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Monday, April 02, 2007 

"Today’'s decision is SCRAP for a new generation."

The title quote is one of the reasons why The Chief is quickly becoming my favorite writer on the Court. I'd like to take a look at the Chief's dissent in today's Massachusetts v EPA case. CJ Roberts focused on the issue of standing. Since I'm quote happy today, I'm going to quote the explanation of standing from Wikipedia...
In the common law, and under many statutes, standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged. In the United States, for example, a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will be) harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. In order to sue to have a court declare a law unconstitutional, there must be a valid reason for whoever is suing to be there. To put it simply, the party suing has to have something to lose if the law is left on the books.
Basically, you need to have standing to get your foot in the courthouse door. There are three requirements that a petitioner must meet to have standing. These were discussed in Lujan v Defenders of Wildlife...
1. Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.
2. Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.
3. Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.
Now, onto the Chief's dissent. Prepare for heavy quoting...
Global warming may be a “crisis,” even “the most pressing environmental problem of our time.” Pet. for Cert. 26, 22. Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.
In his opening, the Chief makes it clear that this dispute has no place in the courts.

Here's the Chief on what the petitioners must show...
[P]etitioners bear the burden of alleging an injury that is fairly traceable to the Environmental Protection Agency’s failure to promulgate new motor vehicle greenhouse gas emission standards, and that is likely to be redressed by the prospective issuance of such standards.
Then the majority decides to throw a curveball at us...
Before determining whether petitioners can meet this familiar test, however, the Court changes the rules. It asserts that “States are not normal litigants for the purposes of invoking federal jurisdiction,” and that given Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.”
Can't get into court under the normal standing rules? Let's make some new ones up! The Chief then criticizes the majority's "creative" reading of the Georgia v Tennessee Copper Co. case...
In contrast to the present case, there was no question in Tennessee Copper about Article III injury. See id., at 238– 239. There was certainly no suggestion that the State could show standing where the private parties could not; there was no dispute, after all, that the private landowners had “an action at law.” Id., at 238. Tennessee Copper has since stood for nothing more than a State’s right, in an original jurisdiction action, to sue in a representative capacity as parens patriae. See, e.g., Maryland v. Louisiana, 451 U. S. 725, 737 (1981). Nothing about a State’s ability to sue in that capacity dilutes the bedrock requirement of showing injury, causation, and redressability to satisfy Article III.
Over at Volokh, Orin Kerr points out the dueling footnotes between Roberts and Stevens over this case. Roberts points out an interesting fact about the Tennessee Cooper case...
All of this presumably explains why petitioners never cited Tennessee Copper in their briefs before this Court or the D. C. Circuit. It presumably explains why not one of the legion of amici supporting petitioners ever cited the case. And it presumably explains why not one of the three judges writing below ever cited the case either.
Emphasis added. You know, Justice Stevens, I think you were just getting a little "creative" in your reading of Tennessee Cooper. A means to an end, maybe?

Roberts points out that the petitioners haven't shown the injury in fact, causation, and redressability requirements for standing. The injury in fact must be "particularized" under Lujan. The Chief says it can't be...
The very concept of global warming seems inconsistent with this particularization requirement. Global warming is a phenomenon “harmful to humanity at large,” [citation omitted], and the redress petitioners seek is focused no more on them than on the public generally— it is literally to change the atmosphere around the world.
The Chief goes on to rail against the “"imminent"” or "“certainly impending"” loss of Massachusetts coastal land...
One of petitioners’ declarants predicts global warming will cause sea level to rise
by 20 to 70 centimeters by the year 2100. Stdg. App. 216. Another uses a computer modeling program to map the Commonwealth’s coastal land and its current elevation,
and calculates that the high-end estimate of sea level rise would result in the loss of significant state-owned coastal land. Id., at 179. But the computer modeling program has a conceded average error of about 30 centimeters and a maximum observed error of 70 centimeters. Id., at 177– 178. As an initial matter, if it is possible that the model underrepresents the elevation of coastal land to an extent equal to or in excess of the projected sea level rise, it is difficult to put much stock in the predicted loss of land.
Article III standing demands more than this, or at least it had in the past.

The Chief also thinks that redressability is problematic for the petitioners. There is no way to predict if the rest of the world will reduce carbon emissions. Any decrease in the U.S. could be drowned out by increases in China or India. The injury wouldn't be redressed by any decision of this Court...
No matter, the Court reasons, because any decrease in domestic emissions will “slow the pace of global emissions increases, no matter what happens elsewhere.” Ante, at 23. Every little bit helps, so Massachusetts can sue over any little bit.
Roberts at his snarky best.

Finally, I'm going to quote the SCRAP stuff. SCRAP refers to the US v Students Challenging Regulatory Agency Procedures case. What a great acronym. As the Chief says...
SCRAP involved “[p]robably the most attenuated injury conferring Art. III standing” and “surely went to the very outer limit of the law”— - until today.
Here's what the case was about...
In SCRAP, the Court based an environmental group’s standing to challenge a railroad freight rate surcharge on the group’s allegation that increases in railroad rates
would cause an increase in the use of nonrecyclable goods, resulting in the increased need for natural resources to produce such goods. According to the group, some of these resources might be taken from the Washington area, resulting in increased refuse that might find its way into area parks, harming the group’s members.
SCRAP became infamous among standing cases...
Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude
on the politically accountable branches.
The majority decided to monkey around with the standing rules today. As an exercise of raw judicial power, it's their right to do so. I still think that it was wrong and motivated by the policy preferences of the five Justices. Standing is an important separation of powers protection. It keeps disputes that are not "cases or controversies" out of the courts and in the democratic process where they belong. The majority thumbed their noses at that principle today.

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