Internal tensions in the Supreme Court's standing doctrine have led to some unexpected fractures. Last term, in Transunion LLC v. Ramirez, the Court considered a class action arising from Transunion's errors in the processing and use of the plaintiffs' personal credit information. By a vote of 5-4, the Court held that, while Congress had created a cause of action that on its face let all of the class members sue, only those whose information was shared with third parties had sufficiently concrete injuries to establish standing. Justice Thomas joined the court's three more liberal justices in dissent, arguing that Congress's creation of a cause of action was sufficient and pointing out numerous inconsistencies in the Court's standing doctrine. Of particular note, Justice Thomas cited a provocative concurring opinion from the 11th Circuit's Judge Newsom, who argued that standing has no basis in the original meaning of Constitution and that courts should instead look at whether a congressionally created cause of action violates the Constitution's separation of powers. Judge Newsom's opinion, and both the majority and the dissent in Transunion, spent considerable time discussing how courts should approach citizen suits, which have always been on the outer edge of the Court's standing jurisprudence and which several justices have said raise other serious separation of powers concerns.
This webinar will have a lively discussion among three leading experts about what the future may hold for citizen suits, standing doctrine, and the separation of powers
- Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
- Prof. Robin Craig, Robert C. Packard Trustee Chair in Law, USC Gould School of Law
- Jonathan Brightbill, Partner, Winston & Strawn LLP and former Acting Assistant Attorney General for the Environment & Natural Resources Division of the U.S. Department of Justice
- Moderator: Michael Buschbacher, Counsel, Boyden Gray & Associates PLLC
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Guy DeSanctis: Welcome to the Federalist Society’s webinar call. Today, March 29th, we discuss citizen suits, separation of powers, and the future of the Supreme Court’s standing jurisprudence. My name is Guy DeSanctis, and I’m Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call. Today, we are fortunate to have with us our moderator, Michael Buschbacher, counsel Boyden, Gray & Associates. Throughout the panel, if you have any questions, please submit them through the question-and-answer feature or the chat so that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. Michael, the floor is yours.
Michael Buschbacher: Well, thank you, Guy. Citizen suits are one of my favorite topics. Generally, they are referred to as a kind of private attorney general action -- a mash-up, maybe, of qui tam and public nuisance where private citizens get to step into the shoes of the federal government and wield its authority to enforce federal environmental law, mostly, or to force the government to comply with its own mandatory duties. And the power is, I think, quite striking in its scope. Unlike qui tam, environmental citizen suits aren’t subject to direct governmental control. And in fact, under the Clean Water Act, at least, citizens can actually intervene as of right even in criminal enforcement matters as basically a co-prosecutor. I don’t know if anyone’s ever actually tried doing that.
Unsurprisingly, maybe, the citizen litigation has played a truly outsized role in how environmental law and policy has evolved in the US. And for better or worse, it means that there’s just less democratic accountability than we see elsewhere, where you know who the prosecutor is or who the enforcer is and can hold them to account through the political process. And courts have intuited, I think, that there should be some kind of check on this. But what that check should be has, perhaps, not been self-evident.
Justice Scalia was probably the leading jurist in trying to find out what to do about it. And he approached the issue through the lens of standing. And starting with his very influential standing opinion in Lujan, he charted a course that would limit citizen suits and many other kinds of suits more or less to the metes and bounds of traditional torts. In the environmental context, that would be torts like public nuisance. But much of modern standing doctrine has become -- well, maybe incoherent. We’ve seen, since Lujan, other decisions like Friends of the Earth v. Laidlaw in 1999, which held that aesthetic injuries could suffice as an injury, in fact. And in Massachusetts v. EPA, of course, the Supreme Court granted special solicitude to states to sue when there’s climate change issues that might affect sea level or something like that.
Despite that special solicitude language, we’ve seen, in more recent years, that even ordinary citizen plaintiffs have been successfully obtaining standing, even if it’s just based on climate change issues. At the same time, it’s not uncommon to see what might be called “standing hawkishness” even in bastions of more -- what we would think of as bastions of more liberal standing doctrine like the Ninth Circuit. At least, the cynical part of me says, when it’s an interest that the Court doesn’t like as much, which often happens to be more conservative interests—but not always -- but in this way, I think we can quote Plato and saying that everything arises in this way—opposites from opposites. Standing also has been, perhaps, a bit embarrassing for the originalists among us because its origin has more to do with the language, at least used by William O. Douglas, than anything you’ll find in the Constitution or The Federalist Papers.
So the topic for today, I think, is pretty open-ended, but I want to start with the Supreme Court’s recent decision in TransUnion v. Ramirez. It’s not an environmental case, but it is a standing case. The Court considered a class action suit about errors in the processing and use of data by folks whose data was used by the TransUnion company for credit score stuff. In a 5-4 vote, the Court held that, despite Congress’s creation of a pretty broad cause of action that, on its face, would have let all the members in the class who had allegedly had their data misused, only those who had actually had the injury of having that data shared were in a position to sue and had standing.
Justice Thomas disagreed with that and joined the three more liberal justices in dissent. And in his dissent, which is very interesting—I recommend it to all—points out a number of the inconsistencies and tensions in standing doctrine of late. And he also cites a very interesting concurring opinion by the Eleventh Circuit’s Judge Newsom, who was appointed by President Trump. Judge Newsom says that standing doesn’t have a basis in the original meaning of the Constitution -- or doesn’t have much of a basis in the original meaning of the Constitution, and that it’s been used to cabin Congress’s authority in a way that’s impermissible, and says, “Instead of looking at this through standing, we should just do a traditional separation of powers analysis.”
We’ve also seen other, maybe, contraindications in some areas where folks who might be expected to be fans of citizen suits have said that they’re worried about it. Oh, and I should mention that in TransUnion and in Judge Newsom’s opinion, there’s a lot in there about citizen suits. So, for instance, more skepticism about citizen suits has been voiced with respect to the Texas abortion law SB 8, which you might remember authorizes citizen suits and precludes government enforcement. And in its lawsuit, DOJ actually said that this citizen suit provision was unprecedented, which struck me as a little odd. But it was very troubling to many folks on the Court, obviously, if you listen to the oral argument.
So what does this all mean for the future? One of the nice things about being a volunteer leader in The Federalist Society is that I can ask some very, very smart people who know a lot more about these sort of things to come and discuss it with me. So that’s what this panel, I hope, is going to be. And we have three truly remarkable speakers here, and I’ll briefly introduce them.
First speaker is Professor Richard Epstein. He’s the Inaugural Lawrence A. Tisch Professor of Law at NYU, where he also serves as a Director of the Classical Liberal Institute which he helped found. He has served as the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution since 2000, and he’s also the James Parker Hall Distinguished Service Professor of Law Emeritus and Senior Lecturer at the University of Chicago. He’s a prolific scholar. He has written countless articles on just about every topic you can imagine as well as 15 books. Well, maybe even more than 15 books now, but the most recent, I think, is The Classical Liberal Constitution. Of relevance to our discussion today, Professor Epstein has been a trenchant critic of modern standing doctrine and of citizen suits. And I’m very eager to hear what he’s going to have to say.
We’re also joined by Professor Robin Craig, who is the Robert C. Packard Trustee Chair in Law at the USC Gould School of Law. She’s a leading environmental scholar, particularly on all things water. She’s, like Professor Epstein, a very productive scholar. The author or co-author of 12 books, including The End of Sustainability, Contemporary Issues in Climate Change Law and Policy, and The Clean Water Act and The Constitution. She’s also the author of a really excellent article called “Will Separation of Powers Challenges Take Care of Environmental Citizen Suits?” which was published, I think, back in 2001 and remains, to my mind, the best and most comprehensive defense of citizen suits that’s been written and argues, in part, that standing doctrine ensures that citizen suits do not transgress the bounds of the Constitution’s separation of powers.
And rounding out the panel, we’re joined by my former colleague and good friend, Jon Brightbill. Jon’s a Partner in Winston and Strawn’s Washington, DC office, where he does all kinds of fascinating high-stakes litigation. And before joining Winston, Jon was the nation’s lead environmental attorney at the Department of Justice where he served as acting Assistant Attorney General in the Environment and Natural Resources Division. And not only did he do all the administrative work of leading a division of 425 lawyers, but he also somehow found time to personally argue many of the most important cases of the last administration, including defenses of the Navigable Waters Protection Rule and Clean Water Rule repeal, which argued in the Tenth Circuit and several district courts, and the Affordable Clean Energy Rule, the Clean Power Plan repeal, which he argued for like nine or ten hours, I think the argument went --
Jonathan Brightbill: Nine and a half. Nine and a half.
Michael Buschbacher: -- man -- in the DC Circuit. And that’s the case that is now proceeding under the name West Virginia v. EPA in the Supreme Court. We’ll start with opening remarks from each of our panelists for about five to seven minutes, then we’ll have a time where they can each respond to each other, and then I might ask some questions, and we’ll turn it over to the audience for the last 15 minutes or so to submit questions. So with that, Professor Epstein, please take it away.
Prof. Richard A. Epstein: Well, thank you very much for having me here. I’ve been a trenchant critic of so many parts of the American constitutional doctrine on standing, I don’t know where to begin. And this case, I think, starts to show some of the serious issues that are associated with the doctrine and with the design of these cases. And the first thing I wanted to talk about is not standing as such, but a decisional choice about the way in which you want to run enforcement in situations in which there are large numbers of diffuse homes to particular individuals so it is perfectly clear that no individual person will bring the suit and therefore, the only two alternatives that are left are direct government action which imposes a fine and some kinds of restrictions, or a class action which purports to give individual relief to people in the various classes.
In my view, on that particular question, it is never a lockstep answer one way or another. A lot depends upon the nature of the class and the nature of the injuries asserted. But in this particular case, I think that the correct approach is, in fact, a direct regulatory approach. It’s not that these harms don’t matter. They matter a great deal. But it’s very difficult to quantify the nature of the harm involved. And it turns out that if you’re serious about class action stuff, there may be a common issue of law. But the notion that somehow or another the damages are all going to be uniform across different cases, I think, is somewhat fanciful or rather uniform so that you try to do the differences. I think it gets down into the real terrible problem.
So to me, this case could have been handled much more easily and by a pretty substantial fine on these characters for the way in which they behaved and an injunction which has them to change their patterns of behavior. Justice Thomas, I think, had a very effective critique of what they did. Using names and only names in order to match people for a terrorist list is not, to my mind, a sufficiently strong filter. Even adding in something as simple as a birthday when there are lots of people named Ramirez is going to, I think, make a huge difference on that. So I think what happens is, you want that, and you want it quickly. One of the drawbacks of having this as a private litigation is still talking about this seven years after the original offense taken place. Whereas, if this had been a more administrative procedure, you could have done it more quickly.
Well then, the next question is, if you’re going to go the private way, how do you do it? And the first thing, of course, is there is a huge question of why we have a standing doctrine which is tied to separation of powers. We have standing doctrine in England where there’s no separation of powers. We have standing doctrines in the state where there are but not relevant standing doctrines. The term standing, for whatever it’s worth, appears nowhere in the Constitution. And so, this doctrine is, to some extent, a fabrication. And it also doesn’t deal with the situations as this case is. If you regard these statements as a form of defamation and defamation is a common-law form of action, why is it that you have to worry about separation of powers at all when you bring a federal case under diversity or under some other kind of arrangement where, in fact, it turns out that you have injury?
So you then get to the question of what you mean by concrete harm. And this term does not help explain a great deal of what’s going on. It does give you the following advantage. In those cases where people get run over by a truck or their entire bank account is robbed by some third person, you could call it concrete. But there is a real problem with respect to concreteness and the general common law doctrines and general tone of general damages under torts, which are exactly the opposite. What we do is we take a general assessment of where you stand. We don’t have any real good reliable information about the particular case, and so we kind of say to the jury, take a stab at that particular sort of thing. I don’t see how the separation of doctrine helps you, and I think the concreteness test may allow you to recover in those cases.
But there’s also another problem, and this is the analytical problem that I’m going to stress, which is, when do you want to engage in the timing of particular action. Standing doctrine talks about redressability at some point, but the more accurate way to do this is to start with a traditional common law doctrine approach or an equitable approach and say, “Here’s something that’s happening. It may or may not occur.” There is, in some cases, a high probability that it will occur, so you may want to do something now. But in many of these cases where it turns out that the information is gathered but never used, it seems to me vanishingly -- a low probability that the company is going to be stupid enough to send this thing out after it’s been sustained. And so I think the correct way to do it is not to say that these cases can’t be brought in federal court; it’s to say, “Look, this is too soon under these circumstances. We’re going to make sure the case is more ripe before we take it on.” And if you did that kind of thing, you would say, “Look, it’s not that you’re out of Court, it’s that you have to wait until it turns out that the actual harm starts to manifest itself.”
There is a tendency now, particularly in privacy cases, to say, “The mere possession of data which you might use in a bad way at some point in time is sufficient to give people the right to remove it from the file.” I think, in general, the better approach is to wait until the harm occurs and then to reassess the situation to see whether or not there are needs for some kind of structural remedy. And so the term “concrete” simply has too much weight that’s attached to it, and I thought, in effect, that if you did a more functional analysis of what went on in this particular case, you would say, “Look, it's not for the courts to decide whether or not you have an administrative solution or a class action solution.” But if you do have a class action solution, it is perfectly appropriate for the courts to try to basically say, “We can use doctrines of laches or doctrines of ripeness and things of that sort in order to deal with these particular problems.”
And so what happens is, I think, the whole thing has kind of an air of unreality. Too much weight is put on standing. Too much weight is put on the term concreteness. And so, there’s too little understanding that comes out of it. This is not a case, I think, in which anybody on the Supreme Court has covered themselves with glory. I think I learned most from the opinion of Justice Thomas. Why is that? Because he understood the institutional operation. And following from that kind of information, it seems to me that the administrative solution is preferable to the class action solution, at least in these circumstances. So I’ll stop there.
Michael Buschbacher: All right. Excellent. Professor Craig?
Prof. Robin Craig: Thank you, Michael. And thank you, Michael and Guy, for inviting me to be part of this panel. I’m going to make several observations, some of which are connected, some of which aren’t. I agree with Richard that too much weight is being put on standing. And while I would never argue that the Court standing jurisprudence is in any way completely coherent, I do think context matters. And so the fact that TransUnion was a class action and the court got sticky about standing, to me, as someone who teaches civil procedure, puts it in line with a whole line of cases where the court has been increasingly policing the use of the class action to have expansive lawsuits. So the court has limited personal jurisdiction, for example, in class actions. So I think that context is important. I don’t think it explains everything. But that, to me, is part of what was going on in the TransUnion case.
The other point I would make is that the Article II issue is not new. As Michael mentioned, I was writing about it in 2001. It’s come up in Lujan v. Defenders of Wildlife. It came up in Steel Corporation. It came up in Laidlaw. And as Judge Newsom noted, there are a couple things you have to think about when you get into the Article II arguments. And this is Article II, Executive versus Congress, not Executive versus Supreme Court, which is a different issue. But the Article II issue -- you have to deal with qui tam litigation because -- part of why I was writing about it in 2001 is the Supreme Court has upheld qui tam litigation which allows private citizens to be prosecutors, and to my mind, Judge Newsom didn’t fully deal with the outlier that might prove the rule.
The other thing you have to worry about in the environmental context is being able to articulate an Article II rationale that somehow says the delegation to private citizens is problematic, but a delegation to states is not. And that’s what gets lost sometimes in the Article II debate -- is that citizen suits and enforcement authority are delegated to states as well as to private citizens as well as the ability to run environmental programs wholesale is delegated to states. So there is the possibility, if you go too far down the Article II rabbit hole, that you will throw the baby out with the bathwater, so to speak, and get rid of the whole idea of cooperative federalism with the states. So I’ll just throw that out as something to think about.
Judge Newsom and Richard are completely right. The court did make up standing. Whether it picked the best idea for trying to avoid advisory opinions, I don’t think they did, but they went down that rabbit hole, and we are stuck with the tests that have resulted. The other thing I’ll note about TransUnion that I think is unfortunate is this desire to analogize injury to historical forms of injury, as was pointed out in the dissent. That limits Congress in creating new forms of injury for new realities such as digital privacy, which the founders did not have to worry about. But it also has played out badly in other contexts. So if you think about Seventh Amendment jurisprudence and trying to analogize statutory causes of action to something that existed at common law or equity --
Prof. Richard A. Epstein: 1791.
Prof. Robin Craig: -- yeah. You can go any way you want to. And so, I think this kind of analogizing of both is too limiting on Congress but also doesn’t really help figure out the issue.
Two last points. First of all, you mentioned the West Virginia case. Standing and/or mootness have come up in that case. It will be interesting to see if the Supreme Court gets into the discussion in that case and how it lines up, or I suspect doesn’t line up, with TransUnion. And then finally, just the larger point I would make, citizen suits and the administrative state more generally have never fit comfortably into the Constitution. And that’s a peace we made once in the 1930s, but every once in a while, we seem to have to remake that peace. And if we’re going to have an administrative state, we just have to accept that sometimes how exactly we wedge it into the Constitution doesn’t feel quite natural because it’s not. It’s not in there either, just like standing isn’t either. So I will leave that with several remarks and let Johnathan speak.
Jonathan Brightbill: Well, great. Thank you very much, Robin and Richard. And thank you to The Federalist Society and Michael for having me. I think this is an extremely interesting and timely topic for the reasons that both Richard and Robin said. My perspective is not one of an academic but of a practitioner who has spent more than 20 years thinking about establishing standing for purposes of regulated entities, bringing challenges to agency actions, defeating standing where private litigants are trying to bring claims on behalf of punitive classes—for example, when the plaintiffs themselves haven’t suffered any harm that they are nevertheless alleging for others; for almost four years at the Department of Justice, regularly asserting standing as a defense out of the standard DOJ playbook to preserve the separation of powers and defend agency and regulatory actions by EPA, DOI, DOE, and others; and now back at private practice, where I’m both looking to assert standing in the manner as defendants did in the TransUnion case to prevent overbroad cases from going forward with folks who are not injured but again, now commonly contemplating how I can establish standing for my clients seeking to challenge administrative actions.
So one of the things that I think, just from a practical matter, about the standing doctrines and where they are today is that because they are so muddled, it is a doctrine that is very commonly one that is malleable and in the eyes of the beholder with respect to judges. We very commonly have regulated entities that are so injured and disturbed by what the government has done that they are, frankly, prepared to spend hundreds of thousands of dollars or more bringing challenges and therefore paying lawyers from funds that would otherwise be profits in order to try to put a stop to certain regulatory actions getting bounced then, on account of lack of standing.
And then, on the other side of the spectrum, we have certain public interest groups that are regularly being granted standing to intervening or challenge agency actions based on allegations of rising sea levels, greater hurricanes, or droughts that are alleged will occur over a period of many, many decades. Notwithstanding that in any particular case, we’re seeing minimal increases in carbon emissions at stake going into the atmosphere, mixing with the carbon emissions of every other country in the world, marginally increasing the reflective capacity of the electromagnetic spectrum in the atmosphere, thereby trapping heat and increasing, by some marginal amount, the documented general marginal warming trend and rising seas of the planet that’s been going on since the end of the late medieval little ice age several hundred years ago, and that even if stopped—i.e. redressability—are projected to be overcome and swamped by increasing emissions by China, India, and other developing nations.
So as a practitioner, I find myself counting noses and personalities on the Supreme Court. And while I’m academically interested in the standing debate, and I think that Justice Thomas and Judge Newsom raise very interesting questions, I don’t see the standing doctrines going anywhere any time soon in any material way given how now, unfortunately or fortunately, deeply ingrained this is as compared to, perhaps, Judge Newsom’s alternative framework. I’m more interested in whether Justice Thomas and Judge Newsom might ultimately now inspire renewed interest into whether and how Article II precludes certain citizen administrative or common law challenges to the Executive Branch actions going forward and might be asserted.
Obviously, at its core, as others have reflected here today, the standing doctrine is about protecting the separation of powers from excessive congressional and judicial interference in the executive function. And I can tell you, after almost four years at the Justice Department, that is unquestionably needed. During my time, we saw some real doozies, not the least of which was the Juliana v. United States kids’ climate case, where a district court in Oregon recognized a constitutional right to a sustainable climate system and was weeks away from holding a trial about whether that district court judge in Oregon should begin managing, by injunction, the affairs of every Executive Branch agency of the United States like we’ve seen on smaller scales with wayward prisons and school systems before the United States Supreme Court ultimately intervened and told the Ninth Circuit to take a hard look at whether there really was standing there. And the Ninth Circuit ultimately concluded that there was not.
So I’m not an academic, so I can see I might have some of the details wrong. But getting back to this issue of Article II. There was, as previously noted, about a 15-year period from the amendment of the False Claims Act in the 1980s until a Vermont agency case in the Supreme Court where litigants were asserting Article II and challenging the constitutionality of the qui tam provisions of the False Claims Act. And I believe, ultimately -- I would have to double-check but -- that many of those issues or some of those issues, at least as it relates to Article II, remain open. And certainly, whether and how some of those principles might be different in that qui tam context as opposed to environmental citizen suits, I think remain to be decided.
So I need to wrap up here. But for those who are interested, for a fascinating look at this question as well as a telling peek behind the curtain of how the sausage-making is made and difficult legal and policy decisions are reached at the Justice Department, I commend you to the opinion of the Office of Legal Counsel on the constitutionality of the qui tam provisions of the False Claims Act, which published the 13 opinions of OLC 249 from July of 1989. It is a memo to the Attorney General of the United States at the time, one Dick Thornburg -- used to be my governor -- and by the then-Assistant Attorney General for the Office of Legal Counsel, who was none other than William P. Barr.
Prof. Richard A. Epstein: Bill Barr.
Jonathan Brightbill: Yes. So then-Assistant Attorney General Barr was taking issues with and disputing the views of the US Solicitor General at the time, who was none other than one Kenneth W. Starr, and invoking the views of many others who went on to other greater fame outside their service at the Justice Department such as John R. Bolton. So then, as I said, Assistant Attorney General Barr was arguing to the Attorney General that the False Claims Act qui tam suits are unconstitutional and taking issue in what turns out to be an unusually public way with the contrary views of the then-Solicitor General. But I can tell you that what you see going on in that memo is something that repeats in administration after administration.
And I’ll just limit myself to saying it occurred on some particular issues even during the last administration so -- in similar form. So I agree with Judge Newsom, ultimately, that Article II should receive another look as a potential break on how Congress and the judiciary is interposing itself into the Executive Branch. If we had more time, I could go on and talk about many dysfunctions that exist by virtue of what I think, to echo Professor Epstein, is a premature involvement by the judiciary and litigants into the affairs of the Executive Branch.
Prof. Richard A. Epstein: Comments?
Michael Buschbacher: Yeah. So let’s open up the floor. Professor Epstein, go ahead.
Prof. Richard A. Epstein: Yeah. Look, what I just heard, and I thought it was quite learned from Jonathan, is why it is that the Trump administration is opposed to citizen suits because it knows it’s not going to bring those suits themselves. But this has to be a doctrine for all seasons. And so now, we have the Biden administration, which, in my view, issued -- and I just wrote about this -- one of the dumbest memos about how we’re going to use the disclosure laws in order to force people to talk up about these situations. It’s bad from so many points of views, you can’t begin to count. So if we treat this as an Article II issue, now what we do is we bring the same ridiculous lawsuits about global warming that were brought by private parties, and now we do it through the Executive Branch. And if the only thing we’re doing is treating this as, essentially, a standing issue, all those defenses are just gone. The Biden administration can do it.
I’m much more interested in the substance, and it seems to me that the kind of suits that we’re talking about are dumb whether they’re brought by the government or whether they’re brought by a private party. The arguments associated with prematurity coming much too soon and asking relief which is much too extensive is, in fact, the standard kind of argument that you can make in any case involving equitable jurisdiction—i.e. where you seek some form of injunctive relief. And so I’m very uneasy about putting all my eggs in the standing basket because then I cannot control what I regard as a very serious menace, which is the Biden administration’s position -- well, of just about everything. I mean, I can’t think of a single thing they do which I regard as minimally coherent in any of the areas in which I work, and I work in a lot of areas. And so, I think, in effect, that what we really have to do is to recognize that the limits of judicial capacity are there, and I think that’s fine.
Then the next problem comes. The Biden administration says, “We’re not going to go to court. What we’re going to do is we’re going to pass the statute, and we’re going to force it.” And they get the statute through, and it does exactly the same thing. I have exactly the same problems with respect to that. There are certain kinds of situations where it’s just not handable even through an administrative kind of process. And so if you’re trying to figure out with global warming how it is that each and every firm is going to be fined for its contributions to this, that, or the other thing, I regard that as a complete fool’s errand.
Now why do I do this? I’m just going to mention one other thing -- is there is a kind of a sacred creed which I dissent from that, somehow or another, if you really want to deal with climate change, carbon dioxide is the culprit, and maximum effort should be done with that. I regard that as just bad science from start to finish. If you’re trying to figure out even the most simple question about what determines climate, water vapor is a factor which is probably 75 to 100 times more potent than carbon dioxide, and we know that every day because when the clouds come up, the land gets cold. Nobody says, “Oh my god. It really is hot today because we have an excess of carbon dioxide.” Well, they’re norms. And so I think, in effect, what you have to do is to rethink this all the way down.
And in general, my long-term position is that using all of the various kinds of procedural tools to try to control things in a way which I think by implication is we don’t look at the merits, is never going to work. I think, ultimately, to deal with these issues, we have to look at the merits. And the tragedy is the current Supreme Court is very hostile to that approach. They didn’t do a single thing about Covid that dealt with the science of the disease. It was all straight administrative law. And I think we’re going to get ourselves into very serious troubles if we do not try to address these kinds of issues in every single form where they’re available to see whether or not the science and the kind of relief we’re talking about is amenable to either judicial, executive, or legislative action. I’ll leave it at that for the moment.
Michael Buschbacher: Any other reactions from the panelists to the remarks we’ve heard?
Prof. Richard A. Epstein: Come on, Robin.
Prof. Robin Craig: Yeah, I’ll throw in --
Michael Buschbacher: Excellent.
Prof. Robin Craig: -- first of all, standing is broader than climate change which has—I will agree with Richard, although I probably would come out on the opposite side of most things—unique features that flummox typical lawsuits. However, to go back to Massachusetts v. EPA and to point out of what Justice Thomas and Judge Newsom were getting at in their respective opinions, Massachusetts v. EPA was arguably a pretty simple case for getting to the merits. There was a petition. Does the Clean Air Act cover greenhouse gases? Yes. No.
Prof. Richard A. Epstein: No. Carbon dioxide. There’s a big difference.
Prof. Robin Craig: Well, carbon dioxide is a greenhouse gas. But yeah. I mean, there were --.
Prof. Richard A. Epstein: But so is sulfur dioxide and nobody doubts that that’s covered.
Prof. Robin Craig: Right. So sulfur dioxide is covered. But anyway, there were more than just carbon dioxide in the lawsuit. But the point is, there was a petition to the EPA. The petition was denied. Can you appeal that? I mean, this is where the Justice Thomas logic makes perfect sense. Yes. All right. You think they were wrong. You should be able to appeal to that. Why are we going through a convoluted standing analysis to say you have a cause of action? You personally were affected by that decision. It was your petition. Go for it. And I think his gut-level approach to injury in TransUnion also resonates with a lot of people, too.
But when you get into other types of lawsuits where the remedy you’re asking for in the climate change cases is that a government engage in wholesale regulation, I think the remedy raises constitutional problems. However, even then, I would prefer that the courts articulate why the remedy is problematic rather than articulate why these particular plaintiffs shouldn’t be in court, which in Juliana, I think was a little -- manipulating standing to get a result when, I think -- I agree with Richard. I think the courts have been avoiding a lot of merits issues that actually need to be decided so that everybody knows what the rules of the game are. And also, to Richard’s point, who has responsibility for dealing with it? If we’re not going to allow these kinds of lawsuits, then it’s pretty clear that the responsibility is in the Legislative and Executive Branches and move forward. But like I said, I think it’s important to remember the standing context – or, the standing doctrine affects a lot of different lawsuits in a lot of different kinds of contexts in a lot of different administrative, statutory, and common law postures that require some simpler rules.
Prof. Richard A. Epstein: Yeah. Look, I’m going to say the following thing. I fought the EPA stuff. I’m not worried about the standing. I think if you try to look at the statutory scheme and explain why carbon dioxide is a pollutant, that is against everything else that’s on the list—nitrous oxide, SO2, and so forth. It just simply doesn’t work. I mean, first of all, it’s the only pollutant in the world which, if you drive its consumption to zero, life ends on earth. So you can’t say that carbon dioxide as such is a pollution. You have to specify some level above which you cannot go before it becomes a pollution. We don’t know what that number turns out to be.
There are many people who are serious on this who are saying, “If you’re worried not so much about greenhouse gasses but about photosynthesis, the optimum level of carbon dioxide is not 400 parts per million, it’s 700 parts per million, and that, in fact, the greening that is taking place in the last 30 years on the earth is probably much more attributable to the rise in carbon dioxide than any disability associated with greenhouse gases.” I think somebody has to talk about that. But the other point is, that was a case in which Justice Stevens thought it was imperative upon him, with science which was quite terrible, to force the administration to issue an order explaining why it is that carbon dioxide is a pollutant. That’s a very different thing from the normal type of situation. And what made it so crazy is, if you start looking at the quantities that are involved with every pollutant you saw having minimum quantities and so forth, and if, in fact, a major facility is judged by the amount of emissions, under the rule without some alteration, virtually everybody who owns a single-family home, everybody who exhales every day is, in fact, a pollution source subject to regulating on the government.
So what they had to do to make the statute work was to change the quantity provision associated with its operation. And so, the argument on this one is, “Look, I’m going to fight virtually everything that this Congress is going to do on the merits.” But I think, at the very least, one can say, “Trying to whip-saw this stuff into a statute which didn’t cover it is not preferable to a situation of having a carbon-dioxide-specific statute which we could then try to figure out how we evaluate with respect to its merits. on which --” Robin and I may disagree on the science, but at least I think we’re in the right place on that stuff -- whereas, in this case, doing it in this particular fashion, all we saw is that Justice Stevens was very sore that when Brown and Williamson came down, they didn’t say that the FDA had the power to regulate tobacco. This was a terrible dissent, as was the situation of Bryer. And now, he’s trying to get even by distinguishing a case which completely cuts in the opposite direction.
So this was not the finest hour of the Supreme Court on that, and again, I think Robin’s right. You have to look at the substance no matter what the forum. And the constant effort to use procedural devices to avoid this means that you don’t get any understanding by anybody anywhere. And that can’t be the way to run a very complicated scientific system of regulation.
Michael Buschbacher: Unless there are any further responses, I have a question or two I’d like to ask, and we’ve got some good questions queued up in the chat as well that I’ll get to.
Prof. Richard A. Epstein: Shoot.
Michael Buschbacher: So one of the interesting puzzles I think that the founders got wrong is the incentive structure for regulation and thinking that Congress would really want to be in charge of stuff. Turns out that there’s a strong incentive to not make decisions that could then be brought up to say that you did a bad job and maybe you should lose your job as a Congressperson or as a senator. And it seems to me that’s behind a lot of the pressure that we see in a number of different areas, which is Congress doesn’t act, or it acts in generalized ways, or it acts by deputizing citizens. And it creates a situation, I think, where you have not only suboptimal policies, but you’ve got a sort of decision structure where you’ve got people who aren’t particularly good at making these kinds of decisions making them, whether -- I think we can all agree that national environmental policy is something that should be decided nationally, and it shouldn’t be decided by a single court as in Juliana or something like that.
So I’m just curious what the -- if we’re going to be critical of standing—and I think we all have, to some extent, expressed criticisms of the Court’s standing jurisprudence—what other things might -- sort of structural constraints might be appropriate? And I’ll go ahead and advance one that I think Justice Kennedy floats in his Laidlaw concurrence where he says, “Listen, this isn’t a standing or a mootness issue. I think there’s an injury, but maybe we should look at this again in some other case where people raise arguments about just pure separation of powers.” So maybe Jon is right that standing doctrine is not going away. But might it be the case that adding some additional kind of separation of powers constraints might set up the incentives in a different way to encourage decision-making by the folks who are in kind of the right place to make decisions?
Prof. Richard A. Epstein: But not if the government turns out to be the mischief-maker. I mean, this is fine -- look, if Jon is running the EPA or everything in Washington, I’m quite happy to let the government do it. In fact, I wrote a fairly extensive defense of the Trump administration’s environmental rules with respect to global warming and other situations. But my God, when you get the other guys coming in, I just don’t have that. And to me, they’re just wrong on the merits—wildly over productive. I mean, look, I have a debate with my colleague, Ricky Revesz -- just a simple point. He says, “We need bold moves, which is to switch everything over to solar and to wind,” as opposed to improving natural gas.
Now, I think that’s a serious debate. I regard the idea that you could run this whole system out of two untested technologies with massive disabilities as just madness. It’s not that I’m going to ban anything, but I’m going to apply the same rules to them I do to everything else. If you cover ground and that’s normally going to create genuine dislocations to habitats and stuff, the Endangered Species Act applies to them as it does to everything now. If you’re going to send out wind terminals that create noises and kill birds, again, you have the same kind of constraints that are going to apply with respect to those. But a general proposition that carbon dioxide is so bad, meaning that we have to shut down fossil fuels and do everything else, is, I think, just the height of irresponsibility. Now Robin, I mean, I regard you as a center-left guy, and I’m a center-right guy on these things, but you wouldn’t want to put all your eggs in one basket, would you, on energy?
Prof. Robin Craig: No, for a variety of reasons. And I agree. If we’re going to have a national climate policy, it should be a national policy, and it should be preferably done by Congress, although I share -- I mean, our system was set up to inhibit action by Congress, and we’re at a moment when we need action by Congress and have some other factors going as well. But on the carbon dioxide issue, yeah. We need some changes to the energy system, but it has to be broad. Hydropower is not going anywhere. Nuclear is apparently coming back. But that ideally should be a decision for Congress or Congress in conjunction with some delegated authority to particular agencies, not something that standing doctrine can get to immediately, which is the focus of this. So yeah, I’m all for diversification. But like I said, that is off topic from standing, so --.
Prof. Richard A. Epstein: Yeah. But the point is, it’s the only topic really worth debating. I mean, Jonathan, do you agree with the --.
Michael Buschbacher: I think that the point -- well, go ahead, Jon.
Jonathan Brightbill: Go ahead, Richard. I’m sorry. You were asking --.
Prof. Richard A. Epstein: I was just going to ask you, when you were in the Trump administration, were you trying to put all your eggs in one basket? Or were you trying to use some degree of diversification on energy supply?
Jonathan Brightbill: Well, look, so I was in the Justice Department, the Environment Division. Right?
Prof. Richard A. Epstein: Yeah.
Jonathan Brightbill: So we were not policymakers. We were defending what came to us. But certainly, we were defending policies across the range of energy options, and that was a significant desire and policy goal of the administration as a whole. And circling back, of course, to standing, I think that one of the things that is -- there seems to be some consensus here on this panel is it is a doctrine that is both overbroad and, perhaps, also not broad enough depending on particular cases and scenarios here. I, for one, as a younger lawyer and as a practitioner, took standing as kind of served up in a handful of Supreme Court cases that were taught to me when I was in law school in the late ‘90s and then as it continued to evolve.
But it’s interesting to go back and look at how really recent the modern standing doctrine is and then its lack of textural hook and then also all of the various exceptions that have been kind of attached to this thing in order to make it continue to work as something that allows cases that in the eyes of the judiciary, should get heard to go forward while at the same time bouncing other cases that in the eyes of the judiciary and whoever those judges are at the time -- they have some kind of gut reaction that it shouldn’t go forward. And that seems to be what’s happening on many of the marginal cases -- is that when you start to get into these hard questions, it’s very, very judge determinative as to whether or not they may find standing, and that reveals a doctrine that perhaps needs some additional work or analogs. And like I said, I think perhaps a reconsideration of Article II, as Judge Newsom has suggested, is in order.
When you look back at, say, the Summer v. Earth Island case, the 1992 Lujan cases -- I mean those are cases that I think that there is -- when I think about the breadth of what those are and the nature of what the allegations were by the plaintiffs and what they were trying to do, those were instances where there seemed to be a desire to intervene at a very early, premature, and sensitive level in what it was that the Executive Branch was going to do. It’s amazing to me. And one of the things that I was really, really surprised by serving at ENRD was the number of citizen suits and then mandatory duties and discretionary -- where there really ought to be discretionary -- but the number of mandatory duty lawsuits and injunctions piled on top of injunctions for missed deadlines under the Clean Air Act and the Clean Water Act --
Prof. Richard A. Epstein: Yeah. Crazy.
Jonathan Brightbill: -- that were imposed by Congress in the 1970s when administrative procedures and litigation weren’t nearly as involved, expensive, and expansive as they have subsequently developed to be, requiring more and more effort by the Executive Branch in order to take any agency action whatsoever now with the number of litigants out there. And therefore, you just have -- and at the same time, Congress hasn’t provided EPA or any other federal agencies, really --
Prof. Richard A. Epstein: The resources.
Jonathan Brightbill: -- the resources. Yes. The resources that would be necessary to keep up with these deadlines. And so, you have a really dysfunctional arrangement on a variety of environmental and natural resource program areas where you’ve got just injunction after injunction and mandatory duty after mandatory duty, layered on top of each other in such a way that you don’t have the Executive Branch. And I’m going to refer to the Executive Branch now in the least partisan and just -- credit to the many just want to do right by the people—civil servants that I spend time with. Those people cannot set priorities in a reasonable and rational way across the range of pollutants and species and just across the programs that really are needed. But instead, you have the circumstance where the most sensationalized pollutant of the day or the cutest critter of the week is the one that is the subject of the lawsuit and that is getting the priority vis-à-vis the Executive Branch agencies even though, if you took a step back and let the Executive Branch do what it needed to do, the priorities really ought to be set in other ways.
Prof. Richard A. Epstein: We should take questions or something.
Michael Buschbacher: Yeah. So let me turn now to a couple audience questions we have here in the chat. So here’s one from one -- I actually can’t see the name, but I’ll just read it. “Granting that the precise scope of the standing doctrine is extremely difficult to articulate over the wide range of factual scenarios in which it can occur, I’d like to question the idea,” says the commenter, “that standing is an imagined doctrine from a constitutional perspective. Isn’t standing or something like it implicit in the Constitution’s grant of a judicial power to the third branch of government? How else are federal courts to distinguish between their role as courts from the roles of their coordinate branches? And isn’t this what Federalists ’78 had in mind when it refers to the courts as being the weakest branch and having only the power of judgment?” In other words, I think this is the question of advisory opinions. If you’re not having standing, what’s the line?
Prof. Richard A. Epstein: Well, advisory opinions are not involved in any of these cases. And in fact, if you were to go into anywhere else other than an Article III court, all of these cases would be decided in favor of allowing standing, and most of them would be tossed out on other grounds. And so, what happens with our standing doctrine, it’s so ineptly done, when you put redressability into standing, it’s not a standing question anywhere else on the face of the civilized world. It’s a question of whether or not an equitable remedy is something that can be managed. If so, you give it; if not, you don’t give it.
So to give you the simplest case, a court of equity would generally not give a specific performance of a straight employment contract because of the difficulties associated with supervision. Now if it comes out that you’re trying to figure out, “Well, let’s manage the entire economy through this,” that’s going to be even more. But some would say, “Well, you have to do things.” Well, maybe then you have to use a magistrate to start to deal with it. But all of these questions have nothing to do with standing. They have to do with judicial management, and the great tragedy is putting all this stuff into one word means you never get a candid discussion of any of the relevant issues.
So keep out advisory opinions. There hasn’t been one sought since John Jay did it back in the -- or they did it back before John Jay in 1794, or whatever it was. That’s just a classic -- right not to give advisory opinion, but nobody’s asking for an advisory opinion in any of the cases that have been brought. Have they? I can’t think of any. I think what Jonathan said is not that they’re asking for advisory opinion, they’re so bossy, what they’re doing is they’re sending you to multiple commands that you don’t have the time to recharge and inconsistent command, which means that if you’re violated by one of these things, you’re necessarily going to be violated by somebody else. And you cannot have an administrative system which just creates right after right after right and never figures out how these things are to be reconciled with one another. There’s kind of a promiscuity of environmental regulation, I think, which really has to be tamped down.
Michael Buschbacher: So Professor Craig, I think you might point to the Supreme Court’s recent consideration of West Virginia v. EPA as something that might run into an advisory opinion sort of scenario. I’m curious if you have any thoughts on that. That’s not my own view, but you --
Prof. Robin Craig: Yeah.
Michael Buschbacher: -- and I have chatted about it.
Prof. Robin Craig: Yeah. I think you can frame it that way. It’s certainly an unusual posture—unusual set of circumstances. And there are different ways that the stay is characterized that influence whether you think it’s an advisory opinion or not. But one way to look at it is the people who won below are seeking who knows what to have a rule that was declared invalid. If they wanted that resurrected, okay fine. That’s a straight-up administrative law case. But the attention seems to be on the Clean Power Plan. And like you said, that kind of depends on factually and legally what the status of the stay is, in your opinion. I have read at least five different characterizations of it.
But if the Clean Power Plan is clearly dead and the ACE rule that they fought against below is also dead, what actually are we deciding? Like said, if the court decides to go into standing, I think they’re actually better to go into mootness. But if they decide to go into standing, it will be interesting to see how they thread that needle and how it reconciles with any other opinion on standing they’ve issued recently. So like you said, I think it’s an interesting issue, but key to it all is how you interpret that stay of the Clean Power Plan, and that may be one of the issues they get to or not. So we’ll see.
Prof. Richard A. Epstein: Yeah, but that’s because --.
Jonathan Brightbill: I could not disagree more. I mean I just -- I think it’s a layup of a standing case. There’s no issue of mootness. I mean, if you go back and you read that decision from the DC Circuit, they held that the Clean Power Plan was legal or could have been legal, and therefore, it was not properly repealed, and you could not move to the ACE rule rationally since the entire basis for moving to the ACE rule was that you could not do the Clean Power Plan in terms of moving from the CPP to ACE. And that’s it. That was the whole entire basis for the DC Circuit’s decision.
And the West Virginia folks and the industry supporters there -- they want the ACE rule. They want the ACE rule because the ACE rule recognizes federalism. The ACE rule does not require states and industries to enter into cross substantiation. It’s situations where you’re going to have to be buying credits from one state that are then paid for by the consumers in your own state, therefore subsidizing the states that have built wind and solar already. They want the ACE rule. And where the record stands is, if the Clean Power Plan decision at the DC Circuit is vacated—that was the sole entire basis at this point for vacating the ACE rule -- they didn’t get onto any other issues that were raised and argued. The ACE rule is back. They are redressed. End of story.
Prof. Richard A. Epstein: Well, let’s hope it’s that way. But I think what happened is that the deliberate -- I thought the District of Columbia decision in that case was almost a pathological study in conscious ambiguity. They didn’t tell us what they really wanted to do, which is why everybody is starting to argue about this. I thought that the Clean Power Plan went way beyond the scope. I thought everybody who said that when you’re talking about a system, you’re talking about a system of regulation and their subsystems. So you have a system of how you control everything in the house. You have an air conditioning system and everything and so forth. But the idea that you’re talking about an ecosystem as the relevant unit, which is what they said, struck me as being beyond absurd in terms of the way in which the structure of the act worked.
So I think the options are this. The Clean Power Act has to go—Power Plan has to go because it’s beyond the scope of the section. Then the question is, does the ACE act stand? If you’re trying to say that this thing was arbitrary and capricious, which she did say, then presumably, she’s saying it was void. And I think what you should do is just basically reverse it. Often, being arbitrary and capricious is probably the preferable interpretation, at which point, I think, Jonathan, you win. But God knows whether or not they’re going to end up there because look at the mess they made in Transamerica. What gives you confidence they’re going to get it right as a uniform body here? We’re just about done on time, right?
Michael Buschbacher: Yeah. I’m afraid we are. So I really wish we could get to more of the questions. And I have really enjoyed this conversation. And I want to thank you all and The Federalist Society for putting this on and for participating. And maybe we can have a follow-up conversation at some point in the future and talk about all of these very interesting issues because I certainly have enjoyed it. So thank you.
Jonathan Brightbill: Thank you.
Prof. Robin Craig: Thank you.
Prof. Richard A. Epstein: Thank you. Good to see everybody. And thank you for putting it together. You almost needed an hour and 15 minutes for this one.
Guy DeSanctis: Yes. Thank you. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at email@example.com. As always, keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.