The Standing Doctrine and Global Warming

One of the most interesting issues in the oral argument yesterday in Massachusetts v. EPA is how the standing doctrine may force the Court to make a threshold assessment as to whether global warming is injurious. Justice Kennedy put it succinctly when he questioned the “reassuring statement that we need not decide about global warming in this case.” He asked, “don’t we have to do that in order to decide the standing argument, because there’s no injury if there’s no global warming?” (pp. 8-9). That is a very good question. I would think that the Lujan standing requirement for injury would require the Court to establish whether the harm was “concrete and particularized, actual or imminent.” How do you establish concrete, particularized, actual and imminent injury to the petitioners without expressing an opinion about the existence of global warming and its injurious effects?

Perhaps the Court will not reach the question if it finds the petitioners lack standing because of the causation or redressability prongs of standing. Causation would ask whether the petitioners’ injury was caused by the EPA’s failure to act instead of some third party inaction. That of course is exceedingly difficult to establish in this context. Redressability would ask if the injury is likely to be redressed by a favorable decision. Again, it is extraordinarily difficult to show that EPA regulations would cure the petitioners’ injury.

In short, every single prong of standing is difficult for the petitioners. The Court may wish to avoid the injury question by dismissing the case on causation or redressability. If it does so, the decision would be anticlimactic. But if it finds standing, then watch for the Court’s assessment of injury to be unusually important in the global warming debate.