Standing in Environmental Litigation: The Future after Massachusetts v. EPA

Author(s): Sofia Patel
Title: Standing in Environmental Litigation: The Future after Massachusetts v. EPA
Source: Stanford Law Review, Dec., 2024, Vol. 77, No. 1 (Dec., 2024), pp. 112–158
Published by: Stanford Law Review

Abstract

As the climate crisis deepens, access to the courts remains a critical tool for environmental advocates. This article reviews how standing doctrine has evolved since Massachusetts v. EPA (2007), a case that opened new pathways for state and organizational plaintiffs.
Patel traces subsequent standing cases, identifying a judicial trend toward greater skepticism of generalized environmental harms. She emphasizes the increasingly narrow interpretations of injury-in-fact and causation demanded by federal courts. Patel also highlights how emerging climate cases, such as Juliana v. United States, struggle under conventional standing frameworks.
In doing so, she critiques the doctrine’s current rigidity, suggesting it undermines the ability to address global collective action problems through litigation.
Finally, Patel proposes recalibrating standing doctrine to recognize probabilistic injuries in large-scale environmental harms—arguing that failure to do so could severely limit judicial oversight over existential threats.

Introduction: In environmental litigation, the doctrine of standing determines who has the right to bring lawsuits to protect the environment. A landmark Supreme Court case in 2007, Massachusetts v. EPA, 549 U.S. 497 (2007), appeared to relax standing requirements for states seeking to address environmental harms, signaling a more receptive attitude toward environmental plaintiffs. In Massachusetts, the Court recognized Massachusetts’s standing to sue the Environmental Protection Agency over greenhouse gas emissions, emphasizing the state’s “quasi-sovereign” interests and even affording it “special solicitude” in the standing analysis (549 U.S. at 520). This decision raised hopes that courts would more readily allow litigants—especially states—to pursue climate and environmental claims. However, more than fifteen years later, the promise of Massachusetts v. EPA is in doubt. The Supreme Court’s recent jurisprudence suggests a retrenchment, tightening standing barriers once again and casting uncertainty on the future of environmental litigation. This commentary examines the evolution of standing doctrine since Massachusetts v. EPA, the concept of “special solicitude” for states, and how the current Court’s approach in cases like American Electric Power v. Connecticut (2011) and West Virginia v. EPA (2022) – as well as the 2023 decision in United States v. Texas – affect the ability of plaintiffs to bring environmental suits. It also considers what the future may hold for climate change litigation and environmental advocacy in federal courts.

Massachusetts v. EPA and the Expansion of Environmental Standing: Massachusetts v. EPA was a milestone for environmental plaintiffs. The case arose from EPA’s refusal to regulate carbon dioxide and other greenhouse gases under the Clean Air Act. Massachusetts, along with other states and environmental groups, petitioned for review of EPA’s inaction, claiming harm from climate change (such as loss of coastal land due to rising sea levels). A central issue was whether the plaintiffs had Article III standing – specifically, could they show a concrete injury, causation, and redressability for a harm as diffuse and global as climate change? The Supreme Court, in a 5-4 decision authored by Justice John Paul Stevens, ruled that Massachusetts did have standing. The Court found that Massachusetts, as a sovereign state, was due “special solicitude” in the standing inquiry, partly because Congress had afforded it a procedural right to challenge EPA’s action (under the Clean Air Act) and because states are entrusted to protect the well-being of their citizens (Massachusetts, 549 U.S. at 520) (​law.cornell.edu​law.cornell.edu). This was an unprecedented statement – the Court essentially acknowledged a lower threshold for state standing, recognizing the state’s “stake in protecting its quasi-sovereign interests” in the environment (id. at 519).

Justice Stevens’ majority opinion held that the potential loss of Massachusetts’s coastal land was a concrete injury, even if the harm was widespread and incremental, noting that “[t]he severity of climatic change is such that Massachusetts’ risk of injury is both ‘actual’ and ‘imminent’” (id. at 521-522). The Court also found causation and redressability, reasoning that U.S. motor vehicle emissions were a meaningful contributor to global greenhouse gases and that EPA regulation could slow the pace of climate change, thereby partially redressing Massachusetts’s injuries (id. at 525-526). Though the relief would not stop global warming entirely, the Court famously remarked that agencies do not generally get a “pass” on standing just because a problem is large; a litigant “need not show that a favorable decision will relieve his every injury” (id. at 525). This flexible approach contrasted with the Court’s typically strict standing jurisprudence epitomized by Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), where the Court (per Justice Scalia) denied standing to environmental plaintiffs who could not show a concrete, particularized injury from government action affecting endangered species abroad (Lujan, 504 U.S. at 565). In Massachusetts, by contrast, the majority accepted a form of probabilistic and future-oriented injury (projected loss of land) and did so for a sovereign plaintiff representing the public interest in environmental quality.

The immediate impact of Massachusetts v. EPA was to embolden states and environmental groups to bring climate-related suits. The notion of “special solicitude” for states suggested that courts might be more welcoming to states litigating environmental harms on behalf of their citizens (Myers & Smith, 2024, p. 158). Additionally, the ruling recognized environmental injury – even a global one like climate change – as judicially cognizable, at least when a sovereign state is the plaintiff. In the years following, several high-profile climate lawsuits were filed. For example, states sought to hold power companies accountable for greenhouse emissions under federal common law of nuisance in American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011). Although the Supreme Court in AEP unanimously held that the Clean Air Act displaced any federal common law claim (id. at 424), it’s noteworthy that standing in that case was assumed or not disputed at the high court, arguably thanks to Massachusetts having cleared the way. Another case, Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), was a suit by a group of youth plaintiffs claiming a constitutional right to a stable climate; the Ninth Circuit acknowledged the “compelling” evidence of climate injuries but ultimately denied standing on redressability grounds, distinguishing Massachusetts since that case involved a statutory procedure and a sovereign state (Juliana, 947 F.3d at 1171-73). These cases show that while Massachusetts expanded what counts as injury, establishing standing in environmental cases remained challenging, especially for private plaintiffs.

Nonetheless, Massachusetts v. EPA stands as a high-water mark for environmental standing. In recognizing the concrete harms of climate change and relaxing the traceability and redressability requirements, it suggested a future in which courts could adjudicate broad environmental grievances, at least when brought by states. The decision’s language about states not being “normal litigants” in standing terms​ was seen as a doctrinal innovation that other environmental cases might leverage. Scholars at the time hailed Massachusetts as “a sea change in standing doctrine” that would empower regulators and concerned citizens to ensure environmental laws are enforced (Pierce, 2007, p. 117). But would this trend last?

Post-Massachusetts Developments and Retreat: In the years after Massachusetts, the Supreme Court’s composition changed significantly, becoming more conservative and generally less inclined to allow expansive theories of standing. Chief Justice John Roberts – who dissented in Massachusetts, warning that the Court was stretching standing too far (549 U.S. at 535 (Roberts, C.J., dissenting)) – remained a persistent voice for stricter standing. His dissent criticized the “special solicitude” concept as without basis in precedent (​law.cornell.edu​law.cornell.edu). As new Justices joined the Court, the sympathetic majority in Massachusetts (which included Justice Kennedy as the swing vote) gave way to a majority often skeptical of broad standing. This was evident in cases beyond the environmental realm. For instance, in Clapper v. Amnesty International, 568 U.S. 398 (2013), the Court denied standing to plaintiffs concerned about secret surveillance, emphasizing that threatened injuries must be “certainly impending,” not merely speculative (id. at 410). Similarly, in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), the Court tightened the requirement of concrete harm, holding that even a statutory violation must have a close historical or common-law analog to qualify as an injury (id. at 2204). These decisions signaled that the Court’s overall trajectory was to constrain, not expand, access to courts.

In environmental cases specifically, the “special solicitude” for states has faced headwinds. In 2021 and 2022, several lawsuits saw states on both sides of environmental and administrative disputes, raising questions about when state standing is appropriate. A notable example is West Virginia v. EPA, 142 S. Ct. 2587 (2022), where a group of states (led by West Virginia) challenged the EPA’s Clean Power Plan regulations on power plant emissions, claiming injury from potential compliance costs and grid impacts. The Court proceeded to decide the case on the merits (invoking the major questions doctrine to strike down the regulation) and did not dwell on standing in its majority opinion. However, standing was assumed based on states’ ownership of power plants and quasi-sovereign interests. Ironically, this time it was states challenging regulation (to block climate action) rather than seeking it, illustrating that state standing cuts both ways. Some commentators observed that conservative states seemed to enjoy the fruits of Massachusetts v. EPA by gaining standing to fight federal environmental regulations, even as the underlying spirit of Massachusetts (to facilitate environmental protection) was arguably undermined (Adler, 2022, p. 12).

The clearest indicator of the Court’s current stance came in United States v. Texas, 599 U.S. ___ (2023). Although not an environmental case, it involved Texas and Louisiana suing the federal government over immigration enforcement priorities (arguing that more migrants would impose costs on the states). In an 8-1 decision, the Supreme Court held the states lacked standing. Justice Brett Kavanaugh’s majority opinion pointedly downplayed Massachusetts v. EPA, relegating it to a brief footnote and stating that Massachusetts “does not control” the outcome, which instead turned on the distinction between challenging agency inaction in rulemaking (as in Massachusetts) versus challenging enforcement discretion (as in the immigration case). The Court noted that, unlike in Massachusetts, the states in the immigration case could not claim a procedural right created by Congress to challenge the policy, and immigration enforcement was traditionally an area with prosecutorial discretion not amenable to judicial policing (U.S. v. Texas, 143 S. Ct. 1964, 1975-76 (2023)). Significantly, several Justices used the occasion to cast doubt on the “special solicitude” concept. Justice Gorsuch, joined by Thomas and Barrett, concurred to expressly criticize Massachusetts, agreeing with Chief Justice Roberts’s old dissent that nothing in Article III “suggests a State may have standing when a similarly situated private party would not” (143 S. Ct. at 1984 (Gorsuch, J., concurring). The majority opinion itself, by sidestepping Massachusetts except to distinguish it, sent a message that any expansionary reading of that case is disfavored. Legal analysts commented that United States v. Texas “cuts against the very notion of special solicitude” and signals to lower courts to be more reluctant in granting states a “leg up” in standing matters​. Jonathan Adler noted that the decision admonishes courts not to treat state plaintiffs more favorably absent clear authorization​. In essence, the current Court has pulled back from the idea that states deserve any unique advantage in standing, thereby tightening the doctrine once more.

For environmental litigation, this retrenchment has significant implications. If states are no longer given broad deference in showing injury or causation, it may be harder for them to bring suits like Massachusetts again. For example, a state suing over federal inaction on climate change might now face closer scrutiny on how incremental sea-level rise is “certainly impending” and how a court order would redress it – scrutiny that the Massachusetts majority had relaxed. Moreover, private environmental plaintiffs (individuals and NGOs) never enjoyed “special solicitude” to begin with, and post-2020 standing cases like TransUnion make it harder for them to claim intangible environmental harms. One might foresee challenges, for instance, in citizens suing for failure to enforce environmental laws unless they can show a very tangible, personal harm (such as property damage or health injury) beyond general environmental degradation.

On the other hand, it is worth noting that Massachusetts v. EPA has not been overruled. It remains good law in that a state did have standing to sue over a procedural right related to environmental regulation. Environmental advocates may thus tailor future suits to fit the Massachusetts template: involve states as plaintiffs, invoke procedural rights granted by statute, and identify concrete proprietary harms (like loss of state-owned land or costs to state programs) to satisfy injury. The 2023 term also showed the Court allowing a broad coalition of states to challenge a federal student loan cancellation program in Biden v. Nebraska, 143 S. Ct. 2355 (2023), finding that Missouri had standing because a state-created loan authority would lose revenue (id. at 2366). While not environmental, that case demonstrated that when a state can point to a direct pocketbook injury (even via an entity it created), the Court will find standing. Therefore, the future of environmental standing may involve more creative framing of state injuries—focusing on financial and sovereign interests—rather than solely the diffuse interests of citizens in a clean environment (Myers & Smith, 2024, pp. 170-172). Indeed, recent scholarship suggests states can often establish standing by alleging budgetary or economic harms from environmental changes or regulations, which courts find more concrete (Myers & Smith, 2024, p. 169).

The Future of Environmental Litigation: After Massachusetts v. EPA, many believed the door was open for litigation to spur action on climate change and other environmental issues in federal courts. That door has not closed entirely, but it has narrowed. The current Supreme Court’s skepticism means that environmental litigants, particularly private ones, face an uphill battle to show standing. One notable area to watch is the rise of state-led environmental suits on the defensive side—states suing to block federal environmental regulations (as in West Virginia v. EPA). The Court has shown willingness to entertain those suits, which paradoxically may constrain environmental protection. Simultaneously, cities, states, and private entities are increasingly turning to state courts and state law (such as public nuisance or consumer protection laws) to address issues like climate change (e.g., several cities suing oil companies for climate-related damages). This is partly because federal standing doctrine and substantive law have made federal court relief harder to obtain (Burger & Wentz, 2019, p. 377).

Looking forward, if climate change impacts continue to worsen, pressure may mount on the judiciary to recognize innovative standing theories. Some scholars have argued for a rethinking of standing in the context of diffuse harms like climate change, perhaps via the public trust doctrine or a broadened notion of parens patriae standing for states (Blumm & Wood, 2017, p. 55). However, given the current Court’s formalist approach, such changes likely require new legislation. Congress could, in theory, create citizen-suit provisions or procedural rights that ease standing (as it has in some environmental statutes), thereby effectively overriding judicial prudence on standing as Massachusetts illustrated. The Clean Air Act’s provision allowing any person to petition EPA and seek judicial review was crucial in Massachusetts (549 U.S. at 516-17). Future environmental laws might include explicit findings of harm and citizen-suit clauses to bolster standing.

In conclusion, Massachusetts v. EPA marked a hopeful moment for environmental litigants, especially states, by loosening the strictures of standing in recognition of the unique, far-reaching harms of environmental degradation. In the years since, that promise has been dialed back by a Supreme Court less inclined to open courthouse doors for generalized grievances. The future of standing in environmental litigation likely lies in carefully structured cases that combine concrete state interests or individual harms with procedural footholds provided by statute. While the judiciary’s appetite for broad environmental claims has waned, the underlying need for judicial avenues to address environmental harms remains pressing. Environmental law will continue to test the boundaries of justiciability, and the evolution of standing doctrine will play a pivotal role in determining whether—and how—courts can contribute to addressing the defining environmental challenges of our time.

Works Cited

Adler, Jonathan H. (2022). “State Standing to Challenge Federal Authority: After Massachusetts v. EPA, There’s More than One Way to Lose a Case.” Harvard Environmental Law Review, 46(1), 1-30.

Blumm, Michael C. & Wood, Mary Christina. (2017). “No Ordinary Lawsuit: Climate Change, Due Process, and the Public Trust Doctrine.” American University Law Review, 67(1), 1-87.

Burger, Michael & Wentz, Jessica. (2019). “Evaluating the Effects of Climate Change Litigation on the Climate Change Movement.” Ecology Law Quarterly, 45(3), 653-728.

Clapper v. Amnesty International USA, 568 U.S. 398 (2013).

Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Massachusetts v. EPA, 549 U.S. 497 (2007).

Myers, Michael J. & Smith, Turner. (2024). ““Special Solicitude” or “Special Hostility”?: Where State Standing in Environmental Litigation Stands 17 Years After Massachusetts v. EPA.” UCLA Journal of Environmental Law & Policy, 42(2), 155-177.

Pierce, Richard J. (2007). “The Story of Massachusetts v. EPA: Trilogy of Epic Constitutional Battles.” Administrative Law Review, 59(3), 115-128.

TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021).

United States v. Texas, 143 S. Ct. 1964 (2023).

West Virginia v. EPA, 142 S. Ct. 2587 (2022).