Is Scalian standing the latest sighting of the Lochner-ess monster? Using global warming to explore the myth of the corporate person.

• Author: Pleune, Jamie Gibbs

1. INTRODUCTION II. WHAT IS SCALIAN STANDING? A. Environmental Injuries Do Not Fit the Scalian Standing Paradigm III. A CORPORATION IS NOT ANALOGOUS TO A PERSON: THE DIVERGENT INTERESTS OF CORPORATIONS AND PEOPLE IN THE CONTEXT OF GLOBAL WARMING A. Corporations and People Have Different interests and Constraints 1. The Human Rights Implications of Global Warming B. Corporate Interests and Global Warming 1. The Size and Power of Corporations 2. Corporations Can Enact Laws in their Favor--or Get Rid of Unfavorable Laws a. The "Forgotten History" of Global Warming Regulation b. The Industry's Campaign Against Regulation 3. Corporations Can and Have Molded Public Opinion a. Corporations and Public Education IV. PAIRING THE MYTH OF THE CORPORATE PERSON WITH SCALIAN STANDING: ARGUMENTS AGAINST ASSUMING CORPORATIONS ARE ANALOGOUS TO PEOPLE IN THE STANDING ANALYSIS A. The Corporation as an Individual B. The Corporation as the "Object of the Law's Requirement" C. The Consequences of Pairing Scalian Standing and Corporate Personhood V. THE LATEST SIGHTING OF THE LOCHNER-ESS MONSTER: SCALIAN STANDING AND THE MYTH OF THE CORPORATE PERSON A. The Lochner-ess Monster I. INTRODUCTION

   Across the nation, people are walking out their front doors and noticing that something is different. It may be that there are no snow banks on the side of the road like they remember from their youth. (1) Maybe their tulips are coming up in the middle of February, or their lilacs are blooming earlier. (2) Maybe they are preparing for another record breaking summer of heat waves, (3) or worrying about widespread forest fires. (4) Whatever the spark, people are noticing changes, and they are calling for action. (5)

   In response to this call, many states across the nation have taken steps to address global warming. (6) In addition to taking action within their own borders, states are also forming regional coalitions for addressing climate change. (7) This state-level action stands in marked contrast to the approach taken by the federal government. In 2003, one scholar noted that the divergence between federal government and state government responses to global warming was like "liv[ing] in two different countries. At the federal level, all policy makers oppose all efforts to control GHG emissions.... In contrast, policy initiatives at the state level generally take the opposite approach, encouraging GHG mitigation actions, whether big or small, at every turn." (8) Little has changed between 2003 and 2007, and the tension between action and inaction is increasingly making its way into the courts. (9)

   The causes of action for the various suits range from nuisance to NEPA. (10) The impetus, however, is an increasing awareness that "business as usual" poses serious threats to humanity. (11) Regardless of the actual legal issue in the case, global warming litigation can be categorized into two thematic camps. The first camp could be called the "plea for action" camp. These suits are generally brought by public interest groups or individuals demanding that various parties--usually federal government agencies--do something about global warming. These suits range from requesting the EPA to regulate carbon dioxide emissions from new automobiles (12) to requesting various agencies to include global warming as a factor in their NEPA analyses. (13) A few nuisance claims that have been brought could also be put in this category. (14)

   The second category of suits can be placed in the "leave me alone" or the "business as usual" camp. These claims are brought by corporations or associations challenging regulations imposed on them. Only a few of these exist--but they are instructive for the dynamic they reveal. To date, these suits have been brought by auto manufacturers and dealers to challenge state laws in states that have adopted greenhouse gas emission standards for automobiles. (15) The corporations argue that the state regulations are preempted by federal statutes. The irony, of course, is that the "preempting" statutes are the same statutes being litigated in the "do something" camp because the regulating agencies have not interpreted the "preempting" statutes strictly enough to effectively address global warming.

   Regardless of the underlying claim, every global warming suit has one issue in common: the petitioners must establish standing for a federal court to hear the case. Global warming litigation offers a unique opportunity to discover and evaluate the validity of some assumptions in the Supreme Court's current standing analysis.

   Standing in the global warming context is unique because it challenges the classic assumptions that accompany most environmental cases. Most importantly, the reality of global warming challenges the assumption that individuals and corporations are analogous. In fact, in the context of global warming, the interests of humanity and the interests of corporations (particularly those involved in the energy industry) are diametrically opposed. The risks posed by global warming threaten basic human needs--water, food, health, and a place to live. These risks mandate immediate regulatory action. On the other hand, for corporations, regulations pose a risk of reduced profits. This risk motivates corporations to avoid regulation and continue business as usual, regardless of the risks to humanity.

   This Comment uses the current global warming debate as a factual backdrop to argue that corporations should not be considered persons or individuals in the standing analysis and that personifying corporations in the standing analysis has led to a regulatory environment that disproportionately protects the rights of corporations over the public interest. I first summarize the Court's current approach to standing, focusing on what I call "Scalian Standing"--the view that standing should be used as a tool to limit the authority of the judiciary. I also explain why suits brought by environmental groups generally fail this analysis. Second, I use the political history of global warming regulation (or lack of it) to argue that a corporation is not equivalent to a person. Most importantly, the size and power of many corporations dramatically affect their political power and their ability to enact laws in their favor. This dynamic challenges the assumption that a regulated entity should always have standing. Third, I discuss the consequences of pairing Scalian Standing with the assumption that a corporation is a person. In conclusion, I argue that combining Scalian Standing and corporate personhood gives constitutional protection to a myth, and that, at the very least, we should begin talking about whether a corporation should be analogous to a person in the standing analysis.

2. WHAT IS SCALIAN STANDING?

   Standing is the scourge of every public interest environmental lawyer. Often it seems to be an exercise in the well-pleaded complaint--Did you buy an airline ticket to show proof of actual plans to visit endangered species? (16) Did you articulate the fact that you hike in the exact acreage threatened by a logging plan? (17) Beneath the formalistic questions regarding injury, causation and redressability lies a fundamental question--what issues can the court hear? In other words, what are the limits of the "case" or "controversy" requirement?

   I suggest that two underlying philosophies about the purpose of standing are competing for dominance in the Supreme Court today. One philosophy views standing as a tool to ensure that the dispute before the court can and should be resolved through the judiciary. (18) This view believes that Congress has the authority to create causes of action. The competing philosophy, championed by Justice Scalia, views standing as a tool to enforce the separation of powers and specifically to limit the authority of the judiciary. (19) These competing philosophies are prevalent in the Supreme Court's recent opinion, Massachusetts v. EPA. (20)

   The majority opinion (relying heavily on Justice Kennedy's concurring opinion from Lujan v. Defenders of Wildlife (21)) explained that the "case" or "controversy" requirement confines federal courts to "questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." (22) Because the dispute in Massachusetts turned on "the proper construction of a congressional statute," and had been authorized by Congress, it was a question "eminently suitable to resolution in federal court." (23) The key to this philosophy is that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." (24) At bottom, standing ensures that the petitioners have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination." (25)

   The dissent, on the other hand, would have dismissed the case for lack of standing. Among other problems, the dissent concluded that the petitioner's injury was not particularized--it did not affect the petitioner in a "personal and individual way." (26) "Global warming is a phenomenon 'harmful to humanity at large'" and the redress sought by the petitioners did not "'directly and tangibly benefit' [them] in a manner distinct ... [from] 'the public at large.'" (27) Furthermore, the causation and redressability prongs were too problematic, essentially because "the realities [of global warming] make it pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land." (28) In other words, Congress cannot give rise to a case or controversy by creating a statutory cause of action. This limitation ensures that courts will not "serve as a convenient forum for policy debates." (29) The central assumption is that "[t]he limitation...