Standing and Climate Change: Can Anyone Complain About the Weather?

ness of the injury that deprives the standing, not the wide dispersal of the harm.131 Where a widely shared harm is nevertheless concrete, standing can exist constitutionally. The wide sharing of injury is analytically distinct from concreteness: [T]he fact that a political forum may be more readily available where an injury is widely shared . . . does not, by itself, automatically disqualify an interest for Article III purposes .... This conclusion seems particularly obvious where (to use a hypothetical example) large numbers of individuals suffer the same common-law injury (say, a widespread mass tort), or where large numbers of voters suffer interference with voting rights conferred by law. We conclude that, similarly, the informational injury at issue here, directly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts.132 Thus, where Congress enacts a law designed to protect or enhance rights of citizens, and authorizes persons protected to seek judicial redress when the protection is denied, and thus the harm inflicted, the citizen has standing to seek such redress in federal court, even though every other citizen is similarly adversely affected. On the other hand, generell obligations placed on Congress by the Constitution such as the Accounts Clause, do not define concrete harm to citizens when Congress allegedly fails to meet its affirmative obligation. In those cases, as with other political issues, the remedy is left to the political process, not the Courts. Not surprisingly, Justice Scalia vigorously dissented. First, he objected to the idea that Congress, by statute, could create an injuryin-fact while a constitutional obligation on Congress does not.133 He also objected to the distinction between taxpayers (no standing) and 131. See id. at 24 ("The abstract nature of the harm . . . deprives the case of the concrete specificity that characterized those controversies which were 'the traditional concern of the courts at Westminster7; and which today prevents a plaintiff from obtaining what would, in effect amount to an advisory opinion/') (internal citations omitted). 132. Id. at 24 25 (internal citations omitted). 133. See Akins, 521 U.S. at 33 (Scalia, J., dissenting). This content downloaded from 207.46.13.86 on Fri, 14 Oct 2016 04:28:50 UTC All use subject to http://about.jstor.org/terms Summer 2000] CAN ANYONE COMPLAIN 473 voters (standing) as "a silly distinction, given the weighty governmental purpose underlying the 'generalized grievance' prohibition viz., to avoid 'something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts.'"134 This led to his most serious concern, that the Court has abandoned the line between generalized grievances (no standing) and particularized ones (standing). To Justice Scalia, it matters not whether generalized grievances are concrete or abstract, all "undifferentiated" grievances "common to all members of the public . . . must be pursued by political, rather than judicial, means."135 Akins permitted Congress to authorize a citizen to vindicate an informational right of concern to all voters, and inevitably rejects Justice Scalia's admonition in Defenders of Wildlife 136 that "'[t]o permit Congress to convert the undifferentiated public interest in executive officers compliance with the law into an 'individual righť vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty Thus, as of June 1998, the Court was placing a rigorous burden on plaintiffs to articulate concrete, differentiated, non-speculative harm to establish standing, but voters need not. If in environmental cases undifferentiated, widely shared harm would not justify standing, can there be standing to challenge governmental decisions affecting climate change or to bring citizen suits to enforce climate change obligations? As of June 1998, the line of environmental standing cases in the Supreme Court and lower courts suggested no. The lower courts' analysis of standing on the climate change issue mirrored the debate in the Supreme Court. V. Climate Change: Lower Courts Struggle With Standing Although the Supreme Court has not yet addressed the question of standing and climate change, the District of Columbia circuit has faced the question twice, with mixed results.138 The first case 134. Id. at 33 (internal citations omitted). 135. Id. at 35. 136. For an extended analysis of the tensions between Akins and Defenders of Wildlife, see Cass Sunstein, information Regulation and Informational Standing : Akins and Beyond , 147 U. Pa. L. REV. 613 (1999). 137. Id. at 36 (quoting Defenders of Wildlife, 504 U.S. at 5 77). 138. In another case, a NEPA challenge to funding decisions that allegedly contributed to the greenhouse effect, standing based on deprivation of information was denied. See This content downloaded from 207.46.13.86 on Fri, 14 Oct 2016 04:28:50 UTC All use subject to http://about.jstor.org/terms 474 JOINT ISSUE / LAND USE & TRANSNATIONAL [Vol. 15 & 9 involved a challenge by Los Angeles, New York, the State of California and environmental groups to a decision by the National Highway Traffic Safety Administration not to prepare an environmental impact statement (EIS) on corporate average fuel economy (CAFE) standards.139 The plaintiffs alleged that the Agency "should have prepared an EIS in order to consider the adverse climatic effects of the increase in fossil fuel consumption that would result from setting a CAFE standard lower than 27.5 mpg."140 This increased fuel consumption would allegedly "lead to a global increase in temperatures, causing a rise in sea level and a decrease in snow cover that would damage the shoreline, forests, and agriculture of California;" which would injure the economic and recreational interests of members of lhe plant environmental group that lived there.141 A divided court found that plaintiff had standing, although a differently divided court ruled against the plaintiffs on the merits. Judge Wald, with Justice (then Judge) Ruth Bader Ginsburg concurring, agreed that the "failure to prepare an EIS explaining the effects of the rollbacks on global warming presents the risk of overlooking an environmental injury that will personally affect its members," who because of their "geographical nexus" to the location where the consequences would be felt, would be harmed by a warmer climate's effect on coastal and agricultural resources.142 Because NRDC had established that its members met the "geographical nexus" requirement of injury-in-fact, standing was established even though "the effects of a change in global atmosphere would obviously be felt throughout this country, and indeed, the world."143 The causation prong of the standing test was met because "[n]o one disputes the causal link between carbon dioxide and global warming" and the Agency decision to reduce the fuel economy standard would increase these emissions.144 To meet the causation and redressability requirements, "NRDC had only to Foundation on Econ. Trends v. Watkins, 794 F. Supp. 395 (D.C. Cir. 1992). In this case, however, the standing question was determined by the Circuit's recent narrowing of "information" standing, i.e., that deprivation of information did not constitute sufficient injury for purposes of standing. See Foundation on Econ. Trends v. Lyng, 943 F.2d 79, 82-85 (D.C. Cir. 1991). The court did not address whether plaintiffs had standing based on injuries from climate change directly. 139. See Oty of Los Angeles v. National Highway Trafhc Safety Admin., 912 F.2d 478 (D.C. Cir. 1990), overruled, by Florida Audubon Soc'y v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996). 140. Id. at 483.