Standing for Private Parties in Global Warming Cases: Traceable Standing Causation Does Not Require Proximate Causation

• Main Author: Mank, Bradford
• Format: Text
• Language: unknown
• Published: University of Cincinnati College of Law Scholarship and Publications 2012
• Subjects: standing; climate change; global warming; causation; environmental law; Civil Procedure; eskimo*; Inupiat
• Online Access: https://scholarship.law.uc.edu/fac_pubs/214; https://scholarship.law.uc.edu/context/fac_pubs/article/1214/viewcontent/2012MichStLRev869.pdf

This Article argues courts should apply a relatively liberal approach in deciding standing issues for private plaintiffs pursuing climate change suits even if courts ultimately conclude that it is inappropriate to grant relief on the merits to those same plaintiffs because the Supreme Court has clearly declared that standing is a preliminary question that should be treated separately from decisions on the merits and standing causation requires less proof than proximate causation on the merits. The Supreme Court in its 2007 decision in Massachusetts v. EPA held that a state had standing under Article III of the U.S. Constitution to bring suit against the federal government for its failure to regulate greenhouse gas (GHG) emissions that arguably cause global climate change despite the highly diffuse and generalized nature of the harms involved because states are “entitled to special solicitude in our standing analysis.†Massachusetts did not directly address whether private parties have similar standing rights to bring climate change suits against the federal government or large private GHG emitters. In Connecticut v. Am. Electric Power Co., the U.S. Court of Appeals for the Second Circuit held that both the state plaintiffs and the private plaintiffs had standing to bring public nuisance actions against large electric utility companies that emit significant amounts of GHGs; the Supreme Court subsequently affirmed that decision by an equally divided vote that has no precedential effect. By contrast, in Native Village of Kivalina v. Exxon Mobil Corp., the District Court for the Northern District of California concluded that the plaintiffs, the Village of Kivalina, whose inhabitants are a self-governing, federally-recognized Tribe of Inupiat Eskimos, could not prove standing causation in a public nuisance action against several oil, energy, and utility companies for causing substantial GHG emissions that contribute to global warming because they could not trace the Village’s harms to specific actions of the ...