9-2010 NEWS & ANALYSIS 40 ELR 10845
C O M M E N T S
Challenges Plaintiffs Face in
Litigating Federal Common-
Law Climate Change Claims
by Kevin A. Gaynor, Benjamin S. Lippard, and Margaret E. Peloso
Kevin Gaynor directs Vinson & Elkins’ Washington, D.C., oce’s environmental practice and is Co-
Chair of the rm’s Climate Change practice. Ben Lippard is counsel and Maggie Peloso is an associate
in the rm’s environmental practice and a member of the rm’s Climate Change practice.
Since 2005, numerous plaintis have attempted to hold
both the energy industry and vehicle manufacturers
liable for the da mages they have experienced and will
experience a s a result of climate change. Proceeding under
common-law theories, particularly nuisance, these plainti s
generally allege that t he defendants t hey sue are major con-
tributors to greenhouse gas (GHG) emissions, which ulti-
mately lead to climate change a nd a myriad of a ssociated
harms ranging from increased coa stal erosion in A laska and
Massachusetts to decreased snowpack in California. W hile
the U.S. Environmental Protection A gency’s (EPA’s) recent
regulatory actions may preempt claims under federal com-
mon law, there is nothing in t he Clean Air Act (CA A)1 that
prevents future tort claims under state law.2 Consequently,
common-law climate change litigation is likely to continue in
the coming years. is Article addresses the challenges that
common-law climate change plaintis wil l face in litigating
their claims, particularly with respect to standing and justi-
ciability, proof of causation, and apportionment of damages.
I. Getting Into Court: Standing and
An initial hurdle for a ll climate change plaintis is the sat-
isfaction of both the constitutional and prudential sta nding
requirements. Plaintis must demonstrate both that they
have met the minimum threshold requirements of Article
III of t he U.S. Constitution and that none of the pruden-
tial st anding doct rines are implicated by their claims. us
far, the majority of common-law climate change litigation
in federal court has focused on this latter issue, as courts
struggle to determine whether climate change claims present
nonjusticible political questions. is section briey explains
the requirements to obtain standing and then summarizes
1. 42 U.S.C. §§7401-7671q (2007), ELR S. CAA §§101-618.
2. In fact, the CAA’s savings clause, 42 U.S.C. §7604(e), explicitly reserves the
rights of parties to bring claims under state law.
the analysis of the courts that have considered common-law
climate change claims.
A. Article III Standing
Meeting the basic requirements for Article III standing is the
essential rst step for a litigant wishing to bring a claim in
federal court. Article III of the Constitution provides that the
courts may only hear actual cases a nd controversies.3 ere-
fore, the “irreducible constitutional minimum” to establish
Article III standing requires: (1) injury-in-fact; (2) a causal
connection between the injury and defendant’s conduct; and
(3)a likelihood that the plainti ’s injury will be redressed by
a favorable decision.4
e U.S. Supreme Court has dened “injury-in-fact” as
an injury that is concrete and particularized and actual or
imminent.5 e rst prong of this test is directed at separa-
tion-of-powers concerns a nd is intended to ensure t hat the
judicial branch does not hear the sort of generalized com-
plaints that are best addressed by the legislative branch.6
e actual and imminent injury requirement prevents the
court from granting relief for future harms that are specula-
tive in nature.7 e general scientic community, as repre-
sented by the Intergovernmental Panel on Climate Change,
has concluded not only that climate change harms are real
but also that anthropogenic GHG emissions are a cause of
these harms.8 Climate change plaintis can therefore cite to
numerous large-scale impacts that many scientists agree are
Lujan v. Defenders of Wildlife, 504 U.S. 555
, 560, 22 ELR 20913 (1992).
4. Id. at 560-61.
5. Id. at 560.
Massachusetts v. EPA, 549 U.S. 497
, 518, 37 ELR 20075 (2007) (explain-
ing that both Baker and Lujan limit consideration to actual injuries to ensure
“proper adversarial presentation” of an actual case or controversy).
Los Angeles v. Lyons, 461 U.S. 95
, 105-06 (1983) (holding that plainti
who was injured when the LAPD applied a chokehold did not have standing to
challenge the chokehold policy and seek injunctive relief because there was not
a substantial likelihood that he would be similarly harmed again in the future).
8. I P C C, C C 2007:
S R 37, 39 (2007).
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.