Standing To Enforce The Future: Citizen Suits And Climate Change
Boston College Law Review (Forthcoming 2025).
78 Pages Posted: 9 Sep 2024
Date Written: August 01, 2024
Abstract
Climate change poses an incalculable threat to human civilization. To forestall or perhaps avert its most devastating consequences, “[d]eep, rapid and sustained” reductions must be made in greenhouse gas (GHG) emissions that are fueling the climate crisis. Despite recently enacting the first significant federal legislation to address this threat, the United States – which generates more GHG emissions than any nation but China – continues to fall far short of the requisite reductions. Notwithstanding a political environment that likely precludes further legislative action in the immediate future, this Article takes as its starting point the premise that these circumstances might change, and that Congress might choose to use its lawmaking powers to significantly expand federal efforts to reduce the nation’s GHG emissions.
Were Congress to do so, and if its response included direct restrictions on GHG emission activities in addition to incentive and subsidy arrangements, federal policy would require powerful accompanying enforcement mechanisms to reach the vast number of GHG sources subject to regulation. Among the most far-reaching enforcement tools at the disposal of Congress is its authorization of private suits to restrain or penalize prohibited conduct. Such actions, referred to as citizen suits, are an integral part of most federal regulatory programs and would likely play an important role in any federal effort to broadly regulate GHG emissions. This central enforcement mechanism, however, likely faces an insurmountable hurdle in the context climate-change policy: the increasingly restrictive standing doctrine of the current Supreme Court. To establish standing to sue, a private enforcer must meet the Court’s highly restrictive test for Article III standing, including proof of a causal association between the requested relief and the substantial remediation of the litigant’s injury. For the Justices who now control the Court, litigation that makes incremental progress toward the future resolution of a vast and ongoing injury is not enough to justify the exercise of federal jurisdiction.
The injuries caused by climate change result from the collective activity of an incalculably vast number of GHG emitters across the world. Any effort to fully remediate climate-related injuries will necessarily require a similarly vast and collective global intervention – including, potentially, citizen suits that individually target just a small proportion of overall global GHG emissions. Such suits thus must rest on the principle that Article III permits incremental relief that, in the aggregate, helps turn the tide against climate change. As this Article explains, it is highly likely that a majority of the current Court will repudiate that proposition.
In view of this impediment to private enforcement, the Article proposes that Congress consider pairing, whenever possible, direct regulatory restrictions on emissions activities with parallel restrictions on associated prerequisite activities. GHG emissions arise from economic arrangements that often involve activities that inflict harms unrelated to climate change – for example, localized environmental and health injuries arising from the processing, transportation, and distribution of methane-emitting cattle. Litigants separately harmed by such prerequisite activity will meet the requirements of Article III standing, since the relief they seek will directly – not incrementally – remedy their separate injuries. Accordingly, legal restrictions on those prerequisite activities would be subject to citizen suits based on the injuries they directly inflict, with the consequence of restricting dependent but otherwise nonjusticiable emission activities as well.
The Article illustrates how this approach might work in the context of regulating the cattle industry, which accounts for a significant proportion of GHG emissions in the United States. In addition to direct regulation, which would not support standing for private enforcement, the Article describes how separate regulatory restrictions on concentrated animal feed operations (CAFOs) would effectively reduce methane emissions associated with cattle by constraining the industry’s prerequisite production and distribution channels. Since CAFOs inflict a variety of localized environmental and health injuries as a consequence of their massive scale, individuals subject to such harms would have standing to bring citizen suits to challenge their operation – with the collateral effect of restricting a primary source of GHG emissions.
Keywords: "greenhouse gasses", cafo, cafos, emissions, citizen suits, climate change, climate change policy, emissions regulations, standing, greenhouse emissions
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