Standing and Future Generations: Does Massachusetts v. EPA Open Standing for Generations to Come?
Bradford C. Mank
University of Cincinnati - College of Law
March 30, 2008
Columbia Journal of Environmental Law, Vol. 34, p. 1, 2009
U of Cincinnati Public Law Research Paper No. 08-15
Many issues, especially potential environmental catastrophes caused by climate change, affect not just the living, but also future generations. The bias in our political system against addressing the interests of future generations poses serious obstacles in solving long-term environmental problems such as global warming. Because future generations cannot vote, unelected federal judges are more suited to protect their interests than the political branches.
An important question is whether anyone has standing to sue on behalf of future generations in the federal courts. The Supreme Court's Article III standing test requires plaintiffs to demonstrate that they have personally suffered an injury that is actual and imminent, and not merely conjectural or hypothetical. For non-governmental plaintiffs, there is arguably conflicting law regarding whether and when probabilistic risks justify standing, especially where a plaintiff seek a substantive remedy. For uncertain risks that have a probability of less than fifty percent of occurring during the plaintiff's lifetime, a court might deny standing because the risks are too uncertain.
In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Supreme Court held that Massachusetts had standing to challenge the EPA's refusal to regulate carbon dioxide because states are entitled to more lenient standing criteria than ordinary citizens. The Court considered evidence from computer models that climate change through the year 2100 would result in ever rising sea levels and damage to Massachusetts coastline. It is unclear whether an ordinary citizen could raise a claim involving global warming because the harm is generalized and probabilistic.
Despite the actual and imminent requirement limitation of suits on behalf of future generations, Massachusetts supports the protection of future generations in some circumstances. Under the parens patriae doctrine, states have a quasi-sovereign interest in protecting the health and safety interests of their citizens. There is a good argument that states have a quasi-sovereign interest in not just their current citizens but also their future citizens. Furthermore, the modern public trust doctrine and several state laws recognize that states have a duty to protect natural resources for future generations. Because both federal and state law recognizes the important role of states in protecting natural resources for future generations, federal courts should apply a liberal approach to standing issues when states bring parens patriae or public trust suits to protect those resources for the state's future citizens.
This is the first article to consider whether Massachusetts supports standing rights for future generations. It builds upon and goes beyond my forthcoming article in the WILLIAM & MARY LAW REVIEW examining the impacts of Massachusetts on standing doctrine. Bradford C. Mank, Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA's New Standing Test for States, WILLIAM & MARY L. REV. (Forthcoming 2008).
Number of Pages in PDF File: 88
Keywords: standing, future generationsAccepted Paper Series
Date posted: March 30, 2008 ; Last revised: November 13, 2009
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