46 ELR 10116 ENVIRONMENTAL LAW REPORTER 2-2016
When the government decides to approve, or
not to approve, some activity that has climate
change impacts, who has standing to bring a
legal chal lenge? Answers a re tricky a nd, ultimately, unsat-
isfying. What is clear is that the sheer number of cases pre-
senting this question is increasing, and there is every reason
to believe that this trend will accelerate into the future.
at substantial litigation resources are devoted to doctri-
nal debates about who does or does not have standing to
bring a climate change challenge represents, in t his writ-
er’s opinion, a diversion of scarce legal resources. Climate
change is a serious matter, and, amidst an increasingly busy
agenda, it is imperative to resolve climate change chal-
lenges on the merits.
e rst part of this Comment explains the logic of
standing doctrine and why this logic is so inapt with regard
to climate change. e second part organizes the spate of
recent rulings on standing to bring climate change chal-
lenges so that readers can appreciate the paradox that courts
face in applying doctrine where it is logically inapposite.1
I. Understanding Standing
Not e veryone may litigate every conceivable wrong. e
courts would be inundated, and some complaints might
be weakly advocated because, if anyone can be a plainti,
many would lose interest in pursuing the dispute. It makes
sense to limit the right to sue to those persons who have
been caused injury by the wrongful act and will benet
from a legal ruling that redresses the complained-of wrong.
Standing, as a doctrinal foundation of civil litigation inher-
ing from tort principles of causation and redressability, is
at root framed by the idea of particularized injury: Only
people who have suered a particular injury c aused by the
defendant’s conduct may complain of it. us, each civil
litigant bears the burden of establishing (1)an injury-in-
fact t hat is (a)concrete and particularized and (b)actual
1. For a tabular analysis of many of the climate standing cases discussed
here, see Bruce Myers et al., Charting an Uncertain Legal Climate: Article
III Standing in Lawsuits to Combat Climate Change, 45 ELR 10509 (June
2015).
C O M M E N T
Standing to Challenge
Climate Change Decisions
by Barry Kellman
Barry Kellman is Professor of Law and Director of the International Weapons Control Center at DePaul University College of Law.
or imminent, and (2)a fairly traceable causal connection
between the injury and the conduct complained of, which
(3)likely will be redressed by a favorable decision.2
Initially, it is important to note that arguments about
standing are dierent from arg uments about whet her the
plainti has presented a justiciable claim. Some complaints
simply do not allege a legal dispute; they should be dis-
missed for fa iling to present a case or controversy. Espe-
cially in connection with government acts, there are many
policy disagreements t hat do not give any aggrieved par ty
a cause of action. Regardless of who may bring the suit, the
suit itself may lack merit or, for other reasons, be nonjustic-
iable. By contrast, a dispute over standing should arise only
if there is a legal case to be made. To question standing is
to ask whether the moving plainti is the right advocate:
Has the plainti, among al l those who may be aggrieved
by a legal wrong, suered a particular injury such that this
plainti should be permitted to advance the claim?
A. The Charade of Environmental Standing
e logic of standing, grounded in tort concepts of liabil-
ity and undeniably useful throughout so many domains of
law, is twisted by the inherent logic of most environmental
controversies and serves as little more than a call for ritual
observance of doctrine. e twist is that most environmen-
tal disputes are about acts that have not yet happened, the
consequences of which are not yet suered and indeed may
never be suered. W hile some environmental disputes are
about an act ual nuisance for which relief is sought, many
are about how the government is regulating common
resources on behalf of every American.
e U.S. Congress has enacted various laws about how
government is to perform environmental regulation—laws
designed to benet not only the living, but also the as-yet
imaginary generations to come. With regard to environ-
mental regulation, some interests that statutes seek to pro-
tect literally cannot advocate for themselves because they
do not yet exist. ere are other interests of signicance
(1992); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 180-81, 30 ELR 20246 (2000).
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
