Standing in Climate Change Litigation: Local Is Global, Global Is Local

Posted by on Feb 16, 2014 in Environmental, Writing | 0 comments

Standing in Climate Change Litigation: 

Local Is Global, Global Is Local[1]

By Nikolai Lash

I.  Introduction

Climate change is perhaps the world’s most fundamental and pressing problem. James Hansen, the well-known climate scientist, said in 2007: “Human-made greenhouse gases are near a level such that important climate changes may proceed mostly under the climate system’s own momentum . . . [I]f we go over the edge, it will be a transition to ‘a different planet,’ an environment far outside the range that has been experienced by humanity. There will be no return within the lifetime of any generation that can be imagined, and the trip will exterminate a large fraction of species on the planet.”[2] By many accounts, time is running short for addressing climate change. The number of options available for mitigation will dwindle if we fail to act.

James Hansen

James Hansen

Litigation is an obvious, but tortuous, path. It is an understatement to say that climate change plaintiffs have had a difficult time getting standing in recent litigation. This article analyzes the current standing roadblock by examining two cases—the seminal Massachusetts v. EPA (Massachusetts),[3] where standing was granted, and Washington Environmental Council v. Bellon (WEC), where standing was denied.[4]

I conclude with two specific recommendations for plaintiffs regarding standing. One recommendation is that plaintiffs submit declarations that better address the unusual causation issues found in climate change cases. The second recommendation concerns the issue of redressability, wherein I conclude that standing is likely to be successful only in cases where targeted emissions contribute significantly to the global accumulation of greenhouse gases (GHGs). These ideas emerge from a single statement in the WEC opinion: “[A]ttempting to establish a causal nexus in this case may be a particularly challenging task . . . because there is a natural disjunction between Plaintiffs’ localized injuries and the greenhouse effect.”[5] The problem is the uncertain nature of the connection between the local and the global.


II.  Historical Standing Requirements[6]

            “Article III of the Constitution limits the ‘judicial power’ of the United States to the resolution of ‘cases’ and ‘controversies.”[7] In order to establish the existence of a case or controversy, a party must meet certain constitutional requirements, including “the requirement that … it has standing to bring the action.”[8] In 1992, a Supreme Court decision, Lujan v. Defenders of Wildlife, set the foundation for constitutional standing, a three-part test requiring: (1) a showing that the plaintiff has “suffered an ‘injury in fact,’” which is (a) “concrete and particularized” and (b) “actual or imminent,” not “conjectural” or “hypothetical”; (2) that “there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court’”; and (3) “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”[9]


III.  Massachusetts v. EPA

Massachusetts was the high point in climate change standing. In that case, the state was held to have standing to challenge the Environmental Protection Agency’s (EPA) failure to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act (CAA). Justice John Paul Stevens ruled on behalf of a 5-4 majority of the Court that the state plaintiff[10] in the case satisfied all three elements of the Article III standing test.

Supreme Court

Supreme Court

Regarding causation, the second element of the Lujan test, EPA did not dispute the existence of a causal connection between greenhouse gas emissions and global warming, but instead argued that its decision not to regulate greenhouse gas emissions “contributes so insignificantly to petitioners’ injuries that the Agency cannot be haled into federal court to answer for them.”[11] The Court responded that even small steps—“incremental steps”—of improvement are legally justifiable.”[12]

Regarding redressability, the third element of the standing test, the Court found that regulating motor-vehicle emissions would have an appreciable impact on global warming.[13] The Court noted that the U.S. transportation sector emitted 1.7 billion metric tons of carbon dioxide into the atmosphere in 1999, accounting for more than 6 percent of worldwide carbon dioxide emissions. “Judged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations,”[14] opined the Court, and thus satisfied the redressability element.

Notwithstanding Massachusetts, the clear trend in recent climate change litigation has been to deny standing, typically based on causation and redressability inadequacies. Washington Environmental Council v. Bellon is representative of these recent cases.[15]


IV.  Washington Environmental Council v. Bellon

In WEC, two environmental organizations, Washington Environmental Council and the Sierra Club, brought a CAA citizens suit seeking to force three Washington state agencies[16] to regulate GHG emissions from oil refineries. In 2008, GHG emissions from state oil refineries made up 5.9% of the total greenhouse gas emissions in Washington.[17] Their claim was that defendants had a duty to establish emissions limits, called “reasonably available control technology” (RACT), for greenhouse gases and apply those limits to the state’s five oil refineries.[18]

Washington state oil refinery

Washington state oil refinery

The U.S. District Court for the Western District of Washington sided with the plaintiffs and ordered the agencies to finish the RACT process for the refineries by May 2014. Intervening on behalf of the agencies was Western States Petroleum Association (WSPA),[19] who brought the appeal to the Ninth Circuit, arguing that the case should have been dismissed for lack of standing. The appellate court agreed with WSPA and vacated the lower court’s ruling.

Attempting to establish standing, the environmental groups declared that members suffered various injuries from climate change caused by increases in GHGs, including reduced ability to enjoy skiing and snowshoeing and economic losses from affected ranching interests and property damage.[20] The Ninth Circuit found the first element of the standing test—injury—to be satisfied, but not the causation element. The court found the connection between emissions at defendants’ oil refineries and plaintiffs’ injuries to be too attenuated to meet the causality requirement for Article III standing.[21] For example, one of the members asserted that “[t]he failure of the clean air agencies to require [RACT] that can result in reductions to greenhouse gas emissions at the oil refineries has harmed me, and other WEC members, by failing to reduce and control air pollutant emissions that cause or contribute to climate change and its negative impacts on my property, my health, and my way of life.”[22] Another declared that “the failure of the Agencies to take the actions described . . . will result in additional greenhouse gas emissions in Washington State that will exacerbate changes to the regional and global climates.”[23] The court found these declarations to be “only vague, conclusory statements,”[24] which lacked a solid evidentiary basis.

Regarding redressability, the WEC court noted that the record contained no evidence that RACT standards would curb a significant amount of GHG emissions. The court compared the WEC situation with the one in Massachusetts where the emissions from the motor-vehicle sector accounted for 6 percent of worldwide carbon dioxide emissions. In Washington, the GHG emissions from all five oil refineries added up to less than 6 percent of statewide emissions. As the WEC court said, “While this may be a significant portion of state emissions, Plaintiffs do not provide any evidence that places this statistic in national or global perspective to assess whether the refineries’ emissions are a ‘meaningful contribution’ to global GHG levels.”[25] The term, meaningful contribution, comes from the Massachusetts opinion where the Supreme Court found that “motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations.”[26] Because the global warming effect of the emissions from the oil refineries was “scientifically indiscernible,”[27] the redressability element was not satisfied in WEC.

Thus, the problem for the plaintiffs was twofold: first, none of the plaintiffs’ declarations adequately connected the dots between emissions and effects. This left the causation element inadequately addressed. Second, because of the relative insignificance of the size of the oil refineries’ emissions, the remedy plaintiffs were seeking was incapable of fixing the problem, leaving the redressability requirement unmet. Both of these problems stem from the local-global dynamic, which is peculiar to climate change cases. Emissions anywhere contribute to a global increase of greenhouse gases, affecting the planet in a myriad of ways, but manifesting in particular locations with great unpredictability.[28]


V.  The Local-Global Issue: Two Lessons

As climate change worsens and a growing number of individuals and states suffer harm, more plaintiffs will be seeking relief within the judicial system. The Massachusetts and WEC decisions contain important insights helpful in determining how to manage the difficult causation and redressability elements of the standing test.climate-change

One lesson learned from analyzing Massachusetts and WEC is that something more is needed than a general allegation that a particular GHG emitter is affecting a specific locality. To satisfy the causation element of the standing test, plaintiff declarations must describe with particularity the causation pathway between the source of the emissions and the climate change effects at a particular locality. Plaintiffs must show scientific support for their specific allegations.

In WEC, it was not enough for plaintiffs to amass numerous declarations of harms to be suffered so long as the declarations contained only unsubstantiated, conclusory statements. On the other hand, in Massachusetts, plaintiffs were careful to provide written testimony that GHG emissions from automobiles would have a direct effect on the state’s coastline. Experts hired by plaintiffs provided scientific evidence showing that the anticipated increase in unregulated emissions would lead to higher ocean levels, inundating state property with water and causing more frequent and higher intensity storms, damaging important resources as a result. According to petitioners’ declarations, “global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming. . . The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be ‘either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events.’”[29] The Supreme Court was convinced by the plaintiffs’ experts that not only would climate change worsen globally, but that Massachusetts would suffer specific harm as a result of EPA’s failure to act.

The second lesson learned from Massachusetts and WEC concerns the standing element of redressability. Without evidence that the targeted emitter can make a meaningful contribution to global warming, no remedy exists even potentially. In Massachusetts, the remedy sought by plaintiffs—regulations of motor-vehicle emissions—was shown to affect emissions that contributed 6 percent of worldwide GHG emissions. The Court found this contribution to be meaningful for the purposes of redressability. It is difficult to state where the demarcation for meaningful and unmeaningful contribution might lie, but it is clear from WEC that an emissions level of 5.9 percent of Washington state’s emissions is insufficient, at least for the Ninth Circuit appellate court. To meet the redressability element, courts expect to see evidence of an amount of GHG emissions that is measurable and appreciable at the global level. What that amount actually is will obviously vary from court to court, but will likely depend on the specificity and credibility of the evidence plaintiffs bring to demonstrate the connection between emissions and injury.

A Final Thought

Perhaps these standing difficulties are a sign that existing law is inadequate to address climate change. The very nature of climate change—a problem created by everyone, affecting everyone, and growing worse by continuing accumulations—is at odds with a legal system that has its origins in resolving disputes between two people. However that turns out, I think litigation will play an important, future role in climate change settings at least where procedural issues are at stake. When an agency shortchanges or disregards legally required procedures, as was done by EPA in Massachusetts, courts will likely remain an effective and appropriate venue for relief.


[1] The subtitle mirrors the Buddhist expression, “Emptiness is form, form is emptiness,” a line taken from the Heart Sutra, a Buddhist text which refers to the interdependence of all phenomena.

[2] James Hansen, “State of the Wild: Perspective of a Climatologist,” 10 April 2007, available online at:

[3] Massachusetts v. EPA 549 U.S. 497 (2007).

[4] Washington Environmental Council v. Bellon, 732 F.3d 1131 (9th Circ. 2013).

[5] Id., at 1143.

[6] The United States has developed some of the most stringent standing requirements in the world. See, e.g., the United Kingdom, where the “sufficient interest” requirement has been interpreted liberally: “It would…be a grave lacuna in our system of public law if a pressure group…or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.” (Lord Diplock).

[7] Valley Forge Christian Coll. V. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982).

[8] Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002).

[9] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

[10] Despite its assertion that states enjoy “special solicitude” in deciding standing questions, the Massachusetts decision did not provide clear reasons for distinguishing between the standing rights of states and private plaintiffs.

[11] Lujan, at 523.

[12] Id., at 524.

[13] Id., at 524-26.

[14] Id., at 525 (Emphasis added.)

[15] See, e.g., Native Village of Kivalina v. ExxonMobil 663 F.Supp.2d 863 (N.D.Cal. 2009); WildEarth Guardians v. Salazar and Antelope Coal, 880 F.Supp.2d 77 (D.D.C. 2012); Amigos Bravos v. BLM, 816 F.Supp.2d. 1118 (D.N.M. 2011); and Sierra Club v. U.S. Def. Energy Support Ct., Civil Action No. 01:11-cv-41 (2011).

[16] Washington State Department of Ecology, the Northwest Clean Air Agency, and the Puget Sound Clean Air Agency.

[17] WEC, at 1136.

[18] RACT standards were a part of Washington’s EPA-approved State Implementation Plan, required under the Clean Air Act.

[19] WSPA is an industry group of oil refineries that includes BP Cherry Point, ConocoPhillips, Shell Oil, Tesoro, and U.S. Oil.

[20] WEC, at 1140-41.

[21] Id., at 1141-44.

[22] Id., at 1142.

[23] Id.

[24] Id.

[25] Id., at 1145-46 (Emphasis added.)

[26] Massachusetts, at 525 (Emphasis added).

[27] WEC, at 1147.

[28] An obvious exception to the unpredictability of outcomes is oceanfront property, where forecasts can be made with near certainty that shorelines will be inundated.

[29] Massachusetts, at 522-23.

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