Document Type


Publication Date

Fall 2008


The Supreme Court's prevailing test for Article III standing - injury-in-fact, causation, and redressability - generally restricts suits to remedy injuries affecting broad segments of the public in substantially equal measure. In Massachusetts v. EPA, the Supreme Court appeared to depart from this proposition in holding that the Commonwealth of Massachusetts has standing to sue the EPA to prompt it to slow global warming, a harm that affects everyone on Earth. The dissenting Justices assailed the majority for finding justiciable a so-called “generalized grievance” in contravention of prior standing precedent that is based on the notion that if parties seek to redress public harms, they must do so via the political branches and not the courts.

Scholarly reflections on the case have addressed the Court's idiosyncratic anointing of Massachusetts with something it called “special solicitude” in standing analysis, occasioned by its status as a state. In this Article, I discuss a more subtle aspect of Massachusetts: how the majority wrestled with the controversial injury-in-fact test, which is ill-suited for analyzing standing in public law disputes. Implicit in Massachusetts is a paradigm for resolving statutory enforcement cases brought to vindicate public harms indistinguishably suffered by the masses. It is animated by three characteristics: (1) the plaintiff's invocation of “procedural rights” established by statute; (2) a “concrete” and “personal” stake that distinguishes the plaintiff from the pure ideologue; and (3) a congressional authorization of the suit. I suggest that the Court should draw upon this reconceptualized framework in future statutory enforcement cases, as it offers several advantages for suits brought to remedy commonly-shared public harms. First, it is more attuned to the realities of public law litigation. Next, it is based on premises that a majority of the current Justices - including an architect of modern injury-in-fact, Justice Scalia - already embrace. Moreover, it cabins the muddied generalized grievance bar to its original purpose - preventing citizens from suing on purely ideological grounds. Furthermore, it gives appropriate weight to congressional judgments about required procedure. Finally, it enforces formal separation of the executive and judicial branches while recognizing that the separation of powers operates to ensure executive accountability through judicial review.



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