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:
