Calvin Massey, State Standing after Massachusetts v. EPA

61 Fla. L. Rev. 249 (2009) | | | |

INTRODUCTION :: By granting states “special solicitude in our standing analysis,” the Supreme Court in Massachusetts v. EPA created substantial new uncertainty in the law of standing. At least since Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. Article III’s limitation of federal jurisdiction to “cases” or “controversies” has required a litigant to plead and prove actual or imminent personal injury in fact that is “fairly traceable” to the defendant’s conduct and that will be redressed by the requested relief. This “irreducible constitutional minimum”-injury in fact, causation, and redressability-establishes the core of standing. As limits upon the federal judicial power, these elements necessarily apply to all litigants. After EPA, however, the meaning of these elements vary with the litigant and the type of claim presented. Individuals asserting public rights, even when Congress has sought to authorize them to do so, must confront a robust version of these elements. By contrast, states acting as parens patriae and asserting public rights need only surmount a flaccid version of these elements.

What are the implications of this relaxation of the requirements for state standing? To what extent does the easier version of standing apply when states seek to vindicate public rights on behalf of their citizens? What, if anything, justifies a two-tiered view of Article III’s case or controversy requirement? This Article attempts to answer those questions.


Several possible alternative interpretations of EPA necessarily precede any conclusion that it dilutes the case-or-controversy requirement for assertions of public rights by states as parens patriae. First, EPA might make no change at all to the constitutional core of standing. Perhaps it merely reiterates the prior understanding of standing founded on procedural injury. Second, EPA might change the elements of the constitutional core of standing for all litigants. Third, EPA might create a different constitutional understanding of a case or controversy when a state is a party, regardless of whether it acts as parens patriae.

I contend that EPA does more than simply restate familiar principles of standing to vindicate procedural injuries, but does not make global alterations to the constitutional core of standing. The most persuasive understanding of EPA is that it permits states, as parens patriae, to assert generalized claims of injury suffered in common by all of its citizens that would not be judicially cognizable if asserted by any individual citizen. Moreover, with respect to such generalized injury, EPA softens both causation and redressability. Causation is satisfied when the defendant’s actions contribute to the injury, and redressability is present if the requested relief will abate, to any degree, the identified injury. Finally, states may act as the parent of their citizens with respect to vindication of rights rooted entirely in federal law. Part II provides the flesh for these assertions.

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