Bench Memos

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Standing for Nothing


Case in, case out (and with the luxury of lots of time), five justices on the Supreme Court will sign their names to anything, so long as it reaches the result they favor.  As a routine illustration of this dismal phenomenon, consider, from yesterday’s 5-4 ruling in the EPA “global warming” case, the exchange below between Justice Stevens’s majority opinion and Chief Justice Roberts’s dissent on the threshold question whether Massachusetts had standing to challenge the EPA’s denial of a rulemaking petition.  (For ease of reading, I have eliminated some citations and truncated the Chief’s response.  There’s also a footnote exchange—Stevens’s footnote 17 versus the Chief’s footnote 1—that the very interested reader will want to examine.)  Ask yourself how any justice serious about the judicial role could sign on to what Stevens has to say.


Justice Stevens:


Well before the creation of the modern administrative state, we recognized that States are not normal litigants for the purposes of invoking federal jurisdiction. As Justice Holmes explained in Georgia v. Tennessee Copper Co. (1907), a case in which Georgia sought to protect its citizens from air pollution originating outside its borders:


“The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”

Just as Georgia’s “independent interest … in all the earth and air within its domain” supported federal jurisdiction a century ago, so too does Massachusetts’ well-founded desire to preserve its sovereign territory today. Cf. Alden v. Maine (1999) (observing that in the federal system, the States “are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty”). That Massachusetts does in fact own a great deal of the “territory alleged to be affected” only reinforces the conclusion that its stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power.


Chief Justice Roberts:


The Court has to go back a full century in an attempt to justify its novel standing rule, but even there it comes up short. The Court’s analysis hinges on Georgia v. Tennessee Copper Co. (1907)–a case that did indeed draw a distinction between a State and private litigants, but solely with respect to available remedies. The case had nothing to do with Article III standing.


In Tennessee Copper, the State of Georgia sought to enjoin copper companies in neighboring Tennessee from discharging pollutants that were inflicting “a wholesale destruction of forests, orchards and crops” in bordering Georgia counties. Although the State owned very little of the territory allegedly affected, the Court reasoned that Georgia–in its capacity 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.” The Court explained that while “[t]he very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief [were] wanting,” a State “is not lightly to be required to give up quasi-sovereign rights for pay.” Thus while a complaining private litigant would have to make do with a legal remedy–one “for pay”–the State was entitled to equitable relief.

In contrast to the present case, there was no question in Tennessee Copper about Article III injury. 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.” …

A claim of parens patriae standing is distinct from an allegation of direct injury. See Wyoming v. Oklahoma (1992). Far from being a substitute for Article III injury, parens patriae actions raise an additional hurdle for a state litigant: the articulation of a “quasi-sovereign interest” “apart from the interests of particular private parties.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez (1982). …  The Court, in effect, takes what has always been regarded as a necessary condition for parens patriae standing–a quasi-sovereign interest–and converts it into a sufficient showing for purposes of Article III.…

On top of everything else, the Court overlooks the fact that our cases cast significant doubt on a State’s standing to assert a quasi-sovereign interest–as opposed to a direct injury–against the Federal Government. As a general rule, we have held that while a State might assert a quasi-sovereign right as parens patriae “for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them.”  Massachusetts v. Mellon (1923).

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.…


Tags: Whelan


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