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Of Sovereignty, States, and Standing

Calvin R. Massey

Univ of New Hampshire Law School

Florida Law Review, Forthcoming

Massachusetts v. EPA, the global warming case, created two tiers of an Article III case or controversy for purposes of ascertaining standing to sue in federal court. The constitutional core of standing requires a litigant to have an actual or immediately threatened injury in fact that is caused by the defendant's actions and susceptible to judicial redress. In EPA the Court held that when Congress has created a procedural right a state may bring suit, as parens patriae, to vindicate a federal right that implicates the health or well being of the state's citizens without the quantum of proof of injury in fact, causation, or redressability that would be necessary were an individual the plaintiff. While that sounds very technical and limited, the principles endorsed stretch far beyond the holding.

Massachusetts v. EPA substantially broadens the scope of state standing. States may assert sovereign, proprietary, or quasi-sovereign interests. After EPA, a state's quasi-sovereign interests extend to protection of the undifferentiated public rights of its citizens. Although prior parens patriae doctrine limited such claims to those involving either the health and well being of a state's citizens or vindication of the benefits of federal union, EPA's rationale confers upon states the power to assert almost any undifferentiated public right possessed by its citizens.

This article describes how EPA produces this effect, whether or not intended by the Court, assesses the scope of this increase in state standing, and offers several justifications for two tiers of an Article III case or controversy. These justifications are rooted in principles of federalism, separation of powers, and optimal accountability of our governmental agents.

Number of Pages in PDF File: 57

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Date posted: April 18, 2008  

Suggested Citation

Massey, Calvin R., Of Sovereignty, States, and Standing. Florida Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1121883

Contact Information

Calvin R. Massey (Contact Author)
Univ of New Hampshire Law School ( email )
2 White Street
Concord, NH 03301
United States
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