Economic harm has been the traditional means by which to show a plaintiff suffered an injury.
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Editor's note: This is an updated version of an article with the same title, addressing the same topic, by Marisa Martin, which appeared in the Spring 2008 issue of Insights on Law & Society and the April 2008 issue of Social Education, the magazine of the National Council of the Social Studies. Marisa A. Martin is a Chicago lawyer at the firm of Baker & McKenzie.
On November 2, 2018, the U.S. Supreme Court announced that the trial in a case brought by 21 people, including minors, against the federal government for its role in the global warming crisis, could continue. Juliana v. United States is underway in the 9th circuit, in Oregon. The plaintiffs, many of whom live in regions of the country suffering from effects of climate change, including extreme weather events, want a federal judge to order the federal government to develop a plan to address climate change.
Environmental lawsuits range from the highly local to the global. A plaintiff may file a lawsuit challenging the pollution of a nearby stream, the threats facing polar bears in the Arctic, or the increase in global warming due to unregulated greenhouse gas emissions. Whether alleging a global or local concern, parties bringing claims in federal court must satisfy the same hurdles before the merits of their case can be heard. One such hurdle is known as “standing,” which requires the parties bringing the lawsuit to demonstrate that they are the appropriate parties to bring the case in front of a court.
The basic idea behind “standing”—that only parties that have an interest in the case can bring the lawsuit—is relatively straightforward. In practice, however, developing a principled basis upon which standing can be demonstrated has proven to be extremely difficult, especially for those cases involving environmental issues. This article outlines the basic requirements for constitutional standing and how standing can be demonstrated in environmental cases. The article also discusses the Supreme Court’s landmark 2007 ruling in Massachusetts v. EPA, which involved claims related to global warming and greenhouse gas emissions.
The principle of standing is premised on the U.S. Constitution. Under Article III of the Constitution, judicial power extends over “cases” and “controversies.” In simplified terms, this has been interpreted to mean that only lawsuits alleging an injury to the plaintiff can be heard by the federal courts. The Supreme Court has noted that notwithstanding how many persons have been injured by the challenged action, the plaintiff bringing the lawsuit must demonstrate that the action injures him or her in a personal way. The requirement of standing ensures that the action brought is an adversarial one, which tends to sharpen the issues in front of the court.
Economic harm has been the traditional means by which to show a plaintiff suffered an injury. However, many environmental harms—such as polluted water, species in threat of extinction, and contaminated air—may not translate into an economic injury to an individual plaintiff. In the 1970s, the Supreme Court held that noneconomic injuries such as harm to recreational, conservational, and aesthetic interests can represent an “injury-in-fact” so long as the plaintiff is among the injured.
Decades later, in the 1990s, the Supreme Court more fully elaborated Article III standing requirements as applied to an environmental case. In Lujan v. Defenders of Wildlife (1992), environmental plaintiffs challenged a new rule by the U.S. Department of Interior, which interpreted a section of the Endangered Species Act as not applicable to actions in foreign nations. Plaintiffs included individuals who had visited Egypt in order to view the Nile crocodile and Sri Lanka to view the Asian elephant and Asian leopard. Plaintiffs alleged that the Department of Interior’s rule would negatively affect their future ability to view these species in their natural habitat.
The Lujan Court delineated three elements that must be met to demonstrate the constitutional minimum of standing to sue. First, a plaintiff must show an “injury-in-fact.” The “injury-in-fact” must be “concrete and particularized” and “actual or imminent,” not conjectural or hypothetical. The Court has noted that “particularized” means that the injury must affect the plaintiff in a personal and individual way. Second, the plaintiff must demonstrate a “causal connection between the injury and the conduct complained of.” The injury must be “fairly traceable” to the defendant’s challenged actions. Third, the plaintiff’s injury must be one that is likely to be redressed by a favorable decision in the case.
Applying this test, the Court determined that the plaintiffs did not have standing to sue because it found no “imminent” injury to the plaintiffs. The Court noted that the members of the Defenders of Wildlife who had visited Egypt and Sri Lanka only expressed an “intent” to return to these places and did not have concrete plans. The Court found these “someday” intentions were insufficient for the purposes of showing an “actual and imminent” injury.
The Court’s decision in Lujan highlighted a shift in the Court toward a stricter interpretation of standing in both environmental cases and other areas of the law. But the trend toward a more restrictive interpretation of standing was mitigated to some extent in 2000. In Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. (2000), plaintiffs brought a suit against a corporation discharging pollutants in violation of the Clean Water Act. Members of Friends of the Earth alleged injuries to their recreational, economic, and aesthetic interests and stated that the river “looked and smelled polluted.” The Court recognized that plaintiffs held “reasonable concerns” about the alleged Clean Water Act violations that directly affected their interests. The Court stated that injury to the environment was not necessary to show Article III standing so long as injury to the plaintiffs was shown. Applying the Lujan three-part test, the Court found that the plaintiffs had standing to bring the suit.
Justice Scalia, who authored the Lujan decision, dissented in Friends of the Earth. In his dissenting opinion, he stated that by accepting plaintiffs’ vague concerns about the environment even in the face of evidence that the environment was not harmed, the majority made the “injury-in-fact requirement a sham.”
The Global Warming Case—Massachusetts v. EPA
The cases described above illustrate the contentious nature of standing in environmental litigation and the lack of a consistent approach to standing in environmental cases. Standing analysis has been further challenged by lawsuits alleging global environmental problems like global warming. Unlike other air pollutants that have health and environmental impacts on the ground, greenhouse gases interfere with our climate high in the Earth’s atmosphere. As a result, most people do not experience direct harm from the emission of greenhouse gases.
The United States has not ratified the Kyoto Protocol, which is the international treaty that mandates greenhouse gas reduction targets for developed countries and creates incentives for the transfer of cleaner, lower-carbon technologies to developing countries. Nor has it implemented any greenhouse gas controls on the national level. This lack of regulation has led to legal challenges by environmental groups and others based on existing environmental statutes such as the Clean Air Act or common law nuisance claims.
A significant obstacle in these types of cases is the ability of the plaintiffs to meet standing requirements. In part, the difficulty relates to the scientific basis underlying climate change. While the majority of mainstream scientists agree that carbon dioxide and other greenhouse gases cause increased global temperatures, there is less agreement about the effects of global warming. Without certainty about the effects of global warming, plaintiffs have a harder time proving that they will suffer an injury as a result of increased greenhouse gas emissions. The redressability element of standing is also problematic because greenhouse gases are emitted around the world and halting the greenhouse gas emissions of one particular country is not likely to reverse or stop climate change on its own.
The Supreme Court has affirmed standing in a global warming case, Massachusetts v. Environmental Protection Agency (2007). This landmark case held that the Environmental Protection Agency (“EPA”) had the authority to regulate carbon dioxide, which was contrary to the EPA’s position that it lacked such authority. The Court also provided some guidance on standing in global warming cases.
The actions leading up to the Supreme Court’s decision in Massachusetts vs. EPA began in 1999 when a group of 19 private organizations submitted a petition for rule-making to the EPA requesting that standards be set for greenhouse gases emitted by new motor vehicles. Under Section 202(a)(1) of the Clean Air Act, standards must be set for “air pollution” emitted from motor vehicles when the pollution endangers public health and welfare.
In 2003, the EPA denied the petition and stated that it lacked authority to regulate greenhouse gas emissions under the Clean Air Act. The EPA also identified several policy reasons why its decision not to regulate greenhouse gases was appropriate, including that there were “numerous areas of scientific uncertainty” surrounding climate change and that the causal link between greenhouse gases and warmer temperatures “cannot be equivocally established.”
Petitioners requested review of EPA’s denial of the rule-making petition by the U.S. Court of Appeals for the D.C. Circuit, which denied the petitions, although the judges each wrote separate opinions.
Judge Randolph announced the decision of the court. He avoided a definitive ruling on standing and assumed for the sake of argument that the EPA had authority under the Act to regulate greenhouse gas emissions from new motor vehicles. He found that the EPA properly declined to exercise that authority and could take into account scientific evidence as well as policy judgments when determining whether regulation is advisable.
A second judge, Judge Sentelle, determined the petitioners lacked standing because global warming is harmful to humanity at large, and thus petitioners’ grievances were too generalized to support standing. However, Judge Sentelle joined Judge Randolph’s decision to ensure a majority of the panel could agree on the disposition of the case.
In a 38-page dissent, the third judge, Judge Tatel, determined that the State of Massachusetts had demonstrated all three elements of Article III standing—injury, causation, and redressability. With respect to injury, Tatel stated that there was a “substantial probability” that global warming would result in sea level rise, which would threaten Massachusetts’s coastline and coastal property. Tatel found that the plaintiffs adequately showed that EPA’s failure to regulate greenhouse gases contributed to global warming, which caused projected sea level rises. With respect to redressability, Tatel decided that plaintiffs’ expert testimony established that reductions of greenhouse gases from motor vehicles would delay and moderate many of the adverse impacts of global warming. Turning to the merits, Judge Tatel determined that the EPA possessed statutory authority to regulate greenhouse gas emissions and that the policy considerations identified by the EPA fell outside its range of discretion.
Plaintiffs then sought review of the case by the Supreme Court, which was granted. The Court first addressed the question of standing and focused on the special position of the state of Massachusetts. The Court emphasized that the fact the state of Massachusetts is a sovereign state and not a private party like in Lujan is of “considerable relevance” and that Massachusetts was given “special solicitude” in the standing analysis. However, exactly how this “special solicitude” affected the standing analysis was not clear from the Court’s opinion.
With respect to the injury element of standing, the Court found that Massachusetts adequately demonstrated that rising global sea levels have already swallowed some of the state’s coastal land and that if sea levels continue to rise as predicted, the state’s injury will become more severe over time. As an owner of significant coastal property, the Court found that Massachusetts’ injury was “actual” and “imminent.”
With respect to causation, the Court noted that a substantial percentage of greenhouse gases are emitted by motor vehicles and that 6% of worldwide carbon dioxide emissions can be attributed to the transportation sector in the U.S. Thus, the Court found that the regulation of greenhouse gases from motor vehicles would make a meaningful contribution to reducing greenhouse gas concentrations.
The Court found the third element of standing—redressability—was also adequately demonstrated. The Court determined that the regulation of greenhouse gases emitted by motor vehicles would have some impact on global warming, thus reducing to some extent the harm to the state of Massachusetts.
After finding that the plaintiffs demonstrated standing, the Court addressed the merits of the case. The Court agreed with plaintiffs that greenhouse gases fall within the definition of “air pollutants” in the statute. As such, the EPA held the authority to regulate greenhouse gases from new motor vehicles under Section 202(a)(1) of the Clean Air Act. The Court found that the EPA provided no reasoned explanation for its refusal to determine whether greenhouse gases contributed to global warming and remanded the case for further proceedings.
On remand, EPA found that six greenhouse gases “in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare.” The EPA also introduced regulations of certain greenhouse gases as a result. In February 2010, the states of Alabama, Texas, and Virginia and several other parties sought judicial review of the EPA's determination in the U.S. Court of Appeals, District of Columbia Circuit. On June 26, 2012, the court issued an opinion, which dismissed the states’ and other parties’ challenges to the EPA's endangerment finding and the related regulations. The three-judge panel unanimously upheld the EPA's central finding that greenhouse gases, such as carbon dioxide, endanger public health and were likely responsible for the global warming experienced over the past half century.
The U.S. Supreme Court’s 2007 decision in Massachusetts v. EPA had an impact on subsequent climate change lawsuits as well as on environmental standing and standing in general. The Court’s finding that carbon dioxide is considered a “pollutant” under the Clean Air Act has been used to support separate litigation challenging the EPA’s failure to regulate greenhouse gases from stationary sources and other sources covered by the Clean Air Act. Also, the Court’s recognition of the injuries caused by global warming, the causation between increased greenhouse gases and global warming, and the EPA’s ability to mitigate harmful impacts of climate change will likely be used to demonstrate standing in other global warming-related cases.
While the legacy of Massachusetts vs. EPA is still in development, it is clear that the issue of environmental standing will continue to be a contentious one.