I noted that the D.D.C. in Arpaio v. Obama provided a stingy construction to Massachusetts v. EPA, claiming the injury was limited to the Bay State’s physical coastline, rather than any sovereign interests. In the government’s sur-reply it Texas v. United States, it provided a similarly narrow reading of Mass v. EPA (p. 11-12):
Plaintiffs are also incorrect when they contend that their standing “follows a fortiori” from the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007). See Pls.’ Reply at 49-50 (capitalization altered). In that case, the Court did not recognize standing based on speculative future effects, such as Massachusetts’ “generalized concern over ‘global warming,’” id. at 42, nor on the basis of state expenditures on public programs, as Plaintiffs suggested at oral argument. Rather, the Court found standing to challenge the EPA’s failure to regulate greenhouse gas emissions based on injuries to state-owned coastal property that had “already begun” and that would “only increase” in the future. 549 U.S. at 522.
The government repeats this argument:
Plaintiffs’ suggestion at oral argument that Massachusetts overruled, sub silentio, this well-established principle is incompatible with the holding of that case; the Court found that Massachusetts had standing not on the basis of an injury to its citizens’ health and welfare, but to property that the State itself owned. Massachusetts, 549 U.S. at 519-22 & n.17.
There you have it. Massachusetts v. EPA was limited to injuries to coastal property. Other than climate or environmental problems, are there any other possible injuries to states? This construction saps the case of any meaning, and disregards the focus on the “special solicitude” of state sovereignty.
On the topic of injury, the government actually argues that Massachusetts’s potential injury from climate change is more concrete than that of Texas due to DAPA:
Plaintiffs’ speculation about how third parties may respond to federal enforcement policies is also quite different, as a matter of law, from Massachusetts’ scientific modeling of the behavior of molecules in the atmosphere.
I’ll leave that here.
Massachusets v. EPA is one of those cases that started off as a way to help liberal states, and will likely go on to really help conservative states. Justice Stevens’s majority opinion, over a bitter dissent, accepted a tenuous, speculative notion of injury to confer Article III standing. Now that Texas is relying on that case, there has been a sudden retreat to narrow the scope of that decision.
(Full Disclosure: I filed a brief on behalf of Texas).