I finally got a chance to read MA v. EPA, the recent decision requiring the EPA to reasonably justify its decision not to regulate greenhouse gases under the Clean Air Act. The first component of the case is whether or not the parties challenging the regulation had standing to challenge the regulatory decision; this part of the opinion I completely agree with, and indeed I only wish that Stevens had the votes to overturn the key rule established in Lujan (a 1992 standing case in which Stevens wrote a concurrence persuasively rejecting Scalia’s narrowing of standing doctrine.) I would strongly recommend Jack Balkin’s two posts on the subject. First of all, he correctly notes that “[s]tanding doctrine is among the most unprincipled and arbitrary parts of American constitutional law.” And second, he’s also correct to point out that the narrowing of standing doctrine under the Rehnquist Court isn’t random, but will generally favor litigants seeking conservative outcomes. (People bringing property rights claims can always claim a direct injury, for example, but challenging the potentially unconstitutional funding of religious organizations becomes much more difficult.) My favorite quote about standing is William O. Douglas’ counter to the arguments of Warren Court house conservative John Marshall Harlan: “Taxpayers can be vigilant private attorneys general. Their stake in the outcome of litigation may be de minimis by financial standards, yet very great when measured by a particular constitutional mandate. My Brother HARLAN’s opinion reflects the British, not the American, tradition of constitutionalism. We have a written Constitution; and it is full of “thou shalt nots” directed at Congress and the President as well as at the courts. And the role of the federal courts is not only to serve as referee between the States and the center but also to protect the individual against prohibited conduct by the other two branches of the Federal Government.” In the American system, the merits of a constitutional argument should be more important than the identity of a litigant, and standing rules are particularly likely to be deployed in an outcome-oriented manner.
On the merits of the case, I’m actually a little more ambivalent. While I have little sympathy for conservative arguments about standing, I do think they have a point about deferring to reasonable executive applications of statutes. (This is not just conservative, of course; the crucial Chevron case, which requires the courts to defer to reasonable executive interpretations of statutes, was written by Stevens and joined by Brennan.) And it is important to keep in mind that as early as 2009 we could have a Democratic administration being supervised by very conservative federal courts. Still, for better or worse under the modern regulatory state judicial review plays a significant role, I’m much less optimistic than Balkin about the Court’s conservatives being as deferential toward a Democratic administration, and certainly I think that the majority’s construction of the Clean Air Act was far more plausible than the EPA’s (or the dissenters’), so this is probably a good outcome on balance. It is, however, important to remember that the modern state grants enormous policymaking discretion to the executive, and it would be dangerous to count on the Courts to overturn bad administrative decisions in most cases. Control of the White House is extremely important even if the climate for major legislative reform is unfavorable.