Massachusetts v. EPA’s Regulatory Interest Theory: A Victory for the Climate, Not Public Law Plaintiffs

Note — Volume 94, Issue 7

94 Va. L. Rev. 1751
Download PDF

Standing doctrine’s development is often framed as a struggle between two competing models of adjudication. The private law model views the court’s role as the adjudicator of individual rights and conditions access to the court on a party’s showing of a discrete injury at the hands of another party. The opposing public law model favors congressional power to create causes of action that confer standing without requiring a showing of differentiated injury, and conceives of the judiciary’s role as integral to ensuring executive compliance with the law. Many commentators view Massachusetts v. EPA, a recent Supreme Court decision addressing global climate change, as liberalizing standing doctrine and as a significant victory for the public law model of adjudication.

This Note departs from this commentary by arguing that, on the whole, the standing theory advanced in Massachusetts places the case within the Court’s trend towards a more restrictive interpretation of the case-and-controversy requirement. This Note first analyzes the Massachusetts opinion, the history of state standing doctrine, and subsequent judicial treatment of the decision, in order to show that the Court’s standing decision is based on a finding of injury to Massachusetts’ governing interest: the ability of Massachusetts to regulate a harm that threatens the Commonwealth’s territorial integrity. The Note then argues that this “regulatory interest theory” creates a standing regime that may be a variation of the public law model, but one that is potentially highly restrictive of both state and individual standing. In fact, the regulatory interest theory may create a standing regime where state attorneys general have monopoly power over public law adjudication, a possibility that threatens both core public and private law model values. This Note concludes that a Positivist approach to standing that predicates state and citizen standing on positive statutory enactment provides a relatively straightforward, far more workable approach to the case-and-controversy requirement.

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 94 / Issue 7  

(Over)Valuing Uniformity

By Amanda Frost
94 Va. L. Rev. 1567

Doctrinal Feedback and (Un)Reasonable Care

By James Gibson
94 Va. L. Rev. 1641

Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks”

By John Monahan, Laurens Walker, and Gregory Mitchell
94 Va. L. Rev. 1715

Massachusetts v. EPA’s Regulatory Interest Theory: A Victory for the Climate, Not Public Law Plaintiffs

By Tyler Welti
94 Va. L. Rev. 1751