- The Washington Times - Tuesday, June 24, 2014

ANALYSIS/OPINION:

The popular media is abuzz with news of Monday’s Supreme Court decision partially invalidating an EPA regulation that would have imposed a costly Clean Air Act permitting requirement on previously unregulated sources on account of their greenhouse gas emissions. One important detail, though, is unlikely to attract much media attention: the Supreme Court rejected the lower court’s holding that petitioners lacked standing to challenge an Environmental Protection Agency regulation that would have imposed relaxed statutory triggers for regulating greenhouse gases.

The D.C. Circuit had held that the petitioners (industry groups subject to the regulation and states that own regulated sources and that must issue the permits required by the rule) failed to establish an injury in fact that could be redressed by a favorable decision: The three-judge panel reasoned that this requirement merely lessened a burden imposed by the Clean Air Act itself.

The Supreme Court rejected this premise, holding that the petitioners had standing because EPA’s basic interpretation of the statute to cover sources on the basis of their greenhouse gas emissions was unreasonable. The Court considered the merits of their challenge and struck down the rule as an unauthorized administrative rewrite of “unambiguous statutory terms.”

In rejecting the lower court’s ruling on standing, the Supreme Court delivered a blow in the ongoing battle over the proper limits of federal jurisdiction.

To be sure, standing doctrine plays an important role in ensuring that courts abide by their constitutional limitations. Under Article III, federal jurisdiction is limited to “Cases” and “Controversies.” The Supreme Court has interpreted this to mean, first, that a plaintiff must demonstrate an “actual or imminent” (not speculative) “injury in fact;” second, that the injury be caused by the challenged action; and third, that the injury would “likely” be “redressed by a favorable decision.”

Such a doctrine may be necessary to prevent federal courts from thrusting themselves into hypothetical disputes or issuing merely “advisory” opinions. But the doctrine is notoriously malleable, and in practice it seems to favor certain classes of parties and to disfavor others.

Environmental plaintiffs benefit from relatively lax standing requirements. In one Clean Water Act citizen suit, the Supreme Court held that the plaintiff organization need not show any injury to the environment. It was enough that one of its members stated that the river looked and smelled polluted and that this prevented him from using it recreationally the way he did as a teenager.

Other parties seem to face a heavier burden when it comes to establishing standing. Last year, the D.C. Circuit held that industry groups lacked standing to challenge the EPA’s “sue-and-settle” maneuvers. Environmentalists had purported to sue the EPA to intensify federal water quality regulations; the lawsuit was a sham. On the very same day the EPA and environmentalists settled the “case” by signing a consent decree requiring the EPA to complete the rulemakings on an abbreviated schedule. Even though this sham had the effect of imposing new procedural rules limiting the public’s opportunity to comment on the new regulations, the court held that industry groups would not suffer any injury by the agreement.

A few years ago, Justice Ruth Bader Ginsburg opened an opinion curbing judge-made limitations on federal jurisdiction with the almost two-century-old words of Chief Justice John Marshall: “It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.”

In their zeal to purge sometimes bulging dockets, courts are often too quick to heed Marshall’s first rule and too slow to vindicate its corollary. They decline jurisdiction too readily and exercise it reluctantly. For busy judges, there are powerful incentives to manufacture prudential standing, ripeness, mootness, and abstention doctrines, and to enforce heightened “injury,” “causation,” and “redressability” requirements, even if the result is to throw out meritorious cases brought by parties really affected by the actions they challenge.

In the administrative law context, the parties that suffer most from this tendency are those who are not the object of challenged agency action but are injured by it indirectly. One judge recently admitted that the standing analysis is “frankly rather unpredictable” in such cases.

Although it does not address these specific issues, Monday’s greenhouse gas opinion sounds a general warning against hyperactive enforcement of standing rules as a means of evading difficult legal questions. In a time of aggressive expansion of executive power, this opinion should make it easier for directly and indirectly injured parties to challenge this expansion in the courts.

C. Boyden Gray has served as White House counsel, U.S. ambassador to the European Union, special envoy for Eurasian energy and special envoy for European Union affairs. “Arbitrary and Capricious” runs monthly.

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