Fairness

The issue of standing has profound implications for fairness. It goes beyond legal doctrine to what I believe is a fundamental tenet of our society: Justice should be equally available to all.

If EPA decides to regulate greenhouse-gas emissions from motor vehicles, there will be no question that automobile manufacturers have standing to challenge the agency in court. Regulation will arguably impact the industry's bottom line, and that would satisfy any court in the nation.

In Massachusetts v. EPA, the court addresses the flip side of this question: Should environmental groups also have the right to challenge an EPA interpretation of the Clean Air Act that impacts their closely held values? It seems unfair that the courts would adopt a lopsided jurisprudence that permits only one side of the global warming debate to seek judicial review.

Unfortunately, a bit of this unfairness has been a feature of the standing doctrine since the 1990s (a 1999 report titled "Barely Standing" looks at this very issue). In a string of cases authored by Justice Scalia, the Supreme Court expressed skepticism that environmentalists had standing to challenge either the government or private actors that denigrated natural areas.

A Brief History of Standing

The elaborate standing doctrine flows from the fact that Article III of the United States Constitution gives the federal judiciary the power to resolve "cases" and "controversies." The founders believed that courts should resolve disputes between adversarial parties who disagreed about substantive things.

The "cases" and "controversies" requirement prevents collusive litigation and ensures that issues presented to courts have a chance to mature. In the 1970s, the Supreme Court began to refine the doctrine of standing, elaborating three principle requirements. A litigant must demonstrate that she suffered a particularized injury, fairly traceable to a defendant's actions, and that the court can award relief that will redress the injury.

In 1971, the court first applied the standing doctrine to dismiss an environmental suit, holding that the Sierra Club did not have standing based on its "special interest" in conservation. Rather, the club's members needed to make actual use of the area they sought to protect.

Justice Scalia authored a number of cases in the 1990s that further restricted standing -- and thus environmentalist access to the courts. The court required environmental groups to show ever-increasing personal connection to endangered resources, and proof that a court decision would remedy their injury.

In 2000, the Supreme Court reversed course. In Friends of the Earth v. Laidlaw Environmental Services, the court found that a "reasonable concern" about environmental harms could confer standing. There, members of Friends of the Earth who resided next to a river had altered their recreational choices for fear that water pollution would harm their health. The court found that plaintiffs did not need to prove that the pollution actually caused environmental injuries to have standing.

Standing in Mass v. EPA

Massachusetts and other petitioners submitted a number of declarations to support their standing. These included statements from a professor at Tufts University's Civil and Environmental Engineering Department and a former senior scientist on global warming at the Office of the U.S. Global Change Research Program.

Injury

Massachusetts and the other petitioners pursue several different theories of injury.

• They identify concrete physical harms that will occur within each state. For instance, Massachusetts identifies impacts to its coastal territory likely to occur from rising sea levels.
• They argue that global warming will make it harder for them to meet their obligations to reduce ozone pollution under the Clean Air Act.
• They argue that EPA's position that greenhouse gases do not fall within the Clean Air Act undermines the ability of states to enact their own regulations. California and several other states are currently being sued by industry groups arguing that state regulation of motor vehicle emissions is preempted by federal law because, in part, the Clean Air Act does not cover greenhouse gases. Thus, the EPA decision is directly harming the states' sovereign power to enforce their own laws.

The federal government has not directly challenged the petitioners on this prong of standing. However, Judge Sentelle authored an opinion in the Court of Appeals that found that because global warming impacts "humanity at large," petitioners could identify a particularized injury.

While this argument may have some appeal -- after all, global warming is by definition "global" -- I think it unlikely that it will garner the support of the Supreme Court. Petitioners identify harms that global warming is likely to cause their land. The law presumes that land is unique, and therefore that these injuries are unique.

The fact that the federal government ignored the injury prong in their briefing on standing suggests that it too doesn't think this argument will get much traction.

Causation/Redressability

It's easy to consider these two prongs of standing together. In most cases, where a defendant causes an injury, the court can redress that injury. That's what courts do: order parties to behave.

This is where standing gets a little bit trickier.

The crux of EPA's argument is this: petitioners claim the EPA could reduce global emissions of greenhouse gases by just 2.5% if the agency adopted strict regulations for motor vehicle emissions. EPA suggests that such a small reduction will not reduce the harm done by global warming.

A favorable ruling for Massachusetts could lead to other kinds of reductions. If EPA has authority to regulate greenhouse gases for cars and trucks, it logically can do the same for stationary sources like power plants. Also, technologies developed in response to U.S. regulation would likely spread to other countries, reducing foreign motor vehicle emissions.

However, such reductions are probably too speculative to confer standing. The court disfavors causation/redressability arguments that rely on the actions of third parties not before the court.

This issue is not unique to global warming. Here are three other situations that are similar (if not precisely the same):

• Local residents (and environmental groups) have had standing to sue industrial facilities emitting unauthorized air pollution under the citizen suit provisions of the Clean Air Act. However, excess pollution emitted by the facility will typically be only a small proportion of regional emissions of that pollutant.
• A person exposed to toxic chemicals has standing to sue those responsible for her exposure, even if the chemical only increases her risk of getting cancer. This increased risk may be only a small portion of a person's total risk.
• A creditor in a bankruptcy proceeding has the right to sue a debtor even if they will only receive pennies on the dollar.

Should the court scrutinize petitioners' causation/redressability argument, it may stray dangerously into the realm of science. We simply don't know the impact of small increases in atmospheric greenhouse concentrations (although 2.5% of world emissions seems rather large to me).

A way to avoid this obstacle would be for the court to simply determine whether the petitioners present reasonable allegations. In other words, is it reasonable to believe that a 2.5% reduction in world emissions would have some (even small) impact on global warming and the injuries it may produce?

In my mind, Justice Breyer captured this best. During oral argument he asked the deputy solicitor general representing EPA, "Now what is it in the law that says that somehow a person cannot go to an agency and say we want you to do your part?"

Standing for Procedural Injuries

There may appear to be a disconnect between my discussion of injury and causation/redressability and the case at hand. Even if petitioners win, EPA will only have to rethink its policy.

It's easy to imagine the Bush administration crafting a second decision not to regulate greenhouse gases under the Clean Air Act. For instance, EPA could likely decide that figuring out whether greenhouse gases endanger public health is just too expensive. If that happened, petitioners wouldn't get any redress at all.

This is always true for cases about procedural violations -- for instance, under the National Environmental Policy Act. The courts give litigants a bit of a break. To demonstrate standing, a litigant need only show that if the agency followed the proper procedures, it could make a decision that would mitigate the alleged harm.

Implications of the Standing Issue

A bad (and here I demonstrate my lack of impartiality) decision on standing could have broad implications.

First, if these petitioners don't have standing, it's hard to imagine who would. Few lawsuits will be able to achieve more than a 2.5% reduction in global greenhouse-gas emissions. Thus, the federal courts would largely be abdicating any responsibility for the planet's biggest environmental problem.

Second, such a ruling could create a new, resource-intensive phase of litigation in which courts sift through voluminous competing scientific materials to try to determine exactly how certain behaviors impact the environment. This is precisely what the court rejected in Laidlaw.

This would be especially strange in administrative law cases. In such a case, a court would first have to make its own scientific determination to decide if it had jurisdiction. Then, on the merits of the case, the court would simply review the agency's scientific determinations to make sure they aren't absurd.

Third, other litigants trying to chip away at big problems could face increasing difficulty getting into court.

In my mind, these are all reasons that the Supreme Court should not rule against petitioners on standing. To me, it makes much more sense for the courts to conduct a limited standing inquiry. Courts should make sure the parties before them are truly adverse and engaged in real "controversies" -- thus the "cases" and "controversies" requirements.

However, this can be done simply by ensuring that plaintiffs make good-faith, reasonable allegations that support standing. The courts need go no further.