Massachusetts v. EPA and standing

I promised it more than a month ago, but got stuck on making sense of Laidlaw and busy with other stuff. Still, at long last, here's my assesment of the Massachusetts et al. v. EPA case that the Supreme Court decided earlier this year:

• A Massachusetts v. EPA Meditation

The essay aims to figure out how and where (or perhaps more to the point, if) this case fits into the framework of the Supreme Court’s post-Lujan standing jurisprudence, but I tackle the question of whether the plaintiffs had standing from the perspective of a road less travelled: while most commentary that I've seen focusses on the injury, I stipulate injury and focus on whether the relief sought can redress that injury, Lujan's third prong. I discuss the nine key standing cases decided between Lujan v. Defenders of Wildlife and Mass. v. EPA, and conclude that none of the post-Lujan cases have accepted so tenuous and speculative an understanding of “redress” as the court did in this case. In sum, to call Mass. v. EPA the low water mark of the Supreme Court’s post-Lujan standing jurisprudence, particularly in terms of redressability, is an exercise in understatement.

The title lacks pizazz, but this is hopefully a fairly lighthearted and readable romp through recent Supreme Court threshold jurisprudence.

While I'd have preferred to have this out closer to the case, the delay was at least productive: it gave me a opportunity to cite Judge Diane Sykes' excellent concurrence in Winkler v. Gates, 481 F. 3d 977 (7th Cir. 2007) (see nn.150-1 and accompanying text), which came out after I'd written the lion's share of the text, and to notice a problem with the the court's citation of Larson v. Valente, 456 U.S. 228 (1982), which I discuss in extensive detail in n.126.

Post facto:
Hein v. Freedom from Religion Foundation (6/25/07)
Still Meditating on Massachusetts v. EPA (1/28/08)