Standing and Climate Change: Can Anyone Complain About the Weather?
Widener University Delaware Law School
Journal of Land Use and Environmental Law, Vol. 15, 2000
Air pollution can be a local, regional, or international phenomenon, but when can someone have standing in court to complain about emissions that change the world’s climate? The question of standing in a climate change context focuses on one of the central conceptual disputes within standing jurisprudence, namely what should be the role of courts in reviewing action or inaction by administrative agencies when the harm complained of is widely, if not universally, shared. Since everyone breathes and lives in the earth’s climate, who can claim particular enough injury to seek redress in court when either the government fails to fulfill its international regulatory obligations mandated by treaty or statutes implementing that treaty, or when members of the regulated community fail to comply with the law?
This article will attempt to answer whether, under Supreme Court jurisprudence, a citizen can have standing to challenge a government rule on climate change grounds or challenge a government order approving an emission credit project approval or to enforce project requirements. The answer to this question depends on how the recent Supreme Court standing jurisprudence is understood to define the meaning of “injury in fact,” causation and redressability. Must the plaintiff be directly harmed by the pollutant itself, as is the case in the classic nuisance and pollution cases? Or, may the plaintiff complain about the impact of climate change that will be widespread and suffered by all persons where the threatened impact is only a statistical artifact rather than a particular event or effect that is harmful to the plaintiff? Thus, the climate change standing problem goes to the central question of what is injury, how particularized it must be, and is standing to be essentially a constitutionalization of the special injury rule in public nuisance?
Number of Pages in PDF File: 37
Keywords: climate change, environmental law, standing, Constitutional law
JEL Classification: K32
Date posted: November 16, 2012
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