Massachusetts v. Epa's regulatory interest theory: A victory for the climate, not public law plaintiffs

Virginia Law Review

Volumn 94, Issue 7, 2008, Pages 1751-1785

  Welti, Tyler ^a,b  

^a United States Department of Justice   (United States)

^b UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

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EID: 57749202234     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (180)

1. 127 S. Ct. 1438, 1462-63 (2007). After deciding that plaintiffs had standing under Article III to chaUenge the EPA's denial of rulemaking petition, id. at 1452-58,
2. the Court went on to hold: (1) that the EPA possesses authority under the Clean Air Act ("CAA") to regulate new motor vehicle carbon dioxide emissions, id. at 1459-62;
3. and (2) that the EPA failed to provide a "reasoned explanation" for its conclusion that it would not regulate such emissions even if it possessed the authority to do so, id. at 1463.
4. See, e.g., Linda Greenhouse, Justices Say E.P.A. Has Power to Act on Harmful Gases, N.Y. Times, Apr. 3, 2007, at A1.
5. See Exec. Order No. 13, 342, 72 Fed. Reg. 27, 717 (May 14, 2007) (directing the EPA to cooperate with the Department of Transportation and the Department of Energy before taking any action to address the problem of greenhouse gas emissions from motor vehicles);
6. see also Steven Mufson & Michael A. Fletcher, Bush Calls for Cuts in Vehicle Emissions, Wash. Post, May 15, 2007, at D1.
7. Massachusetts, 127 S. Ct. at 1446 (noting that before the Court could reach the merits it had to decide the question of whether the plaintiffs had Article III standing).
8. For commentary addressing the Court's standing doctrine in Massachusetts, see Jonathan H. Adler, Warming Up to Climate Change Litigation, 93 Va. L. Rev. In Brief 63, 63-69 (2007), http://www. virginialawreview.org/inbrief/2007/05/21/ad]er.pdf;
9. Jonathan Z. Cannon, The Significance of Massachusetts v. EPA, 93 Va. L. Rev. In Brief 53, 57-58 (2007), http://www.virginialawreview.org/inbrief/2007/ 05/21/cannon.pdf;
10. Ronald A. Cass, Massachusetts v. EPA: The Inconvenient Truth About Precedent, 93 Va. L. Rev. In Brief 75, 76-80 (2007);
11. Andrew P. Morriss, Litigating to Regulate: Massachusetts v. Environmental Protection Agency, 2006-07 Cato Sup. Ct. Rev. 193, 196-99, 203-05, 207-08 (2007);
12. Michael Sugar, Massachusetts v. Environmental Protection Agency, 31 Harv. Envtl. L. Rev. 531, 536-44 (2007).
13. See generally Dru Stevenson, Special Solicitude for State Standing: Massachusetts v. EPA, 112 Penn St. L. Rev. 1 (2007);
14. Mark Gabel, Note, Generalized Grievances and Judicial Discretion, 58 Hastings L.J. 1331 (2007).
15. 504 U.S. 555, 560-61 (1992) (alteration in original) (citations and quotations omitted).
16. See Massachusetts, 127 S. Ct. at 1471 (Roberts, C.J., dissenting) (claiming the majority establishes a "new doctrine of state standing"). Commentators have expressed similar concerns.
17. See Adler, supra note 4, at 64 ("[T]he Court... announce[d] a new rule for state standing in lawsuits brought against the federal government.");
18. Stevenson, supra note 4, at 73 ("The Supreme Court created a new standing rule in Massachusetts v. EPA").
19. See, e.g., Adler, supra note 4, at 66 ("The Mass. v. EPA court was not simply 'sohcitous' of states. It weakened the traditional requirements for Article III standing as well.");
20. Kimberly N. Brown, What's Left Standing? FECA Citizen Suits and the Battle for Judicial Review, 55 U. Kan. L. Rev. 677, 678 n.11 (2007), ("Writing for the majority [in Massachusetts], Justice Stevens appeared to adopt an Akins-like theory of justiciability in a generalized grievance context.... [This] raises questions as to the future of standing doctrine in public law cases implicating so-called generalized grievances.");
21. Cass, supra note 4, at 78 ("[Recent decisions like Lujan] brought the [standing] test back from its high-water mark of flexibility. Until this case. Mass. v. EPA presents as broad a claim as conceivable, involving harm that is remote, debatable, and-if one gets past those problems-ubiquitous.");
22. Gabel, supra note 4, at 1365 (suggesting that Massachusetts rejects the ban against generalized grievances);
23. Robert V. Percival, Massachusetts v EPA: Escaping the Common Law's Growing Shadow, 2007 Sup. Ct. Rev. 111, 134 ("[W]hile the majority's discussion of standing plausibly can be interpreted as relying on a special rule of standing for states, it is better understood as holding that the state would have standing without the need for any special rule...."). Percival reads the decision to "expressly reject[] the notion that standing cannot be premised on harm that is widely shared...." Id. at 149.
24. But see Sugar, supra note 4, at 542 ("The creation and use of the concept of 'special solicitude' in a situation where a non-sovereign entity would be entitled to standing implies that the standing requirements for private plaintiffs have been heightened.").
25. For a more detailed summary of the pubhc and private law models, see infra notes 18-25 and accompanying text;
26. see also Abram Chayes, The Role of the Judge in Pubhc Law Litigation, 89 Harv. L. Rev. 1281, 1282-84, 1290-91 (1976) (describing the public law model and contrasting the "traditional" private law model);
27. Hudson P. Henry, A Shift in Citizen Suit Standing Doctrine: Friends of the Earth, Inc. v. Laidlaw Environmental Services, 28 Ecology L.Q. 233, 240-41 (2001) (discussing the public and private law models).
28. Morriss, supra note 4, at 208;
29. see also Adler, supra note 4, at 66 ("The Mass. v. EPA court was not simply 'solicitous' of states. It weakened the traditional requirements for Article III standing as well.");
30. Cass, supra note 4, at 78 ("[Recent standing] decisions... brought the [standing] test back from its high-water mark of flexibility. Until this case.").
31. Percival, supra note 7, at 158.
32. Cannon, supra note 4, at 62 ("I am not suggesting this is Brown v. Board of Education for the environment, but it may be as close as we will come.").
33. Richard Lazarus, A Breathtaking Result for Greens, 24 Envtl. F. 12, 12 (2007). A victory for the public law adjudication model means a victory for environmental standing because under the public law model citizens have greater access to the courts to ensure agency adherence to environmental laws regardless of a showing of particularized injury-in-fact, causation, and redressability. Professor Cannon notes this connection between environmental standing and the public law model: Environmentalism is associated with certain values-values that emphasize acting collectively for the common good and fitting harmoniously into the natural and social environment.... ... Supreme Court Justices who have shown sympathy for this worldview... tend to favor liberal access to the courts.... [Other justices] place[] judicial restraint [against the claims of environmentalists].
34. Cannon, supra note 4, at 55-56.
35. Professor Nichol notes that the issue of widely shared interests is common to all public law actions: "Because public actions [aimed at altering governmental behavior] often seek systemic rather than localized changes, the interests asserted also can be described as general and non-distinct. The causation and redressabihty standards hit directly at the predictive and probabilistic nature of the public action." Gene R. Nichol, Jr., Justice Scalia, Standing, and Public Law Litigation, 42 Duke L.J. 1141, 1167 (1993).
36. See Jody Freeman & Adrian Vermeule, Massachusetts v EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51, 67-72.
37. See, e.g., Adler, supra note 4, at 67 ("Massachusetts' injury-or at least the only injury considered by the majority-is its claim of present and future sea level rise exacerbated by human contributions to the greenhouse effect.");
38. Percival, supra note 7, at 134 ("Justice Stevens's majority opinion ... explain[s] in completely conventional terms why Massachusetts meets every element of traditional standing doctrine: injury, causation, and redressability.... Thus, while the majority's discussion of standing plausibly can be interpreted as relying on a special rule of standing for states, it is better understood as holding that the state would have standing without the need for any special rule....").
39. See, e.g., Henry, supra note 8, at 237-38 ("Despite the apparent incoherence of the Supreme Court's standing doctrine, cases from the past decade, in fact, reveal a distinguishable pattern.... [They demonstrate] a narrowing of standing requirements to bar many citizen suits....").
40. Massachusetts, 127 S. Ct. at 1455.
41. Chayes, supra note 8, at 1282-83.
42. See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 892-93 (1983).
43. This model, as Professor Chayes describes it, "reflects and relates to a regulatory system where... arrangements are the product of positive enactment. In such a system, enforcement... is necessarily implementation of regulatory policy." Chayes, supra note 8, at 1304.
44. Chayes, supra note 8, at 1284, 1304 (describing the dominant characteristic of public law litigation to be that lawsuits are not limited disputes between private parties about private rights but instead are efforts to vindicate constitutional or statutory policies);
45. Kenneth E. Scott, Two Models of the Civil Process, 27 Stan. L. Rev. 937, 948-49 (1975);
46. Ann Woolhandler & Michael G. Collins, State Standing, 81 Va. L. Rev. 387, 463-64 (1995) ("[Modern public law litigation] focuses on statutory and constitutional (rather than common-law) violations, on the wrongs of the defendant more than the injury to the plaintiff, and on group rather than individual rights.").
47. See Woolhandler & Collins, supra note 20, at 435 & n.189 ("Unlike in the nineteenth century... today states can sometimes sue to vindicate some interests in governing and the generalized interests of their citizens.");
48. Ann Woolhandler, Treaties, Self-Execution, and the Public Law Litigation Model, 42 Va. J. Int'l L. 757, 780-82 (2002).
49. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 601 (1992) (Blackmun, J., dissenting) ("[I am] unable to agree with the plurality's analysis of redressability, based as it is on its invitation of executive lawlessness....").
50. Id. at 560;
51. see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000) (articulating the same test and citing Lujan).
52. See Lujan, 504 U.S. at 580 (Kennedy, J., concurring) ("The Court's holding that there is an outer limit to the power of Congress to confer rights of action is a direct and necessary consequence of the case and controversy limitations found in Article III.");
53. see also Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 Mich. L. Rev. 163, 164-65 (1992)
54. (citing Lujan as prompting "invalidation of an explicit congressional grant of standing to 'citizens'"). The statutory grant at issue in Lujan was the citizen suit provision of the Endangered Species Act of 1973, 16 U.S.C. § 1540(g)(1) (2000).
55. Lujan, 504 U.S. at 576.
56. Cass, supra note 4, at 78;
57. see also, e.g., Cannon, supra note 4, at 57 ("Justice Stevens fashions an extended chain of causation, which looks something like the following: Domestic motor vehicles emit greenhouse gases. Increased world greenhouse gas emissions have led to a heightened greenhouse effect, which has led to a global temperature rise, which has led to sea level rise, which has led to loss of Massachusetts' coastline. EPA's failure to regulate greenhouse gas emissions from automobiles contributes to this loss. A correction of that failure will moderate the loss. Hence injury, causation, and redressability were all satisfied.").
58. Percival, supra note 7, at 134 ("Justice Stevens's majority opinion... explain[s] in completely conventional terms why Massachusetts meets every element of traditional standing doctrine: injury, causation, and redressability.... Thus, while the majority's discussion of standing plausibly can be interpreted as relying on a special rule of standing for states, it is better understood as holding that the state would have standing without the need for any special rule....").
59. Massachusetts, 127 S. Ct. at 1456 (citations omitted).
60. See Cannon, supra note 4, at 57 (arguing Justice Stevens majority opinion in Massachusetts satisfied all three elements of the standing test because the Court was willing to consider "systemic injuries" as legitimate bases for standing);
61. Percival, supra note 7, at 134.
62. Massachusetts, 127 S. Ct. at 1458 ("In sum ... 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.").
63. Id. at 1454-55 ("Given that procedural right and Massachusetts' stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.").
64. Id. at 1453-54.
65. The Petitioners included the Commonwealth of Massachusetts; the states of California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington; the local governments of the District of Columbia, American Samoa, New York City, and Baltimore; and private organizations including the Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U.S. Public Interest Research Group. Id. at 1446 nn.2-4.
66. Id. at 1453;
67. see also id. at 1466 (Roberts, C.J., dissenting) ("It is not at all clear how the Court's 'special solicitude' for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms.").
68. 206 U.S. 230 (1907).
69. See, e.g., Sugar, supra note 4, at 541-42 ("Tennessee Copper only held that a state's quasi-sovereign interests were sufficient to meet damage thresholds for original jurisdiction.... Nowhere did the Court state that a quasi-sovereign interest entitled a state to special solicitude in standing analysis.");
70. see also Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 611 (1982) (Brennan, J., concurring) ("At the very least, the prerogative of a State to bring suits in federal court should be commensurate with the ability of private organizations.");
71. Thomas W. Merrill, Global Warming as a Public Nuisance, 30 Colum. J. Envtl. L. 293, 304 (2005) ("The Court's leading decision on parens patriae standing [(Snapp)] seems to assume that such [parens patriae public nuisance] suits [in federal court] are subject to ordinary rules of standing, cautioning that such suits 'must be sufficiently concrete to create an actual controversy between the State and the defendant' and must 'survive the standing requirements of Article III.'");
72. Woolhandler & Collins, supra note 20, at 415-16 ("But the fact that sovereignty was at issue in the boundary cases was never seen by the early Court as weighing in favor of the Court's jurisdiction over such cases. Rather, it entertained these cases in part because they resembled traditional property claims that the Court could decide according to ordinary principles of law and equity, even though the cases also implicated sovereignty issues.");
73. id. at 415-16 nn.99-100 (collecting cases).
74. Massachusetts, 127 S. Ct. at 1465 (Roberts, C.J., dissenting) (citations omitted).
75. Cf. Colo, ex rel. Suthers v. Gonzales, No. 07-cv-00478, 2007 WL 2788603, at *6 (D. Colo. Sept. 21, 2007) (noting that the Massachusetts standing decision was based on Massachusetts' direct interest as a state, not on parens patriae theory).
76. See Woolhandler & Collins, supra note 20, at 511-12 (discussing parens patriae standing in the context of the Court's original jurisdiction). Professors Woolhandler and Collins note: Indeed, in some cases the Court has required states suing as parens patriae to show such an interest independent of its citizens', although that independent interest often seems attenuated. Where a state has an independent legally protected interest, there is arguably no harm in allowing a state to sue additionally as parens patriae. Such standing is analogous to that of private parties who have individually suffered harms suing as representatives of a class.
77. Id. (citing Maryland v. Louisiana, 451 U.S. 725, 739 (1981) (allowing state standing as consumer and as parens patriae to protect its citizens from substantial economic injury));
78. see also Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 262-65 (1972) (allowing, for claim of injunctive relief, state standing under antitrust laws in both proprietary capacity and as parens patriae for injuries suffered in its capacity as a consumer of goods and services).
79. Professor Cass, for example, reads Massachusetts as relying primarily on this statutory standing theory, but disputes the accuracy of the Court's analysis. Cass, supra note 4, at 79-80.
80. Lujan v. Defenders of Wildlife, 504 U.S. at 576-77 (citation omitted).
81. Massachusetts, 127 S. Ct. at 1453 (internal citations and quotation marks omitted).
82. Id. (quoting Lujan, 504 U.S. at 572 n.7).
83. 42 U.S.C. § 7607(b) (2000).
84. 42 U.S.C. § 7604(b)(1)(B) (2000).
85. Massachusetts, 127 S. Ct. at 1464-65 (Roberts, C.J., dissenting) (The reader might think from this unfortunate phrasing that Congress said something about the rights of States in this particular provision of the statute.
86. Congress knows how to do that when it wants to, see, e.g., § 7426(b) (affording States the right to petition EPA to directly regulate certain sources of pollution), but it has done nothing of the sort here." (citing 42 U.S.C. § 7426(b) (2000))).
87. See, e.g., Cannon, supra note 4, at 57 ("There are several things going on in Justice Stevens's standing analysis, including special solicitude for Massachusetts' standing as a sovereign State, but I want to focus here on the Court's assessment of Massachusetts' standing under the standard three-part test.");
88. Cass, supra note 4, at 78 (noting that the Court did not focus heavily on "the fact that petitioners in the case included states such as Massachusetts");
89. Percival, supra note 7, at 134 ("Thus, while the majority's discussion of standing plausibly can be interpreted as relying on a special rule of standing for states, it is better understood as holding that the state would have standing without the need for any special rule....");
90. Sugar, supra note 4, at 538 ("The Court went on to evaluate Massachusetts' claim under the traditional factors of injury, causation, and redressability.").
91. Massachusetts, 127 S. Ct. at 1454.
92. Id. at 1454-55;
93. see also supra notes 28-29 and accompanying text.
94. See supra notes 26-28 and accompanying text.
95. See Massachusetts, 127 S. Ct. at 1466 (Roberts, C.J., dissenting) ("It is not at all clear how the Court's 'special sohcitude' for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms."). In response to Chief Justice Robert's accusation that the majority misreads precedent and "devis[es] a new doctrine of state standing,"
96. id. at 1455 n.17, the majority does, by reference to an academic text, define quasi-sovereign interests as including "public or governmental interests that concern the state as a whole,"
97. id. (citing Richard Fallon et al., The Federal Courts and the Federal System 290 (5th ed. 2003)). This description sheds little light on the term, but may suggest that the "governmental interests" need not necessarily relate to regulating territorial sovereignty, but instead may relate to any matters affecting "the state as a whole."
98. As elaborated below, subsequent judicial treatment of the decision has focused directly on Massachusetts' understanding of "quasi-sovereign interests." See, e.g., California v. Gen. Motors, No. C06-05755, 2007 WL 2726871, at *11 (N.D. Cal. Sept. 17, 2007) ("First, in finding that the plaintiffs had standing, the Supreme Court relied upon the notion that certain constitutional principles of sovereignty afford the States 'special solitude' to seek judicial review of decisions by federal regulatory agencies because the States have 'surrendered' to the federal government their right to engage in certain forms of regulations.").
99. In reviewing the historical transformation of state standing, Professors Woolhandler and Collins describe the origins of this regulatory interest theory for standing, under which unjustified constraint of states' rights to govern came to be regarded as a particularized sort of injury. Woolhandler & Collins, supra note 20, at 456 ("Implicit in this transformation was the recognition that a government's interests in exercising its regulatory or protective powers had a status comparable to that of common-law claims of right.");
100. see also infra notes 67-71 and accompanying text.
101. Massachusetts, 127 S. Ct. at 1454.
102. Id.
103. Id.;
104. see also id. at 1448-49 (discussing the history surrounding legislation and international efforts addressing global warming, and noting that the United States opted not to sign the Kyoto Protocol because the two other greatest polluters were not required to reduce their pollution levels).
105. Id. at 1454 ("[I]n some circumstances the exercise of [states'] police powers to reduce in-state motor-vehicle emissions might well be pre-empted.").
106. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (describing field preemption as a doctrine preventing state regulation where federal regulation is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it").
107. Massachusetts, 127 S. Ct. at 1455 ("[I]t is clear that petitioners' submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA's steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both 'actual' and 'imminent.'"). As stated, there appears to be an additional requirement, beyond injury to a state's regulatory interest, that the federal agency's failure to regulate must threaten a more concrete injury to the state, such as territorial loss.
108. Transcript of Oral Argument at 14, Massachusetts, 127 S. Ct. 1438 (No. 05-1120), 2006 WL 3431932.
109. 362 F.3d 861, 868 (2004).
110. Transcript of Oral Argument, supra note 60, at 14-15;
111. see infra notes 67-73 and accompanying text for a discussion of West Virginia v. EPA.
112. Transcript of Oral Argument, supra note 60, at 16-17 (emphasis added).
113. Id. at 17 ("[Y]ou are correct that we are saying that provides us also an independent source of our standing.").
114. Id.
115. Again, it is unclear if special solicitude is available only where the unregulated harm injures a state's territorial integrity, or whether the harm need only injure some concrete state interest independent from and additional to its interest in governing.
116. Massachusetts, 127 S. Ct. at 1471 (Roberts, C.J., dissenting).
117. Transcript of Oral Argument, supra note 60, at 15.
118. 362 F.3d at 864-65, 868.
119. Id. at 868 ("[L]ower growth factors leading to lower emissions budgets causes injury to the states as states. EPA's own brief belies its argument, as it states that '[u]nder the NOx SIP Call, states have the option of participating in [a] cap and trade program or obtaining the reductions through other mechanisms.' This injury is sufficient to confer standing.").
120. See Merrill, supra note 36, at 293-306 (detailing the history of state standing in the interstate pollution context).
121. For a comprehensive treatment of the history of state standing, see generally Woolhandler & Collins, supra note 20.
122. On the parallel historical roots of citizen standing doctrine, see Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 Cornell L. Rev. 393, 472-77 (1996).
123. See generally Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004).
124. Woolhandler, supra note 21, at 763.
125. Woolhandler & Collins, supra note 20, at 454.
126. Id at 455 (quoting Missouri v. Holland, 252 U.S. 416, 431 (1920));
127. see also Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (relying not on state's interest as a landowner but on its quasi-sovereign standing to regulate resources regardless of private ownership).
128. Woolhandler & Collins, supra note 20, at 455.
129. No. C06-05755, 2007 WL 2726871, at *1 (N.D. Cal. Sept. 17, 2007).
130. Id. at *12.
131. Id. at *11.
132. Id. at *11-12.
133. No. 07-cv-00478, 2007 WL 2788603, at *7 (D. Colo. Sept. 21, 2007).
134. 517 F.3d 1319, 1336-37 (Fed. Cir. 2008).
135. Id.
136. Id. at 1336.
137. Id. at 1337 (citations omitted).
138. 167 P.3d 292, 312-13 (Haw. 2007).
139. Id. at 315.
140. Massachusetts, 127 S. Ct. at 1454.
141. 524 U.S. 11, 19-26 (1998) (holding that an individual could sue for a violation of federal law pursuant to a statute that created a general right to access certain information).
142. 528 U.S. 167, 180-87 (2000) (finding that an environmental group had standing to bring a citizen action against a wastewater treatment facility for noncompliance with the limits set by the facility's National Pollutant Discharge Elimination System permit).
143. The regulatory interest theory, conceiving of a particularized type of injury-in-fact to states' regulatory interest, can thus provide states standing in instances where individuals would lack it. For example, states may establish standing for suits based on generalized grievances including environmental degradation or executive refusal, in contravention of guiding statutory policy, to promulgate regulations.
144. Reading Massachusetts as being based on such "a claim of systemic injury," Professor Cannon concludes that the Court embraced an "ecological model" that allows standing to vindicate "effects that could not easily be quantified and might even be quite small within the context of the system as a whole." Cannon, supra note 4 at 55 57.
145. See Massachusetts, 127 S. Ct. at 1470 (Roberts, C.J., dissenting) (criticizing the majority's opinion as "recall[ing] the previous high-water mark of diluted standing requirements").
146. See Nichol, supra note 12, at 1167.
147. 412 U S 669, 683-90 (1973) (holding that a student group had standing to challenge the decision of the Interstate Commerce Commission to allow the railroads to surcharge all freight transported because the surcharge discouraged recycling, incentivizing manufacturers to use non-recycled goods derived in part from the recreational lands that the students enjoyed).
148. Massachusetts, 127 S. Ct. at 1458 n.24. Dismissing Chief Justice Roberts s analogy of the majority's opinion in Massachusetts to SCRAP, the Court asserted, It is... quite wrong to analogize the legal claim advanced by Massachusetts and the other public and private entities who challenge EPA's parsimonious construction of the Clean Air Act to a mere 'lawyer's game.'"
149. Id.
150. 524 U.S. 11, 16-26 (1998) (addressing a violation of 2 U.S.C. § 441, which governs disclosure of certain contributions under FECA)
151. Id. at 19-20.
152. For supporting analyses of Akins, see Brown, supra note 7, at 680, 690 ("Akins shifted the injury-in-fact paradigm from the facts relating to plaintiff to the statutory creation of injury.... The Akins approach to congressional power to define justiciabüity stands in stark contrast with that reflected in Lujan.");
153. Henry, supra note 8, at 239-40 ("The Court's decision in [Akins] signaled a significant shift in the way it viewed citizen standing.");
154. Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613, 616-18 (1999).
155. 528 U.S. 167, 180-58 (2000).
156. Henry, supra note 8, at 247 (citations omitted).
157. For an additional supporting analysis, see Daniel A. Farber, Environmental Litigation after Laidlaw, 30 Envtl. L. Rep. 10,516, at 10,522 (2000) (arguing the trend of narrowing standing requirements represented by Lujan has recently been offset by a relaxation of those requirements).
158. See 42 U S C § 7410(a)(1) (2000). The idea that Massachusetts' entitlement to standing based on its regulatory interests may be linked to its special participatory role under the CAA was alluded to during oral arguments.
159. See supra notes 60-66 anaaccompanying text.
160. Professor Stevenson, while not arguing that Massachusetts restricts public law litigation, argues that the decision may give "states favored status when bringing suits against federal administrative agencies." Stevenson, supra note 4, at 73-74 Stevenson discusses some effects special solicitude may have on the position of state attorney general.
161. Id. at 37-51.
162. For a defense of state-run public interest litigation, see Comment, State Standing to Challenge Federal Administrative Action: A Re-examination of the Parens Patriae Doctrine, 125 U. Pa. L. Rev. 1069, 1071 (1977)
163. Comment, supra note 102, at 1103-09 (comparing parens patriae suits with class action suits and arguing that parens patriae suits have several advantages).
164. See id. at 1105-06.
165. See Stevenson, supra note 4, at 12, 40-42.
166. Cass, supra note 4, at 78-79 ("State attorneys general are political figures with political agendas and political aspirations. Their litigation decisions often reflect their political interests, most of all when the litigation involves not an individual criminal suspect but a fundamental challenge to the federal government's environmental policy.").
167. Professor Cass accordingly remarks, "It should come as no surprise that eleven of the twelve attorneys general suing in Mass. v. EPA were Democrats while the administration whose policies they challenged was Republican," and notes that states are less likely than private litigants to assert concrete interests in litigation.
168. Id at 78-79.
169. See e.g., Scalia, supra note 18, at 894 ("[T]he law of standing roughly restricts courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority, and excludes them from the even more undemocratic role of prescribing how the other two branches should function m order to serve the interest of the majority itself").
170. Professor Stevenson similarly predicts more "lobbyist efforts focused on these national policy issues... at the state AG's office." Stevenson, supra note 4 at 42;
171. see also, e.g., Michael E. Levine & Jennifer L. Forrence, Regulatory Capture, Public Interest and the Public Agenda. Toward a Synthesis, 6 J.L. Econ. & Org 167, 169 (1990) (discussing the theory that special interests can "capture" regulatory agencies).
172. See Woolhandler & Collins, supra note 20, at 395 ("[M] ajoritarian interests in exercising power [came to be] considered to be the rough equivalents of individualized common-law claims of right, at least insofar as standing was concerned."). Professors Woolhandler and Collins go on to chronicle the "reconceptualization of a government's interest m exercising power for the benefit of its citizens into the equivalent of a claim of right in these governmental standing cases."
173. Id. at 459.
174. Id. at 445-46 (citations omitted).
175. Ronald Dworkin, Taking Rights Seriously 194 (1977).
176. See Woolhandler & Collins, supra note 20, at 459 ("The established norm of the liberty of individuals to act according to their own wills, free from government regulation, therefore had to compete with the norm of liberty of government to act according to the will of majorities, free from individual claims of right.").
177. This version of the public law standing model flows from Professor Sunstein's statutorily protected mterest model. See Sunstein, supra note 24, at 229-31.
178. The citizen suit provision enables a citizen-without mention of states-to commence a civil action on his own behalf... against the Administrator where there is aUeged a failure of the Administrator to perform any [nondiscretionary] act or duty...." U.S.C. § 7604(a) (2000). The dimensions of judicial review applicable under § 7604(a) are further specified in § 7607(b).
179. See supra notes 42-45 and accompanying text.
180. Massachusetts, 127 S. Ct. at 1458 n.24 (quoting SCRAP, 412 U.S. at 688) (emphasis omitted).