FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF CALIFORNIA; STATE OF DELAWARE; COMMONWEALTH OF VIRGINIA; STATE OF MARYLAND; STATE OF NEW YORK, Plaintiffs

- Appellees,

v. ALEX M. AZAR II, Secretary of the United States Department of Health and Human Services; U.S. DEPARTMENT OF H EALTH & HUMAN SERVICES; R. ALEXANDER ACOSTA, in his official capacity as Secretary of the U.S. Department of Labor; U.S. DEPARTMENT OF LABOR; STEVEN TERNER MNUCHIN, in his official capacity as Secretary of the U.S. Department of the Treasury; U.S. DEPARTME NT OF THE TREASURY, Defendants, and THE LITTLE SISTERS OF THE POOR JEANNE JUGAN RESIDENCE,
Intervenor

- Defendant

Appellant. No. 18

- 15144
D.C. No. 4:17

- cv - 05783

- HSG

OPINION

STATE OF CALIFORNIA; STATE OF No. 18

- 15166 

# FILED

DEC 13 2018 MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2 DELAWARE; COMMONWEALTH OF VIRGINIA; STATE OF MARYLAND; STATE OF NEW YORK, Plaintiffs

- Appellees,

v. ALEX M. AZAR II, Secretary of the United States Department of Health and Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; R. ALE XANDER ACOSTA, in his official capacity as Secretary of the U.S. Department of Labor; U.S. DEPARTMENT OF LABOR; STEVEN TERNER MNUCHIN, in his official capacity as Secretary of the U.S. Department of the Treasury; U.S. DEPARTMENT OF THE TREASURY,
D efendants, and MARCH FOR LIFE EDUCATION AND DEFENSE FUND,
Intervenor

- Defendant

Appellant. D.C. No. 4:17

- cv - 05783

- HSG

STATE OF CALIFORNIA; STATE OF DELAWARE; COMMONWEALTH OF VIRGINIA; STATE OF MARYLAND; STATE OF NE W YORK, Plaintiffs

- Appellees,

v. No. 18

- 15255 D.C. No. 4:17

- cv - 05783

- HSG3 ALEX M. AZAR II, Secretary of the United States Department of Health and Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; R. ALEXANDER ACOSTA, in his official capacity as Secretary of the U.S. D epartment of Labor; U.S. DEPARTMENT OF LABOR; STEVEN TERNER MNUCHIN, in his official capacity as Secretary of the U.S. Department of the Treasury; U.S. DEPARTMENT OF THE TREASURY, Defendants

- Appellants. Appeal s from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding Argued and Submitted October 19, 2018 San Francisco, California Before: J. Clifford Wallac e, Andrew J. Kleinfeld, and Susan P. Graber, Circuit Judges. Opinion by Judge Wallace WALLACE, Circuit Judge: The Affordable Care Act (ACA) a nd the regulations implementing it require group health plans to cover contraceptive care without cost sharing

. Federal agencies issued two interim final rules (IFRs) exempting employers with religious and moral objections from this requirement. Several states sued to enjoin the enforcement of the IFRs, and the district court issued a nationwide preliminary4 injunct ion. We have jurisdiction under 28 U.S.C. § 1292 , and w e affirm in part, vacate in part , and remand

. I.
A

. To contextualize the issues raised on appeal, we briefly recount the history of the ACA’s contraceptive coverage requirement. The ACA provides that :

a group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any co st sharing requirements for .

. . with respect to women, such additional preventi ve care and screenings

. . . as provided for in comprehensive guidelines supported by the Health Resour ces and Services Administration [HRSA]

. . . . 42 U.S.C. § 300gg

– 13(a)(4). HRSA es tablished guidelines for women’s preventive services that include any “[FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling.” Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Pro tection and Affordable Care Act, 77 Fed. Reg. 8 , 725

- 01 , 8,725 ( Feb. 15, 2012)

. The three agencies responsible for impl ementing the ACA

— the Department of Health and Human Services, the Department of Labor, and the Department of t he Treasury (collectively, agencies)

— issued regulations requiring coverage of all preventive services contained in HRSA ’s guidelines

. See,
e.g. , 45 C.F.R. § 147.130(a)(1)(iv) (DHSS regulation)

. The agencies also recognized that religious organizations may object to the5 use of cont racepti ve care and offering health insurance that cover s such care

. For those organizations, the agencies provide d two avenues. First, group health plan s of certain religious employer s , such as c hurch es , are categorically exempt from the contraceptive coverage requirement. Coverage of Certain Preventive Services Under the Affordable Care Act, 7 8 Fed. Reg. 39,870, 39,87 4 ( July 2, 201 3 ). Second, nonprofit “eligible organizations” that are not categorically exempt can opt out of having to “contract, arra nge, pay, or refer for contraceptive coverage.” Id

. To be eligible, the organization must file a self

- certification form stating (1) that it “opposes providing coverage for some or all of any contraceptive services required to be covered under [the regul ation] on account of religious objections,” (2) that it “is organized and operates as a nonprofit entity,” and (3) that it “holds itself out as a religious organization.” Id. at 39,892. The organization sends a copy of the form to its insurance provider , wh ich must then provide contraceptive coverage for the organization ’ s employees and cann ot impose any charges related to the coverage

. Id. at 39,876

. The regulations refer to this second avenue as the “accommodation , ” and it was designed to avoid imposi ng on organizations’ beliefs that paying for or facilitating cove rage for contraceptive care violate s their religion

. Id. at 39,874. The agencies subsequently amended the accommodation in response to several legal challenges

. First, c ertain closely

- held for

- profit organizations became6 eligible for the accommodation

. Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318

- 01 , 41,343 (July 14, 2015); s ee also Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 27 51 , 2785 (2014)

. Second,
i nstead of directly sending a copy of the self

- certification form to the insurance provider , an eligible organization could simply notify the Department of Health and Human Services in writing , and the agencies then would inform the provider

o f its regulatory obligations

. 80 Fed. Reg. at 41,323; see also Wheaton Coll

. v. Burwell , 1 34 S. Ct. 2806, 2807 (2014)

. Various employers then challenged the amended accommodation as a violation of the Religious Freedom Restoration Act (R FRA)

. Zubik v. Burwell , 136 S. Ct. 1557, 155 9 (2016) (per curiam). The actions reached the Supreme Court, but, i nstead of deciding the merits of the claim s , the Supreme Court vacated and r emanded to afford the parties “an opportunity to arrive at an appr oach going forward that accommodates petitioners ’ religious exercise while at the same time ensuring that women covered by petitioners ’ health plans receive full and equal health coverage, in cluding contraceptive coverage. ” Id. (internal quotation marks and citation omitted). The agencies solicited comments on the accommodation in light of Zubik , but ultimately declined to make further change s to the accommodation. Dep’ t of Labor, FAQ S A BOUT A FFORDABLE C ARE A CT I MPLEMENTATION P ART 36 , at 4, www.dol.gov/ sites/default/files/ebsa/about

-7 ebsa/our

- activities/resource

- center/faqs/aca

- part

- 36.pdf.
B

. On May 4, 2017, the President issued an executive order directing the secretaries of the agencies to “consider issuing amended regulations, consistent with appli cable la w, to address conscience

- based objections to ” the ACA’s contraceptive coverage requirement. Promoting Free Speech and Religious Liberty, Exec. Order No. 13,798, 82 Fed. Reg. 21,675 , 21,675 ( May 4, 2017)

. On October 6, 2017, the agencies effectuated the two IFRs challenged here , without prior notice and comment

. The religious exemption IFR expanded the categorical exemption to all entities “ with sincerely held religious beliefs objecting to contraceptive o r sterilization coverage” and mad e the accommodation opt ional for such entities

. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792, 47,807

– 08 ( Oct. 13, 2017)

. The moral exemption IFR expanded the catego rical exemption to “i nclude additional entities and persons that object based on sincerely held moral convictions.” Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,838, 47,849 (Oct. 13, 2017) . It also “ expand[ed] eligibility for the accommodation to include organizations with sincerely held moral convictions concerning contraceptive coverage” and ma de the accommodation optional for those entities.8 Id. California, Delaware, Maryland, New York, and Virginia sued the a gencies and their secretaries in the Northern District of California. The states sought to enjoin the enforcement of the IFRs , alleging that the y are invalid under the Administrative Procedure Act (APA) , the Fifth Amendment e qual p rotection component of the Due Process Clause , and the First Amendment Establishment Clause. The district court held that venue was proper and that the states had standing to challenge the IFRs

. T he district court then issued a nationwide preliminary injunction based on the states’ likelihood of success on their APA claim

— that the IFRs were procedurally invali d for failing to follow notice and comment rulemaking. After issuing the in junction, t he district court al lowed Little Sisters of the Poor , Jeanne Jugan Residence (Little Sisters) and March for Life Education and Defense Fund (March for Life) to intervene in the case. The agencies, Little Sisters, and March for Life appeal from the district court’s order on venue, stan ding, and nationwide preliminary injunction.
II. Venue is reviewed de novo. Immigrant Assistance Project of the L .A. Cty.
Fe d’n of Labor (AFL

- CIO) v. INS , 306 F.3d 842, 868 (9th Cir. 2002)

. Standing is also reviewed de novo. Am.

- Arab Anti

- Discriminati on Comm. v. Thornburgh , 970 F.2d 501, 506 (9th Cir. 1991). Findings of fact used to support standing are9 reviewed for clear error. Id.
A preliminary inju nction is reviewed for abuse of discretion. Pimentel v. Dreyfus , 670 F.3d 1096, 1105 (9th Cir. 2012)

. In reviewing the injunction, we appl y a two

- part test. F irst, we “determine de novo whether the trial court identified the correct legal rule to apply to the relief requested

. ” Id

. (quoting Cal. Pharmacists Ass’n v. Maxwell

- Jolly , 596 F.3d 1098, 1104 (9th Cir. 2010). S econd,

we d etermine “if the district court’ s application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” Id. (quoting Cal. Pharmacists , 596 F.3d at 1104). T he scope of the preliminary injunction, such as its nationwide effect , is also reviewed for abuse of discretion. United States v. Schiff , 379 F.3d 621, 625 (9th Cir. 2004)

. III.
A

. We first address whether the appeal is moot

. W e have authority only to decide liv e controversies, and b ecause mootness is a jurisdictional issue, we are obliged to raise it sua sponte. Gator.com Corp. v. L.L. Bean, Inc. , 398 F.3d 1125, 1129 (9th Cir. 2005) (en banc). W e determine “ questions of mootness in light of the present circumstances where injunctions are involved.” Mitchell v. Dupnik , 75 F.3d 517, 528 (9th Cir. 1996)

. More specifically, t he question before us is10 “whether changes in circumstances that prevailed at the beginning of lit igation have forestalled any occasion for meaningful relief.” Gator.com , 398 F.3d at 1129 (quoting West v. Sec ’ y of the Dep’ t of Transp. , 206 F.3d 920, 925 n.4 (9th Cir. 2000) ). On November 15 , 2018, the agencies published final versions of the religious and moral exemption IFRs. See Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57,536 ( Nov. 15, 2018); Moral Exemptions and Accommodations for Coverage of Certain Preventive S ervices Under the Affordable Care Act, 83 Fed. Reg. 57,592 (Nov. 15, 2018)

. The final rules are set
to supersede the IFRs and become effective on January 14, 2019. Id. T he district
court’s preliminary injunction rested solely on its conclusion that the IFRs are likely to be procedurally invalid under the APA

. I f the final rules become effective

as planned on January 14, there will be no justiciable controversy regarding the procedural defects of IFRs that no longer exi st. Indeed, we have previously dismissed a procedural challenge to an interim rule as moot after the rule expired. Safari Aviation Inc. v. Garvey , 300 F.3d 1144, 1150 (9th Cir. 2002) ; see also
N

RDC v . U.S. Nuclear Regulatory Comm’ n , 680 F.2d 810, 814

– 15 (D.C. Cir. 1982) ( holding that procedural challenge to a regulation promulgated in violation of notice and comment requirements was rendered moot by re

- promulgation of rule11 with prior notice and comment ) ; The Gulf of M e. Fisherm e n’ s All. v. Daley , 292 F.3 d 84, 88 (1st Cir. 2002) (“ [ P]romulgation of new regulations and amendment of old regulations are among such intervening events as can moot a challenge to the

re gulation in its original form”). However, i t is not yet January 14. We agree with the parti es that mootness is not an issue until the final rules supersede the IFRs as expected on January 14, 2019. T he IFRs have not been superseded yet , and the procedural validity of the IFRs is a live controversy. We can still grant the parties effective reli ef.
Mootness , if at all, will arise only after our decision has issued. Accordingly, w e have jurisdiction to decide this appeal.
B

. We hold that venue is proper in the Northern District of California. A civil action against an officer of the United States in his or her official capacity may “be brought in any judicial district in which . . . the plaintiff resides if no real property is involved in the action.” 28 U.S.C. § 1391(e)(1). There is no real p roperty involved here. The inquiry thus turns on which judicial district(s)

— for a state with multiple districts like California

— a state is considered to reside. This is a question of first impression in this circuit

. The agencies argue that California r esides only in the Eastern District of California , where the state capital is located . The agencies cite 28 U.S.C. §12 1391(c), which defines residency for “a natural person,” “an entity,” and “a defendant not resident in the United States.” Relevant here, “an entity with the capacity to sue and be sued . . . whether or not incorporated ” is deemed to reside

“ only in the judicial district in which it maintains its principal place of business .” Id . § 1391(c)(2). The agencies argue that California is an “ ent ity ” and that its capital Sacramento, located in the Eastern District of California , is the principal place of business for the state. The agencies’ argument is unconvincing. We must “interpret [the] statut[e] as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” United States v. Thomsen , 830 F.3d 1049, 1057 (9th Cir. 2016) (citation omitted and alterations in original ). The venue statute explicitly refers to the incorporation status of the “entity,” indicating that the term refers to some organization, not a state

. See 28 U.S.C. § 1391(c)(2) (“an entity . . . whether or not incorporated ”)

. The legislative history confirms this interpretation. According to the House Report underlying section 1391(c)(2), the section is a response to “division in authority as to the venue treatment of unincorporated associations” and that the section, as sta ted, would treat equally corporations and unincorporated associations like partnerships and labor uni ons . See H.R. Rep. No.
112

- 10, at 21 (2011)

. These types of entities do not encompass sovereign states.13 F inally, we highlight that the statute explicitl y distinguishes between states and entities . 28 U.S.C. § 1391(d); see also Spencer Enter s. , Inc. v. U nited S tates
. , 345 F.3d 683, 689 (9th Cir. 2003) ( “[U] se of different words or terms within a statute demonstrates that Congress intended to convey a different meaning for those words”)

. The agencies therefore improperly assume, without support from the text or legislative history , that “entity” encompasses a state acting as a plaintiff. Instead, we interpret the statute based on its plain language

. A s tate is ubiquitous throughout its sovereign borders

. The text of the statute therefore dictates that a state with multiple judicial districts “ reside s ” in every district within its borders. See Alabama v. U.S. Army Corps of Eng’rs , 382 F. Supp. 2d 1301 , 1329 (N.D. Ala. 2005) (holding that, for purposes of 28 U.S.C. § 1391(e), “common sense dictates that a state resides throughout its sovereign borders”); see also Atlanta & F.R. Co. v. W. Ry. Co. of Ala. , 50 F. 790, 791 (5th Cir. 1892) ( discussing that “ the state government .

. . resides at every point within the boundaries of the state”). Any other interpretation l imiting residency to a single district in the state w ould defy common sense. S ee Silvers v. Sony Pictures Entm’t,
Inc. , 402 F.3d 881, 900 (9th Cir. 2005) (“ [C] ourts will not interpret a statute in a way that results in an absurd or unreasonable result”). V enue is thus proper in the Northern District of California. C

.14 We hold that the states have standing to sue. The sta tes bear the burden of establishing “the irreducible constitutional minimum” of standing. Spokeo, Inc. v. Robins , 136 S. Ct. 1540, 1547 ( 2016) (internal quotation marks omitted)

. The
states must have suffered an injury

- in

- fact that is fairly traceable to the chal lenged conduct and that is likely to be redressed by a favorable judicial decision. Id. The
states must also demonstrate standing f or each claim they seek to press. DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 3 52 (2006) . S tanding as to one cl aim does not “ suffice for al l claims arising from the same ‘ nucleus of operative fact .’ ” Id. The district court held that the states had standing to assert the ir procedural
APA claim

. To establish an injury

- in

- fact, a plaintiff challenging the violation of a procedural right must demonstrate (1) that he has a procedural right that, if exercised, could have protected his concrete interests, (2) that the procedures in question are designe d to protect those concrete interests, and (3) that the challenged action’s threat to the plaintiff’s concrete interests is reasonably probable. Citizens for Better Forestry v. U.S. Dep’t of Agric. , 341 F.3d 961, 969

– 70 (9th Cir. 2003); see also Spokeo , 1 36 S. Ct. at 1540 (describing the applicable standards for Article III standing in the context of statutory procedural rights). “[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient t o create Article III standing.” Summers v.15 Earth Island Inst. , 555 U.S. 488, 496 (2009). Relaxed standards apply to the traceability and redressability requirements. See NRDC v. Jewell , 749 F.3d 776,
782

– 83 (9th Cir. 2014) (en banc) (“One who challenges the violation of ‘a procedural right to protect his concrete interests can assert that right without meeting all the normal standards’ for traceability and redressibility.” (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 572 n.7 (1992))). The plainti ff need not prove that the substantive result would have been different had he received proper procedure; all that is necessary is to show that proper procedure could have done

so. Citizens for Better Forestry , 341 F.3d at 976. The states argue that the a gencies issued the religious and moral exemption
IFRs without notice and comment as required under the APA. They argue that the deprivation of this procedural right affected their economic interests. According to the states, the IFRs expanded the number of employers categorically exempt from the ACA’s contraceptive coverage requirement , and states will incur significant costs as a result of their residents’ reduced access to contraceptive care. The states specifically identify three ways in which the IFR s will economically harm the m . First, women who lose coverage will seek contraceptive care through state

- run programs or programs that the states are responsible for reimbursing. Second, women who do not qualify for or cannot afford such programs will be at risk for unintended pregnancies, which impose financial costs on the state. Third, reduced16 access to contraceptive care will negatively affect women’s educational attainment and ability to participate in the labor force, affecting their contributions as taxpayers. Because we conclude that the record supports the first theory, we do not reach the alternative theories. See, e.g. , Washington v. Trump , 847 F.3d 1151, 1161 & n.5 (9th Cir. 2017) (per curiam) (holding that the plaintiffs had standing and de clining to reach alternative theories of standing).
A ppellants do not dispute that the states were denied notice and opportunity to comment on the IFRs prior to their effective date. They do not dispute that the notice and comment process could have prote cted and was designed to protect the states’ economic interests. Instead, t he appellants dispute whether the threat to the states’ economic interests is reasonably probable. They argue that the allegations of economic injury are based on a speculative chain of events unlikely to occur. Cf. Clapper v. Amnesty Int ’ l USA , 568 U.S. 398, 414 (2013) (rejecting standing where “ respondents ’ speculative chain of possibilities does not establish that injury

. . . is certainly impending or is fairly traceable ”). Appellants highlight how the states have failed to prove (1) that employers will take advantage of the expanded religious and moral exemptions, (2) that women will lose contrace ptive coverage as a result, and (3) that states will then incur economic costs

. We hold that t he states have standing to sue on their procedural APA claim

. T he states show , with reasonable probability, that the IFRs will first lead to women17 losing employer

- sponsored contraceptive coverage , which will then result in economic harm to the states

. See Citizens for Better Forestry , 341 F.3d at 969. Just because a causal chain links the states to the harm does not foreclose standing.
See Maya v. Centex Corp. , 658 F.3d 1060, 1070 (9th Cir. 2011) ( “A causal chain d oes not fail simply because it has several ‘ links, ’ provided those links are not hypothetical or tenuous” (internal quotation marks and citation omitted) ). The states need not have already suffered economic harm. See City of Sausalito v.
O’ Neill , 386 F.3d 1186, 1197 (9th Cir. 2004) (requiring only that the protected concrete interest be “threatened”). There is also no requirement that the economic harm be o f a certain magnitude. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP) , 412 U.S. 669, 689 n.14 (1973) ( explain ing that injuries of only a few dollars can establish standing). First, it is reasonably probable that women i n the plaintiff states will lose some or all employer

- sponsored contraceptive coverage due to the IFRs. The agencies’ own regulatory impact analysis (RIA)

— which explains the anticipated costs, benefits, and effects of the IFRs

— estimates that between 31,7 0 0 and 120,000 women nationwide will lose some coverage . See 82 Fed. Reg . at 47,821, 47,823

. Importantly, w hen making these estimates, the agencies accounted for key factors likely to skew the estimate, including that some objecting employers will continue to use the accommodation instead of the new, expanded exemptions. See18 id. at 47 , 818 ( estimating that 109 entities

— of the 209 entities who have litigated the contraceptive care requirement and are currently using the accommodation
p rocess

— would seek exemption); id. (“We expect the 122 nonprofit entities that specifically challenged the accommodation in court to use the expanded exemption ”). The record also includes names of specific employers identified by the RIA as likely to use t he expanded exemptions , including those operating in the plaintiff states like Hobby Lobby Stores, Inc

. Appellants fault the states for failing to identify a specific woman likely to lose coverage. Such identification is not necessary to establish standi ng. For example, in Sierra Forest Legacy v. Sherman , California challenged a forest

- management plan that changed the standards governing logging on a parcel of land. 646 F.3d 1161, 11 71

– 72 (9th Cir. 2011)

. The state’s standing to do so was based on future injury resulting from any logging under the plan. Id. at 1178 (maj. o p. of Fisher, J.) . We emphasized that the state’s standing to challenge the plan “i s not defeated by its not having submitted affida vits establishing approval of specific logging projects under ” the plan because “there is no real possibility that the [relevant agency] will . . . decline to adopt” any project under the plan. Id. at 1179. The same is true here. Evidence supports that, with reasonable probability, some women residing in the plaintiff states will lose coverage due to the IFRs.19 Second, it is reasonably probable that loss of coverage will inflict economic harm to the states. The RIA estimates the direct cost of filling the coverage loss as $18.5 or $63.8 million per year , depending on the method of estimating

. 82 Fed. Reg. at 47 , 821, 47 , 824. More importantly, the RIA identifies that state and local programs “ provide free or subsidized contraceptives for low

- income wome n ” and concludes that this “ existing inter

- governmental structure for obtaining contraceptives significantly diminishes ” the impact of the expanded exemptions. Id. at 47 , 803. The RIA itself thus assumed t hat state and local governments will bear addition al economic costs. The declarations submitted by the states further show that women losing coverage from their employers will turn to state

- based programs or programs reimbursed by the state. For example, California offers the Family Planning, Access, Care, and Treatment (Family PACT) program to provide contraceptive

care to those below 200% of the federal poverty level. As attested to by program administrators, loss of coverage due to the IFR s will result in increased enrollment to Family PACT

. I ncreased enrollment translates into, for example, the state reimbursing Planned Parenthood about $74.96 for each enrollee who receives contraceptive care . The states provided s imilar evidence for New York, Maryland, Delaware, and Virginia, which all have state

- funded family planning programs.20 Appellants dispute various factual findings underlying standing, but they do not explain how those findings are clearly erroneous. Appellants also argue that four of the plaintiff states

— California, Delaware, Maryland, and New York

— will not suffer harm because they have state laws that independently require certain employer

- provided plans to cover contraceptive care. Those state laws do not apply to se lf

- insur ed ( also called self

- funded ) plans. See 29 U.S.C. § 1144(a) (preempting “any and all state laws” on this subject) . Evidence shows that millions of people are covered, in each of the four states, under self

- insured plans. For example, Hobby Lobby Stores, Inc. covers its employees through self

- insured plans. Hobby Lobby Stores, Inc. v. Sebelius , 723 F.3d 1 114, 1124 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 2751 (2014)

. Appellants’ argument does not even apply to Vir ginia, which does not have any state law requiring coverage for contraceptive care. Accordingly, t he states have shown that the threat to their economic interest is reasonably probable , and they have established a procedural injury. Cf. East Bay
Sanctua ry Covenant v. Trump , No. 18

- 17274 , 2 018 WL 6428204, at *12 n.8 (9th Cir. Dec. 7, 2018) (or der) ( holding that the plaintiffs “ have adequately identified concrete interests impaired by the Rule and thus have standing to challenge the absence of notice

- and

- comment procedures in promulgating it ”)

. “ [T] he causation and redressability requirements are relaxed” o nce a plaintiff has e stablished a21 procedural injury, Citizens for Better Forestry , 341 F.3d at 975 (quoting Pub. Citizen v. Dep’t of Transp. , 316 F.3d 1002, 1016 (9th Cir. 2003)) , and b oth requirements are met here

. The injury asserted is traceable to the agencies’ issuing the IFRs allegedly in violation of the APA ’s requirements , and granting a n injunction would prohibit enforcement of the IFRs. The states have thus established standing. 1
The dissent raises a theory not advanced by any party. According to the dissent, the states’ economic injuries, if any, will be self

- inflicted because the states voluntarily chose to provide money for con traceptive care to its residents through state programs. The dissent argues that the states lack standing because such “ self

- inflicted ” injuries are not traceable to the agencies’ conduct , citing Pennsylvania v. New Jersey , 426 U.S. 660 (1976) (per curiam )

. In Pennsylvania , the plaintiff states challenged other states ’ laws that increased taxes on nonresident income. 426 U.S. at 66 2

– 6 3

. T he plaintiff state s provided tax credits to their residents for taxes paid to other states

. Id. at 662. Accordingly , the defendant

1 In addition to establishing constitutional standing , “[a] plaintiff must also satisfy the non

- constitutional standing requirements of the statute under which [it] seeks to bring suit.” City of Sausalito , 386 F.3d at 1199. In a single sentence, Little Sisters argues that the states lack statutory standing . This argument is waived. See Greenwood v. FAA , 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued specifically and distinctly in a party’s opening brief

. . . [and a] bare assertion does not preserve a claim” (citation omitted) ); Bilyeu v. Morgan Stanley Long Term Disability Plan , 683 F.3d 1083, 1090 (9th Cir. 2012) ( holding that “stat utory standing may be waived”).22 s tates’ tax increases also increased the amount of tax credits provided by the plaintiff states , and the plaintiff states los t revenue. Id. In denying leave to file bills of complaint invoking the Supreme Court’s original jurisdiction, t he Court held that the plaintiff states could not “demonstrate that the injury for which [they sought] redress was directly caused by the actions of another State” because t he injuries to the plaintiff states’ fiscs “ were self

- inflicted

. . . and nothing p revents [ them ] from withdrawing [the] credit for taxes paid to [defendant states].” Id. at 664

. We question whether the holding of Pennsylvania applies outside the specific requirements for the invocation of the Supreme Court’ s original jurisdiction. Cou rts regularly entertain actions brought by states and municipalities that face economic injury, even though those governmental entities theoretically could avoid the injury by enacting new legislation. See, e.g. , South Dakota v. Dole , 483 U.S. 203 (1987) (addressing South Dakota’ s challenge to highway funding conditioned on a minimum drinking age, even though South Dakota could have avoid ed the injury by changing its minimum drinking age); Gladstone Realtors v. Village of Bellwood , 441 U.S. 91, 110

– 11 (197 9) (holding that a municipality suffered an injury from a reduction in its property tax base , even though nothing required the municipality to impose property taxes ). But we need not decide whether Pennsylvania ’s “self

- infliction” doctrine applies to the ordinary23 injury

- in

- fact requirement of Article III standing because , as explained below, the injury here is not “self

- inflicted” within the meaning of Pennsylvania

. The Supreme Court later held, in Wyoming v. Oklahoma , that Wyoming had standing to challenge an Oklahoma statute that decreased Wyoming ’ s revenue

— from tax on coal mined in Wyoming

— by requiring Oklahoma power plants to burn at least 10% Oklahoma

- mined coal. 502 U.S. 437 , 447

– 48 (1992)

. The Court highlighted that Wyoming suffered a “dire ct injury in the form of a loss of specific tax revenues” from the reduced demand for Wyoming coal caused by the Oklahoma statute. Id. at 448

. Both Pennsylvania and Wyoming involved harm to the plaintiff states’ fiscs that were, as described by the dissen t, “ self

- inflicted. ” What distinguishes the two

cases , and what caused the Supreme Court to reach different results , is that the plaintiff state s’ laws in Pennsylvania directly and explicitly tied the states’ finances (revenue loss caused by tax credit) to another sovereign’s laws (other states’ taxes on nonresident income). See Maryland v. Louisiana , 451 U.S. 725, 742 n.18 (1981) (“ In Pennsylvania , the only reason that the complaining States were denied
tax revenues was because their legislatures had determined to give a credit for taxes paid to other States, and, to this extent, any injury was voluntarily suffered ”). Wyoming did not involve such state laws ; t he tax on Wyoming

- mined coal was not

so tethered to the legislative decisions of other sovereigns. The same is true of the24 contraceptive coverage laws of the plaintiff states here. Accordingly, we are not convinced that Pennsylvania controls in this case

. Cf. Texas v. United States , 809 F.3d 134, 15 8

– 59 (5th Cir. 2015), as revised (Nov. 25, 2015) ; Texas v. United
States , 787 F.3d 733, 749 n.34 (5th Cir. 2015).
D

. We affirm the preliminary injunction insofar as it bars enforcement of the
IFRs in the plaintiff states, but we otherwise vacate the portion of the injunction barring enforcement in other states. The scope of the injunction is overbroad.
A preliminary injunction is a matter of equitable discretion and is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. N RDC , 555 U.S. 7, 22 (2008) (citation omitted)

. “ A party can obtain a preliminary injunction by showing that (1) it is

‘ likely to succeed on the merits, ’ (2) it is ‘ likely to suffer irreparable harm in the absence of preliminary relief, ’ (3) ‘ the balance of equities tips in [its] favor, ’ and (4) ‘ an injunction is in the public interest. ’ ” Disney Enter s . , Inc. v. VidAngel, Inc. , 869 F.3d 848, 856 (9th Cir. 2017) (alteration in original) ( quoting Winter , 555 U.S. at 20 )

. When the government is a party, the last two factors merge. Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014).
1

.25 Likel ihood of success on the merits is “ the most important” factor; if a movant fails to meet this “thr eshold inquiry,” we need not consider the other factors

. Disney , 869 F.3d at 856 (citation omitted)

. The district court held that the states are likely to succeed on the merits of their APA claim. We agree. The APA requires that, p rio r to promulgating rules, an agency must issue a
genera l notice of proposed rulemaking, 5 U.S.C. § 553(b), and “give interested persons an opportunity to participate in the rule making through submission of written data, views or argument s, ” id. § 553(c). A court must set a side rules made “without observance of [this] procedure.” Id. § 706 (2)(D)

. Again, t he parties do not dispute that the religious and moral exemption IFRs were issued without notice and comment. The only remaining issue is whether prior notice and comment was not required because an exception to this rule applied. Exceptions to notice and comment rulemaking “ a re not lightly to be presumed

. ” Marcello v. Bonds , 349 U.S. 302, 310 (1955)

. “ [I] t is a ntithetical to the structure and purpose of the APA for an age ncy to implement a rule first, and then seek comment later. ” Paulsen v. Daniels , 413 F.3d 999, 1005 (9th Cir. 2005)

. Failure to follow notice and comment rulemaking may be excused when good cause exists, 5 U.S.C . § 553(b)(B) ; when a subsequent statute authorizes it, i d. § 559 ; and when it is harmless, id. § 706. Appellants argue that each of these three exceptions applies here.26 W e begin by examining whether the agencies had good cause for bypassing notice and comment . A n a gency may “ for good cause find [] . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C . § 553(b)(B)

. “[T]he good cause exception goes only as far as its name implies: It aut horizes dep artures from the APA’ s requirements only when compliance would interfere with the agency ’ s ability to carry out its mission.” Riverbend Farms, Inc. v. Madigan , 958 F.2d 1479, 1485 (9th Cir. 1992)

. Good cause is to be “narrowly construed an d only reluctan tly countenanced. ” Alcaraz v. Block , 746 F.2d 593, 612 (9th Cir. 1984) (citation omitted). As such, t he good cause exception is usually invoked in emergencies, and an agency must “overcome a high bar” to do so. United States v. Valverde , 628 F.3d 1159, 116 4

– 6 5 (9th Cir. 2010)

. Because good cause is determined on a “case

- by

- case” basis, based on “the totality of the factors at play,” Valverde , 628 F.3d at 1164 (quoting Alcaraz , 746, F.2d at 612) , prior invocations of good cause to justify different IFRs

— the legality of which are not challenged here

— ha ve no relevance. 2 In the past , we have acknowledged good cause where the agency cannot “both follow section 553 an d execute its statutory duties.” Riverbend , 958 F.2d at

2 The Little Sisters argue that if the court invalidates the IFRs here, the court must also invalidate prior ones re lated to the exemption and accommodation . This argument is unpersuasive. Whether or not those IFRs were promulgated with good cause, they are not before us at this time.27 1484 n.2 ( quoting Levesque v. Bloc k , 723 F.2d 175, 184 (1st Cir. 1983) ). We have also acknowledged good cause where “‘delay would do real harm’ to life, property, or public safety. ” East Bay Sanctuary Covenant , 2018 WL 6428204, at *20 (quoting Valverde , 628 F.3d at 1165 ); s ee also Haw

. Heli copter Operators Ass’n v.
FAA , 51 F.3d 212, 214 (9th Cir. 1995) (good cause shown based on threat reflected in an increasing number of helicopter accidents ) ; Jifry v. FAA , 370 F.3d 1174, 1179 (D.C. Cir. 2004) ( upholding good cause determination that t he rule was “necessary to prevent a possible imminent hazard to aircraft, persons, and property within the United States”)

. The agencies here determined that “it would be impracticable and contrary to the public interest to engage in full notice and comm ent rulemaking before putting these [IFRs] into effect.” See, e.g. , 82 Fed. Reg. at 47 , 815 ; see also 82 Fed. Reg. at 47,856

. They re cited the immediate need to (1) reduce the l egal and regulatory uncertainty regarding the accommodation in the wake of Zubik , (2) eliminate RFRA violations by reduc ing the burden o n religious beliefs of objecting employers , and (3) reduce the costs of health insurance. 3 82 Fed. Reg. at 47,813

–

3 Little Sisters argues that the agencies had good cause because the prior regulator y regime violated the Free Exercise Clause and the Establishment Clause. This assertion was not part of the agencies’ original good cause findings, and we may not consider it now. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 50 (1983) (“[A]n agency’s action must be upheld, if at all, on the basis articulated by the agency itself”)

.28 15 ; 82 Fed. Reg. at 47,855

– 56. T hese general policy justifications are insufficient to establish good cause

. First, a n agency’s desir e to eliminate more quickly legal and regulatory uncertainty is not by itself good cause. See Valverde , 628 F.3d at 1167 (concluding that an agency’s “interest in eliminating uncertainty does not justify its having soug ht to forego notice and comment ” ). “ If ‘good cause’ could be satisfied by an Agency’s assertion that ‘normal procedures were not followed because of the need to provide immediate guidance and information[,] . . . then an except ion to the notice requirement would be created that would swallow the rule.’” Id. (alterations in original) ( quoting Zhang v. Slattery , 55 F.3d 732, 746 (2d Cir. 1995) ) ; see also Envtl. Def

. Fund , Inc. v. EPA , 716 F.2d 915, 920

– 21 (D.C. Cir. 1983) ( “ [I] t was not at all reasonable for [the agency] to rely on the good cause exception” simply because of “an alleged pressing need to avoid industry compliance with regulations that were to be eliminated” )

. Furthermore, the agencies’ request for post

- promulgation comments in issuing the IFRs “casts further doubt upon the authenticity and efficacy of the asserted need to clear up potential uncertainty,” Valverde , 628 F.3d at 1166, because allowing for post

promulgation comments implici tly suggests that the rules will be reconsidered and that the “level of uncertainty is, at best, unchanged,” United States v. Reynolds , 710 F.3d 498, 510 (3d Cir. 2013) ( citing United States v. Johnson, 632 F.3d 912,29 929 (5th Cir. 2011)). This explanation therefore fails. I t is always the case that an agency can regulate

— or in this case, de

- regulate

— faster by issuing an IFR without notice and comment. Second, we o f course acknowledge that eliminating RFRA violations by reducing the burden on religious b eliefs is an important consideration for the agencies

. Any delay in rectifying violations of statutory rights has the potential to do real harm. See Buschmann v. Schweiker , 676 F.2d 352, 357 (9th Cir. 1982) ( “The notice and comment procedures in Section 553 should be waive d only whe n delay would do real harm” ). Whether the accommodation actually violates RFRA is a question left open by the Supreme Court. 4 See Zubik , 136 S. Ct. at 1560

. But we need not determine whether there is a RFRA violation here because , even if immediately remedying the RFRA violation constituted good cause, the agencies’ reliance on this justification was not a reasoned decision based on findings in the record

. See Valverde , 628 F.3d at 1165, 1168 ( agencies must provide “ratio nal justification” and identify “rational connection between the facts found and the choice made to promulgate the interim rule ” (internal quotation marks and citation omitted) )

. In January 2017, the agencies explicitly declined to change the

4 Before Zubik , eight courts of appeals (of the nine to have considered the issue) have found that the regulatory regime in pla ce prior to the IFRs did not impose a substantial burden on religious exercise under RFRA. See, e.g. , E. Tex. Baptist Univ. v. Burwell , 793 F.3d 449 (5th Cir. 2015), vacated , Zubik , 136 S.Ct. at 1561.30 accommodatio n in light of Zubik and RFRA . They then let nine months go by and failed to specify what developments necessitated the agencies to change their position and determine, in October 2017 , that RFRA viol ations existed

. Cf. id. at 1166 (reasoning that agency finding of urgent need was inadequate when agency had allowed seven months to pass without action)

. The agencies provide d no explanation, legal or otherwise, for their changed understanding

. Cf. Encino Motorcars, LLC v. Navarro , 136 S. Ct. 2117, 2125

– 26 (2016) (holding that an agency’s unexplained change in position does not warrant deference) ; East Bay Sanctuary Covenant , 2018 WL 6428204, at *20 ( concluding that “speculative” reasoning is insufficient to support good cause)

. The IFRs are devoid of any
f

indings related to the issue

. Indeed, t he agencies cite d no intervening legal authority for their justification , in contrast to when they issued an IFR in light of Wheaton

. Given these failures, the agency action cannot be upheld on unexplained about

- fac e. The agencies further argue that the new IFRs will decrease insurance costs for entities remaining on more expensive grandfathered plans

— which are exempt from the contraceptive coverage requirement

— to avoid becoming subject to the requirement

. 82 Fed. R eg. at 47 , 815 ; 82 Fed. Reg. at 47,855

- 56

. This is speculation unsupported by the administrative record and is not sufficient to31 constitute good cause. See Valverde , 628 F.3d at 1167 (“ [C] onclusory speculative harms the [agency] cites are not sufficient” (citation omitted) )

. W e also highlight that there was no urgent deadline to issue the IFRs t h at interfered with the agencies from complying with the APA

. 5 Congress had not imposed a deadline here on agency decisionmaking that interfered with compliance. The President’s executive order merely asks the agencies to “consider issuing amended regulations, consistent with applicable law, to address conscience

- b ased objections to the preventive

- care mandate.” 82 Fed. Reg. at 21 , 675. Neither did the Supreme Court mandate any deadline when it remanded the last challenge to the accommodation in order to give parties “an opportunity to arrive at an approach going f orward.” Zubik , 136 S. Ct. at 1560

. The agencies cite t wo cases in support of their good cause claim: Priests For Life v. U.S. Dep’ t of Health & Human Servs. , 772 F.3d 229 (D.C. Cir. 2014), vacated and remanded sub nom. Zubik , 136 S. Ct. at 1557 ; and Serv. Employees
Int ’ l Union, Local 102 v. Cty. of San Diego , 60 F.3d 1346 (9th Cir. 1994)

. B oth are distinguishable. T he D.C. Circuit i n Priests for Life rejected the plaintiffs ’ argument that the government lacked good cause to promulgate IFRs without

5 We also point out that the agencies have not displ ayed urgency in reaching final resolution of this case. After filing this appeal from the district court’s order granting a preliminary injunction, the agencies filed a stipulation staying further district court proceedings pending resolution of the appea l. Before the district court, this case has remained in abeyance for nearly a year.32 notice and comment. 772 F.3d at 276

– 77 . In so holding, it emphasized that the
IFRs modified existing regulations that “were recently en acted pursuant to notice and comment rulemaking, and presented virtually identical issues ” as the challenged IFRs. Id. at 276 (emphasis added); see also i d. (describing the modifications in the new IFRs as “minor”) . The IFRs here do not present minor cha nges. T hey substantially expanded the categorical exemption and effectively made accommodations voluntary

. The IFRs also introduced an entirely new moral exemption that had never been the subject of previous regulations. T h ese substantial change s came after the agencies previously determined that no change to the religious accommodation process was needed in light of RFRA . In Serv. Employees Int’l Union , we held that resolving uncertainty caused by conflictin g judicial decision s is sufficient goo d caus e. 60 F.3d at 135 2 n.3

. In that case, resolving uncertainty was sufficient because the agencies found that conflicting decisions were poised to cause “enormous” and “unforeseen” financial liability

“ threaten [ing] [ the ] fiscal integrity” of state an d local governments. Id. When issuing the IFRs here, the agencies cited no such comparable financial threat.
A ccordingly, based on the totality of the circumstances , the agencies likely did not have good cause for bypassing notice and comment

. W e next turn to whether the agencies had statutory authority for bypassing notice and comment

. The APA cautions “that no subsequent statute shall be33 deemed to modify it ‘except to the extent that it does so expressly.’” Castillo

Villagra v. INS , 972 F .2d 1017, 10 25 (9th Cir. 1992) ( quoting 5 U.S.C. § 559 ) ; see also Asiana Airlines v. F AA , 134 F.3d 393, 397 (D.C. Cir. 1998) ( defining the inquiry a s “whether Congress has established procedures so clearly different from those required by the APA that it must hav e int ended to displace the norm ” ). The agencies point to three statutory provisions enacted as part of the Health Insurance Portability and Accountability Act of 1996 (HIPAA)

. These provisions specify: The Secretary, consistent with section 104 of the Health [ Insurance] Portability and Accountability Act of 1996, may promulgate such regulations as may be necessary or appropriate to carry out the provisions of this subchapter. The Secretary may promulgate any interim final rules as the Secretary determines are appropriate to carry out this subchapter. 26 U.S.C. § 9833; 29 U.S.C. § 1191c; 42 U.S.C. § 300gg

- 92. When enacting the ACA, Congress codified the contraceptive coverage requirement in the same chapters of the United States Code as those provisions. The agencies argue that the provisions authorize them to issue IFRs implementing the ACA without notice and
comment. T h eir argument likely fails . The identified provisions authorize agencies to issue IFRs , but t hey are silent as to any required procedure fo r issuing an IFR. They do not provide that notice and comment is supplanted or that good cause is no longer required. They neither contain express language exempting agencies from the APA nor provide alternative procedures that could reasonably be34 unders tood as departing from the APA. See Castillo

- Villagra , 972 F .2d at 1025 ( holding that a subsequent statute must “expressly” modify the APA). The se provisions thus stand in contrast to other provision s that we have found to be express abdications of the AP A. See , e.g , id. ( holding that APA was supplanted by
statute that stated “ the procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section ” (internal quotation marks omitted) ); Methodist Hosp. of Sacramento v. Shalala , 38 F.3d 1225, 1236 n.18 (D.C. Cir. 1994) ( holding that APA was supplanted by statute that stated “[t] he Secretary shall cause to be published in the Federal Register a notice of the interim final DRG prospective pa yment rates ” (emphasis added ) ). The agencies insist that we must read HIPAA’s use of the word “ interim ” as singlehandedly authorizing the agencies to issue IFRs without notice and comment whenever the agencies deem it appropriate . Otherwise, the agencie s warn, we will be rendering superfluous the second sentence of the quoted provisions. We disagree. The first sentence of the quoted provisions authorizes the issuance of regulations “ consistent with section 104 of the Health [Insurance] Portability and Accountability Act of 1996. ” Section 104 of HIPAA, entitled “ Assuring Coordination, ” generally requires the three Secretaries to coordinate their35 regulations and policies. 6 Notably, the second sentence of the quoted provisions does not contain the same consistency requirement; each Secretary is authorized to issue IFRs without ensuring consistency with the rules of his or her partner
Secretaries . Reading both sentences together, Congress authorized the Secretaries to issue coordinated final rules in the ordinary course; and, if a Secretary met an inter

- agency impasse but needed to regulate within his or her own domain temporarily while sorting out the inter

- agency conflict, then a Secretary could issue an interim final rule. In this pr ocedural posture, we need not delimit the full scope of the second sentence of the quoted provisions. For present purposes , it suffices

6 Section 104 states: The Secretary of the Treasury, the Secretary of Health and Human Services, and the Secretary of Labor shall ensure, through the execution of an inte ragency memorandum of understanding among such Secretaries, that

— (1) regulations, rulings, and interpretations issued by such Secretaries relating to the same matter over which two or more such Secretaries have responsibility under this subtitle (and the amendments made by this subtitle and section 401) are administered so as to have the same effect at all times; and (2) coordination of policies relating to enforcing the same requirements through such Secretaries in order to have a coordinated enforcemen t strategy that avoids duplication of enforcement efforts and assigns priorities in enforcement. Pub. L. No. 104

- 191, § 401, 110 Stat. 1976 (1996) (codified at 42 U.S.C. § 300gg

92 note).36 to observe that we need not give the second sentence the agencies’ expansive interpretation in order for the second sen tence to retain independent effect. Accordingly, the agencies likely did not have statutory authority for bypassing notice and comment

. W e last turn to whether bypassing notice and comment was harmless. The court “must exercise great caution in applying t he harmless error rule in the administrative rulemaking context .” Riverbend , 958 F.2d at 1487 . “[T] he failure to provide notice and comment is harmless only where the agency’ s mistake ‘clearly had no bearing on the procedure used or the substance of deci sion reached.’” Id. ( quoting Sagebrush Rebellion, Inc. v. Hodel , 790 F.2d 760, 764

– 65 (9th Cir. 1986) )

. The circumstances here are similar to those in Paulsen , 413 F.3d at 1006. There, the Bureau of Prisons “failed to provide the required notice

- and

- comment period before effectuating [an] interim regulation, thereby precluding public participation in the rulemaking.” Id. We held the error not harmless because “petitioners received no notice of any kind until after the Bureau made the . . . interim rule effective.” Id. at 1007. We further emphasized that “an opportunity to protest an already

- effective rule ” did not render t he violation harmless. Id. (emphasis added). We distinguished from prior cases where “interested parties received some notice that sufficiently enabled them to participate in the rulemaking37 process before the relevant agency adopted the rule.” Id. (citi ng cases). The agencies’ actions here are analogous. N o members of the public received notice of the IFRs or were able to comment prior to their effective dates. Appellants argue that the states “were afforded multiple opportunities to comment on the sco pe of the exemption and accommodation during multiple rounds of rulemaking.” These “opportunities” refer to public comment on prior rules regarding the religious exemption and accommodation. Appellants’ argument does not convince us

. As previously discu ssed, those prior rules were materially different from the IFRs here , which dramatically expanded the scope of the religious exemption and introduced a moral exemption that was not the subject of any previous round of notice and comment rulemaking . The pu blic had no such notice or opportunity to comment on the se potential change s, thus denying it the safeguards of the notice and comment procedure. This denial is comparable to failing to provide prior notice and comment before finalizing a rule that is not a “logical outgrowth” of the proposed rule, which an agency m ay not do without consider ing “whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule. ” N RDC v. EPA , 279 F.3d 1180, 1186 (9th Cir. 2002) (citation omitted) ; see a l so CSX Transp. , Inc. v. Surface Transp. Bd. , 584 F.3d 1076, 1081 (D.C. Cir. 2009) (holding that notice of a proposed rule is sufficient to uphold a38 final rule if interested parties “should have anticipated” the content of the rule). Accordingly, the prior “opportunities” are irrelevant. The agencies argue that the states have failed to identify any specific comment that they would have submitted. There is no such requirement for harmless error analysis. The agencies also argue that the states had an opportunity to comment on the IFRs post

- issuance and that the agencies will consider the comments before issuing final rules. This argument also fai ls. “The key word in the title ‘Interim Final Rule’ . . . is not interim, but final . ‘I nterim’ refers only to the Rule’ s intended duration

— not its tentative nature.” Career Coll. Ass’n v. Riley , 74 F.3d 1265, 1268 (D.C. Cir. 1996)

. We reiterate that “ a n opportunity to protest an already

- effective rule ” does not render an APA violation harmless. Paulsen , 413 F.3d at 1007 (emphasis added). Accordingly, bypassing notice and comment likely was not harmless.
2

. A plaintiff seeking preliminary relief must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter , 555 U.S. at 22 (emphasis omitted ) . The analysis focuses on irreparability , “irrespective of the magnitude of the injury.” Simula, Inc. v. Autoliv, Inc. , 175 F.3d 71 6, 725 (9th Cir. 1999). The district court concluded that the states are likely to suffer irreparable harm absent an injunction. This decision was not an abuse of discretion. As39 discussed in our standing analysis, it is reasonably probable that the sta tes will suffer economic harm from the IFRs. Economic harm is not normally considered irreparable. L .A. Mem ’ l Coliseum Comm ’ n v. Nat'l Football League , 634 F.2d 1197, 1202 (9th Cir. 1980). However, s uch harm is irreparable here because the states will not be able to recover monetary damages connected to the IFRs. See 5 U.S.C. § 702 ( permitting relief “other than money damages ” ) ; see also Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv. , 789 F.3d 1075, 1091 (9th Cir. 2015) ( reaff irming that the harm flowing from a procedural violation can be irreparable). That the states promptly filed an action following the issuance of the IFRs also weighs in their favor. Cf. Oakland Tribune, Inc. v. Chronicle Publ ’ g Co. , Inc. , 762 F.2d 1374, 1 377 (9th Cir. 1985) (“Plaintiff’ s long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm” ). Again, appellants argue that the economic harm is speculative, which “does not constitute irreparable injury sufficien t to warrant gra nting a preliminary injunction.” See Boardman v. Pac. Seafood Grp. , 822 F.3d 1011, 1022 (9th Cir. 2016) (citation omitted). As we previously explained in o ur analysis of standing , the harm is not speculative ; it is sufficiently concrete and supported by the record

. Appellants also dispute the factual findings underlying the district court’s holding of irreparable harm, but again fail to explain how the district court erred under our standard of review

.40 3

. Because the government is a party , we consider t he balance of equities and the public interest together

. Jewell , 747 F.3d at 1092. The IFR s are an attempt to balance states’ i nterest in “ ensuring coverage for contraceptive and sterilization services ” with appellants’ interes t in “provid[ing] conscience protections for individuals and entities with sincerely held religious [or moral] beliefs in certain health care contexts .” 82 Fed. Reg. at 47 , 793. The district court concluded that the balance of equities and the public inte rest tip in favor of granting the preliminary injunction. The district court did not abuse its discretion.
T he public interest is served by compliance with the APA: “ T he APA creates a statutory scheme for informal or notice

- and

- comment rulemaking reflecting a judgment by Congress that the public interest is served by a careful and open review of proposed administrative rules and regulations.” Alcaraz , 746 F.2d
at 610 (i nternal quotation marks and citation omitted)

. It does not matter that notice and comment could have changed the substantive result; the public interest is served from proper process itself. Cf. Citizens for Better Forestry , 341 F.3d at
976 ( stating, in standing context, that “[i]t suffices that the agency’s decision could be influenced ” by public participation (alterations and citation removed) (emphasis in original))

. The district court additionally found that the states face “potentially dire public h ealth and fiscal consequences as a result of a process as to which they41 had no input” and highlighted the public interest in access to contraceptive care. This finding is sufficiently supported b y the record

. We acknowledge that free exercise of religion and conscience is undoubtedly , fundamentally important . Regardless of whether the accommodation violates RFRA, some employers have sincerely

- held religious and moral objections to the contraceptive coverage requirement. C f. Jolly v. Coughlin , 76 F.3d 468 , 482 (2d Cir. 1996) (“[A]lthough the plaintiff’ s free exercise claim is statutory rather than constitutional, the denial of the plaintiff ’ s right to the free exercise of his religious beliefs is a harm that cannot be ad equately compensated monetarily” ). Protecting religious liberty and conscience is obviously in the public interest. However, b alancing the equities is not an exact science

. See also Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring) (“ Balancing t he equities

. . . is lawyers’ jargon for choosing betwe en conflicting public interests ” )

. We do not have a sufficient basis to second guess the district court and to c onclude that its decision was illogical, implausible, or without support in the record. Finalizing that issue must await any appeal from the district court’s future determination of whether to issue a permanent injunction.
E

. The district court enjoined enforcement of the IFRs nationwide because the agencies “did not violate the APA just as to Plaintiffs : no member of the public42 was permitted to participate in the rulemaking process via advance notice and
comment. ” The district court abused its discretion in granting a nationwide injunction

. S ee S tormans, Inc. v. Selecky , 586 F.3d 1109, 11 40 (9th Cir. 2009) (“[A] n overbroad injunction is an abuse of discretion ” (quoting Lamb

- Weston, Inc. v. McCain Foods, Ltd. , 941 F.2d 970, 974 (9th Cir. 1991) ). We vacate the portion of the injunction barring enforcement of the IFRs in non - plaintiff states

. Crafting a preliminary injunction is “an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project , 137 S. Ct. 2080, 2087 (2017). “The purpose of such interim equitable relief is not to conclusively determine the rights of the parties but to balance the equities as the litigation moves forward. ” Id. (citation omitted). Although “t here is no bar agai nst

. . . nationwide relief in federal district court or circuit court , ” such broad relief must be “ necessary to give prevailing parties the relief to which they are entitled.” Bresgal v. Brock , 843 F.2 d 1163, 117 0

– 71 (9th Cir. 1987) (emphasis in original removed in part) ; see also Califano v. Yamasaki , 442 U.S. 682, 702 (1979) ( “[I] njunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” before the court )

. This rule43 applies with special f orce where there is no class certification. 7 See Easyriders Freedom F.I.G.H.T. v. Hannigan , 92 F.3d 1486, 1501 (9th Cir. 1996) (“[I]njunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification ”)

. Be fore we examine the scope of the injunction here, we highlight several

concerns associated with overbroad injunction s, particularly nationwide ones

. Our

concerns underscore the exercise of prudence before issuing such an injunction

. First, “ n ationwide injunctive relief may be inappropriate where a regulatory challenge involves important or difficult questions of law, which might benefit from development in different factual contexts and in multiple decisions by the various courts of appeals .” L .A. Have n Hospice, Inc. v. Sebelius , 638 F.3d 644, 664 (9th Cir. 2011) . The Supreme Court has repeatedly emphasized that nationwide injunctions have detrimental consequences to the development of law and deprive appellate courts of a wider range of perspectives. S ee Califano , 442 U.S. at 702 ( highlighting that nationwide injunctions “have a detrimental effect by foreclosing adjudication by a number of different courts and judges”) ; United States v. Mendoza , 464 U.S. 154, 160 (1984) ( concluding that allowing nonmu tual

7 Indeed, Congress has recently proposed a bill that would prohibit injunctions involving non

- parties “unless the non - party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.” H.R. 6730, 115th Cong. (2018)44 collateral estoppel against the government would “substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue” and “deprive [the Supreme] Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before [the Supreme] Court grants certiora ri ” ) ; Arizona v. Evans , 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting) (“We have in many instances recognized that when frontier lega l problems are presented, periods of ‘percolation’ in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring fi nal pronouncement by this Court ”). The detrimental consequences of a nationwide injunction are not limited to their effects on judicial decisionmaking. There are also the equities of non - parties who are deprived the right to litigate in other forums. See Zayn Siddique, Nationwide Injuncti ons , 117 C OLUM
. L. R EV
. 2095, 2125 (2017) (“ A plaintiff may be correct that a particular agency action is unlawful or unduly burdensome, but remedying this harm with an overbroad injunction can cause serious harm to nonparties who had no opportunity t o arg ue for more limited relief”). Short of intervening in a case, non

- parties are essentially deprived of their ability to participat e , and t hese collateral consequences are not minimal

. Nationwide injunctions are also associated with forum shopping , which hinder s the equitable administration of laws

. See Samuel L. Bray, Multiple Chancellors:45 Reforming the National Injunction , 131 H ARV
. L. R EV . 417, 458

- 59 (2017) (citing five nationwide injunctions issued by Texas dist rict courts in just over a year). The se consequences are magnified where, as here, the district court stays any effort to prepare the case for trial pending the appeal of a nationwide preliminary injunction. W e have repeatedly admonished district courts not to delay trial preparation to awai t an interim ruling on a preliminary injunction. Se e , e.g. , Melendres v. Arpaio , 695 F.3d 990, 1002

– 03 (9th Cir. 2012) ; Global Horizons, Inc. v. U.S. Dep’t of Labor , 510 F.3d 1054, 1058 (9th Cir. 2007)

. “Because of the limited scope of our review of the l aw applied by the district court and because the fully developed factual record may be materially different from that initially before the district court, our disposition of appeals from most preliminary injunctions may provide little guidance as to the ap propriate disposition on the merits.” Id. at 1003 (quoting Sports Form, Inc. v. United Press
Int ’ l, Inc. , 686 F.2d 750, 753 (9th Cir. 1982) ). T he district court here failed to give any particular reason for t he stay, 8 and this case could have well proceeded to a disposition on the merits without the delay in processing the interlocutory appeal

. "Given the purported urgency of" implement ing the IFRs, the agencies and
i ntervenors might “ have been bette r served to pursue aggressively” its defense of

8 The district court stayed the case pending the outcom e of this appeal based on the parties’ stipulation. The order staying the case provides no other justification or analysis supporting the stay.46 the IFRs in the district court, “ rather than apparently awaiting the outcome of this appeal. ” Global Horizons , 510 F.3d at 1058. In light of these concerns, we now address the preliminary injunction issued here. The scope o f the remedy must be no broader and no narrower than necessary to redress the injury shown by the plaintiff states. The plaintiff states argue that complete relief to them would require enjoining the IFRs in all of their applications nationwide. That is not necessarily the case. See L .A. Haven Hospice , 638 F.3d at 665 (vacating the nationwide portion of an injunction barring the enforcement of a facially invalid regulation); City & Cty. of San Francisco v. Trump , 897 F.3d 1225,
1244

– 45 (9th Cir. 2018) (v acating nationwide portion of injunction barring enforcement of executive order). The scope of an injunction is “dependent as much on the equities of a given case as the substance of the legal issues it presents,” and courts must tailor the scope “to meet the exigencies of the particular
case.” Int’l Refugee Assistance Project , 137 S. Ct. at 2087 (citations omitted). The circumstances of this case dictate a narrower scope. On the present record, a n injunction that applies only to the plaintiff states

wou ld provide complete relief to them. It would prevent the economic harm extensively detailed in the record. Indeed, while the record before the district court

was voluminous on the harm to the plaintiffs, it was not developed as to the economic impact on other state s . See City & Cty. of San Francisco , 897 F.3d at47 1231, 1244

– 45 ( holding that the district court abused its discretion in issuing a nationwide injunction because the plaintiffs’ “ tendered evidence is limited to the effect of the Order on their g overnments and the State of California ” and because

“ the record is not sufficiently developed on the nationwide impact of the Executive Order ” )

. The injunction must be narrowed to redress only the injury shown as to the plaintiff states. 9 Accordingly, we conclude that the scope of the prel iminary injunction is overbroad and that the district court abuse d its discretion in that regard. D istrict judges must require a showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose litigation in other districts , from Alaska to Puerto Rico to Maine to Guam.
IV. We affirm that venue is proper in the Northern District of California. We affirm that the plaintiff s tates have standing to sue. Although we affirm the preliminary injunctio n, the record does not support the injunction’s nationwide scope. We vacate the portion of the injunction barring enforcement of the IFRs in other states and remand to the district court. This panel will retain jurisdiction for

9 Appellants did not clearly raise other arguments in support of a narrower injunction, including the potential for “substantial interference with another court’s sovereignty,” United States v. AMC Entm ’ t, Inc. , 549 F.3d 760, 770 (9th Cir. 2008) , and the lack of need for courts to apply the law uniformly. Accordingly, we do not address them.48 any subsequent ap peals arising from this case. Costs on appeal are awarded to Plaintiffs

- Appellees. The mandate shall issue forthwith. AFFIRMED IN PART, VACATED IN PART , and REMANDED .State of Califor nia v. L ittle Siste r s of the Poor , No. 18-15144+

Kle infe ld, Se nior C irc uit Judge , disse nting:

I re spe c tfully

disse nt. The pla intiff sta te gove rnm e nts la c k sta

nding, so the distric t c o urt la c k e d jurisdic tion. The re a son the y la c k sta nding is tha

t the ir injury is wha t the Supre m e C ourt c a l ls “ se lf-inflic t e d,” be c a use it a rise s sole ly

from the ir le gisla tive de c isions to pa

y the se m one y s. Unde r the Supre m e C ourt’ s de c i sion in
Pe nnsy lva

nia v. Ne w Je rse y , 1 we a re c om pe l le d to re ve rse
.

Pe nnsy lva

nia sue d Ne w Je rse y

on the the ory

tha t a ne w Ne w Je rse y

ta x la w

c a use d the Pe nnsy lva

nia fisc to c olle c t le ss m one y . 2 Pe nnsy l va nia gra nte d a ta x

c re d it for inc om e ta x e s pa id to othe r sta te s, a nd Ne w Je rse y

unde r its ne w ta x la

w ha d be gun ta

xing the Ne w Je rse y -de rive d inc o m e of nonre s ide nts. 3 M a i ne , M a s sa c huse tts, a

nd Ve rm o nt sue d Ne w Ha m pshire on sim ila

r grounds. 4 The

c onc re te fina

nc ia l injury

wa s pla in in a ll the s e c a se s . Like the pla intiff sta te s’ 

# F IL ED

DEC 13 2018
M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALS

1 426 U.S. 660 (1976) (pe r c uria m ).

2 Id. a t 662.

3 Id. a t 663.

4 Id.
1injury

in the c a se be fore us, the re a s on why wa s the pla i ntiff sta

te s’ la ws. 5

The C ourt in Pe nnsy lva

nia invoke d the long e sta

b lishe d princ iple tha

t unde r M a s sa c huse tts v. M i ssouri, 6 the injurie s for whic h re d re ss wa s sought ha d

to be

“ dire c tly c a use d” by t

he de fe nda

nt sta te s. 7 The y

we re he l d not to be “ dire c tly

c a use d” so in Pe nnsy lva

nia be c a use the m one ta

ry losse s re sulte d

from the pla intiff
sta te s’ own la

ws. 8 Though it wa s undispute d tha t the de fe nda

nt sta te s’ ta x sc he m e s ha d c ost the pla intiff sta

te s m one y , the de fe nda

nt sta te s we re he ld not to ha

v e

“ inflic te d a

ny injury ,” 9 be c a

u se the m one ta

ry ha rm s we re “ se l f-inflic te d :” 1 0

The injurie s to the pla i ntiffs’ fisc s we re se lf-inflic te d, re s ulting from de c isions m a de by

the ir re spe c tive sta

te le g isla ture s. Nothing re quire d M a ine , M a s sa c huse tts, a

nd Ve rm ont to e xte nd a

ta x c re dit to the ir re side nts for inc o m e ta xe s pa id to Ne w Ha m pshire , a nd nothing pre ve nts Pe nnsy lva

n ia from withdra wing tha t c re dit for ta

xe s pa id to Ne w Je rse y . No sta

te c a n be he a rd to c om

pla i n a bout da m a ge

5 Id.

6 308 U.S. 1, 15 (1939).

7 Pe nnsy lva

nia , 426 U.S. a

t 664.

8 Id.

9 Id.

1 0 Id.
2inflic te d by its own ha

n d. 1 1

C a lifornia a nd the othe r pla intiff sta te s in the c a se be fore us ha ve pointe d out tha t the ir le gisla

t ive sc he m e s we re in pla c e be fore the fe de ra l re gula tory c ha nge tha t will c ost the m

m one y . B ut Pe nnsy lva

n ia doe s not le a

v e room for suc h a

“ first in tim e , first in right”

a rgum e nt. Ve rm ont’ s la

w, for insta

nc e , long pre c e de d Ne w Ha m pshire ’ s, but the c o urt he ld tha t a ny “ injury ” wa s “ s e lf-inflic t e d” be c a use Ve rm o nt ne e d not ha

ve e xte nde d ta x c re dits to its re side nts a t a ll. 1 2 The sta

te s

c ould a lso ha

ve pre v e nte d the ir fina

nc ia l injury

by c ha nging the ir la

ws. 1 3 As the

c onc urring opinion put it, “ [t] he a ppe lla n ts the re fore , [we ] re re a l ly c o m pla ining

a bout the ir own sta

t ute [s] .” 1 4

Pe nnsy lva

nia diffe rs from

the c a se be fore us be c a

use the dispute wa s be twe e n c oe qua l sove re igns in Pe nnsy lva nia , he a rd unde r the C ourt’ s origina l jurisdic tion, a

nd he re it is be twe e n sta

te gove rnm e nts a

nd the fe de ra l gove rnm e nt.

1 1 Id.

1 2 Id.; se e 32 V.S.A. § 5825 (1966); N.H. R .S.A. § 77-B :2 (1970).

1 3 Pe nnsy lva

nia , 426 U.S. a

t 664.

1 4 Id. a t 667.
3B ut Pe nnsy lva n ia ’ s re je c tion of “ se lf-inflic te d” injury ha s be e n a pplie d outside the origina l jurisdic tion c onte xt. 1 5 The re is no c onflic t be twe e n the fe de ra l a

nd sta te la ws, so the sove re ign rights of the pla intiff sta

te s c a n not e sta blish sta nding. 1 6 Though the pla intiff sta

t e s m a y unde r the ir own la

ws spe n d a dditiona l m one y to provide be ne fits to som e wom e n tha t the y would not ha

ve ha d to pa

y for be fore the fe de ra l c h a nge , the y

re m a in fre e to de c ide whe the r to do so.

As the m a jority a c knowle dge s, the “ i rre duc ible m inim um ” for sta

n ding is tha t “ the pla intiff m

ust ha ve (1) suffe re d a

n injury in fa c t, (2) tha

t is fa i rly tra c e a

ble to the c ha lle nge d c onduc t of the de fe nda nt, a nd (3) tha t is like ly to be re d

re sse d by

a fa v ora ble judic ia l de c ision.” 1 7 All thre e m inim a a re pe rha ps de ba ta ble , but

1 5 Se e C la ppe r v. Am

ne sty Inte rn. USA, 568 U.S. 398, 416 (2013).

1 6 Sturge on v. M a sic a , 768 F.3d 1066, 1074 (9th C ir. 2014), va c a te d a nd re m a nde d sub nom . Sturge o n v. Frost, 136 S. C t. 1061 (2016) (re je c ting “ sta

nding ba se d sim ply on purporte d viola

tions of a sta t e ’ s sove re ign rights” a nd re quiring

“ e v ide nc e of a c tua l injury ” whe re sta te fa ile d to “ ide n tify

a ny a c tua l c onflic t be twe e n [fe de ra l a ge nc y

re gula tions] a nd its own sta

t ute s a nd re gula

tions” ); Sturge on v. Frost, 872 F.3d 927, 929 (9th C i r. 2017), c e rt. gra nte d, 138 S. C t. 2648 (2018) (e xpla ining prior holding a s to sta t e sta nding wa s “ una ffe c te d by the Supre m e C ourt’ s va c a t

ur of [the ] prior opinion” ); Virginia e x re l. C u c c i ne lli v. Se be lius, 656 F.3d 253, 270 (4th C ir. 2011) (holding sta te la c ke d sta nding whe re it fa ile d to ide ntify

e nforc e m e nt of sta

te sta tute tha t “ c onflic t[e d] ” with the individua l m a nda te of the AC A).

1 7 Spoke o, Inc . v. R obins, 136 S. C t. 1540, 1547 (2016), a s re vise d (M a y 24, 2016).
4c a

usa tion, tha

t is, “ tra c e a

bility ,” is c ontrolle d by

Pe nnsy lva

nia . Tha t c a s e

e sta blishe s tha

t ha rm to the fisc of a

pla i ntiff sta

t e be c a use of its own sta

tute is

“ se lf-inflic te d,” a nd the re fore not “ tra c e a ble to the c h a l le nge d c onduc t of the de fe nda n t.” 1 8 Tra c e a

b ility fa ils if the e xpe n se to the sta t e re sults from

its own la

w

a nd without tha

t sta te le gisla tive c hoic e , c ould be a voide d. The fe de ra l re gula tory

c ha nge itse lf im

pose s no obliga

tion on the sta

te s to provide m one y for

c ontra c e ption. The pla intiff sta te s c hoose to provide som e c ontra c e ption be ne fits
to e m ploy e e s of e m

ploy e rs e xe m

pte d by the fe de ra l insura nc e re q uire m e nt, so the

na rrowing of the fe de ra l m a nda te m a y le a d to the sta te s spe nding m o re be c a

use

som e e m ploy e rs m a y spe nd le ss. Nor c a n the pla intiff sta te s invoke the doc trine of
pa re ns pa tria e to ga in sta

nding. 1 9

I re c o gniz e tha

t the Fifth C irc uit took a

diffe re nt vie w in diffe re nt

1 8 Pe nnsy lva

nia , 426 U.S. a

t 664; Spoke o, 136 S. C t . a t 1547.

1 9 Se e M a ssa c huse tts v. EPA, 549 U.S. 497, 520 n.17 (2007) (e xpla ining tha

t sta te a c tions a ga inst the fe de ra l gove rnm e nt “ to prote c t [its] re side n ts from the ope ra t ion of fe de ra l sta

tute s” a re pre c lude d); Sie rra Fore s t Le ga c y

v. She rm a n, 646 F.3d 1161, 1178 (9th C ir. 2011) (“ C a lifornia , like a ll sta te s, ‘ doe s not ha

v e sta nding a s pa

re ns pa tria e to bring a

n a c t ion a ga inst the Fe de ra l Gove rnm e n t.’ ” (quoting Alfre d L. Sna

pp & Son, Inc . v. Pue rto R ic o, 458 U.S. 592, 610 n.16 (1982))).
5c irc um s ta

nc e s in Te xa s v. Unite d Sta te s. 2 0 The re , the Fifth C irc uit he ld tha t sta te s did inde e d ha

ve sta n ding to c ha lle nge a

ne w fe de ra l progra

m re la ting to im m igra tion. 2 1 Te xa s wa s he ld to ha ve sta nding be c a

u se fe de ra l re gula

tory c ha nge on its a dm inistra

tion of drive rs’ lic e nse s – re quiring it to issue drive rs’ lic e nse s to ille g a l a lie ns – would c ost it m one y . 2 2 The Fifth C irc uit re je c te d a pplic a tion of the
Pe nnsy lva

nia “ se lf-inflic te d injury ” rule , but stre sse d tha t its de c ision “ is lim ite d to the s e fa c t s.” 2 3 It is not pla in tha t the Fifth C irc uit would e xte nd its vie w of
sta nding to the

quite diffe re nt fa c ts be fore us. The re gula tory c ha nge re ga rding

c ontra c e ption pose s no c h a lle nge to the sove re ign a uthority of C a lifornia

to provide c ontra c e ptive be ne fits or not, but the re gula tory c ha nge in Te xa s did lim

it the l e gisla

tive c hoic e s Te xa s c ould m a ke without “ running a foul of pre e m

ption or the E qua l Prote c t ion C l a

use .” 2 4 Nor c a n we be sure tha t Te x a s is good la

w. The Supre m e C ourt gra

nte d c e rtiora

ri on the que stion whe t

he r “ a Sta t e tha t volunta rily provide s a

subsidy ” ha s sta

n ding to c ha lle nge a

fe de ra l c ha

nge tha t would e x pa

nd

2 0 809 F.3d 134 (5th C ir. 2015), a s re vise d (Nov. 25, 2015).

2 1 Id. a t 162.

2 2 Id. a t 155-57.

2 3 Id. a t 154.

2 4 Id. a t 153; se e a l so Za

n go, Inc . v. Ka spe rsky

La b, Inc ., 568 F.3d 1169, 1177 n.8 (9th C ir. 2009) (“ An a m ic us c uria e ge ne ra lly

c a nnot ra i se ne w a

rgum e nts on a ppe a l .” (c ita

tions om itte d)).
6its subsidy , a nd othe r issue s. 2 5 The C ourt wa s “ e qua lly divide d,” so the que stions

we re not a

nswe re d. 2 6

The m a jority e rrs in tre a ting W

y om ing v. Okla

h om a 2 7 a s though it ove

rrule d
Pe nnsy lva

nia

. 2 8 It doe s not sa

y so. And the C o urt doubtle s sly would ha ve sa id so ha d tha t be e n its inte nt. Nor is the se lf-inflic te d injury

doc trine e ve n re le va

nt to W y om ing, whic h is doubtle ss why W y om ing doe s not disc uss Pe nnsy lva n ia . In
Pe nnsy lva

nia , the pla intiff sta

te s c ould ha

ve a voide d a

ny lost re ve nue by

c ha nging

2 5 Unite d Sta te s v. Te xa s, 136 S. C t. 906 (2016); Pe t. for W rit of C e rt. a t I, Unite d Sta te s v. Te xa s, No. 15-674 (U.S. Nov. 20, 2015).

2 6 Unite d Sta te s v. Te xa s, 136 S. C t. 2271, 2272, re h’ g de nie d, 137 S. C t. 285 (2016).

2 7 502 U.S. 437 (1992).

2 8 Of c ourse , it doe s not m a tte r whe n jurisdic tion is ra i se d, sinc e we m ust ra ise it whe ne ve r its a

bse nc e a p pe a rs like ly . Se e Inte rpipe C ontra c t ing, Inc . v. B e c e rra , 898 F.3d 879, 891 n.9 (9th C ir. 2018) (“ B e c a use Artic l e III sta

n ding is jurisdic tiona l , we m

ust sua sponte a ssure ourse lve s.” ). And the m a jority e rrs in sa y ing tha t the se lf-inflic te d ha

rm doc trine wa s not ra ise d by the pa rtie s
. Se e Re ply B r . of M ar c h for L ife at 29, Dk t. No. 95 . M uc h of the brie fing be fore us a ddre s se s sta

nding, a nd the a p pe lle e sta

t e s we re a lso provide d a

n opportunity

to a ddre s s se lf-inflic t e d injury a t ora l a rgum e nt. And it doe s not m a tte r tha t the se lfinflic te d injury doc trine a rose in the c onte xt of a c a se ta ke n unde r the C ourt’ s origina l jurisdic tion, be c a use it is a stra ightforwa

rd a pplic a tion of the ge ne ra lly a pplic a ble c a usa tion re q

uire m e nt for sta

nding. Se e C la

p p e r, 568 U.S. a

t 416 (a pply ing Pe nnsy lva

nia ’ s “ se l f-inflic te d” doc t rine outside the origina l jurisdic tion c onte xt); Te xa s , 809 F.3d a t 158-59 (sa

m e ).
7the i r own la

ws gra nting ta x c re dits for ta

x e s pa id to the de fe n d a nt sta te s. B y

c ontra st, W

y om ing c ould not pre ve nt the e xpe nse to its fisc by c ha n ging its own la w. 2 9 W y o m ing lost se ve ra nc e ta x re v e n

ue be c a use the ne w Okla

hom a la w

re quire d m a

jor Okla hom a c oa l c onsum e rs to re pla c e a substa ntia l pa rt of the
W y om ing c oa l the y

burne d with Okla

hom a c oa l, so le ss c oa l wa s m ine d in
W y om ing. 3 0 Sinc e the W y o m ing le gisla ture c ould not c ha

nge the Okla

h om a la w, the h a rm to W

y om ing’ s fisc wa s not se l f-inflic te d. The Okla hom a la w, whic h

e xpre s sly ta rge te d W y o m ing, c a

use d the injury

. 3 1 In our c a s e , a s in Pe nnsy lva nia , the p la intiff sta

te s e l e c te d to pa

y m one y in c e rta in c irc um sta nc e s, a nd c a n a void the ha rm to the ir fisc s by

c hoosing not to pa

y the m one y .

I a gre e with the fe de ra l position tha t the pla i ntiff sta

t e s la c k sta

nding to bring this c a s e in fe de ra l c ourt. B e c a use suc h a

c onc lusion would pre c lude us from

re a c hing the othe r issue s in the c a se , I do not spe a k to the m in this disse

nt. Nor do
I a ddre ss a dditiona l re a sons why the pla intiff sta

te s m a y la c k sta

nding, sinc e the

2 9 W y o m ing, 502 U.S. a

t 447; se e a lso Te xa s, 809 F.3d a t 158 (“ W y om ing sought to ta

x the e xtra c tion of c oa l a

nd ha d no wa

y to a void be ing a ffe c te d by

othe r sta te s’ la ws tha t re duc e d de m a nd for tha

t c oa l.” (e m

p ha sis a dde d)).

3 0 Id. a t 443, 445-47.

3 1 Id. a t 443.
8“ se lf-inflic te d injury ” dispose s of the que stion without the m
.

9