerman, Solicitor General of Illinois. Illinois was one of the 12 State petitioners in Mass. v. EPA.
The Court’s decision is momentous from an environmental perspective for all of the reasons cited by Timothy Dowling in his post (here). The decision is significant as well for what it says about the States as litigants in federal court and as independent sovereigns in our federal system of government.
In Section IV of its opinion, the Court concludes that Massachusetts, the lead State petitioner, has standing to bring this case. There are two principal components to the Court’s standing analysis. The first component establishes the proposition that States must be treated differently than “normal litigants for purposes of invoking federal jurisdiction,†in that they be accorded “special solicitude in our standing analysis.†The Court noted that “[w]hen a State enters the Union, it surrenders certain sovereign prerogatives,†such as invading a neighboring State to force reductions in greenhouse gas emissions or entering into treaties with foreign nations to do the same. Those sovereign prerogatives, the Court continued, “are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to†emissions from new motor vehicles.
The second component is a relatively conventional application of the three traditional components of standing — injury, causation, and redressability — to the facts of this case. With respect to injury, the Court found that global climate change injures Massachusetts’s interest in its capacity as a landowner, as the rising seas that result from global warming will inundate “a significant fraction of [the State’s] coastal propertyâ€; with respect to causation, the Court ruled that domestic motor-vehicle emissions “make a meaningful contribution to†the global climate change that is threatening Massachusetts’s land; and with respect to redressability, the Court held that regulating such emissions would slow or reduce global climate change.
It seems to me that there is very little, if anything, in the Court’s discussion of injury, causation and redressability that would not apply with equal force to private landowners. So, why did the Court go out of its way to hold — prompting a strenuous dissent on this point from the Chief Justice — that the standing requirements for States are less rigorous than for private parties? Perhaps application of the three traditional standing criteria presented a close enough question that the Court thought it prudent to provide some extra “oomph†in favor of standing. Or perhaps the portion of Section IV giving the State’s “special solicitude†for standing purposes, which relied in part upon Alden v. Maine, 527 U.S. 706 (1999), was necessary to garner or solidify a fifth vote from Justice Kennedy.
Whatever prompted the Court’s recognition that States are different than “normal litigants†for standing purposes, it is a happy occurrence for the States. At a high theoretical level, the Court’s holding is of a piece with its recent sovereign immunity jurisprudence, including the comprehensive historical justification for immunity articulated in Alden. After all, if States, due to their retained sovereignty, are different from other litigants with respect to their susceptibility to being sued, it stands to reason that they are also different with respect to their ability to sue. I don’t mean to make too much of the analogy, but a parallel does suggest itself, particularly given the Court’s reliance upon Alden. It is pure speculation, but Justice Kennedy (the only member of the court in the majority in both Alden and Mass. v. EPA) might have seen and been persuaded by this parallel.
On a practical level, the lowered standing requirements for States could portend a more active role for States in attempting to drive the regulatory agenda at the national level, if only in those areas that plainly implicate the States’ sovereign interests. Generally speaking, over the past several decades, the federal government has largely taken the lead in establishing and implementing regulation that could be deemed “progressive.†That dynamic has reversed itself over the past six or seven years, as illustrated by this case and at least one other from this term, Watters v. Wachovia Bank, N.A., No. 05-1342 (where Michigan seeks to preserve its authority to regulate state-chartered subsidiaries of national banks against preemption by the Office of the Comptroller of the Currency, which is disinterested, to say the least, in vigorous regulation). What this case and Watters show is that federalism is neither intrinsically conservative nor progressive, and that progressives should not shun federalism, for there will be historical moments, this one included, where the States are more progressive than the federal government.
One final note. In the first paragraph of its standing analysis, the Court cited Flast v. Cohen, 392 U.S. 83, 95 (1968), for the proposition that Article III “confine[s] ‘the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.’†There are dozens of other cases that the Court could have cited for that proposition. Might the Court’s selection of Flast foreshadow how it will treat Solicitor General Clement’s suggestion at the very end of his rebuttal argument in Hein v. Freedom from Religion Foundation, Inc. , No. 06-157, that Flast be jettisoned?
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