by Thomas Kemmet, Associate Member, University of Cincinnati Law Review Vol. 91
The environment is facing substantial destruction across the globe as a result of climate change.1Hans-O. Pörtner et al., Climate Change 2022: Impacts, Adaptation and Vulnerability, Intergovernmental Panel on Climate Change 9 (2022), https://www.ipcc.ch/report/ar6/wg2/downloads/report/IPCC_AR6_WGII_FullReport.pdf [https://perma.cc/9MQ5-PRLT]. The biggest adversaries to the health and protection of the environment are human practices and institutions.2Causes of Climate Change, EPA, https://www.epa.gov/climatechange-science/causes-climate-change [https://perma.cc/3QT5-4S2E]. It is not a question that climate change and environmental degradation is directly related to humans’ abusive use of natural resources and the mass pollutants humans dump into Earth’s atmosphere and waterways.3Id. Thus, with the onslaught of anthropogenic climate change, the earth has rapidly been warming, causing sea levels to rise, weather patterns to become more extreme, and the land and forests to burn before our eyes with an increase in wildfires.4Pörtner, supra note 1. All of these factors are causing the environment to experience irreversible loss of biodiversity on all fronts from terrestrial to aquatic ecosystems.5Id. Despite all of these harms inflicted upon the environment and the severe injuries its natural bodies are enduring, there is very limited legal recourse on their behalf.6Sierra Club v. Morton, 405 U.S. 727, 741-43 (1972). Moreover, one of the biggest obstacles the environment faces in obtaining legal protection is its ability to achieve standing in courts.7Daniel A. Farber et al., Case Materials on Environmental Law 299 (West Academic Publishing ed., 10th ed. 2019). This begs the question, to what extreme does an entity of nature or the environment at large need to be injured for a court to recognize standing?8Brent A. Rosser, Article III Standing Still Proving to be a Formidable Defense to Environmental Citizen Suits, The Nat’l L. Rev. (Sept. 7, 2021), https://www.natlawreview.com/article/article-iii-standing-still-proving-to-be-formidable-defense-to-environmental-citizen [https://perma.cc/2T2D-DHPV]. Some nations such as New Zealand, Bangladesh, and just recently, Spain have begun to strengthen environmental protection movements through their legal system by granting personhood to natural things.9Nick Perry, New Zealand River’s Personhood Status Offers Hope to Māori, Associated Press News (Aug. 15, 2022), https://apnews.com/article/religion-sacred-rivers-new-zealand-86d34a78f5fc662ccd554dd7f578d217 [https://perma.cc/BSG8-Q7VQ]; Joseph Wilson, Spain Gives Personhood Status to Mar Menor Salt-Water Lagoon, Associated Press News (Sept. 21, 2022), https://apnews.com/article/science-spain-climate-and-environment-government-politics-a7952765649ad9d171b0ada314e34bcd [https://perma.cc/C2BL-EZXS]. Despite such nations taking a proactive and innovative approach to the protection of the environment in their legal systems, the United States still sits firm on its stance.10Sierra Club, 405 U.S. at 741-43. The U.S. Supreme Court has yet to hold that any ecological entity, from trees, to lakes, rivers, and parks can have standing in the United States’ court system.11Id.
This article will start off by briefly defining what standing is and where it is derived from. The article then will discuss the current role of standing in administrative law, especially in the environmental context, before introducing how the courts have analyzed whether or not an environmental litigant has standing. Next, the article will examine the adverse implications of the current standing test on environmental issues and the Supreme Court’s attempt to resolve it. The article then will discuss what other nations have done to overcome such effects. Finally, the article will focus on why the United States should follow its counterparts in providing personhood to natural entities for legal standing.
Article III, Section 2 of the United States Constitution vests the power in the U.S. federal courts to hear all cases and controversies that arise between the United States and other nations, states, citizens, as well as cases among citizens of different states.12U.S. Const. art. III, § 2, cl. 1. Due to the broad span of issues that can be brought before the federal courts, they are constantly flooded with cases to adjudicate.13Farber, supra note 7. Due to the finite resources available to the court system, the courts have implemented various mechanisms to help with judicial efficiency.14Id. One such tool that the courts have employed to limit a party’s ability to seek judicial review and bring a claim before the courts is “standing.”15Id. In short, standing is the ability of a party to have access to the courts to bring a lawsuit.16Standing, Black’s Law Dictionary (11th ed. 2019). In other words, it is a tool to determine whether a party’s right to bring a legal claim before the court for a particular right or obligation is one that can be resolved through the judicial process.17Id. Furthermore, the idea of standing has become an integral part of administrative law, especially regarding environmental law.18Farber, supra note 7, at 297-99. Therefore, in order to grasp the importance of standing, one must understand the role of administrative agencies like the Environmental Protection Agency (“EPA”).19Id.
A. The U.S Administrative System
Article I, Section 8 of the Constitution, also known as the Necessary and Proper Clause, enumerates Congress with the explicit authority to make the laws of the land in order to execute the vested powers of the federal government.20U.S. Const. art. I, § 8, cl. 18. Moreover, this broad scope of power bestowed upon Congress requires congressmen and congresswomen to have a vast array of knowledge on extremely intricate topics.21Farber, supra note 7, at 297-99. Due to the near impossibility of every member of Congress becoming experts on all matters facing the United States, Congress created and delegated its authority to administrative agencies.22Id. Administrative agencies are to consist of experts in their respective regulatory regimes to help promulgate detailed rules and regulations pertaining to general matters enacted by Congress.23Id. In other words, Congress will pass legislation with broad goals regarding a particular subject and further delegate its authority to administrative agencies to implement the goals with more detail and specificities to achieve the overarching goals of the legislation.24Id. For instance, the EPA is composed of expert scientists, economists, and lawyers.25Id. Thus, whenever Congress passes an environmental statute such as the Clean Air Act or Clean Water Act, these experts of the EPA set precise and detailed regulations to achieve clean air and clean water.26Id. Whatever standards that the administrative agencies establish ultimately have the force of law, and thus are subject to judicial review.27Id.
Moreover, environmental regulations passed by the EPA or other agencies can be extremely controversial and are subject to substantial litigation.28Id. Litigants commonly challenging environmental regulations include regulated firms, industries, environmental groups, non-profits, or states.29Id. These litigants will typically argue that the EPA has acted either outside its vested authority or that it has failed to act in executing the powers vested in it by Congress.30Id. However, to first even establish a claim against a federal agency such as the EPA, all litigants must prove that it is in their capacity to bring this suit against the agency to begin with.31Id. In order to prove that a litigant has standing, the Supreme Court has established specific elements a litigant must meet to be successful on bringing a claim within federal court.32Id. at 305.
B. Supreme Court’s Precedent on Standing in Environmental Cases
A foundational case regarding the elements a court should look to when analyzing whether a litigant has standing in an environmental case is Lujan v. Defenders of Wildlife.33Marisa Martin & James Landman, Standing: Who Can Sue to Protect the Environment, Am. Bar Ass’n (Oct. 9, 2020), https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol–19—issue-1/standing–who-can-sue-to-protect-the-environment-/ [https://perma.cc/MRQ7-JNNK]. In this case the plaintiffs, Defenders of Wildlife, argued that defendant, Secretary of Interior Lujan, should mandate that agencies must consult him before conducting any actions not only within the United States but also abroad to ensure that agency actions did not threaten endangered species around the globe.34Lujan v. Defenders of Wildlife, 504 U.S. 555, 557-59 (1992).
In ascertaining whether the Defenders of Wildlife had standing to bring the action against the Secretary of Interior, the Court established three elements.35Id. at 560-61. First, the plaintiff must prove they have suffered an injury-in-fact.36Id. However, this injury cannot be one that is speculative or hypothetical.37Id. It must be one that is “concrete and particularized” as well as actual or imminent.38Id. The second element pertains to a causal relationship between the injury and the action in question.39Id. More specifically, the injury sustained must be fairly traceable to the contested action of the defendant and not an injury that could have been brought about by the action of a third party.40Id. The third and final element is redressability; it must be likely that the injury will be remedied by a favorable decision from the courts.41Id.
After analyzing the three elements of standing, the Court ultimately concluded that the Defenders of Wildlife did not have standing in this case.42Id. at 571. The Court held that despite affidavits from plaintiffs who worked and studied at habitat sites abroad, their claims of plans to return to these sites was far too speculative to constitute an actual and imminent injury.43Id. at 563-64. Additionally, the Court determined that the plaintiffs failed to show how a decision in their favor would redress their injury.44Id. at 568.
Another significant case regarding standing can be seen with Sierra Club v. Morton. In Sierra Club v. Morton, the plaintiff, Sierra Club, sought injunctive relief against the defendant, Secretary of Interior Morton, to prevent approval of the construction of a Disney Resort in Sequoia National Forest that would result in substantial environmental degradation.45Sierra Club v. Morton, 405 U.S. 727, 728-30 (1972). In its holding, the Court expanded upon what constitutes as an injury-in-fact for a plaintiff to have standing.46Id. at 734. The Supreme Court held that aesthetic and environmental injury can constitute an injury-in-fact.47Id. The Court concluded that both aesthetic and environmental welfare are crucial to one’s enjoyment of life and thus are deserving of legal protection.48Id. However, the Court emphasized that, although these can be considered injuries by law, the party that brings suit must actually be the one enduring the injury, which Sierra Club failed to prove.49Id. at 734-38. Furthermore, despite the holding in Sierra Club enabling parties to bring suit for environmental injuries, the Lujan elements of standing still pose a substantial obstacle to seek redress for such injuries.50Id.; Lujan v. Defenders of Wildlife, 504 U.S. 555, 563-68 (1992).
C. Difficulties of Standing in Environmental Cases, Especially Global Warming, and the Supreme Court’s Attempt to Resolve it
In the decade following the strict Lujan test for achieving standing, the test significantly limited the scope of environmental cases being brought before the Court, especially in regard to climate change.51Martin & Landman, supra note 34. For instance, as seen in Sierra Club, certain environmental cases are brought by organizations on behalf of society to protect the environment.52Sierra Club, 405 U.S. at 728-30. Thus, the plaintiff, in theory, is not the party that experienced the actual harm.53Id. In order to achieve standing, these representative organizations must ensure that they find particular members of society who have experienced actual harm and carefully construct affidavits to prove that the harms these individuals are enduring are actual and imminent, which can be a difficult task.54Farber, supra note 7, at 311.
Furthermore, certain environmental issues such as anthropogenic climate change make it extremely difficult to prove actual individualized harm.55Martin & Landman, supra note 34. Climate change is a tragedy of the commons on a global scale impacting the world at large.56Farber, supra note 7, at 27. In other words, the harms felt by global warming are not suffered by one individual but rather the entire global population.57Martin & Landman, supra note 34. Moreover, global warming can have varying effects on different regions of the globe and the scientific community disagrees on the diverse impacts of global warming around the world.58Id. The variety of impacts of climate change and the uncertainty of such impacts in the data make it difficult for plaintiffs to prove that they not only suffered an injury but also that their injury was a result of the rise in greenhouse gases.59Id. This in turn makes it difficult for plaintiffs to satisfy the second element of causation.60Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Additionally, the harms of environmental issues such as climate change are not by definition one of imminence.61See generally id. at 563-69. Cases typically seek to enforce regulations to prevent future harms, like the Lujan affidavits from the two ecological observers who wanted to preserve endangered species abroad for future trips.62Id. at 563-64. Moreover, with climate change, the science is not as clear or precise as to the exact urgency of action needed to prevent these harms,63Martin & Landman, supra note 34. and with environmental issues, if the injury reaches the level of imminence, then it is most likely too late to act.64Pörtner, supra note 1.
Lastly, the element of redressability substantially encumbers environmental cases from achieving standing.65Martin & Landman, supra note 34. Again, when looking at the global issue of climate change, even a favorable decision to force the EPA to regulate or act in a certain manner to combat climate change will most likely fail to fully resolve the issue at hand.66See generally Lujan, 504 U.S. at 563-69. For instance, consider a hypothetical such that the court enjoins the EPA to regulate the amount of lumber cut in a year to combat deforestation and thus help with the reduction of carbon in the atmosphere to combat global warming.67Id. Such an action is not likely to redress the injuries faced by global warming.68Id. In other words, greenhouse gases are emitted around the world and restricting or reducing the level of greenhouse gases from one particular cause will certainly not thwart climate change overall and the injuries might still linger on.69Id.
In lieu of all these complexities of standing, the Supreme Court attempted to address the issue of climate change and standing in the momentous decision of Massachusetts v. EPA.70Massachusetts v. EPA, 549 U.S. 497, 526 (2007). In this case, Massachusetts among other plaintiffs petitioned for review of the EPA’s denial to start promulgating regulations on greenhouse gas emissions from vehicles.71Id. at 513-14. In analyzing this case, the court held that only one of the plaintiffs needed to have standing for the case to be heard in court and focused on the State of Massachusetts.72Id. at 518. The Court concluded that Massachusetts as a state had quasi-sovereign interests to protect and thus had “special solitude” in a standing analysis.73Id. at 520. The Court first determined that just because the risks of climate change are commonly shared did not downplay Massachusetts’ interest in litigation.74Id. at 522. Moreover, after conducting the standing analysis, the Court held that Massachusetts did have standing as rising sea levels related to climate change were eroding their coastal land, and the risk imposed by climate change would be reduced if the plaintiffs received the remedy they sought.75Id. at 526.
Massachusetts v. EPA was an important development in the standing doctrine, especially regarding the issue of climate change.76Id. It proved that an environmental issue on the scale of global warming and the harms it causes are still sufficient to achieve standing.77Id. However, this case solely looked at the issue from a state perspective as they were deemed to have “special solitude.”78Id. at 520. Therefore, many questions and complexities still remain for all other environmental litigants trying to receive standing.79Rosser, supra note 8. There is one potential solution, which is currently being adopted by other nations around the world, that could help to hurdle all of the obstacles of standing in environmental cases, including that of climate change.80Perry, supra note 9; Wilson, supra note 9.
D. New Zealand’s, Bangladesh’s, and Spain’s Trailblazing Precedent of Personhood
In 2017, New Zealand enacted a revolutionary law in the sphere of environmental protection that granted personhood status to her Whanganui River.81Perry, supra note 9. New Zealand became the first country in the world to take such drastic measures in protecting the environment and more specifically, an individual entity of nature.82Id. The granting of personhood now gives the river the same powers, duties, and liabilities of any individual in the eyes of the law with some limitations.83Id. Two years later, Bangladesh’s government followed suit granting personhood to all of her rivers.84Id.
Then recently on September 21, 2022, Spain joined in on the innovative environmental movement.85Wilson, supra note 9. Spain granted personhood to her Mar Menor–––Europe’s largest salt water lagoon.86Id. Due to current local farming practices and the coastal development, the lagoon has suffered massive losses in the biodiversity of its marine life.87Id. Therefore, many environmentalists, along with the support of over 600,000 citizens, petitioned the Spanish government to take greater measures in protecting the lagoon from further degradation by granting the lagoon personhood status.88Id. Due to the widespread support, the Spanish Senate enacted the law to grant personhood status to the lagoon.89Id.
The recognition of personhood essentially guarantees the lagoon’s right to protection, conservation, restoration, and existence without significant human interference.90Id. To ensure the lagoon is fully protected and its rights fully acknowledged, the lagoon will be represented by a group that consists of local care takers, citizens, and scientists.91Id. Moreover, the recent law enacted in Spain followed the precedent from that of Bangladesh and New Zealand to ensure the protection of and prevent the degradation of valuable natural bodies of the environment.92Perry, supra note 9; Wilson, supra note 9.
The United States should adopt similar laws in granting personhood status to threatened natural entities of the environment.93Id. The granting of personhood status to such natural bodies would help to avoid the various pitfalls and impediments of the Lujan standing test in environmental cases.94See supra Part II, Section C. For example, consider a hypothetical where the United States granted personhood status to the Glacier National Park.95Id. Glacier National Park is currently experiencing the disappearance of its renowned glaciers due to climate change.96Climate Change, Nat’l Park Serv., https://www.nps.gov/glac/learn/nature/climate-change.htm [https://perma.cc/Y4CG-VD4L]. With newly recognized personhood status, Glacier National Park could sue the EPA for either failing to enforce specific Clean Air Act Regulations, or to enjoin the EPA to promulgate further regulations against greenhouse gas emissions.97Perry, supra note 9. A standing analysis would proceed as follows: (1) based on an injury-in-fact analysis, Glacier National Park is the party being harmed by the release of greenhouse gases which is causing the current mass diminution of its notorious glaciers, (2) based on a causation analysis, the failure of the EPA to enforce its Clean Air Act regulations is the direct cause of Glacier National Park’s loss of its glaciers, and (3) based on the redressability analysis, a court enjoining the EPA to enforce stricter regulations regarding release of greenhouse gases into the atmosphere will likely help to curtail the injury to the glaciers.98See generally Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Overall, granting a natural entity personhood would enable these environmental bodies to be heard in court to protect themselves.99Sierra Club v. Morton, 405 U.S. 727, 749-50 (1972). It would be much easier for environmental litigants to establish an injury-in fact, causation, and redressability to achieve standing.100Sierra Club, 405 U.S. at 742-43. Furthermore, granting personhood to non-living entities is not a unique concept in United States court systems.101Id. After all, the United States has had no issue recognizing the personhood status of fictitious entities such as corporations.102Id. Therefore, natural tangible entities should not be differentiated from corporations, and environmental bodies should granted personhood status to help them attain standing in court.103Perry, supra note 9; Wilson, supra note 9.
The environment is on a rapid path to its imminent demise.104See generally Pörtner, supra note 1. Despite humans being the main assailant, action to help curtail this demise has been less than expedient.105Id. There are still numerous obstacles and hurdles environmental protectionists must jump through in order to salvage the world as we know it.106See supra Part II, Section C. The U.S. court system and its requirement of standing is still one of these impediments.107Rosser, supra note 8. However, that could change if the United States adopts the precedent of countries like New Zealand and Spain in granting personhood status to natural bodies of the environment.108Perry, supra note 9; Wilson, supra note 9. It is clear that urgent change is needed to help save the environment from experiencing irreversible destruction.109See generally Pörtner, supra note 1. Therefore, bestowing personhood status upon environmental entities can help open the door to more legal recourse by making standing easier to achieve in environmental cases.110See supra Part III.
- 1Hans-O. Pörtner et al., Climate Change 2022: Impacts, Adaptation and Vulnerability, Intergovernmental Panel on Climate Change 9 (2022), https://www.ipcc.ch/report/ar6/wg2/downloads/report/IPCC_AR6_WGII_FullReport.pdf [https://perma.cc/9MQ5-PRLT].
- 2Causes of Climate Change, EPA, https://www.epa.gov/climatechange-science/causes-climate-change [https://perma.cc/3QT5-4S2E].
- 4Pörtner, supra note 1.
- 6Sierra Club v. Morton, 405 U.S. 727, 741-43 (1972).
- 7Daniel A. Farber et al., Case Materials on Environmental Law 299 (West Academic Publishing ed., 10th ed. 2019).
- 8Brent A. Rosser, Article III Standing Still Proving to be a Formidable Defense to Environmental Citizen Suits, The Nat’l L. Rev. (Sept. 7, 2021), https://www.natlawreview.com/article/article-iii-standing-still-proving-to-be-formidable-defense-to-environmental-citizen [https://perma.cc/2T2D-DHPV].
- 9Nick Perry, New Zealand River’s Personhood Status Offers Hope to Māori, Associated Press News (Aug. 15, 2022), https://apnews.com/article/religion-sacred-rivers-new-zealand-86d34a78f5fc662ccd554dd7f578d217 [https://perma.cc/BSG8-Q7VQ]; Joseph Wilson, Spain Gives Personhood Status to Mar Menor Salt-Water Lagoon, Associated Press News (Sept. 21, 2022), https://apnews.com/article/science-spain-climate-and-environment-government-politics-a7952765649ad9d171b0ada314e34bcd [https://perma.cc/C2BL-EZXS].
- 10Sierra Club, 405 U.S. at 741-43.
- 12U.S. Const. art. III, § 2, cl. 1.
- 13Farber, supra note 7.
- 16Standing, Black’s Law Dictionary (11th ed. 2019).
- 18Farber, supra note 7, at 297-99.
- 20U.S. Const. art. I, § 8, cl. 18.
- 21Farber, supra note 7, at 297-99.
- 32Id. at 305.
- 33Marisa Martin & James Landman, Standing: Who Can Sue to Protect the Environment, Am. Bar Ass’n (Oct. 9, 2020), https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol–19—issue-1/standing–who-can-sue-to-protect-the-environment-/ [https://perma.cc/MRQ7-JNNK].
- 34Lujan v. Defenders of Wildlife, 504 U.S. 555, 557-59 (1992).
- 35Id. at 560-61.
- 42Id. at 571.
- 43Id. at 563-64.
- 44Id. at 568.
- 45Sierra Club v. Morton, 405 U.S. 727, 728-30 (1972).
- 46Id. at 734.
- 49Id. at 734-38.
- 50Id.; Lujan v. Defenders of Wildlife, 504 U.S. 555, 563-68 (1992).
- 51Martin & Landman, supra note 34.
- 52Sierra Club, 405 U.S. at 728-30.
- 54Farber, supra note 7, at 311.
- 55Martin & Landman, supra note 34.
- 56Farber, supra note 7, at 27.
- 57Martin & Landman, supra note 34.
- 60Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
- 61See generally id. at 563-69.
- 62Id. at 563-64.
- 63Martin & Landman, supra note 34.
- 64Pörtner, supra note 1.
- 65Martin & Landman, supra note 34.
- 66See generally Lujan, 504 U.S. at 563-69.
- 70Massachusetts v. EPA, 549 U.S. 497, 526 (2007).
- 71Id. at 513-14.
- 72Id. at 518.
- 73Id. at 520.
- 74Id. at 522.
- 75Id. at 526.
- 78Id. at 520.
- 79Rosser, supra note 8.
- 80Perry, supra note 9; Wilson, supra note 9.
- 81Perry, supra note 9.
- 85Wilson, supra note 9.
- 92Perry, supra note 9; Wilson, supra note 9.
- 94See supra Part II, Section C.
- 96Climate Change, Nat’l Park Serv., https://www.nps.gov/glac/learn/nature/climate-change.htm [https://perma.cc/Y4CG-VD4L].
- 97Perry, supra note 9.
- 98See generally Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
- 99Sierra Club v. Morton, 405 U.S. 727, 749-50 (1972).
- 100Sierra Club, 405 U.S. at 742-43.
- 103Perry, supra note 9; Wilson, supra note 9.
- 104See generally Pörtner, supra note 1.
- 106See supra Part II, Section C.
- 107Rosser, supra note 8.
- 108Perry, supra note 9; Wilson, supra note 9.
- 109See generally Pörtner, supra note 1.
- 110See supra Part III.