Standing in Connecticut v. AEP

One of the issues in American Electric Power v. Connecticut is whether the state and environmentalist group plaintiffs can satisfy the requirements of Article III standing. One might have thought this issue was settled in Massachusetts v. EPA, at least with regard to the state litigants, but it was not. Although both cases concern injuries arising from global climate change, and both cases feature state litigants entitled to “special solicitude” under Mass. v. EPA, the standing requirements to challenge a federal agency action may be easier to meet than standing requirements generally.

This issue arose in the oral argument when AEP’s attorney, Sidley Austin’s Peter Keisler, was asked whether Mass v. EPA was sufficient to establish Connecticut’s standing. No, Keisler explained, because the Court in Mass was very careful to note that the standing inquiry was different, and easier to satisfy, given the statutory context of the suit, prompting a response from Justice Kagan.

MR. KEISLER: Justice Ginsburg, we believe that Massachusetts was very carefully qualified to focus on the particular regulatory context of that opinion. The Court said that it was addressing standing to challenge the denial of a petition for rulemaking, when the agency would be proceeding incrementally to address a broader problem, and a statute specifically gave the
petitioners the right to seek that kind of incremental protection. The Court was very specific about that. The statutory right was of critical importance, it said, to the standing inquiry.

JUSTICE KAGAN: Mr. Keisler, the Court did say that, but it’s cut off from the Court’s actual analysis in the case. When the Court goes through injury and causation and redressability, the Court never refers to the statutory cause of action.

MR. KEISLER: But it does, Justice Kagan, specifically refer to the regulatory context in which the case is taking place. The Court said that if the EPA’s arguments there about traceability and
redressability were adopted, it would doom most challenges to agency action because agencies proceed incrementally.

Here we have no statute, we have no agency proceeding incrementally, and we believe there is no basis for the plaintiffs to seek that kind of incremental relief when they’ve acknowledged that will
have no material effect on their injury; and they acknowledged that in the State’s complaint when they specifically said that the relief they seek here would only constitute these defendants’ share of the larger overall emissions reductions that would be necessary in order to have any material effect on climate change or the injuries that they assert. That is an acknowledgment that the relief they seek here would not provide them any redress except in connection with other reductions that would be obtained elsewhere, and that we think means that this is a classic case in which the injuries are not the product of the defendants’ conduct but of the collective independent actions of numerous third parties not before the Court.

JUSTICE KAGAN: But the Court clearly understood that in Massachusetts v. EPA and said that it was enough, and I would think under traditional standing principles the standing there was actually harder to find because one had to go through the EPA first. One had to say the EPA should regulate, and then the EPA would regulate, and then the question was would that reduce emissions levels? Here the EPA is out of the picture. The action is much more direct.

MR. KEISLER: But there, Your Honor, they were suing a defendant, the EPA, that had regulatory authority over the entire country. Here they’re suing five separate defendants, each of whom has to be evaluated individually, and there is not a single one of them against whom the relief sought would have any tangible effect on the injuries that the plaintiffs claim here. But we also think that Massachusetts is relevant in a completely different respect, which is the Court was very specific in Massachusetts about what its role was and what it wasn’t. The Court said: We lack the expertise or the authority to second-guess the policy choices of the EPA, but its role there was to compel the agency to adhere to the statute as the Court interpreted it.

In this case, the States are asking the courts to play exactly the role that this Court disclaimed in Massachusetts v. EPA, which is to make those policy choices in the first instance, and they say that the courts can do this because the courts have done this in prior nuisance cases, but this case is nothing like any of the prior nuisance cases this Court has held. It’s nothing like an instance in which one State is complaining that another State has dumped sewage into a body of water that’s crossed the border.

Justice Kagan is correct that, in Mass v. EPA “When the Court goes through injury and causation and redressability, the Court never refers to the statutory cause of action.” But it did not need to, as the Court had already established that Congressional conferral of a procedural right could “give rise to a case or controversy where none existed before.” This is because, as the Court explained in Mass v. EPA (citing Lujan v. Defenders of Wildlife) litigants seeking to vindicate a legislatively conferred procedural right could assert standing “without meeting all the normal standards for redressability and immediacy.” This was relevant in Mass v. EPA because, the Court explained, Congress had accorded states such a right in the Clean Air Act, specifically in 42 U.S.C. § 7607(b)(1).

When the Mass Court went through the various standing requirements, it had already established that the requirements for causation and redressability were relaxed for the state petitioners. Its analysis consisted of applying the more lenient standard it had just described. Although at first blush “traditional standing principles” might suggest that it is more difficult to show redressability when reducing the injury requires a regulatory agency to take action against private parties, as Kagan suggested, the Court’s cases have long made clear that Congress can reduce this hurdle by granting a procedural right, as the Court concluded it had under the Clean Air Act. Perhaps these cases are wrong, but the caselaw is clear on this point.

Keisler’s second point is also significant. Insofar as redressability is dependent upon an actual reduction in greenhouse gas emissions, the plaintiffs in Mass v. EPA had a far stronger claim than do the litigants in AEP v. Connecticut. Imposing economy emission controls will have a far greater (even if still miniscule) effect on overall emissions than court-imposed restrictions on a handful of utilities. So even if one did not believe Court needed to assert the existence of a procedural right to facilitate standing in Mass v. EPA, the case for redressability was still stronger then than now.

My argument here is not that the state plaintiffs don’t have standing (though I certainly subscribe to that view). Rather, the point of this post is the narrower point that standing in Mass. v. EPA does not establish standing here. More is required. The Court must either a) place even greater weight on its newfound “special solicitude” doctrine of state standing, b) further lower the requirements of causation and redressability, c) conclude that in a common law nuisance action the requirements of standing are subsumed into the inquiry as to whether there is a cause of action, or d) do something else to help the state plaintiffs clear the standing bar. However the Court does it, contraMass v. EPA.

UPDATE: Calvin Massey has more thoughts here.