The Volokh Conspiracy

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Will Massachusetts v. EPA get the Lemon v. Kurtzman quiet interment?

The landmark environmental decision may have already been abandoned.


Flash back to the October 2006 Term. It was the first full term for Chief Justice Roberts and Justice Alito. That term, Chief Justice Roberts wrote "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." And at that point, I think he actually meant it! (Stay tuned for this week). One of Roberts's most vigorous dissents that term came in Massachusetts v. EPA. That 5-4 decision held that Massachusetts had standing to challenge the Bush administration's failures to regulate greenhouse gas emissions. The decision was heralded by environmental scholars, but it always stuck out like a sore thumb among standing nerds. What exactly was the basis for the "special solicitude" of state standing? (Is that anything like the "equal sovereignty" in Shelby County?)

Jump forward sixteen years. Now, states routinely take the federal government to court over virtually every policy. Red states sued the Obama and now Biden administrations. Blue states sued the Trump administration. And along the way, Massachusetts v. EPA was a helpful precedent for red and blue states alike. But is it still good law? After United States v. Texas, the answer may not be so clear.

Let's start with Justice Kavanaugh's majority opinion. He cited Massachusetts v. EPA only once in a footnote. And Justice Kavanaugh presented the case in very negative terms:

As part of their argument for standing, the States also point to Massachusetts v. EPA, 549 U. S. 497 (2007). Putting aside any disagreements that some may have with Massachusetts v. EPA, that decision does not control this case. The issue there involved a challenge to the denial of a statutorily authorized petition for rulemaking, not a challenge to an exercise of the Executive's enforcement discretion.

Other than Chief Justice Roberts, has any member of the majority expressed any "disagreement" with Massachusetts v. EPA? Put that precedent on life support. Or is it already dead? Justice Gorsuch suggests that the lower courts should cast the case aside:

Next, the Court contends that, "when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual's liberty or property." Ante, at 6. Here again, in principle, I agree. But if an exercise of coercive power matters so much to the Article III standing inquiry, how to explain decisions like Massachusetts v. EPA? There the Court held that Massachusetts had standing to challenge the federal government's decision not to regulate greenhouse gas emissions from new motor vehicles. And what could be less coercive than a decision not to regulate? In Massachusetts v. EPA, the Court chose to overlook this difficulty in part because it thought the State's claim of standing deserved "special solicitude." I have doubts about that move. Before Massachusetts v. EPA, the notion that States enjoy relaxed standing rules "ha[d] no basis in our jurisprudence." Id., at 536 (ROBERTS, C. J., dissenting). Nor has "special solicitude" played a meaningful role in this Court's decisions in the years since. Even so, it's hard not to wonder why the Court says nothing about "special solicitude" in this case. And it's hard not to think, too, that lower courts should just leave that idea on the shelf in future ones.

I've seen this move before. In American Legion, Justice Gorsuch suggested that the Court had already abandoned the Lemon test. Then in Kennedy v. Bremerton, Justice Gorsuch instructed the lower courts to no longer follow the Lemon test.

Justice Alito, in dissent, evokes Justice Scalia's imagery of the Lemon test emerging from the grave like "some ghoul in a late night horror movie."

So rather than answering questions about this case, the majority's footnote on Massachusetts raises more questions about Massachusetts itself—most importantly, has this monumental decision been quietly interred? Cf. ante, at 3 (GORSUCH, J., concurring in judgment).

Then again, Justice Alito seems peeved that blue states can rely on "special solicitude" but not read states:

Our law on standing should not deprive the State of even that modest protection. We should not treat Texas less favorably than Massachusetts. And even if we do not view Texas's standing argument with any "special solicitude," we should at least refrain from treating it with special hostility by failing to apply our standard test for Article III standing.

Maybe "special solicitude" is already dead. I suppose Texas is a warning that lower courts cite Massachusetts v. EPA at their own peril, as some future case may deem the precedent "abandoned."