Standing on Weak Legs: How Redressability Has Become the Scapegoat in the Age of Climate Change Litigation.

• Author: Ruggiero, Joseph

"It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.... the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution." (1)

1. INTRODUCTION

   Climate change litigation is on the rise with the majority of lawsuits taking place in the United States. (2) Despite the increased number of litigants in climate change cases, establishing standing in climate change litigation remains difficult. (3) Redressability for climate-related injuries is the central difficulty in determining standing. (4) Further, political leaders contribute to the general confusion about whether climate change is a resolvable crisis by questioning whether climate change is a pressing concern. (5)

   There has been an increase in the variety of legal techniques adopted over the years to create standing under Article III. (6) The standing doctrine is designed to quickly resolve disputes where the litigant lacks the basis in some source of law to sue. (7) To establish standing, the plaintiff must have suffered an injury-in-fact that is fairly traceable to the challenged conduct and redressable by a favorable decision. (8) Substantiating that a harm is redressable challenges climate change plaintiffs alleging a future harm; nevertheless, the Supreme Court recognized that a remedy does not need to redress every injury, paving the way for integral climate change cases. (9)

   Despite progress in climate change litigation, a recent Ninth Circuit decision in Juliana v. United States denied standing to a group of youth plaintiffs challenging the government to institute more substantial climate change measures, a claim of relief that implicates legislative action. (10) The court held that Juliana did not suffer a redressable injury because the relief sought would not solve global climate change and was beyond the judiciary's constitutional power. (11) Although Juliana's unique legal position attempted to stretch the bounds of Article III standing, the question remains as to whether redressability was truly the issue in light of remedies granted to climate change litigants in the past. (12) Ultimately, the holding in Juliana reflects a larger, looming issue in climate change litigation: Courts tend to rely on the standing doctrine as a scapegoat for dismissing complex climate change litigation rather than discussing the merits of the plaintiff's claims. (13)

   Though courts have begun to recognize private plaintiff standing in climate change litigation, they are hesitant to accept arguments that partial redressability is sufficient. (14) This Note examines the current state of redressability in climate change litigation and investigates the historical reasoning for skepticism about partial redress. (15) This Note also discusses the judiciary's attempts to avoid nonjusticiable questions by forfeiting on the issue of standing. (16) Finally, this Note analyzes the merits of the Ninth Circuit's Juliana decision and the implications it may have on future cases. (17)

2. HISTORY

   1. History of the Standing Doctrine

      1. Constitutional Standing

         The purpose of the standing doctrine is to determine whether the party seeking adjudication is proper based on the alleged injury. (18) While the modern test for standing was not established until the twentieth century, the supreme Court has long recognized the importance of redressability. (19) Early cases like Marbury v. Madison mentioned the judiciary's role to curb acts that impede the "fundamental principles" of American life. (20) Other cases noted the judiciary's authority to regulate other branches of government, which in effect granted the power to redress a complainant's injuries. (21)

         The Supreme Court's interpretation of the standing doctrine expanded over time, eventually establishing the three-part test in Lujan v. Defenders of Wildlife (Lujan II). (22) There, the Court determined that to have standing, a plaintiff must have suffered an injury-in-fact that is fairly traceable to the challenged conduct and that a favorable decision would likely redress. (23) The injury-in-fact must affect a concrete and particular interest that is actual or imminent. (24) The causal connection between the injury and the complaint must be traceable to the defendant, rather than an unmentioned third party. (25) Of the three-part test, the Court explained redressability in the least amount of detail, and simply mentioned that redress must be "likely" rather than "speculative." (26) As a result of Lujan II, causation requires the connection of unlawful conduct and alleged injury, while redressability examines the connection between injury and judicial relief. (27) The Supreme Court has acknowledged traceability and redressability as "two facets of a single causation requirement." (28)

      2. Constitutional Standing in Climate Change Litigation

         Standing in climate change litigation is more complex than standing in other litigation because it is difficult to trace the origin of GHG emissions to a plaintiff's alleged harm. (29) Additionally, courts struggle to retrofit the actual and imminent injuries test in order to recognize harms related to the environment rather than the plaintiff. (30) Over time, these barriers became less apparent as courts began to recognize economic, recreational, and aesthetic interests as sufficient injuries in fact. (31) Thus, alleging a justiciable injury-in-fact for an environmental harm became more common; nevertheless, convincing courts that environmental harm is redressable remains difficult. (32)

         Part of the difficulty in establishing redress in climate litigation is timing. (33) Procedural law guarantees a certain kind of process, whereas substantive law refers to the body of rules that determine an individual's statutory and constitutional rights. (34) Private citizens in climate change cases cannot allege a procedural right against a government agency until there is a final agency action that delays redress. (35) When agency action is final, the Supreme Court has held that the harm alleged must be "likely" redressable. (36) The burden of establishing the likeliness of redress lies with the plaintiff and varies based on the degree of evidence required at each stage of litigation. (37) Recent case law, however, has held that the phrase "likely redress" means redress does not need to relieve every injury, which increases the success of climate litigants if they can prove any injury is redressable. (38)

         For example, in Lujan II, the Defenders of Wildlife alleged they had standing because they studied certain endangered species and would be harmed by the eradication of that species. (39) Although the Court described how it was conceivable for the inability to study a species to qualify as a particular harm, the Court held that the Defenders of Wildlife needed to allege a stronger, more specific connection to the claimed harm to establish standing. (40) The Supreme Court also discussed a separate aspect of standing for procedural-injury litigants. (41) Procedural-injury litigants may assert standing without meeting the "normal" standards for redressability. (42) The Court did not define what the lower standard of redressability would be for litigants with a procedural right, leaving the door open for the integral cases to follow. (43)

   2. Recent Supreme Court Standing Case Law

      1. Massachusetts v. EPA

         In Massachusetts v. EPA, several states, local governments, and environmental organizations petitioned for review of the Environmental Protection Agency's (EPA) decision to withhold rulemaking to regulate GHG emissions for motor vehicles under the Clean Air Act (CAA). (44) The EPA's order concluded the CAA did not mandate regulations to address global climate change and regulation at that time would be unwise. (45) Massachusetts alleged that section 202(a)(1) of the CAA, which regulates emissions standards, requires the EPA to regulate air pollutants from new motor vehicles that could endanger public health. (46)

         The Court held that, when invoking federal jurisdiction, states are not normal litigants and seek review based on their quasi-sovereign interests. (47) The Court reasoned that a party seeking review as a sovereign state has "special solicitude" in the standing analysis. (48) Commonly referred to as the parens patriae doctrine, a state may intervene on behalf of its citizens to avoid harm to its "quasi-sovereign" interest. (49) Citing Lujan II, the Court additionally held that Massachusetts, as a state, had vested procedural rights and did not have to meet the normal standards for "redressability and immediacy." (50)

         Despite noting procedural litigants have a lower threshold to establish standing, the Court applied the strict, three-part Lujan II test and held that Massachusetts had established standing. (51) The Court reasoned that the impact on Massachusetts coastlines was a proper injury suffered by the state adequately supported by evidence demonstrating motor vehicle emissions were causally linked to GHG concentrations, and that the EPA's failure to regulate GHG emissions led to rising sea levels. (52) A 6% reduction in domestic emissions constituted a "meaningful contribution" to GHG levels and created a redressable injury, despite the impression that reduction may not impact the pace of global emissions beyond U.S. territory. (53) Therefore, Massachusetts v. EPA solidified the ruling in Lujan II that, at least for procedural plaintiffs, the complaint only needed to demonstrate "some possibility" that a court could redress the alleged injury. (54)

         In his dissenting opinion, Chief Justice Roberts argued that climate change was a nonjusticiable issue under the political question doctrine that the political branches--not the judicial branch--must resolve. (55) He argued that neither statutory authority nor case law supports the majority's use of the parens patriae...