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April 23, 2011

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Jonathan H. Adler

On Mass v. EPA, you're correct the standing discussion is not the clearest in the world, but I do think we can make sense of it as follows. The Court in Mass eased the standing burden for Massachsuetts in two ways. First, it showed "special solicitude" to recognizing that Massachusetts had suffered an injury that could justify recourse in federal courts. Second, it claimed that 42 U.S.C. s7607 created a procedural right to challenge the denial of a rulemaking petition that would justify relaxing the causation and redressaiblity requirements. Therefore, I think Connecticut can argue here that it suffered an injury just as much as Massachsuetts did, but has a harder time arguing that its injury likewise satisfies the redressability requirement.

Of course, who knows what the Court will do here. I think the oral argument gave few indications how it will justify its decision, though Justice Kennedy did seem rather eager to reach the merits.

JHA

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