Massachusetts v. EPA: Breaking New Ground on Issues Other than Global Warming

Abstract:     
In this essay, we consider the long-term legal significance of the Supreme Court's decision in Massachusetts v. EPA, concluding that the case is likely to have a significant impact on two doctrinal areas of the law: (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking. First, although we have some questions about the Court's reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation. Second, with respect to judicial review of agency inaction in the rulemaking context, the Court's decision breaks new ground by not only confirming the reviewability of an agency's denial of a rulemaking petition but also by closely scrutinizing the reasons that the EPA offered for its decision to decline to regulate. We argue that when added together, these two doctrinal developments result in an interesting mix. States are left in a relatively powerful position vis-à-vis federal agencies in terms of their ability both to file suits against agencies and to seek fairly exacting judicial review of the agency's reasons for declining to regulate. Although a twist on common perceptions about this case, fans of states' rights ought to be quite pleased.

Number of Pages in PDF File: 17

Keywords: Massachusetts v. EPA, global warming, state standing, Article III, judicial review, inaction, hard look review

Accepted Paper Series