The U.S. Supreme Court recently heard a case on whether the EPA can and/or has to regulate carbon dioxide emissions (Massachusetts v. EPA).
The
key issue of the case though is less about global warming and more
about standing–put very simply, standing is the legal requirement that
plaintiffs can only have their cases heard if they suffered an injury
or will suffer an imminent injury.
This legal analysis
by Michael Dorf, a Columbia law professor, provides a good discussion
of the standing issue. Most of his arguments are the only
weakness.
Here is a classic quote:
“Conservatives like to
complain that liberals read their own political preferences into the
Constitution, but when it comes to standing doctrine, the shoe
is on the other foot. Here the Court’s conservatives have been the ones
reading their preferences into the Constitution: in
this instance, a preference for keeping civil rights and environmental
cases out of the federal courts.”
The standing doctrine has
nothing to do with preferences–it is well-established precedent.
His entire discussion in no way provides evidence of subjective
preferences or activist decision-making in standing cases. In
fact, many conservatives would like to see the standing doctrine
expanded as well, such as in taxpayer standing cases.
Recognizing that the Supreme Court may decide the global warming
case on standing, he argues: “A better result would be to revise the
standing doctrine itself.” He complains that the conservatives
want to impose their own preferences by following precedent and he
isn’t pushing his preferences by wanting to throw out standing doctrine.
One
of the requirements for standing is that the court’s decision is likely
to redress the injury. Dorf argues that this shouldn’t be
necessary: “But the deeper question is why he [the lawyer for
Massachusetts] even should have had to make such a showing. If a
plaintiff can show that a defendant’s unlawful conduct is injuring him,
why shouldn’t the plaintiff be entitled to have a court order the
defendant to stop the unlawful conduct?”
His example has a big
problem: it does redress an injury. If a defendant’s conduct is
injuring someone, and the court can stop that action, then the court is
redressing an injury.
Here is another quote worth mentioning:
“As
this case well illustrates, it [standing doctrine] imposes unnecessary
obstacles to judicial resolution of very important legal
questions.”
The global warming issue is not an important
legal question–it is an important policy question. Congress, not
the courts, are best suited to make these types of decisions. The
standing doctrine, which he thinks is getting in the way from a
judicial resolution, is ensuring that policymaking bodies make policy
decisions, not the courts.
The whole article is an argument for judicial activism.
