Simplifying State Standing: The Role of Sovereign Interests in Future Climate Litigation

IntroductionFederal courts appear to be in broad agreement that climate change is happening and that humans are the primary cause.1 Several have disagreed, however, as to whether the judiciary is the proper branch of government to resolve claims related to global warming.2 In its 2007 decision Massachusetts v. EPA, the U.S. Supreme Court held that a state petitioner had standing to sue the Environmental Protection Agency due to the agency's refusal to regulate automobile greenhouse gas emissions under the Clean Air Act.3 Less than six months later, however, the U.S. District Court for the Northern District of California dismissed a state-led public nuisance action concerning automobile greenhouse gas emissions in its 2007 decision California v. General Motors Corp.4 Although the district court did not address standing, it reasoned that Massachusetts v. EPA demonstrates that claims relating to greenhouse gas emissions involve policy questions reserved to the political branches, and it therefore dismissed the nuisance action by invoking the political question doctrine.5Despite the California court's dismissal of the common law nuisance action, several scholars have argued that Massachusetts v. EPA entitles states to litigate complicated environmental suits in federal courts in their capacity as parens patriae,6 an English common law doctrine that allows states to litigate on behalf of their citizenry.7 This Note analyzes these arguments in light of the separation of powers principles the Supreme Court has often invoked when justifying restrictive justiciability thresholds and concludes that, insofar as Article III standing is concerned, states suing in their common law capacities should be entitled to a relaxed regime.8 The Note demonstrates, however, that particularly complicated common law actions give rise to separation of powers concerns embedded in the prudential justiciability doctrines, which may provide a basis for dismissal in addition to, or in lieu of, Article III standing.9 Thus, as an administrative law petition adjudicated within the confines of a statutory scheme, Massachusetts v. EPA offers relatively little help to states suing in their common law capacities and faced with prudential justiciability challenges, which counsel dismissal when a plaintiff alleges harms that are widely shared and unfamiliar to the legal landscape.10Ironically, Massachusetts v. EPA is precisely the type of case that would ordinarily give rise to a heightened justiciability threshold, as the Supreme Court's restrictive standing jurisprudence has been justified almost entirely on the separation of powers concerns implicated by lawsuits brought against the federal government.11 The Court has never offered a similar separation-of-powers justification for restrictive standing requirements in common law actions brought by states against private parties.12 By resurrecting the common law to combat global warming, however, climate tort litigants have uncovered a distinct separation of powers concern: the risk that the judiciary will undemocratically set policies that have consequences far beyond the actual adjudicated disputes. 13 Unlike Article III standing, which focuses a court's attention on the parties to the lawsuit, the prudential justiciability doctrines permit a court to account for broader implications of the issues raised in the lawsuit-particularly, whether the plaintiff's claims raise issues of a "transcendently legislative nature."14In light of Massachusetts v. EPA's limited applicability to parens patriae environmental lawsuits, this Note proposes that state attorneys general explore creative ways of establishing state regulatory and lawmaking interests as the basis for standing in environmental litigation.15 Rather than reading Massachusetts v. EPA as a parens patriae suit, state litigants should adopt a regulatory or sovereign interest interpretation of the case; this theory of standing suggests that where states can demonstrate injury to their ability to regulate environmentally harmful activities, they should be entitled to a relaxed justiciability regime when challenging federal agency action-or even inaction-that burdens state lawmaking interests. …