Should States Have Greater Standing Rights than Ordinary Citizens?: Massachusetts v. EPA's New Standing Test for States
70 Pages Posted: 12 Sep 2007
In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Supreme Court held that carbon dioxide (CO²) and other greenhouse gases (GHGs) are air pollutants within the meaning of the Clean Air Act (CAA). Although its decision on the merits is important, the Court's conclusion that Massachusetts had standing to file suit because states are entitled to more lenient standing criteria may have a greater impact in the long-term on legal doctrine. In Massachusetts, the Supreme Court for the first time clearly gave greater standing rights to states than ordinary citizens. The Court, however, failed to explain to what extent or when states are entitled to more lenient standing. This Article proposes that courts relax the immediacy and redressability prongs of the standing test when states bring parens patriae suits to protect their quasi-sovereign interest in the health, welfare and natural resources of their citizens. This proposed standing test would be similar to the relaxed standing test for procedural rights plaintiffs but is based on the Court's historic parens patriae decisions.
The Court stated that [i]t is of considerable relevance that the party seeking review here is a sovereign State and not...a private individual. The Court contended that the Court in its 1907 decision in Georgia v. Tennessee Copper Co. "had recognized that States are not normal litigants for the purposes of invoking federal jurisdiction." In Tennessee Copper and several other cases, the court had recognized a special standing doctrine of parens patriae standing to allow states to protect certain quasi-sovereign interests including the health, welfare or natural resources of its citizens. The Court concluded that "Massachusetts' well-founded desire to preserve its sovereign territory today" gave it standing to invoke federal jurisdiction Justice Stevens concluded that "the Commonwealth is entitled to special solicitude in our standing analysis."
This Article concludes that the Court has historically given states preferential status in federal courts when a state files a parens patriae suit based on the state's quasi-sovereign interest in the health and welfare of its citizens or the natural resources of its inhabitants and territory. There are sound reasons to apply lesser standing requirements to enable states to protect their quasi-sovereign interest in the health and welfare of their citizens or the natural resources of its inhabitants and territory. Chief Justice Roberts' dissenting opinion is correct on many details, but fails to understand that the theoretical grounds for parens patriae standing also support a more relaxed standing test for states. A quasi-sovereign interest is inherently less concrete and particularized than the type of injuries that individual citizens need for standing, yet the Court has allowed states standing to protect their general interest in their citizens' health and welfare. Although it is not technically a standing case, Tennessee Copper is based on the fundamental distinction that states have different and greater rights than individual citizens. Thus, the Massachusetts majority correctly used the Court's parens patriae decisions as the basis for giving states preferential access to federal courts even though none of the parens patriae cases had explicitly applied a lower standing threshold for states. The Tennessee Copper decision and other parens patriae cases justify a similar relaxation of the immediacy and redressability requirements for states filing parens patriae suits. By using and refining the Court's procedural rights standing test as a model, this Article proposes a workable standing test for states.
Keywords: Standing, Environmental Law, Global Warming, Administrative Law, Constitutional Law
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