Copyright (c) 2009 Directors of The Columbia Law Review Association, Inc.
Columbia Law Review
NOTE: THE LORAX STATE: PARENS PATRIAE AND THE PROVISION OF PUBLIC GOODS
Columbia Law Review
109 Colum. L. Rev. 798
Robert A. Weinstock
In 1971, amidst America's environmental awakening, one small furry creature boldly declared: "I am the Lorax ... . I speak for the trees, for the trees have no tongues." 1 In 2007, amidst America's awakening to the threat of global climate change, one Supreme Court opinion relieved the Lorax of that duty and recognized the place of sovereign states in defending that without voice: the global commons.
The seeds of Massachusetts v. EPA were sown in 1999, when a group of nongovernmental organizations filed a petition for rulemaking with the Environmental Protection Agency (EPA), requesting that it regulate the emission of greenhouse gases (GHGs) from new motor vehicles. 2 After an active comment period, the EPA denied the petition. 3 The petitioning organizations, joined by several states and local governments, sought judicial review of that denial in the Court of Appeals for the District of Columbia, as prescribed by the Clean Air Act (CAA). 4 A divided panel dismissed the petition, with each judge writing separately. 5 Eight years after the petition was filed, the Supreme Court handed down its decision, finding the EPA's refusal to initiate rulemaking arbitrary and capricious. 6
As an initial matter, the Court declared that the Commonwealth of Massachusetts deserved "special solicitude" in evaluating whether it had standing to challenge the administrative execution of the CAA. 7 After noting that a state was "no ordinary litigant," 8 the Court proceeded to examine Massachusetts's asserted injury in the ordinary framework. 9 The resulting standing ...
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