Balkinization  

Tuesday, April 03, 2007

A little more on Massachusetts v. EPA: Standing and the public interest

JB

An addendum to my previous post on standing and executive power issues in Massachusetts v. EPA: At lunch my colleague Bill Eskridge pointed out to me that standing decisions serve yet another political function: they decide what kinds of plaintiffs will get into court.

Current standing doctrines-- especially if construed narrowly in the way that many conservatives like-- make it far easier for businesses to have standing to challenge government regulations, because these regulations have predictable effects on their profits or their costs of doing business. But it's much harder for citizens, NGO's , environmental groups, or members of ideological organizations to get standing to challenge administrative agency decisions that affect a more generally diffuse public interest in good government policies, including, for example, a clean environment. As a result, courts must engage in elaborate legal strategies and devices to afford these groups standing. (The SCRAP case that Chief Justice Roberts invokes with disdain was such a case.).

The net effect of these doctrines is that businesses that want to relax or eliminate administrative enforcement of business regulations generally have a much easier time getting into court than NGO's or citizens' groups that want to ensure administrative enforcement of business regulations. Massachusetts v. EPA solves this problem by awarding standing to a state. Like some NGO's, state governments may sometimes promote a more generalized public interest in the environment.

Once again, how you feel about these effects of standing doctrine depends on whether you like standing rules that are more or less protective of business interests. Not surprisingly, conservative Republicans of Alito's and Roberts' stripe are more likely to be hostile to expansive standing rules. Maintaining a business friendly legal regime was another reason why George W. Bush appointed Roberts and Alito to the Supreme Court, and it offers an additional explanation of their dissents in Massachusetts v. EPA.


Comments:

As far as I can tell, the only legitimate purpose of standing doctrine is to avert collusive litigation and the consequent corruptly-obtained precedents -- in other words, to guarantee that litigants will vigorously contest the issues in their cases, and that the nation will be bound only by fairly-obtained precedents. It's just incorrect, as the Court sometimes does, to conflate lack of standing with nonjusticiability under balance-of-powers concerns.

And on those concerns, courts can have just as much an effect on the nation and its political processes by refusing to reach the merits as they can by reaching them. To say that "judicial restraint" consists mainly in refusing to reach the merits, and that "judicial activism" consists mainly in reaching them is, I think, to badly oversimplify things.
 

In your earlier post you suggested that the standing holding in Mass. v. EPA reduces executive power. That's true. But as a whole, the opinion expands executive power, by saying that the EPA may regulate emissions that in ordinary language would not be called "pollutants" but that have some possibility of causing harm of some sort.
 

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