You're Getting Warmer

The Supreme Court ruled yesterday that there is a "well-documented rise in global temperatures," and that the EPA, contrary to its own opinion, has the authority to regulate the emission of greenhouse gases from motor vehicles, and that the agency was also wrong is deciding that it would decline to act even if it had the legal authority to do so. In a drearily predictable 5-4 lineup, the four more liberal Justices ruled in favor of the plaintiffs, the four conservatives ruled for the agency, and Justice Kennedy cast the deciding vote for the plaintiffs.

What was particularly disappointing, from a legal theoretical point of view, was the lineup of votes on the arcane question of "standing," mentioned in this earlier post about another case. The five-Justice majority held that the state of Massachusetts had standing to challenge the EPA's actions because it stands to lose coastal land as a result of the rise in ocean levels from global warming, and that, even if better regulation of motor vehicle emissions wouldn't solve the whole problem, it could at least give the state some relief -- a pretty sensible holding, I would say. All four Justices in the minority disagreed.

Now, all the cases say that the question of standing is supposed to independent of the merits of the case. Whether you're injured by a government action, and therefore entitled to challenge it, is independent of the question of whether the action is illegal. The government might injure you by doing something perfectly legal -- Congress raising your taxes, say -- and you could challenge it, but you'd lose. Or the government could do something illegal that has no effect on you, and then you couldn't challenge it, even though, if a court could reach the merits, it could strike down the action.

So why is it that all five Justices who thought the EPA's action was illegal on the merits also thought the plaintiffs had standing to challenge it, and all four Justices who disagreed on the merits also thought the plaintiffs lacked standing? If the two questions are really independent, wouldn't one expect to find at least one Justice who thought the plaintiffs had standing, but the agency's action was lawful, or unlawful but unchallengeable because the plaintiffs had no standing?

If the two questions were completely independent, so that there was no relationship between them whatever, then the chance that a Justice who agreed with the plaintiffs on standing would also rule for them on the merits of the case would presumably be 50%. Then the odds that all five Justices who ruled for the plaintiffs on standing would also rule for them on the merits, and all four Justices who ruled against the plaintiffs on standing would also rule against them on the merits, would be 1 in 2^9, which is 1 in 512, or about 1/5 of 1%.

Hmmm. My colleague Dick Pierce wrote an article once called "Is Standing Law or Politics," in which he concluded that standing law is not law at all, but just political game-playing by judges. I'm afraid yesterday's decision provides him with more ammunition.