Editor's note: The following is an abridged version of remarks made by Community Rights Counsel's Executive Director, Doug Kendall, during his presentation at a session of the American Constitution Society's annual conference. Kendall was part of a part of a panel on "Climate Change and Other 'Hot' Topics" which focused on the impact of the Supreme Court's landmark ruling in Massachusetts v. EPA.
As the Supreme Court's 5-4 ruling in Mass. v. EPA illustrates, standing law is among the issues upon which the ideological battle lines are clearly drawn on the Court.
To the liberals, standing is primarily about avoiding advisory opinions, political questions and other territory clearly forbidden to judges. As Justice Stevens says in Mass. v. EPA, standing serves to confine “the business of federal courts to questions presented in a form historically viewed as capable of resolution through the judicial process.” Stevens characterizes the claim brought by Massachusetts as a dispute about “the proper construction of a congressional statute,” and he calls this “a question eminently suitable to resolution in federal court.
Chief Justice Roberts, on the other hand, sees standing law as a broad mandate for enforcing what he calls “the proper – and properly limited – role of courts in our democratic society.” Roberts is punching at the ghost of Chief Justice Earl Warren when he asserts that “redress of the grievances of the sort at issue here ‘is the function of Congress and the Chief Executive,’ not the federal courts.”
This battle of dueling standing narratives, and more broadly, the fight over the proper role of federal judiciary is one of wars that we will see play out over the next 20 years. This is clearly an issue near and dear to Chief Justice Roberts’ judicial heart and it seems certain that he will push the Court towards his viewpoint on these issues throughout his tenure as Chief.
It is important, therefore, to point out a big problem with the Chief Justice’s argument, at least in the context of Mass. v. EPA. The Chief argues that denying standing to Massachusetts is necessary to cabin the role of the federal judiciary and to leave big problems like climate change to the political branches. But the minute the government does something about global warming it will become a federal lawsuit. Everyone on the Court agrees that the targets of government regulation have standing to challenge government regulation that impacts their behavior or bottom line. This is so even if many industries are injured and if the regulation only solves a small part of the global warming problem.
So it's not simply true that by denying standing to Massachusetts, the Chief would take the Courts out of the global warming business. The street Chief Justice Roberts would create is a one-way street. Industry would be allowed to challenge government action, but environmentalists and states would be prohibited from challenging government inaction. So implicit, at least, in Chief Justice Roberts’ position is a value judgment, a judgment that government action hurts people in a way that is different, more serious, more worthy of the court’s attention than government inaction, even inaction in violation of a clear statutory mandate.
That’s the problem with standing law. Once you go beyond enforcing well-defined historic limits on the role of Court, standing barriers can quickly devolve into a mask for preferences towards one set of litigants over another. Justice Stevens ruling doesn't inject the court into an area it would otherwise avoid, it ensures that access to justice isn’t a one-way street.