Still Meditating on Massachusetts v. EPA

Prof. Adler has posted a paper considering last term's pair of high-profile standing decisions Massachusetts v. EPA and Hein v. Freedom from Religion Foundation; his post introducing it is here. "Whereas Hein conformed to existing (albeit irrational) precedent, Massachusetts v. EPA staked out new territory ... [and] invented new doctrine," says Adler. And worse yet: "the Court – or at least the controlling vote of Justice Kennedy – is precisely backwards. In Hein and Massachusetts, the Court is more permissive where judicial oversight is less necessary, and vice-versa. The observation that "[t]he jurisprudence of what we might call the 'Kennedy Court' exhibits a reluctance to acknowledge the existence of issues lying beyond the scope of judicial power" seems a softer way of saying what Justice Scalia said more bluntly in Sosa: "This Court seems incapable of admitting that some matters – any matters – are none of its business."

I recommend the paper but don't have much to add (time, I'm afraid, is going to be quite short this week, so blogging from me may be limited). I will, however, take the opportunity to plug my own essay on the former case, A Massachusetts v. EPA Meditation (a "light-hearted romp through the Supreme Court’s post-Lujan standing jurisprudence," as it wryly characterizes itself on page 18). Here's the introduction:

In Massachusetts et al v. Environmental Protection Agency the Supreme Court confirmed the observation of Professor Althouse that historically it has not tended to “matter so much how many doctrines stand in the way of litigation. What really matters is the degree of incentive that courts feel with respect to taking on a particular sort of case. If there is strong incentive, no number of doctrines will prevent access….” As a purely descriptive matter of the behavior of the Supreme Court, it is hard to argue the point; the degree of incentive that five members of the court felt with respect to something which “may be a ‘crisis,’ even ‘the most pressing environmental problem of our time’” was evidently high enough to brush recklessly past serious threshold concerns.

My purpose in this essay is to figure out how and where (or perhaps more to the point, if) Mass. v. EPA fits into the framework of the Supreme Court’s post-Lujan standing jurisprudence. Most commentary critical of the court’s finding that plaintiffs had standing to bring this litigation has tended to focus on whether the injury in fact asserted by plaintiffs was too diffuse to confer standing, but I want to take a rather different tack. The thesis of this essay is that even stipulating that Massachusetts has established an injury in fact, the relief it requests cannot redress that injury.

(Footnotes and paranthetical designation omitted). "Reckless" might seem a strong charge, but it comports with Adler's judgment - he writes that the court "cavalierly loosen[ed] existing standing requirements," "evad[ing]" existing standing doctrine on its way to "announc[ing] a new rule for state standing in lawsuits brought against the federal government" (and a rule, I pointed out in my piece, that is in tension with a position signed onto by four members of the Mass. majority in Utah v. Evans). I concluded that "none of the post-Lujan cases have accepted so tenuous and speculative definition of 'redress' as the court did in Mass. v. EPA," and that the case represented "the low water mark" of standing doctrine, and the sharp-eyed reader will detect this is more of a hope than a conclusion.

I'd also direct readers to SF's previous coverage arising from those cases - we considered Hein specifically here and here, while Pat, Marghlar and I each contributed to a more general colloquy about standing in our mini-symposium here, here, and here.

Post facto:
Bolling v. Sharpe reconsidered: precedent, original meaning, and prudence (part 1) (2/21/08)
The Clean Air Act, the EPA, and climate change (12/7/09)