CHANGING TIDES

Changing Tides: Article III Standing and Climate Change Litigation

By: Hillary Hoffman, Volume 103 Staff Member 

Globally, young people are attempting to assert their stake in the future of the environment through litigation.[1] This should come as no surprise, since young people will surely be the most severely impacted by climate change.[2]However, courts—or at least U.S. courts—have been in a place of confusion and stagnation when it comes to climate change litigation, especially when it comes to questions of climate change as they relate to substantive rights.[3] Much of the courts’ hesitancy in taking on these climate change cases stems from the need for plaintiffs to prove constitutional standing. Plaintiffs have been largely unable to convince courts that they meet all the elements of constitutional standing—injury, causation, and likely redressability[4]—therefore making them unable to properly bring their case to the courthouse.[5]

However, the judicial tides may be changing as climate change science becomes more detailed and the relationship between environmental catastrophes and climate change become clearer,[6] potentially making it easier for plaintiffs to show constitutional standing. The question now is if courts will be able to overcome their love for “normative process” in the face of the “cognizable fact[s]” of climate change.[7]

I. Constitutional Standing in Climate Change Cases

To establish constitutional standing, plaintiffs, including climate change plaintiffs, must first show an injury in fact—that is, an “invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent.”[8]The plaintiff must show a “causal connection between the injury and the conduct complained of . . . .”[9] It must be “fairly traceable” to the action at issue, rather than the result of “some third party not before the court.”[10] Finally, it must be likely that the injury will be “redressed by a favorable decision.”[11] Establishing these constitutional standing requirements has been one of the near-impossible hurdles for climate change plaintiffs.[12]

The Supreme Court laid some groundwork for climate change standing in Massachusetts v. EPA.[13] There, Massachusetts alleged that the EPA had statutory authority to regulate greenhouse gas emissions from new motor vehicles, but had “abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases.”[14] The Court found that Massachusetts had standing to challenge EPA’s denial of its rulemaking petition.[15] Notably, the Court found that there was “more than adequate” support that the agency’s failure to regulate led to rising sea levels that threatened Massachusetts’ coast.[16] There was no problem with causation since “motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations.”[17] Further, while the Court acknowledged that a favorable decision for Massachusetts would not reverse climate change, the Court found the remedy element was met since the risk would be reduced to some extent “if petitioner received the relief” requested.[18]

While seemingly straightforward, the standing analysis in Massachusetts has not been transposed into subsequent climate change cases. Although the “injury in fact” element has become easier to prove as climate change becomes more severe,[19] courts are still hesitant to find standing. Where defendants are private corporations, the causation element is often deemed lacking.[20] For example, in Native Village of Kivalina v. Exxon Mobil Corp., a district court dismissed the federal common law nuisance claims filed against twenty-four large energy corporations.[21] The court, in noting that plaintiffs could not show that defendants contributed to or were the “seed of their injury,” found plaintiffs did not have constitutional standing for want of causation.[22] In other words, plaintiffs have difficulties proving that emissions from “one site, or groups of sites, actually ma[k]e their way into the atmosphere, and once there contribute[] to climate change . . . .”[23]

Relatedly, redressability is a continuous challenge for climate change plaintiffs. Despite that a favorable decision by the court need not remedy every injury,[24] courts are oft quick to decided that they cannot provide redress through a favorable decision. For example, in Washington Environmental Council v. Bellon, the Ninth Circuit found that the plaintiffs could not meet the redressability prong since, even if a favorable decision would eliminate all greenhouse gas emissions at issue, the plaintiffs’ injuries would not be redressed since greenhouse gas emissions are “not a localized problem . . . but a global occurrence.”[25] In other words, while climate change once played such a subtle role in peoples’ lives that no injury in fact could be proved, now courts are saying climate change is so catastrophic that adjudication can be of no help.

II. Trending: Compelling Government Action Based on Constitutional Rights

While many courts, including the Supreme Court, have demonstrated their “jurisdictional anxieties provoked by climate change litigation,”[26] others have begun to see climate change as a redressable harm, not an abstract political question.[27] Many of these courts have been heavily influenced by the swell of climate change science being used to prove constitutional standing.[28] Julianna v. United States is one of the cases testing the waters, seeing how far Article III standing can stretch in climate litigation.[29]

Brought in United States District Court for the District of Oregon by twenty-one young people, the case is one demanding the government fight climate change. The plaintiffs sued the federal government, alleging that inaction on the crisis of climate change was an infringement of their constitutional rights.[30] The lawsuit has barreled through a multitude of procedural hurdles, including the government’s request for a stay, which was denied by the Supreme Court in November of 2018.[31]

Although many are surprised the lawsuit has survived this long,[32] the young plaintiffs have benefitted tremendously by being assigned a judge that is receptive to the plaintiffs’ theories[33] and willing to entertain plaintiffs’ “over one thousand pages of expert reports detailing the fundamental science of climate change . . . .”[34] Backed by scientific evidence—some of which has been contested by defendants[35]—the plaintiffs have been able to convince the judge that they have constitutional standing.[36] Most notably, the judge explained that since the emissions at issue “ma[d]e up a significant share of global emissions,” with the United States contributing up to twenty-five percent of global emissions, the injury could be linked to defendant’s behavior.[37] Further, while the judge acknowledged that redressability would be “scientifically complex,” the court accepted the notion that a favorable decision for the plaintiffs “would at least partially redress their asserted injuries . . . .”[38]

III. Environmental Science: Key to Article III Standing

While others have not been so bold as to take on the United States government, plaintiffs around the country are bringing climate change actions against various government and fossil fuel entities.[39] And the foot in the door for these cases is likely the growing body of accessible climate science,[40] which provides judges solid evidence on which to find standing. With seemingly more natural disasters happening each year, and the growing – almost irrefutable – link between climate change and these disasters,[41] the case for constitutional standing in climate change litigation could become more tempting for more judges. While the defendants of these cases will surely argue that this type of plaintiff does not have standing and that climate change is a political issue,[42] the fate of this battle likely turns on how much scientific evidence plaintiffs can get in front of the judge and how receptive that judge is to science-based standing.

  1. See Global Legal Actions, Our Children’s Trust, https://www.ourchildrenstrust.org/global-legal-actions/ (last visited Feb. 16, 2019) (noting that young people globally are bringing legal actions to “compel science-based government action on climate change”). 
  2. See Ylan Nguyen, Constitutional Protection for Future Generations from Climate Change, 44 Hastings Const. L.Q. 347, 350 (2017) (noting that an “unstable climate . . . would rob [young people] of vital resources, such as fresh air and clean drinking water”). 
  3. See Theodore Okonkwo, Protecting the Environment and People from Climate Change through Climate Change Litigation, 10 J. Pol. & L. 66, 69 (2017). Courts will surely take cases questioning regulations, deregulations, or lack of regulation in the environmental law sphere. See Margaret Rosso Grossman, Climate Change and the Individual, 66 Am. J. Comp. L. 345, 368 (2018). 
  4. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 
  5. See infra Part I. But see Massachusetts v. EPA, 549 U.S. 497, 521 (2007); Ylan Nguyen, supra note 2, at 359 (“[T]he Supreme Court found climate change claims justiciable.”). 
  6. See, e.g., 2018 Global Heat So Far, Climate Central (July 18, 2018), https://www.climatecentral.org/gallery/graphics/2018-global-heat-so-farHow a Warmer World Primed California for Large Fires, National Geographic: Environment, https://www.nationalgeographic.com/environment/2018/11/climate-change-california-wildfire/ (last visited Feb. 16, 2019); Water and Climate Change, United Nations Water, http://www.unwater.org/water-facts/climate-change/ (last visited Feb. 16, 2019). 
  7. R. Henry Weaver & Douglas A. Kysar, Courting Disaster: Climate Change and the Adjudication of Catastrophe, 93 Notre Dame L. Rev. 295, 300 (2017) (“Catastrophe, rather, create situations of misalignment, where a void opens between normative structure and cognizable fact. Judges, more so than police, can reassert jurisdiction to close this gap.”). 
  8. Lujan, 504 U.S. at 560–61. 
  9. Id. 
  10. Id. 
  11. Id. 
  12. See Ylan Nguyen, supra note 2, at 358. 
  13. 549 U.S. 497 (2009). The case was one of procedural right, however, which has created less-than-perfect application to current climate change litigation. 
  14. Mass., 549 U.S. at 506. 
  15. Id. at 526. 
  16. Id. at 523. 
  17. Id. at 525. 
  18. Id. at 527. 
  19. See, e.g., Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1140–42 (9th Cir. 2013). The injury alleged, however, must be to the individual, not the environment. See NRDC v. EPA, 542 F.3d 1235, 1245 (9th Cir. 2008). 
  20. See Grossman, supra note 3, at 354. 
  21. 663 F. Supp. 2d. 863 (N.D. Cal. 2009). 
  22. Id. at 881. 
  23. See Grossman, supra note 3, at 360. This difficulty in establishing causation also occurs in cases where defendant is the government. See Bellon, 732 F.3d 1131 (9th Cir. 2013). 
  24. See Larson v. Valente, 456 U.S. 228 (1982). 
  25. Bellon, 732 F.3d at 1146–47. The court noted that the “relaxed” redressability standard of Massachusetts should not be applied to run-of-the-mill climate change actions, since Massachusetts provided a special carve out for sovereign interest. Id. at 1147. 
  26. Weaver & Kysar, supra note 7, at 325. 
  27. See Grossman, supra note 3, at 367. 
  28. See, e.g., Michael Burger & Jessica Wentz, Sabin Ctr. for Climate Change Law, A Preview of How Climate Science Could Play Out in ‘Juliana v. United States’ Courtroom, State of the Planet (Jan. 11, 2019), https://blogs.ei.columbia.edu/2019/01/11/climate-courtroom-juliana-v-us/
  29. 217 F. Supp. 3d 1224 (D. Or. 2016). 
  30. Id. 
  31. In re United States, 139 S. Ct. 452 (2018). 
  32. See John Schwartz, Meet the Woman Helping Young People Sue the Trump Administration Over Climate Change, Independent (Oct. 24, 2018), https://www.independent.co.uk/environment/trump-sue-climate-change-global-warming-white-house-lawyer-woman-julia-olson-a8599701.html
  33. Id. 
  34. Burger & Wentz, supra note 28. 
  35. Id. (noting that defendants have submitted reports “contesting the reliability, soundness and validity of the plaintiffs’ submissions”). 
  36. Juliana, 217 F. Supp. 3d at 1241, 1248. 
  37. Id. at 1245–46 (distinguishing Bellon). 
  38. Id. at 1248. 
  39. See Nicholas Kusnetz, A Surge of Climate Lawsuits Targets Human Rights, Damage from Fossil Fuels, Inside Climate News (Jan. 4, 2019), https://insideclimatenews.org/news/04012019/climate-change-lawsuits-2018-year-review-exxon-fossil-fuel-companies-human-rights-children-government
  40. Id. (mentioning that “worsening natural disasters tied to climate change could prompt new lawsuits”). 
  41. See, e.g., John Schwartz, Young People Are Suing the Trump Administration Over Climate Change. She’s Their Lawyer, N.Y. Times (Oct. 23, 2018), https://www.nytimes.com/2018/10/23/climate/kids-climate-lawsuit-lawyer.html
  42. Id. (noting the United States Department of Justices’ stance on the Juliana case).