Lawrence Hurley writes in Reuters about how the four dissenting Justices in Massachusetts v. EPA may consider Texas v. United States:
The justices could decide as early as January on whether to hear the dispute during their current term, which runs through June. If they do, they would have to decide how much weight to give the court’s 2007 decision in a major environmental case.
The court was split on ideological lines in ruling 5-4 that Democratic-leaning states led by Massachusetts could sue Republican former President George W. Bush’s administration in a bid to spur U.S. action on climate change. The ruling eventually led to the Obama administration issuing the first-ever U.S. greenhouse gas emissions regulations.
In that case, the liberal justices voted in favor of the states and conservatives dissented. This time, it will be conservatives asking the court to rule that states can sue and liberals arguing the opposite. …
Seven of the current nine justices participated in the 2007 case, including frequent swing vote Anthony Kennedy, who backed the states.
Elizabeth Wydra, a lawyer with the liberal Constitutional Accountability Center, said conservative and liberal justices alike will be concerned about “courts becoming the battlefield for political disputes” by allowing states to challenge a broad range of federal actions.
Josh Blackman, a South Texas College of Law professor who wrote a brief to the appeals court backing the challenge to Obama, said conservative justices may find the potential harm suffered by states if the president’s actions take effect is “more concrete” than the claim made by states in 2007 that were concerned by climate change’s future impact.
I discuss the standing element of the 5th Circuit’s decision here. I will elaborate on this point in some future work.