UCLA Journal of Environmental Law and Policy

The Supreme Court’s 2007 decision in Massachusetts v. EPA marked the first time the Court had addressed the standing of states to sue the federal government in an environmental case. The Court’s holding that Massachusetts, New York, and the other petitioners had standing to sue the Environmental Protection Agency for climate change-related harms established important precedent for lawsuits brought by states against the federal government. In this article, we examine environmental litigation over the past seventeen years in which federalc ourts have considered the Massachusetts standing holding—and the Court’s instruction that states deserve “special solicitude” in the standing inquiry—in deciding whether states had demonstrated standing against the federal government. As was the case in Massachusetts, it is critical that states have the ability in our system of cooperative federalism to vindicate their rights (and the rights of their residents) in federal court. We discuss the different types of standing theories states have relied on to vindicate those rights, such as financial and quasi-sovereign injuries, and which ones have proven to be the most successful. We then highlight the recent effort to curb the well-established ability of states to use financial injury to establish standing against federal agencies, leading Justice Alito’s admonition that the Court not treat states with “special hostility.” We argue that states seeking to establish standing on financial injury grounds should not be held to a higher standard than other litigants in that showing, and we further discuss how states can rely more on quasi-sovereign interests in establishing standing in the event that standing based on financial injury is curtailed. In that vein, we revisit Massachusetts’s discussion of quasi-sovereign interests, and conclude that—consistent with the grand bargain of federalism and the fundamental notion of parens patriae (“parent of the country”)—a state should be able to sue the federal government where it is neglecting its duty under federal law to protect the health or welfare of the state’s residents. Finally, we consider how courts have interpreted Massachusetts’s instruction that states deserve special solicitude in the standing inquiry. Drawing on Massachusetts, we argue that, where states are suing the federal government to invoke the protections of federal law (including lawsuits brought by a state to protect the health and well-being of its residents), special solicitude is especially warranted.