Standing and global warming: is injury to all injury to none? (M. Bradford)

Author

Mank Bradford

Keywords

Global warming; access to justice; standing (locus standi); environmental law

Abstract

Since global warming potentially affects everyone in the world, does any individual have standing to sue the U.S. 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. There is a better argument, however, for courts to recognize standing for plaintiffs who suffer “concrete” mass injuries, including any physical harms that are more likely than not caused by global warming. Under the National Environmental Policy Act of 1969 (NEPA), courts should use a “reasonable possibility” standard to determine whether a federal agency must discuss the possible impact of its actions on global warming. In 2003, the EPA concluded that the Clean Air Act does not give the Agency authority to regulate carbon dioxide, although several states are challenging that conclusion. Even if the EPA cannot regulate carbon dioxide directly, there is a strong argument that the Agency must consider carbon dioxide emissions when new power plants apply for a permit under the new source review process. Under the Administrative Procedure Act and general standing principles, a plaintiff who suffers small, but tangible injuries should have standing under the Clean Air Act.

Citation

(2005) 35 Enviromental Law.

Paper

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

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