Standing and Global Warming: Is Injury to All Injury to None?
Bradford C. Mank
University of Cincinnati - College of Law
Environmental Law, Vol. 35, 2005
Since global warming potentially affects everyone in the world, does any individual have standing to sue the U.S. EPA or other federal agencies to force them to address climate change issues? Suits addressing global warming raise difficult standing questions because some Supreme Court decisions have stated or implied that courts should not allow standing for plaintiffs who file suits alleging general injuries to the public at large because the political branches of government - Congress and the executive branch - are better equipped to resolve such issues. There is a better argument, however, for courts to recognize standing for plaintiffs who suffer "concrete" mass injuries, including any physical harms that are more likely than not caused by global warming. Under the National Environmental Policy Act of 1969 (NEPA), courts should use a "reasonable possibility" standard to determine whether a federal agency must discuss the possible impact of its actions on global warming. In 2003, the EPA concluded that the Clean Air Act does not give the Agency authority to regulate carbon dioxide, although several states are challenging that conclusion. Even if the EPA cannot regulate carbon dioxide directly, there is a strong argument that the Agency must consider carbon dioxide emissions when new power plants apply for a permit under the new source review process. Under the Administrative Procedure Act and general standing principles, a plaintiff who suffers small, but tangible injuries should have standing under the Clean Air Act.
A concurring opinion in a recent decision involving chemicals that cause global destruction of stratospheric ozone addressed the difficult issue of whether a plaintiff may have standing to sue those who contribute in a small ways to global pollution problems. In Covington v. Jefferson County, the Ninth Circuit held that the plaintiffs had standing to bring citizen suits under the Clean Air Act (CAA) for the local injuries caused by the defendants from improper disposal of ozone destroying chemicals at a landfill. In a concurring opinion, Judge Gould concluded the plaintiffs had standing to sue based on the global impacts on stratospheric ozone resulting from the defendants' mishandling of CFCs. Some courts, especially in taxpayer suits, had suggested that a plaintiff may not assert standing if an alleged injury harms all persons equally, or in other words, "that injury to all is injury to none." On the whole, Judge Gould determined that the Supreme Court's most recent standing cases have allowed a plaintiff to achieve standing resulting from general injury if the injury to the plaintiff is sufficiently concrete. Judge Gould concluded that the risk of skin cancer, cataracts and suppressed immune systems to the plaintiffs was sufficiently concrete to justify Article III standing even though the defendants' only contributed a small amount of harm to a global problem. But global warming suits present more complex issues.
This Article concludes that at least some plaintiffs with concrete injuries, i.e., Alaskan natives, have standing to file global warming suits under either the National Environmental Policy Act of 1969 (NEPA) or the CAA. Today, the strongest case for standing by climate change plaintiffs is under NEPA. There is currently a split in the circuits regarding the test for standing under NEPA. Building upon precedent in the Ninth and Tenth Circuits, this Article proposes a liberal approach to standing in NEPA cases that could allow at least some plaintiffs to raise global warming issues under the statute.
Under the CAA, no decision has yet directly addressed whether plaintiffs have standing to raise climate change issues. In deciding whether a plaintiff has standing under the CAA to sue concerning global warming, a crucial issue is whether the EPA has the authority to regulate GHGs under the CAA. During the Clinton Administration, two different EPA general counsels concluded EPA had some authority to regulate Carbon dioxide under the CAA even if the United States did not ratify the Kyoto Protocol. In 2003, however, the Bush Administration EPA concluded that the Agency has no authority to regulate carbon dioxide or other GHGs. Several states are challenging the EPA's refusal to regulate GHGs. If this suit is successful, there would be a stronger basis for concluding that there is standing in climate change cases.
Even if it does not have direct authority to regulate carbon dioxide, the EPA may have indirect authority under CAA's "new source review" (NSR) process for approving permits for new power plants to consider unregulated pollutants, i.e., carbon dioxide, in determining what is the best available control technology. This article will argue that at least some plaintiffs would have standing to argue that the EPA must consider technology that would reduce unregulated pollutants such as CO2.
Keywords: Environmental Law, Global Warming
JEL Classification: K32
Date posted: March 15, 2005