A recent decision by the United States Supreme Court has raised questions about the scope of plaintiffs’ standing to bring suit in federal court, a critical issue for environmental litigants.
Federal courts have long recognized that certain types of environmental harms can form the basis of standing under Article III of the United States Constitution, which requires plaintiffs to establish an “actual or imminent” injury that is “fairly traceable” to the challenged conduct and “likely to be redressed” by a favorable decision. In one of the earliest federal rulings on environmental standing, Scenic Hudson Preservation Conference v. Federal Power Commission, the Second Circuit held that “those who by their activities and conduct have exhibited a special interest” in the “aesthetic, conservational, and recreational aspects” of a site have Article III standing, even in the absence of a “personal economic interest” at stake. 354 F.2d 608, 615-616 (1965). Although it has been well established that environmental harms, and not just economic harms, can serve as the basis for a federal lawsuit, courts have struggled to define which types of environmental harms may give rise to standing. In particular, courts have questioned what level of risk, and over what time scale, rises to the level of a cognizable environmental injury.
In a recent 5-4 decision, the Supreme Court held that a coalition of lawyers, human rights activists and journalists lacked standing to challenge government surveillance activities because the threatened harm posed by potential surveillance was, in the view of the majority, too remote. Clapper v. Amnesty International, 2013 WL 673253 (U.S. February 26, 2013). In Clapper, the plaintiffs sought to challenge the constitutionality of § 1881a of the Foreign Intelligence Surveillance Act (FISA), which authorizes federal interception of certain communications between parties located in the United States and parties outside the United States. The Second Circuit found that the plaintiffs had established standing by demonstrating an “objectively reasonable likelihood” that they would eventually be subjected to the surveillance that they claimed was unconstitutional. Amnesty Int’l USA v. Clapper, 638 F.3d 118, 134 (2d Cir. 2011). The Supreme Court overturned this decision, holding that the plaintiffs needed to demonstrate that their future injuries were “certainly impending.”
Many environmental issues involve long-term risk of harm that may not materialize immediately, most notably, but not exclusively, in connection with climate change. In Massachusetts v. EPA, the Supreme Court confronted the question of whether claims by the State of Massachusetts that it would lose parts of its coast due to gradual sea-level rise resulting from climate change were too speculative or too far in the future to establish standing. 549 U.S. 497, 521 (2007). The Court found, in a 5-4 decision, that this injury could serve as a basis for standing, concluding that Massachusetts had already been harmed by the loss of coastal land and “[t]he risk of catastrophic harm, though remote, is nevertheless real.” Id. at 526.
The court also indicated that its finding of Article III standing was informed by a “special solicitude” derived from Massachusetts’ status as a sovereign and by the fact that Massachusetts sought, in the case, to exercise a “procedural right” granted by the Clean Air Act. Id. at 520. Yet the Court did not clarify the precise role that these considerations played in its analysis. In an opinion four years later, an evenly divided Supreme Court upheld the standing of the State of Connecticut to seek injunctive relief for harms caused by climate change, citing Massachusetts v. EPA. American Electric Power v. Connecticut, 131 S.Ct. 2527, 2535 (2011).
The Supreme Court’s recent decision in Clapper may signal a turn towards a higher threshold for standing predicated on claims of risk. While the “certainly impending” definition of “actual or imminent” harm has been cited in prior Supreme Court cases, applied strictly it could greatly limit standing based upon claims of future injury. As the Clapper dissent argued, “[t]he future is inherently uncertain … yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place.”
Some commentators have suggested that the Supreme Court’s decision in Clapper may have been motivated by deference towards the executive branch in matters of national security, and that its precedent may have little effect on litigation in other areas. As the majority opinion observed, “[W]e have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” It remains to be seen if and how plaintiffs, defendants, and the courts will address Clapper in future environmental cases.