Charting an Uncertain Legal Climate: Article III Standing in Lawsuits to Combat Climate Change

• Date: 01 June 2015
• Author: Bruce Myers, John Broderick, and Shannon Smyth

6-2015 NEWS & ANALYSIS 45 ELR 10509

C O M M E N T

Charting an Uncertain Legal Climate:

Article III Standing in Lawsuits

to Combat Climate Change

by Bruce Myers, John Broderick, and Shannon Smyth

Bruce Myers is a Senior Attorney and John Broderick is a Law Fellow at the Environmental Law

Institute (ELI). Shannon Smyth was formerly a Law Fellow at ELI and is currently a sta attorney at the

Connecticut Fund for the Environment. e chart was designed by ELI’s Davonne Flanagan.

Like all plaintis in federal court, parties bringing law-

suits to ght climate change must demonstrate stand-

ing under Article III of the U.S. Constitution. e U.S.

Supreme Court has interpreted Article III’s standing require-

ment to mean that a plainti must show: (1) an injury-in-fact

that is concrete and particularized as well as actual or immi-

nent; (2) that the injury was caused by and is fairly traceable

to the action of the defendant, rather than the result of the

independent action of some third party not before the court;

and (3) that the injury is likely to be redressed by a favorable

court ruling. If a plainti cannot establish these three elements

of injury, causation, and redressability, a federal court must

decline to hear the case.

In 2007, the Supreme Court decided t he landmark cli-

mate change case Massachusetts v. EPA. e Court held that

greenhouse gases (GHGs) are air pollutants under the Clean

Air Act (CAA) and, therefore, that the U.S. Environmental

Protection Agency (EPA) was required to make a determi-

nation wheth er GHGs endanger public health or welfare.

Essential to the Court’s ruling was the conclusion that Mas-

sachusetts had standing to be heard on its legal claims. e

Court resolved the standing issue in the particular context

of a state plainti suing the federal government for viola-

tion of the state’s procedural rights under the C AA—two

factors that, according to the Court, required that the state

be aorded “special solicitude.”

In the wake of Massachusetts, lower federal courts have

been called upon to apply Article III standing rules in law-

suits featuring a variety of plaintis seeking to combat cli-

mate change in many dierent ways. e chart that follows

provides a comprehensive snapshot of how these courts have

ruled in cases where the standing analysis was documented

in a written opinion. e chart is organized by the theory

of standing advanced and the type of injury claimed for

standing purposes, rather than by legal claim. Plaintis’

approaches to standing can be loosely grouped into three

main categories, plus a fourth minor category:

• Procedural theory of standing (i.e., the defendant vio-

lated the plainti’s procedural right to protect his or her

concrete interest, and that interest is adversely aected

by the procedural deprivation—the plainti’s injury

may be either climate-based or non-climate-based);

• Informational theory of standing (i.e., the defendant

deprived plainti of the right to certain information that

would have been helpful to the plainti);

• Substantive theory of standing (i.e., the defendant is

responsible for GHG emissions that contribute to cli-

mate change, which in turn causes the plainti to suer

a climate-based injury); and

• Increased risk of harm (i.e., the defendant is responsible

for an increased risk of harm to the plainti’s interests).

What do the cases show with respect to the standing of

climate plaintis? First, standing in fed eral lawsuits brought to

combat climate change is far from a given: federal courts have

proven receptive to arguments that a case brought by climate

plaintis can be dismissed for lack of standing. Second, the

procedural theory of climate standing appears to oer promise

for climate plaintis. ird, informational climate standing

has met with some success. Fourth, asserting only a tradi-

tional, substantive theory of standing in cli mate cases has usu-

ally failed when tied to climate-based injuries. Fifth, plaintis

proceeding under a procedural theory of standing tend to fare

better when they can articulate an underlying injury for stand-

ing purposes that is not itself climate-based. Advocates appear

to be seizing upon this notion. Finally, the status of climate

standing based on an “increased risk of harm” or “probabilistic

harm” theory remains uncertain and largely untested.

e endnotes to the chart contain case citations, includ-

ing information on the legal cla ims involved in each case

and, where appropriate, details on which elements of Arti-

cle III standing the court found lacking under each theory.

Note that multiple rows in the chart may be associated with

a single case.

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.