1 127 S.Ct. 1438 (2007).

2 Petition for Rulemaking and Collateral Relief Seeking the Regulation of Greenhouse Gas Emissions from New Motor Vehicles Under §202 of the Clean Air Act (Oct. 20,1999) (submitted by Int'l Center for Tech. Assessment to Hon. Carol Browner, EPA), at <http://www.icta.org/doc/ghgpet2.pdf>.

3 After strenuous lobbying by utilities, automakers, industry associations, and labor unions, the Senate enacted a resolution urging the president not to agree to any climate change convention that (like the Kyoto Protocol) did not include binding targets on developing countries. S. Res. 98, 105th Cong., 143 Cong. Rec. S8113 (1997) (enacted). The Kyoto Protocol is not without its critics, even from those sympathetic to aggressive actions to forestall or mitigate climate change. See, e.g., David, G. Victor, The Collapse of the Kyoto Protocol (2004)Google Scholar; Warwick, J. Mckibben & Peter, J. Wilcoxen, Climate Change After Kyoto: Blueprint for A Realistic Approach (2002)Google Scholar; Joseph, E. Aldy, Scott, Barrett, & Robert, N. Stavins, Thirteen Plus One: A Comparison of Global Climate Policy Architectures, 3 Climate Pol'y 373 (2003)Google Scholar.

4 Although the Court has conceded that the notion of parens patriae is not a model of clarity, it defines it as standing grounded in a “quasi-sovereign interest,” which the Court characterizes as “the set of interests that a State has in the well-being of its populace.” To justify a claim of parens patriae standing, a quasi-sovereign interest “must be sufficiently concrete to create an actual controversy between the State and the defendant.” Alfred, L. Snapp & Son, Inc. v. Puerto Rico ex. rel. Barez, 458 U.S. 592, 602 (1982)Google Scholar.

5 Control of Emissions from New and In-Use Highway Vehicles and Engines, 66 Fed. Reg. 7,486 (Jan. 23, 2001).

6 Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922 (Sept. 8, 2003).

7 Id. at 52,925-29.

8 Id. at 52,929-31.

9 Massachusetts v. Envtl. Protection Agency, 415 F.3d 50, 58 (D.C. Cir. 2005); see also id. at 59-61 (Sentelle, J., dissenting in part and concurring in the judgment); id. at 61-82 (Tatel, J., dissenting).

10 126 S.Ct. 2960 (2006).

11 S. Const. Art. Ill, §2.

12 Cf.Arnett v. Kennedy, 416 U.S. 134, 154 (1974).

13 Quoting Declaration of Karst L. Hogeboom, 2 Petitioners' Standing Appendix, Massachusetts v. Envtl. Protection Agency, 415 F.3d 50 (D.C. Cir. 2005) (No. 03-1361).

14 42 U.S.C. §7521 (a)(1) (2000).

15 See supra text accompanying note 14.

16 Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990); see Ann, E. Carlson, Standing for the Environment, 45 Uclal. Rev. 931 (1998)Google Scholar.

17 Scholarly dispute still exists as to exactly what Lujan did to the law of standing. Cass Sunstein has observed that” [r]ead for all it is worth, the decision invalidates the large number of statutes in which Congress has attempted to use the ‘citizen-suit' device as a mechanism for unlawfully inadequate enforcement of the law.” Cass, R. Sunstein, What's Standing After Lujan? Of Citizen Suits, ‘Injuries'and Article 111,91 Mich. L. Rev . 163, 165 (1992)Google Scholar (footnote omitted). The basis for this observation is that Justice Scalia's opinion for the Court in Lujan appeared to draw a sharp distinction between someone suing to challenge agency action against herself (in which case she has standing), and agency action (or lack thereof) against someone else (in which case she does not). In fairness, one must acknowledge that the Court has not read Lujan for all it is worth. See, e.g., Bennett v. Spear, 520 U.S. 154 (1997) (upholding standing in a case whose remedial theory closely resembled that in Lujan). Still, “it would not be difficult to describe the path of the Supreme Court's standing jurisprudence … as validating Justice Scalia's basic premise.” Jerry, L. Mashaw, Richard, A. Merrill, & Peter, M. Shane, Administrative Law, The American Public Law System 1073 (5th ed. 2003)Google Scholar.

18 412 U.S. 669 (1973).

19 See, e.g., Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519 (1978); Melnick, R. Shep, Regulation and the Courts: The Case of the Clean Air Act (1983)Google Scholar.

20 Justice Kennedy Fulfills Role as Key but Elusive Environmental Vote, 18 Clean Air Rep. 14 (July 12, 2007)Google Scholar; see also Erwin, Chemerinsky, The Kennedy Court: October Term 2005, 9 Green Bag 2d 335 (2006)Google Scholar.

21 Jonathan, H. Adler, Warming Up to Climate Change Litigation, 93 Va.L. Rev. in Brief 61 (2007)Google Scholar, at <http://virginialawreview.org/page.php?s=content&p=archives>; Jonathan, Z. Cannon, The Significance Massachusetts v. EPA , 93 Va. L. Rev. in Brief 51 (2007)Google Scholar, at <http://virginialawreview.org/page.php?s=content&p=archives; Ronald, A. Cass, Massachusetts v. EPA: The Inconvenient Truth About Precedent, 93 Va. L. Rev. in Brief 73 (2007), at <http://virginialawreview.org/page.php?s=content&p=archives>Google Scholar.

22 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 611 (1982).

23 See supra text accompanying notes 11-13.

24 It should be noted that Justice Holmes, who first defended parens patriae standing on these grounds, was a veteran of Antietam and Fredericksburg. See White, W. Edward, Supreme Court Justice Oliver Wendell Holmes: Law and the Inner Self 56-57, 59 (1993)Google Scholar. For him, the prospect of one state invading another was hardly hypothetical.

25 This question suggests another: whether any litigant could challenge administrative enforcement practices judicially. In Heckler v. Chaney, 470 U.S. 821 (1985), Justice Rehnquist's opinion for the Court recited that agency refusals to enforce are “presumptively unreviewable.” Id. at 832. But a presumption is not an absolute: the Court did seem to create an exception if the agency “has consciously and expressly adopted a general policy” of nonenforcement. M at 833 n.l (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc)). The question turns, instead, on the nature of what the governing statute tells the agency to do. See, e.g., Center for Auto Safety v. Dole, 846 F.2d 1532 (D.C. Cir. 1988) (reviewing refusal of transportation secretary to reopen safety defect investigation); see also Ronald, M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L. Rev. 689, 777 (1990)Google Scholar (“[L]ower courts have consistently deflated the expansive overtones of the opinion. They have exploited to the utmost all intimations of liberality in Chaney itself, and have fashioned additional restrictions of their own.”).

26 See Daimler Chrysler Corp. v. Cuno, 126 S.Ct. 1854 (2006) (holding that that both in-state and out-of-state residents who might have been injured by the Ohio Investment Tax Credit lacked standing). The Court did note that the question remains open as to whether a business taxpayer that suffered as a result of the Ohio Investment Tax Credit would have standing to sue. Suffice it to say that the language of the Cuno cases, in addition to the Court's previous jurisprudence, casts doubt on the availability of standing to business competitors.

27 Declaration of Independence, para. 1 (U.S. 1776).

28 See Charles, L. BlackJr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 424 (1960)Google Scholar.

29 Bush Will Not Budge on Kyoto, Guardian (London), July 18, 2001, at 10 Google Scholar; U.S. Won't Follow Climate Treaty Provisions, Whitman Says, N.Y. Times, Mar. 28, 2001, at A19. Even though the Bush administration agreed not to disrupt the international consensus at Bali, it still rejects any binding commitments in international climate change negotiations. See Elliot, Diringer, Testimony Submitted to the Senate Committee on Foreign Relations, Jan. 24, 2008 (“Regarding International Climate Change Negotiations: Bali and the Path Toward a Post-2012 Climate Treaty”)Google Scholar, at <http://www.pewclimate.org/testimony/diringer/01.24.08>. Diringer is director of international strategies for the Pew Center on Global Climate Change.

30 Katharine, Q. Seelye, President Distances Himself from Global Warming Report, N.Y. Times, June 5, 2001, at A23Google Scholar; Paula, Dobriansky, Only New Technology Can Halt Climate Change, Comment, Fin. Times (London), Dec. 1, 2003, at 19 Google Scholar; Cheney on Global Warming: Vice President's Views at Odds with Majority of Climate Scientists (ABC News television broadcast, Feb. 23, 2007)Google Scholar (interview by Jonathan Karl with Vice President Dick Cheney), available at <http://abcnews.go.com/Technology/story?id=2898539&page=1>.

31 15 U.S.C. §2901 note (2000).

32 Daniel, Pruzin, China “Will Not Accept' Emissions Limits; Government Adviser Cites Insufficient Data, Int'l Env't Rep. (BNA), July 11, 2007, at 553 Google Scholar.

33 See, e.g., Elizabeth, Kolbert, Field Notes from a Catastrophe 177 (2006)Google Scholar (“[China's] projected growth, most of which will be fueled by coal, overwhelms not just all conservation projects that are currently being undertaken in the United States, but also any that could be reasonably imagined.”).

34 It is inadequate to say that Congress, rather than the courts, must fix the problem. Though Congress is the institution entrusted with balancing the considerations mentioned in the text, to expect it to do so places great, possibly unwarranted faith in legislative rationality. Furthermore, because determinations of diplomatic necessity must be made on a case-by-case basis, no adequate, general legislative solution is possible.

35 5 U.S.C. §706(2)(E) (2000). In addition, under section 706(2)(A), courts can invalidate agency action that is “arbitrary and capricious.” At least one well-placed source has noted that “the arbitrary and capricious standard itself would probably be violated by a determination made on the basis of insubstantial evidence.” Antonin, Scalia & Frank, Goodman, Procedural Aspects of the Consumer Product Safety Act, 20 UCLA L. Rev. 899, 934 (1973)Google Scholar.

36 Sarei v. Rio Tinto PLC, 221 F.Supp.2d 1116 (CD. Cal. 2002), aff'd, 456 F.3d 1069 (9th Cir. 2006), vacated, No. 02-56256 (9th Cir. Apr. 12, 2007), petition for rehearing en banc granted (9th. Cir. Aug. 20, 2007). In Sarei, the district court solicited a statement of interest from the State Department concerning the potential effect of the litigation on U.S. foreign relations. The State Department's response was a factor in the court's dismissal. See Letter from William, H. Taft IV, Legal Adviser, U.S. Dep't of State, to Robert, D. McCallum Jr., Asst. Att'y Gen., Civ. Div., U.S. Dep't of Justice (Oct. 31, 2001)Google Scholar, at <http://www.state.gov/documents/organization/16529.pdft> (setting forth State Department's position for presentation to district court).

37 Richardson v. Perales, 402 U.S. 389, 401 (1971).

38 For both proposals, see Jagdish, Bhagwati & Petros, C. Mavroidis, Is Action Against US Exports for Failure to Sign Kyoto-WTO Legal? 6 World Trade Rev. 299 (2007)Google Scholar.

39 See, for example, the careful legal analysis in Joost, Pauwelyn, U.S. Federal Climate Policy and Competitiveness Concerns: The Limits and Options of International Trade Law (Nicholas Inst, for Environmental Policy Solutions, Working Paper, Apr. 2007)Google Scholar, at <http://www.nicholas.duke.edu/institute/internationaltradelaw.pdf>.

40 A Pigouvian tax—named for the British economist Arthur Pigou (1877-1959), who originated the concept— is one intended to mitigate the negative externalities of a market activity by making the activity more costly for the market participant. In the present case a Pigouvian tax on a polluter would raise the cost of the polluting activity, leading to its curtailment and thus to a reduction in pollution.

41 Pauwelyn, supra note 39, at 40.

42 The centrality of the notion of good faith bargaining to the Wagner Act is detailed succinctly and clearly in NLRB v. Ins. Agents' Int'l Union, 361 U.S. 477 (1960).