Public Law & Legal Theory
In Massachusetts v. EPA, the Supreme Court upheld Massachusetts’ standing to challenge EPA’s refusal to regulate greenhouse gas emissions from mobile sources. The majority and dissent disputed whether the science of global warming was sufficient to establish standing. Absent from both opinions was discussion of whether there would be standing if the science were uncertain but the potential harms large and irreversible. This Essay argues that “precautionary-based standing”—grounded upon a fundamental principle of environmental law, the precautionary principle—should apply in such cases. Precautionary-based standing would not upset existing standing doctrine. First, its application would be limited, and could further be limited to cases brought by a sovereign. Second, there already are less stringent standing requirements in areas where society has deemed precaution to be appropriate. Third, the catastrophic and uncertain nature of the injury in a precautionary based standing would satisfy Article III. The argument here is important in several ways. First, reliance upon the precautionary principle might attract the support of people who question the certainty of the science but recognize the large risks associated with global warming. Second, precautionary-based standing would be available to address future environmental crises where scientific understanding that the threat is real may lag. Third, precautionary-based standing eventually may generate a broader evolution of standing jurisprudence. Fourth, importation and application of the precautionary principle to questions of standing will provide a logical and stable setting in which the precautionary principle might develop and flourish.
Jonathan Nash, "Standing and the Precautionary Principle" (University of Chicago Public Law & Legal Theory Working Paper No. 178, 2007).