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

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 defendants in emitting GHGs; in 2012, the Ninth Circuit affirmed the dismissal on the ground that the Clean Air Act displaced the plaintiff’s federal common law public nuisance claims, but did not address the standing issues. In a series of decisions involving Comer v. Murphy Oil, the District Court for the Southern District of Mississippi and various judges on the U.S. Court of Appeals for the Fifth Circuit reached differing conclusions on the standing rights of private plaintiffs in global warming litigation. Most recently, after the plaintiffs re-filed their complaint in Comer. the District Court for the Southern District of Mississippi reviewed Massachusetts, AEP, as well as the district court’s decision in Kivalina, and concluded that the private plaintiffs did not have standing to sue; the plaintiffs are appealing that decision to the Fifth Circuit. It is important to distinguish between whether private plaintiffs in climate change cases should be entitled to Article III standing and whether they should prevail on the merits. Courts should apply a relatively liberal approach in deciding standing issues for private plaintiffs pursuing climate change suits even if courts conclude that it is inappropriate to grant relief on the merits to those same plaintiffs because standing is a preliminary question that should be treated separately from decisions on the merits. Parts VII.A and VII.B will explain why standing is a preliminary question requiring a lesser amount of evidence and why standing causation should be treated as separate from proximate causation on the merits because courts should not duplicate causation analysis on the merits when they make the preliminary decision to decide standing. Additionally, this Article proposes criteria for addressing when it is appropriate to recognize standing for private parties filing suits involving climate change challenges. If a state plaintiff has articulated similar claims, it is more efficient and consistent with federalist principles for federal courts to favor suits by sovereign states over duplicative private claims, especially for injunctive remedies. On the other hand, if a plaintiff like the Village of Kivalina has alleged unique injuries that no state plaintiff has asserted then standing is more appropriate, especially if the plaintiff is seeking individualized damages for state common law public nuisance claims.