Access to Justice in Climate Litigation: Transnational Standing Perspectives

1. Samvel Varvaštian Annual EELF Conference, 14-16 September 2016, Wrocław, Poland Access to Justice in Climate Change Litigation from Transnational Perspective: The Standing of Private Persons and NGOs in Recent Climate Cases

2. Issues to be discussed • Climate change litigation and standing: a general overview • Challenges • Jurisdictions • Application

3. Climate change litigation • Air quality • Environmental impact assessment • Endangered species • Emissions trading • Human rights • Etc.

4. The comparative “mass” of climate change litigation Litigation outside the US Litigation in the US

5. Climate change litigation: the US Cases, which involve the issue of standing to bring climate change challenges mainly concern... • Climate change impact assessment • Regulation of GHG emissions under the air quality legislation

6. Standing • In essence, standing involves the identification of a person entitled to invoke the jurisdiction of a court (Land and Environment Court of New South Wales, Australia, Haughton v. Minister for Department of Planning and Ors, 2011)

7. Standing • Standing depends on whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy, and serves to ensure that legal questions presented to the court will be resolved in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action (US Court of Appeals for the Ninth Circuit, Native Village of Kivalina v. ExxonMobil Corp, concurring opinion, 2013)

8. 2 major challenges to the standing doctrine • Global environmental problems, such as global warming, affect the public generally but it is difficult to assess the specific harm to an individual person/NGO • (Quasi)local environmental problems, such as contamination of a human uninhabited location, (e.g. the Arctic) in which no individual has a sufficient direct interest

9. Standing in the US Addressed by the US Supreme Court, which articulated a three-element “irreducible constitutional minimum of standing” in case Lujan v. Defenders of Wildlife (the Lujan test) (1992): • Injury in fact • Causation • Redressability

10. Standing in the US: climate change impact assessment Center for Biological Diversity v. Department of Interior, (Court of Appeals for the District of Columbia Circuit,2009), Amigos Bravos v. Bureau of Land Management (District Court of New Mexico, 2011) • Cases arising under the environmental impact assessment legislation because the impacts of climate change were not properly considered in the relevant governmental decisions (e.g. permits for building power plants, etc.)

11. Standing in the US: climate change impact assessment • Standing is denied because the alleged failure to consider the impact of climate change can not be traced to plaintiff's injury • “The alleged impact of climate change is remote and shared by humanity at large”

12. Standing in the US: climate change impact assessment • However, if plaintiffs can demonstrate that the consideration of climate change would affect the decision that harms their interests (e.g. recreational, etc.), even if the harm is not connected to climate change, standing may be granted (WildEarth Guardians v. Jewell, Court of Appeals for the District of Columbia Circuit, 2013)

13. Standing in the US: climate change impact assessment • Further expansion of standing: geographic proximity of plaintiffs to the pollution site is not critical, thus plaintiffs from Texas, Florida, California, etc. may challenge the relevant decision in Wyoming (WildEarth Guardians v. U.S. Forest Service, District Court of Wyoming, 2015)

14. Standing in the US: regulating GHG emissions Communities for a Better Environment v. EPA (Court of Appeals for the District of Columbia Circuit, 2014), Washington Environmental Council v. Bellon (Court of Appeals for the Ninth Circuit, 2014) • Cases arising from (failed) regulation of GHG emissions under air quality legislation

15. Standing in the US: regulating GHG emissions • Standing is denied because the connection between specific GHG emissions/their contribution to the global totals and climate change is uncertain

16. Standing in the US: regulating GHG emissions • “Many independent sources of GHG emissions, which contribute to climate change (injuries) together”, “emissions in New Jersey may contribute no more to flooding in New York than emissions in China”, “causal link is too uncertain”, “GHG emissions from a particular source/subject are only 0.000x%, thus too negligible to consider”, etc.

17. Standing in the US: regulating GHG emissions • BUT! such an approach contradicts the Supreme Court's decision in Massachusetts v. EPA • The Supreme Court in Massachusetts v. EPA: no matter who contributes and how much – a contribution is a contribution and it should be addressed in order to tackle the global problem; otherwise nobody would take any measures at all

18. Standing in the US: exception • “Special” case – Massachusetts v. EPA (2007) (the US Supreme Court: the plaintiff is a State and the case concerns sovereign regulatory interest – an injury to state lawmaking or regulatory capabilities – thus, standing is relaxed)

19. Standing in the US: exception • The importance of Massachusetts to standing in other cases: recognizing the science of climate change (the causal link between GHG emissions and climate change, the impact of climate change on the environment)

20. Standing in the US: claims for damages • Comer v. Murphy Oil USA, Inc: According to the plaintiffs, fossil fuel companies' GHG emissions contributed to the ferocity of Hurricane Katrina, which caused damage to their property

21. Standing in the US: claims for damages Comer v. Murphy Oil USA, Inc: • The Court of Appeals for the Fifth Circuit (2009): plaintiffs have standing (all three elements are satisfied) • A federal district court in Mississippi on refile (2012): the plaintiffs lack standing because their claims are not fairly traceable to the companies’ conduct

22. Standing in the US: a developing trend • Cases arising from government's constitutional obligations/common law public trust doctrine (atmospheric trust litigation) • Standing usually granted (all elements satisfied) • Denying standing to “persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody”. This is unacceptable.

23. Standing in Australia Haughton v. Minister for Department of Planning and Ors (Land and Environment Court of New South Wales, 2011); Dual Gas Pty Ltd & Ors v Environment Protection Authority (Victoria Civil and Administrative Court, 2012) • Cases arising from challenges to project permits under environmental impact assessment legislation

24. Standing in Australia • Standing is granted to persons “whose interests are affected”. Interests may be of any kind, not only proprietary, economic or financial (thus environmental, aesthetic, cultural, etc.) • Standing depends on whether the person's interests are directly or indirectly affected by the decision and whether or not any other person's interests are also affected by the decision

25. Standing in Australia • Interests of persons and NGOs: scientific knowledge and concern over the issue, intellectual and occupational involvement in health/environmental affairs, financial support from the government (NGOs), national/international recognition (NGOs), participation in the related work (NGOs), goals and objectives of NGOs, etc.

26. Standing in the Netherlands • Urgenda v. the Netherlands (The Hague District Court, 2015) • The Dutch Civil Code, Book 3, Section 303: individuals/legal persons are only entitled to bring an action to the civil court if they have sufficient own, personal interest in the claim. A foundation or association with full legal capacity may also bring an action to the court pertaining to the protection of general interests or the collective interests of other persons, in so far as the foundation or association represents these general or collective interests based on the objectives formulated in its by-laws.

27. Standing in the Netherlands • The Court: Urgenda’s by-laws stipulate that it strives for a more sustainable society, “beginning in the Netherlands”. As the term “sustainable society” has an inherent international and global dimension, Urgenda's interest is not limited to Dutch territory. Therefore, it can base its claims on the fact that the Dutch emissions also have consequences for persons outside the Dutch national borders, since these claims are directed at such emissions.

28. Standing in the Netherlands • The Court: The term “sustainable society” also has an intergenerational dimension. In defending the right of not just the current but also the future generations to availability of natural resources and a safe and healthy living environment, Urgenda strives for the interest of a sustainable society.

29. Concluding remarks • The standing doctrine in the US has been extensively applied and has been a traditional challenge to standing in climate cases, although there are signs of liberalization • The courts' assessment of standing may not always be consistent • Plaintiffs (may) face similar challenges to standing in different jurisdictions; these challenges may be similar to other environmental cases, but suing for climate change presents a particularly difficult task