Climate Change, Public Goods, and Standing

DISCLAIMER: The following represents the uninformed reaction of a CLS 1L, utterly befuddled by constitutional law and lacking anything approaching the appropriate level of background knowledge or research. Although when has insufficient knowledge or research ever hindered anyone from posting something on the internet? So here we go.

     Climate change is a different kind of litigation. Legal scholars examined it through the lens of traditional causes of action (notably Professor Merrill’s Global Warming as Public Nuisance) and found it a problematic fit. The inability to project climate change into a conventional law suit derives primarily from the fact that a stable climate is not a private right that may be infringed upon. A stable climate is a public good.
     Economists define "public good," as anything with two main characteristics: public goods are nonrival in consumption and nonexcludable. The benefits of a stable climate are enjoyed by all of us simultaneously, though perhaps to varying degrees. A stable climate is nonexcludable in that those who pay for its maintenance cannot withhold the benefits of a preserved planet from those who shirk their contribution. The global climate is a public good, and the definitive characteristics of public goods are at odds with the traditional requirements for standing.
     Chief Justice Roberts rightly critiques any claim of the petitioners to conventional standing. The demand that a plaintiff’s injury be “particularized” and different in kind (as opposed to in degree) from others suffering due to the defendants’ conduct is clearly at odds with the global nature of climate change. The requirement of redressibility demands that the court be able to alleviate the injury suffered by the plaintiff through forcing the defendant to do something or pay some amount in damages. Any amelioration of climate change affected by an agency regulation on automobile emissions would be enjoyed by everyone world-wide. Certainly not a bad thing, but because the public good of climactic stability cannot be partitioned: the court cannot direct the benefits from reduced carbon dioxide emissions. The traditional requirements of standing cannot be neatly applied to an injury to a public good. This sends Justice Stevens upon a jurisprudential obstacle course in an attempt to draw standing from provisions of the Clean Air Act and case law dealing with procedural rights conferred by Congress. In that task, Stevens succeeds admirably, upon my reading at least.
     Chief Justice Roberts assuages the fears of environmentalists and rational actors alike by assuring us all that the political branches are an apt and appropriate forum for dealing with climate change. There are two practical problems with labeling climate change a “political question” and booting these petitioners out of court. First, environmental policy in general and climate change legislation in particular, suffers from an utter and acute failure of our political system. Presenting a classic problem of collective action, the beneficiaries of a stable climate are diffuse, unorganized, and susceptible to free-rider problems. Opponents of climate change regulation are, on the contrary, exceptionally well-organized, well-funded, and – until recently – highly motivated to fight regulatory change tooth and nail. In a very real sense, a Congress dependent upon campaign contributions is absolutely institutionally incompetent to deal with the problem of climate change in an independent and effective manner.
     While our adversarial judicial system may be equally ill-suited to adjudicate threats to public goods, the court is armed with an immutable weapon. The Supreme Court may, as it did yesterday, send a clear message to the “political branches” and their delegates in administrative agencies. The Court can say, in effect: “while we cannot complete the political tasks before you, we can, we must, and we do demand that you face common challenges rather than obfuscate them.” If the EPA, in response to the Court’s decision, or Congress, to supersede independent agency action pursuant to the decision, effectively addresses climate change, then the court will have redressed to the petitioners’ injuries. That is not a dismissive “political question” opinion. That is one co-equal branch checking another. That is the judiciary providing relief to the injured party before it. Though it faces an unfamiliar type of problem, that is the judiciary resolving a controversy. That is the role of the Court.