Climate Standing with a Twist

Rather than prove they will be specifically harmed by increased carbon emissions, plaintiffs can use other kinds of harm as a basis for climate standing.

Plaintiffs got a Christmas present from the D.C. Circuit in the form of a pathway to prove standing in climate change cases. The Supreme Court has considered two cases dealing with standing to sue based on injuries caused by climate change.  The Court found standing in one case 5-4 and split 4-4 in the second case.  But in a case decided on Christmas Eve, the D.C. Circuit gave its blessing to an end-run around the entire dispute. This end-run is likely to be very useful to future plaintiffs in a wide range of cases.

Wildearth Guardians v. Jewell involved coal leasing in the Wyoming Powder River Basin.  The plaintiffs challenged the final environmental impact statement (FEIS) for the leases on several grounds, including failure to give adequate consideration to the impact of coal leasing on climate change.  The plaintiffs claimed the leases would injure them because of their local impacts on the environment.  The district court allowed them to challenge portions of the FEIS dealing with these local impacts, but not the portion dealing with climate change.  The reason was the plaintiffs’ failure to link their specific injuries to the incremental effect of the coal on climate change.

The D.C. Circuit held that the local injuries were also a basis for raising the climate issue:

[Appellants] have established a separate injury in fact not caused by climate change—the harm to their members’ recreational and aesthetic interests from local pollution. In Center for Biological Diversity, we noted that “Interior’s adoption of an irrationally based Leasing Program could cause a substantial increase in the risk to” petitioners’ similar aesthetic injury—“their enjoyment of the animals affected by the offshore drilling”—and held that this gave petitioners standing to challenge the decision to authorize the leasing even though the claimed deficiencies concerned Interior’s failure to consider greenhouse gas emissions and global climate change.  The same reasoning applies here. The Appellants’ aesthetic injury follows from an inadequate FEIS whether or not the inadequacy concerns the  same environmental issue that causes their injury. If we vacate the BLM order, their injury will be redressed regardless whether the FEIS’s specific flaw relates to local or global environmental impacts; either way, the remedy is “limited to the inadequacy”—here, a deficient FEIS—“that produced the injury in fact that the plaintiff has established.

This theory of standing probably won’t help plaintiffs who are far removed in space and time from the emissions in question.  But actions that reduce carbon emissions almost inevitably reduce other air pollution.  So anyone suffering from local air pollution should have standing to challenge a government failure to regulate carbon emissions from the same sources.

From a policy point of view, the largest immediate benefit from reducing carbon emissions often consists of the “co-benefits” like reduced air pollution.  As it turns out, the co-benefits also are important in a legal sense, because they can provide a basis for standing.

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Reader Comments

2 Replies to “Climate Standing with a Twist”

  1. Dear Dan,
    I am still confused about your dubious assertion in a prior post that deniers somehow had a bad year in 2013. Carbon dioxide emissions were at record highs as the worldwide consumption of crude grew to 100 million barrels/day. That translates into around 500 million tons/day of fresh carbon dioxide, not including coal plant emissions. Compare that to the paltry negligible, almost non-existent reductions in carbon dioxide from solar, renewables, cap’n trade, taxes, etc.

    Doomer “scientists” are stuck in Antarctic ice and this winter is extra cold. Deniers are right, The hard facts and evidence clearly shows that we had a great year in 2013 and will do even better in 2014. Get it right, be a denier and live happily ever after.

    Happy, happy, happy New Year !!!

  2. Quote from American Thinker:
    When Fargo is 25 below zero, Baton Rouge 24 above, and nearly the entire nation is in the grip of a record-breaking frigid spell, one’s thoughts naturally turn to global warming — or, rather, make that climate change. The former term — “global warming” — as it turned out, was too specific; to believe that global warming was a real threat required…well, that global warming actually occur.

    That did not happen, as the data have proven, and for once Al Gore was right: truth can be so inconvenient, because the fact that the globe failed to heat up as advertised not only swelled the ranks of doubters, but also tarnished the global warming brand. A new label was needed.

    Some people claim that the phrase “climate change” better expresses the complexity of what is happening weather-wise.

    But others among us believe that the purpose of replacing the old, discredited label was to keep the climate crisis pot boiling and bubbling, in order to maintain the flow of funds pouring into the coffers of environmental groups, politicians, academics, and businesses dependent on a zeitgeist of climate crisis.

    And some of us believe that even more nefarious actors are at work, perpetuating the empowerment of that perfect storm of interests on the left that seek to overturn the traditional order and impose their visions of utopian conformity, via regulatory salvation from certain death by CO2. Any propagandist worth his salt will tell you: if the old narrative fails, create a new one.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

READ more