C. WHO GETS TO CHALLENGE THE AGENCY – STANDING

1. Constitutional Standing

Add new note 8 at p.793:

8. Yet another 5-4 split on basic standing issues. In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), a five-justice majority ruled that EPA’s denial of a petition for rulemaking seeking regulation of greenhouse-gas emissions from new motor vehicles was arbitrary. Most of the majority opinion and the entirety of Chief Justice Roberts’ dissent were devoted to analysis of standing.

The majority found standing based on Massachusetts’ claim that EPA’s refusal to regulate motor-vehicle greenhouse-gases would cause the state to lose coastal land due to a rise in sea level caused by global warming. To buttress this conclusion, the Court made two general points about standing analysis. First, it cited a one-hundred-year-old case, Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907), for the proposition that a state, as a “quasi-sovereign” has an “interest independent of and behind the titles of its citizens, in all the earth and air within its domain.” States invoking federal jurisdiction are therefore entitled to special consideration from the courts. 127 S. Ct. at 1454. Second, it pointedly rejected the dissent’s (and EPA’s) argument that “widespread harms” from global warming cannot support standing because they are “widely shared.” Id. at 1453, 1456.

Turning to the core of the majority’s injury-causation-redress analysis, the Court regarded the connection between greenhouse gases and global warming as well-established. This conclusion about the general phenomenon of global warming did not, however, by itself establish that EPA’s refusal to regulate motor-vehicle greenhouse-gas emissions would cause any particular injury to Massachusetts or that a court order requiring the agency to reconsider its decision would provide redress. Regarding these prongs of standing analysis, the Court explained:

Causation

EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming. At a minimum, therefore, EPA's refusal to regulate such emissions “contributes” to Massachusetts' injuries.

EPA nevertheless maintains that its decision not to regulate greenhouse gas emissions from new motor vehicles contributes so insignificantly to petitioners' injuries that the agency cannot be haled into federal court to answer for them. For the same reason, EPA does not believe that any realistic possibility exists that the relief petitioners seek would mitigate global climate change and remedy their injuries. That is especially so because predicted increases in greenhouse gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease.

But EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. … That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.
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The Remedy

While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. … Because of the enormity of the potential consequences associated with man-made climate change, the fact that the effectiveness of a remedy might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant. Nor is it dispositive that developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.
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In sum-at least according to petitioners' uncontested affidavits-the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek. We therefore hold that petitioners have standing to challenge the EPA's denial of their rulemaking petition.

127 S. Ct. at 1457-58.

Summarizing, the majority opinion is notable for: (a) carving out a special rule favoring states in standing analysis to some indeterminate degree; (b) reiterating that a five-justice majority believes that “widely-shared” harms can support standing; (c) a willingness to characterize a “risk” of harm as a cognizable injury; and (d) taking an every-little-bit-can-help approach to issues of causation and redressability.

Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, rejected the majority’s conclusion that Massachusetts had demonstrated standing. As a threshold matter, the Chief Justice contended that the majority’s reliance on Tennessee Copper was misplaced and that states have no special claim to standing. Id. at 1464-66. The dissent also submitted that Massachusetts’ had failed all three prongs of constitutional standing analysis. The threat of losing coastland due to global warming was too speculative to constitute either “actual” or “imminent” injury. Id. at 1467-68. Moreover, any connection between motor-vehicle greenhouse-gas emissions and coastline damage was even more attenuated and speculative. It was therefore impossible to conclude that EPA’s refusal to regulate these emissions caused (or would cause) Massachusetts’ claimed injury. Id. at 1468-69. For similar reasons, it was pure conjecture to suppose that a court order requiring the agency to reconsider would redress any injury to the state. Id. at 1469-70.

On a deeper level, the basic theme of the dissent was that the purpose of the standing inquiry is to protect the Constitution’s tripartite division of power and prevent the courts from intruding into the political realm of Congress and the Executive. Id. at 1464, 1470-71. Standing doctrine cannot serve this function unless the courts apply it with reasonable rigor. Id. at 1470-71. They should therefore reject attenuated, speculative attempts to satisfy the requirements of injury, causation, and redressability. Also, they should bear in mind that it is the business of the political branches, not the courts, to address phenomena that cause generalized harm to the public-at-large rather than particularized harm to a given plaintiff. See id. at 1467 (observing that “[t]he very concept of global warming seems inconsistent with this particularization requirement. Global warming is a phenomenon harmful to humanity at large.” (citation omitted)).