Mank, Bradford C.
January 2005
Environmental Law (00462276);Winter2005, Vol. 35 Issue 1, p1
Academic Journal
Since global warming potentially affects everyone in the world, does any individual have standing to sue the United States Environmental Protection Agency (EPA) or other federal agencies to force them to address climate change issues? Suits addressing global warming raise difficult standing questions because some United States Supreme Court decisions have stated or implied that courts should not allow standing for plaintiffs who fide salts alleging general injuries to the pubic at large because the political branches of government—Congress and the executive branch—are better equipped to resolve such issues. There is a better argument, however, for courts to recognize standing for plaintiffs who suffer ‘concrete’ mass injuries, including any physical harms that are more likely than not caused by global warming. Under the National Environmental Policy Act of 1969 (NEPA), courts should use a ‘reasonable possibility’ standard to determine whether a federal agency must discuss the possible impact of its actions on global warming. In 2003, EPA concluded that the Clean Air Act does not give the agency authority to regulate carbon dioxide, although several states are challenging that conclusion. Even ff EPA cannot regulate carbon dioxide directly, there is a strong argument that the agency must consider carbon dioxide emissions when new power plants apply for a permit under the new source review process. Under the Administrative Procedure Act and genera/standing principles, a plaintiff who suffers small, but tangible injuries should have standing under the Clean Air Act.


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