Recent DC Circuit decision limits standing of private parties to sue over climate change
The Court of Appeals for the District of Columbia Circuit recently issued an opinion in Center for Biological Diversity v. United States Department of the Interior (“CBD”). In the suit, three non-profit activist groups and one tribal government sued the Department of the Interior for failing to account for climate change when deciding to grant oil and gas leases off the Alaska coast. The ruling creates a hurdle for parties filing climate change based lawsuits. In the opinion, the DC Circuit holds that the petitioners lacked “substantive” standing to pursue their National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) claims, though it did find that they had established procedural standing. The ruling also sets out specific limits on the application of the Supreme Court’s most recent decision on the regulation of greenhouse gases, Massachusetts v. EPA.
First, the CBD court found that Mass. v. EPA only applies to situations where a sovereign, such as a state, seeks to “assert its own rights as a state” and not the rights of its citizens. In the Supreme Court case, Massachusetts was able to claim that the EPA’s failure to regulate greenhouse gases was actually causing the diminution of shoreline which the state owned. The DC circuit thus held that Mass. v. EPA stood only for the proposition that “where a harm is widely shared, a sovereign, suing in its individual interest, has standing to sue where that sovereign’s individual interests are harmed, wholly apart from the alleged general harm.” The CBD court noted that since the tribal government plaintiff in their case did not actually own the offshore land that was directly affected, the holding in Mass. v. EPA did not extend to the analysis of their claim.
The court then analyzed whether the petitioners’ climate change claims could meet the traditional Article III standing test of showing “a concrete and particularized injury that is caused by, or fairly traceable to, the act challenged in the litigation and redressable by the court.” The court found that petitioners could not establish either injury or causation. Injury to the Arctic environment from climate change was first, too speculative, as it might occur at some point in the future, and second, too generalized, as it affected the world at large. Causation, according to the court, was too tenuous, as the chain of events between the leases and climate change involved too many third parties, such as oil companies and consumers.
This holding by the DC Circuit makes it more difficult for environmental groups to use the courts to address global warming. In addition to seriously curtailing the applicability of Mass. v. EPA, the opinion also indicates that generalized future “climate change” injuries, at least at present, will have a great deal of difficulty meeting Article III standing requirements.
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