The Standing Hurdle in Climate Change Litigation

By: Elena Santarella

            In the last 20 or so years, climate change litigation has evolved as a key strategy utilized by states,[1] groups of individual plaintiffs,[2] cities,[3] and non-profit advocacy groups[4] to leverage federal court power against climate change impacts. Throughout these cases, standing emerged as a major hurdle for plaintiffs to clear.[5] Once a case is dismissed for lack of standing, the plaintiffs do not have the opportunity to argue the merits of their case.[6] Thus, standing challenges preclude environmental advocates’ creative litigation strategies, developed to redress climate change’s widespread harms and deeply felt risks, from ever being heard.

What is standing?

The standing doctrine limits the controversies that the court can hear.[7] The Constitution and the court’s efficiency concerns provide the basis for the standing doctrine.[8] Article III of the Constitution expressly outlines the cases and controversies that the federal courts may hear.[9] In addition to the Constitution, courts also apply “prudential limits” wherein the plaintiff must show 1) a concrete injury that is actual and imminent, 2) causation between the injury alleged and the defendant’s actions, 3) and the redressability of the plaintiff’s injury via a favorable ruling.[10] The plaintiff must produce sufficient evidence to establish each of the three elements.[11] Like most judge-made tests, these elements are easy enough to understand on paper, but are applied unevenly depending on the judge.[12] Accordingly, many climate change cases are won and lost on standing challenges and not a deliberation of the case’s merits.[13]

Gradations in defining the injury in fact imminence element

Under the injury in fact requirement, a plaintiff must allege a “concrete and particularized injury that is either actual or imminent.”[14] The trouble with establishing an injury in fact with climate change litigation is the judge’s interpretation of imminently pending. For example, judges in Amigos Bravos v. U.S. Bureau of Land Management and Massachusetts v. EPA interpreted the imminence of climate change’s impacts very differently.

In Amigos Bravos, members of environmental groups challenged the Bureau of Land Management’s (BLM) decision to allow oil and gas leasing on public BLM land in New Mexico.[15] The plaintiffs connected the BLM’s decision to lease public land for oil and gas to their climate change injuries, saying that the BLM action would result in extreme weather, ecosystem impacts, increased pollution, the “degradation of cultural resources,” and public health impacts.[16] The plaintiffs alleged that these climate change impacts would then impact their ability to use and enjoy the BLM land and to make a living.[17] The District Court denied the plaintiffs standing since the climate change impacts would not occur for years or decades into the future and, therefore, did not “represent an actual and imminent threat” to the plaintiffs’ interests.[18]

In Massachusetts, the Commonwealth of Massachusetts (along with other states, local governments, and environmental organizations) challenged the Environmental Protection Agency’s (EPA) decision not to regulate greenhouse gas (GHG) emissions from new motor vehicles.[19] Massachusetts connected the EPA’s inaction on regulating GHG emissions to increased impacts from climate change.[20] Massachusetts presented evidence that sea levels have already risen due to climate change and that this rising impacted the Commonwealth’s coastal lands.[21] The Court addressed the imminency requirement of Massachusetts’s claims, stating that the injury had already occurred and the severity will “only increase over the course of the next century.”[22] In the end, Massachusetts was granted standing by the Supreme Court.[23]

The discrepancy between these two decisions demonstrates the limits to standing decisions in climate change litigation. The District Court in Amigos Bravos did not determine that climate change created an imminent harm since there was only the potential that climate change would cause injuries in the coming years or decades. Yet, the Supreme Court in Massachusetts found climate change to be a present injury accompanied by imminent future harms, despite some harms occurring over centuries.

Causation element: discrepancies within the same case

The causation element of standing requires the plaintiff’s injury to be “fairly traceable” to the defendant’s challenged action.[24] This requirement can be difficult for climate litigants to meet considering that climate change can hardly be attributed to one source yet causes widespread injuries. Even when climate change litigants demonstrate a local climate change injury stemming the defendant’s actions, courts have not created a clear pathway to standing.

In WildEarth Guardians v. Jewell, for example, the causation element was decided differently at the trial and appellate court levels.[25] Here, the plaintiffs alleged that the BLM’s environmental impact statement process was inadequately decided because it did not consider the impacts of increased GHG emissions.[26] The District Court denied the plaintiffs standing due to the disconnect between injury to their local interests and GHG emissions’ “diffuse and unpredictable” impacts.[27] In finding for the plaintiffs, the D.C. Circuit Court rejected the lower court’s line of reasoning stating that the pollution causing the plaintiff’s injuries did not have to be the same pollution in controversy with the BLM’s environmental impact statement process.[28]

Climate change’s widespread causes and diffuse impacts make tracing a causal line to any one party difficult for a climate change litigant. Here, the District Court required a distinct causal connection between the pollution allegedly causing the plaintiffs’ injury and the pollution being created by the BLM’s decision. The D.C. Circuit Court, however, recognized that climate change impacts can be felt as a result of general increased GHG emission, which the BLM decision would create.

Redressability: the final hurdle  

The third standing test element requires plaintiffs to show that a favorable decision would redress the injury they alleged.[29] The damages sought must be likely to impact the injury: the connection between the injury and the relief granted cannot be “speculative.”[30] How climate change litigants frame their injury is key to surviving this element.

The difficulty in showing climate change’s redressability is apparent in the Ninth Circuit Court’s denial of standing for plaintiffs in Juliana v. United States. The plaintiffs in Juliana were a group of “young citizens” (supported by an environmental organization) challenging the federal government’s continued “permitting, authorizing, and subsidizing” of fossil fuels.[31] They claimed that the defendants’ actions caused climate change related injuries including psychological harm and worsening of medical conditions.[32] The plaintiffs sought an injunction directing the government “to cease permitting, authorizing, and subsidizing” fossil fuels and develop an emissions mitigation plan.[33] In denying the plaintiffs standing, the Ninth Circuit Court relied on the plaintiffs’ experts’ opinion that enjoining the government’s fossil fuel activities would not stop climate change.[34] The Court reasoned that mitigating climate change requires more than just the United States government ceasing fossil fuel related actions.[35] As such, the Court remained “skeptical” that granting the injunction would redress the plaintiffs’ injury.[36] The Court in Juliana did not rely on the Supreme Court’s reasoning in Massachusetts.[37] Instead, the Court denied the plaintiffs standing because the injunction would not completely redress global climate change.[38]

Standing as a barrier to building the climate litigant playbook?

The unpredictable manner in which the standing test’s elements have been applied in landmark climate change litigation demonstrates the test’s ephemeral nature. Climate change impacts are widespread, numerous, and deeply felt by many parties. When the ability to bring a successful climate change litigation case relies on surviving a standing challenge—and not about proving the merits of the case—the legal community must question the veracity of the test, itself.

 

[1] E.g. Massachusetts v. E.P.A., 549 U.S. 497 (2007).

[2] E.g. Juliana v. United States, 947  F.3d 1159, 1165 (9th Cir. 2020).

[3] E.g. Bd. of Cnty. Commissioners of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 405 F. Supp. 3d 947 (D. Colo. 2019) (City and County of Boulder suing energy companies for climate change damages).

[4] E.g. Amigos Bravos v. U.S. Bureau of Land Mgmt., 816 F. Supp. 2d 1118 (D.N.M. 2011).

[5] See Bruce Myers, John Broderick & Shannon Smyth, Charting an Uncertain Legal Climate, 45 Env’t. L. Rep. News & Analysis 10509, 10509 (2015) (synthesizing results of standing challenges across climate change cases).

[6] Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure 2 § 3531 (3d ed. 2008).

[7] Wright, Miller, & Cooper, supra note 6, at 9.

[8] Id.

[9] U.S. Const. art. III, § 2, cl. 1.

[10] Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

[11] Amigos Bravos v. U.S. Bureau of Land Mgmt., 816 F. Supp. 2d 1118, 1126 (D.N.M. 2011).

[12] Ian R. Curry, Establishing Climate Change Standing: A New Approach, 36 Pace Env’t. L. Rev. 297, 323 (2019).

[13] See Myers, Broderick & Smyth, supra note 5, at 10509.

[14] Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007).

[15] Amigos Bravos, 816 F. Supp. 2d at 1126.

[16] Id.

[17] Id.

[18] Id. at 1130.

[19] Massachusetts, 549 U.S. at 505.

[20] Id.

[21] Id. at 521–22.

[22] Id. at 522–23.

[23] Id. at 526.

[24] Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotations omitted).

[25] Barry Kellman, Standing To Challenge Climate Change Decisions, 46 Env’t. L. Rep. News & Analysis 10116, 10118 (2016).

[26] WildEarth Guardians v. Salazar, 880 F. Supp. 2d 77, 82 (D.D.C. 2012).

[27] Id. at 84.

[28] WildEarth Guardians v. Jewell, 738 F.3d 298, 307 (D.C. Cir. 2013).

[29] Lujan, 504 U.S. at 560.

[30] Id.

[31] Juliana v. United States, 947 F.3d 1159, 1165, 1170 (9th Cir. 2020).

[32] Id.

[33] Id. at 1170.

[34] Id. at 1170–71.

[35] Id. at 1171.

[36] Id.

[37] Id. (citing Massachusetts v. EPA, 549 U.S. 497, 525–26 (2007)) (holding that a remedy does not have to “by itself reverse global warming…”) (emphasis in original).

[38] Id.