Document Type

Article

Publication Year

2006

Journal Title

Cato Supreme Court Review

Abstract

By a 5-4 vote in Massachusetts v. Environmental Protection Agency, the Supreme Court took yet another significant step away from the Framers' vision of the judiciary and toward a politicized Supreme Court sitting as a super-legislature and super-regulator. The Court substituted its judgment for that of the politically accountable branches of the federal government. By dramatically loosening the rules of standing, the Court invited those unhappy with the federal government's failure to regulate in a particular manner in any substantive area to use the federal courts to force federal agencies to regulate. In short, the Court encouraged interest groups to seek to obtain from the courts what they could not from agencies or Congress. The Court rolled out the welcome mat for state governments unhappy with a federal agency's decision, creating from whole cloth a new rule of standing that allows states to gain a hearing in federal court with only the thinnest of allegations of harm. In doing so, the Court undermined the legal rules of standing. The majority also supported its decision with a one-sided and unsophisticated account of the scientific evidence for the petitioners' claims concerning climate change, needlessly inserting the courts into a scientific dispute that, as the majority's opinion demonstrated, they are woefully unprepared to handle.

Unfortunately Massachusetts v. EPA is but one piece of a broader trend toward regulation through litigation. A wide range of interest groups, including state politicians, private interest groups, and federal regulators, is increasingly using the courts as a vehicle to impose regulatory measures the interest groups cannot obtain from legislatures and agencies. The usual regulatory process has many flaws, but it at least incorporates a measure of political accountability. By shifting key aspects of regulatory decision-making to the courts, these interest groups are finding ways to deflect responsibility for the costs imposed by the regulatory state. By doing so in a way that provides only a means to increase regulatory agencies' activity and jurisdiction, the courts' acquiescence in regulation by litigation further erodes the constraints on regulators, giving them (and interest groups that favor increased regulation) a second chance on those occasions when they lose in the political process.

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