Standing and global warming: is injury to all injury to none?

• Author: Mank, Bradford

1. INTRODUCTION II. THE GROWING EVIDENCE FOR GLOBAL WARMING A. Scientific Evidence B. International Treaties to Address Global Warming: The United Nations Framework Convention on Climate Change and the Kyoto Protocol. III. ARTICLE III STANDING A. Basics of Standing 1. Injury in Fact 2. Traceability--Causation 3. Redressability 4. "Prudential" Limits B. Justice Scalia: Injury to All is Injury to None--Let the Political Branches Decide 1. Justice Scalia's 1983 Law Review Article: A Road Map to His Argument that Generalized Injuries Belong to the Political Branches 2. Lujan v. Defenders of Wildlife a. "Concrete" and "Imminent" Injury b. No Nexus Theories of Standing c. Redressability. d. The Concrete Injury Requirement and Separation-of-Powers Principles e. Procedural Injuries C. A Return to Broader Standing: Federal Election Commission v. Akins 1. Justice Breyer's Majority Opinion 2. Justice Scalia's Dissenting Opinion IV. THE MAJORITY OPINION IN COVINGTON: THE PLAINTIFFS HAVE STANDING UNDER THE CAA AND RCRA A. Majority Opinion B. Judge Gould's Concurring Opinion V. NEPA AND STANDING: THE SPLIT IN THE CIRCUITS AND CLIMATE CHANGE A. Basics of NEPA: Evaluating Environmental Impacts and Alternatives B. City of Los Angeles C. Florida Audubon: Following D.H. Ginsburg's Dissent 1. Majority Opinion a. Particularized Injury b. Demonstrable Risk c. Traceability and Substantial Probability d. No Standing Because No Proven Injury 2. Judge Buckley's Concurring Opinion 3. Judge Rogers's Dissenting Opinion D. The Ninth and Tenth Circuits Disagree with Florida Audubon 1. The Tenth Circuit Rejects Florida Audubon 2. The Ninth Circuit's Relaxed Approach to NEPA Standing Also Disagrees with Florida Audubon E. The Standing Tests in the Ninth and Tenth Circuits are Closer to Footnote Seven in Defenders and Congressional Intent for NEPA VI. IN THE CLEAN AIR ACT, CONGRESS HAS NOT CLEARLY AUTHORIZED REGULATION OF OR CITIZEN SURFS INVOLVING GLOBAL WARMING A. Does EPA Have a Duty Under the CAA to Regulate GHGs? B. Petition Challenging Denial of Petition C. May EPA Regulate GHGs Under the CAA's New Source Review Program? D. Standing and GHGs 1. GHGs and the Zone of Interests 2. Who Is Injured? E. Amending the CAA to Include GHGs VII. CONCLUSION: STANDING FOR CLIMATE CHANGE PLAINTIFFS UNDER NEPA AND THE CAA I. INTRODUCTION

   There is growing scientific evidence that human activities producing greenhouse gases (GHGs), (1) most notably carbon dioxide (C[O.sub.2]) from burning fossil fuels, are causing global warming both in the United States and throughout the world. (2) There is evidence that global warming has already caused the average global sea level to rise between four and eight inches during the last 100 years and that the seas are now rising at one tenth of an inch per year. (3) Many scientists believe that global warming will cause serious environmental and human health impacts if the world continues to burn large quantities of fossil fuels, increasing GHG levels. (4)

   The United States is a major contributor of GHGs, especially from coal-burning power plants. (5) In 1998, the United States produced approximately 24 percent of the world's emissions of C[O.sub.2], more than any other country. (6) The Energy Information Administration (EIA) estimates that between 1990 and 2001, the United States' GHG emissions grew by 12 percent, with between 81 and 84 percent of the total U.S. GHG emissions as C[O.sub.2]. (7)

   Nevertheless, because coal remains cheaper than other sources of energy, the Bush Administration has rejected any mandatory reductions in GHGs and has instead supported further research and voluntary efforts at promoting energy efficiency. (8) The United States has refused to sign the 1997 Kyoto Protocol, which requires developed countries to reduce GHG emissions five to eight percent below their 1990 levels by 2008-2012. (9) No federal statute explicitly requires reductions in GHGs by either federal agencies or private industry, (10) although there is significant encouragement of voluntary private sector reductions and further research. (11) Even assuming private industry voluntarily adopts many cost-effective strategies to reduce GHGs, the EIA projects that by 2025, U.S. C[O.sub.2] emissions will reach 8,142 million metric tons (mints), which is 63 percent higher than the approximately 4,988 mmts in 1990. (12)

   Growing scientific evidence is forcing the Bush Administration's scientific experts to concede that increasing C[O.sub.2] levels from fossil fuels is the most important cause of global warming. In its Climate Action Report 2002 to the United Nations, the Bush Administration grudgingly admitted the risks from global warming and projected that total U.S. GHG emissions would rise about 43 percent between 2000 and 2020 if current policies remain in place. (13) Most recently, in July 2004 the Bush Administration submitted to Congress a report on the U.S. Climate Change Science Program. The report, which was accompanied by a letter signed by the Secretaries of Commerce and Energy as well as the Administration's science advisor, is mandated by the Global Change Research Act of 1990. (14) It acknowledged for the first time that increasing levels of carbon dioxide from human sources is the most likely explanation for global warming since 1950. (15) The Bush Administration, however, has suggested that it will not change its approach of delaying any mandatory actions to reduce GHGs until there is more conclusive research about global warming. (16)

   Since global warming potentially affects everyone in the world, does any individual have standing (17) to sue the U.S. Environmental Protection Agency (EPA) or other federal agencies to force them to address climate change issues? Suits addressing global warming raise difficult standing questions because some Supreme Court decisions have stated or implied that courts should not allow standing for plaintiffs who file suits alleging general injuries to the public at large because the political branches of government--Congress and the executive branch--are better equipped to resolve such issues. (18) Other decisions, however, have allowed suits involving "concrete" mass injuries. (19) Suits involving global warming raise complex causation and redressability issues because any single polluter is likely to produce only a tiny proportion of the GHGs, and, thus, any judicial remedy is likely to have a small and perhaps negligible impact on soling this global problem.

   A concurring opinion in a recent decision involving chemicals that cause global destruction of stratospheric ozone addressed the difficult issue of whether a plaintiff may have standing to sue those who contribute in small ways to global pollution problems. In Covington v. Jefferson County, (20) the Ninth Circuit held that the plaintiffs, property owners who lived across the street from a county landfill, had standing to bring citizen suits (21) under both the Clean Air Act (CAA) (22) and the Resource Conservation and Recovery Act (RCRA) (23) for local injuries allegedly caused by the defendants, a county and a district health department, from the improper disposal of ozone destroying chemicals at a landfill owned by Jefferson County and operated by the district health department. (24) In a concurring opinion, Judge Gould concluded that the plaintiffs had standing to sue based on the global impacts on stratospheric ozone resulting from the defendants' alleged mishandling of CFCs. (25) Reviewing standing precedent, he observed that some courts, especially in taxpayer suits, had suggested that a plaintiff may not assert standing if an alleged injury harms all persons equally, or in other words, "'that injury to all is injury to none.'" (26) On the whole, however, Judge Gould determined that the Supreme Court's most recent standing cases have allowed a plaintiff to achieve standing resulting from general injury if the injury to the plaintiff is sufficiently concrete. (27) Judge Gould concluded that the risk to the plaintiffs of skin cancer, cataracts, and suppressed immune systems was sufficiently concrete to justify Article III standing even though the defendants' allegedly improper treatment of CFCs only contributed a small amount to a global problem. (28) Although skeptical that allowing standing for global pollution injuries would trigger an avalanche of litigation, even Judge Gould acknowledged that if so many global pollution suits were filed that it became burdensome for courts to decide them all, a court might for prudential reasons limit suits alleging such harms to cases where the plaintiffs, like the Covingtons, have suffered relatively direct injuries. (29)

   Judge Gould's concurring opinion has important implications for whether plaintiffs have standing to sue for another type of global pollution problem that may prove to be even more important than ozone destruction--global warming. This Article concludes that at least some plaintiffs with concrete injuries, such as Alaska Natives, have standing to file global warming suits under either the National Environmental Policy Act of 1969 (NEPA) (30) or the CAA. (31) Today, the strongest case for standing by climate change plaintiffs is under NEPA. To date, the few federal court decisions that have addressed global warming and standing have involved NEPA, which is a procedural statute that requires federal agencies undertaking "major" federal projects to assess their environmental impacts. (32) There is currently a split in the circuits regarding the test for standing under NEPA. (33) Because it is a purely procedural statute, (34) a number of courts apply a more relaxed approach to standing. (35) Building upon precedent in the Ninth and Tenth Circuits, this Article proposes a liberal approach to standing in NEPA cases that could allow at least some plaintiffs to raise global warming issues under the statute. (36)

   No court has yet addressed whether plaintiffs have...