The SG Brief in Connecticut v. AEP: WORSE than you think

Okay, so it’s bad enough that the Obama Administration has decided to unilaterally disarm itself in the struggle against climate change.  For you law geeks out there (and you know who you are), the SG has gone even further to make these suits impossible in the future.

It does this by arguing that the state attorneys general do not have prudential standing to bring this suit.  Now, you might say, “wait a minute!  Didn’t the Supreme Court already decide, in Massachusetts v. EPA, that states have standing to bring these claims?”  Patience, grasshopper: Mass. v. EPA decided Article III, or constitutional standing.  It declared that states could sue the EPA because such a suit would constitute a “case or controversy” under Article III of the Constitution.

The SG couldn’t very well argue in its brief that the states don’t have constitutional standing, because Mass. v. EPA already foreclosed that.  So it said in effect, “Yes, the Constitution gives them a right to plead their case but it’s a bad idea on policy grounds.”  In other words, it is asking the Court to create another procedural hoop for the states to jump through.

If one was being cynical, one could argue that the SG is asking the Court to overrule Massachusetts v. EPA sub silentio.  In the future, if the SG gets its way, states’ lawsuits against carbon emitters will get kicked on prudential grounds, so it doesn’t matter whether there is Article III standing or not.  Now, the SG’s brief is careful to argue against prudential standing on the basis that so many lawsuits would prevent the formation and application of centralized policy, so theoretically lawsuits against EPA itself could still go forward.  So more accurately, the SG is arguing that Massachusetts v. EPA should be held to its facts.

But if you then look at the substantive side of the SG’s brief, it is arguing that federal common law is displaced due to some positive, but really quite minimal actions that EPA has taken since the Second Circuit delivered its opinion: regulations on light-duty trucks, the endangerment finding, the New Source Review regulations — all of which themselves are or will be under legal attack.  In any event, the SG’s brief sets up a world in which the EPA can do little or nothing about climate change — and no one can challenge them about it because any action, no matter how minimal, will displace common law.

A friend of mine suggested that this is really just about power: the Administration doesn’t want anyone getting in its way, and that includes the states.  Maybe, but then it is going to get a lot of utilities in its way.  That’s a pretty bad deal.

Or maybe it’s just easier to follow the money: it will be interesting to see the campaign contribution reports from utilities over the next three months.

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Reader Comments

11 Replies to “The SG Brief in Connecticut v. AEP: WORSE than you think”

  1. I don’t think this is much of a surprise. The Justice Department has consistently argued for a more restrictive approach to standing for decades, largely to preserve executive branch autonomy, and had the SG not filed this brief, the TVA might have sought to file a more aggressive brief on its own.

    I also think the standing question in this case is distinguishable from Mass v. EPA, albeit on grounds not pressed by the SG’s brief. In Mass, Justice Stevens opinion made much of the fact that Massachusetts was seeking to protect a procedural right guaranteed by the Clean Air Act, and relied upon the language in Lujan arguing that the normal standards for causation and redressability are relaxed in such cases. As this case involves common law claims, that basis for standing is not available. Yet even accepting Article III standing, the lack of a statutory basis for this suit strengthens the prudential standing argument.


  2. Nice try, Jon, but it doesn’t wash. In high-profile cases like this, the “Justice Department” doesn’t exist: this is a political and policy decision — a bad one, but a political and policy decision nonetheless. And somehow I have a hard time seeing the SG being intimidated by the TVA. And that’s a misreading of Mass v. EPA — Stevens mentions the notion of Congressional granting of standing, but the key argument, the argument that swayed Justice Kennedy, was that states, by entering the Union, give up rights, and thus they have the right to use federal law.

  3. Perhaps you’re right about the politics,but you’re also the one who’s surprised, not me. If anything, this brief is less aggressive than the traditional DoJ position on standing in environmental cases that has been fairly consistent for the past 30 years or so.

    As for Mass v. EPA. The Stevens opinion expressly bases the “special solicitude” on both Massachusetts’ status as a state and the purported existence of a procedural right.

    Given that procedural right and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis

    State sovereignty was key for establishing injury, the procedural right for causation and redressability.

    The procedural right portion of the decision was also key for Justice Kennedy, and is expressly grounded on language from Justice Kennedy’s Lujan concurrence (and a mis-reading of the Clean Air Act, but that’s water under the bridge).

    The parties’ dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. See 42 U.S.C. § 7607(b)(1). That authorization is of critical importance to the standing inquiry: “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” Lujan, 504 U.S., at 580, 112 S.Ct. 2130 (KENNEDY, J., concurring in part and concurring in judgment). “In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” Ibid. We will not, therefore, “entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.” Id., at 581, 112 S.Ct. 2130. . . .

    To ensure the proper adversarial presentation, Lujan holds that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. See id., at 560-561, 112 S.Ct. 2130. However, a litigant to whom Congress has “accorded a procedural right to protect his concrete interests,” id., at 572, n. 7, 112 S.Ct. 2130-here, the right to challenge agency action unlawfully withheld, § 7607(b)(1)-“can assert that right without meeting all the normal standards for redressability and immediacy,” ibid. When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant. Ibid.; see also Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F.3d 89, 94-95 (C.A.D.C.2002) (“A [litigant] who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result”).

    I realize this isn’t the precise basis of the SG’s argument, as they’re focusing on the prudential question and not Article III, but I think it clearly shows that Mass v. EPA did not completely resolve standing for the state parties in Conn. v. AEP.

    A final note: Before Mass v. EPA, more than one of the attorneys involved in both cases expressed the view that, barring adverse standing rulings, they could (indeed should) win one, but not both. That is, that either EPA had authority or the federal common law suits could proceed, but not both, and pursuing both was a way of covering their bases. Given that, it’s hard for me to see this brief as much of a “betrayal.” If I were you, I’d be more upset by, say, the Administration’s quiet removal of some of it’s campaign-related policy pledges from the White House website (as Andrew Revkin reported last week).


  4. Well, Jon, assuming you’re right that DOJ throughout the Reagan, Bush I and Bush II administrations has taken these stances, am I surprised that the Obama Administration has chosen to undermine its professed policy goals by adopting long-held conservative positions? Uh….yes.

    As for Mass. v. EPA, we’ve all read the opinion, but it misses the point. OF COURSE in Mass. v. EPA, which was a statutory case, the Court would reference some sort of Congressional language concerned standing. But why would that be the least apposite to a common law case? What you seem to be saying is that we should imply a lack of standing from the absence of statutory language based on a claim that does not rest on a statute.

    In a statutory case, we would look to Congress, and in a common law case, we would look to courts. In Connecticut v. AEP, what Congress wants or doesn’t want doesn’t enter into it.

    Put another way, the assumption underlying your argument is that somehow, for some reason, of course, standing must be restricted. That may be your view of standing, but it’s hardly implied by the doctrine.

    The entire point of federal common law, in interstate pollution cases, is to provide rights of action by states. If they can’t sue, no one can. That may be what some people want, but we shouldn’t think that it is an unsurprising outcome.

    As you may know, I’m hardly a fan of doing this through federal common law; I think that they should be state law claims. But if you’re going to have federal common law, to say that states can’t get into court seems calculated to undermine the doctrine.

  5. The point of looking to the statute, and suggesting that Congress had created a cause of action, was to lower the bar for establishing causation and redressability in a climate change case. The premise of the Court’s argument (and the relevant doctrine) is that Congress may, through statute, create standing where none had existed before, and that when Congress does so, the normal standards of causation and redressability are relaxed. I don’t think this is a particularly novel or controversial view of the doctrine, or of what the Court did in Mass v. EPA. Is it relevant in the common law context? I think so, as (apparently) does the SG’s office. Why? Because of the underlying premise that, absent Congressional action, generalized grievances are not suited for judicial resolution.

    I don’t think this has broad implications for the federal common law of nuisance, particularly not in the traditional pollution context. In that regard, I think the 4th Circuit’s decision in TVA v. NC is more worrisome than the SG’s arguments here, as it really does leave downwind states at the mercy of upwind polluters.

    As for whether we should be surprised by the SG’s brief, what were they supposed to do? The TVA is a defendant in the case. Was it supposed to just sit it out? The TVA thinks it has independent litigating authority (and has sued the EPA before), so just imagine what the brief TVA wanted to write would look like! It seems to me that the SG filed a brief that sought to narrowly protect the federal government’s interest in the TVA, and adopted the most modest argument for restrictive standing conceivable, by resting the argument on prudential and not Article III grounds, and did so in a way that would have the least effects on other cases by just seeking the GVR. I doubt their brief increases the likelihood the Supremes will take the case. But if they do, it gives them a narrower way to resolve it — in a case in which Sotomayor will be recused — than if the Court simply accepted cert on the petitioners more aggressive briefs.


  6. That presumes that courts themselves couldn’t lower the bar on causation and redressability in a common law claim. If Congress can lower it on a statute, then the courts can lower it for a federal common law claim (in the same way that they decided in Lujan to raise it for a statutory claim.). Where we disagree is in your notion of “creating standing where none had existed before”: 100 years after Holmes first said it, the law is STILL not a brooding omnipresence in the sky. It either exists or doesn’t because the Court says it does or doesn’t. With a federal common law claim, the judiciary can create standing because it is creating the substantive law.

    What were they supposed to do? They were supposed to suggest to the Court not to grant cert. And the President was supposed to make it damn clear to the TVA not to file a brief; if it has the authority to do so anyway, then so much for the Unitary Executive theory. Then the SG and the TVA disagree, and maybe the Court says that perhaps it doesn’t want to get involved yet. The “federal interest” to be protected is to enhance the chances of climate legislation, not to ensure that the TVA can be as obstructionist as the rest of the utilities (although in fact the TVA has a pretty decent FTCA claim outside of the rest of them). Whether the Second Circuit decision stands or doesn’t, the TVA will be in no worse position than any of the rest of them.

  7. Jonathan said:

    “…it’s bad enough that the Obama Administration has decided to unilaterally disarm itself in the struggle against climate change…”

    It seems almost silly to assume that global atmospheric temperature can somehow be modulated by the application of common law (or regulations). It appears that the legal profession is struggling against the demise of the climate change movement and the profound loss of this once promising field of legal opportunity.

    I recommend that my friends in the legal profession face reality and accept the fact that the good old days of climate hysteria are over, and focus on relevant real-world issues where one may be able to do something that is good.

  8. It seems to me the SG’s position is an entirely correct and principled one. I can’t think of a situation in which any legitimate interest of a state can’t be handled with out the blowhard grandstanding of a state AG. The SG’s right, even if the state has standing, it really does not have a skin in the game. Moreover, it gives the courts yet another way to muck up the administrative process. I have no idea why law professors think the courts of appeal are so much better at deciding these things than people who work in this area all the time.

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About Jonathan

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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About Jonathan

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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