The Yale Law Journal


Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine

13 Sep 2011

The unpredictability and ideological nature of standing law seems inherent in the three-part test, whose terms seem to serve as a kind of Rorschach inkblot allowing each Justice to project her own worldview onto each case. The Court has never defined what constitutes an “injury” for purposes of standing, leaving it to each Justice to decide what kinds of grievances should be considered cognizable injuries. The second element is a mirror in which the judge can perceive her own preferences—when an injury is “fairly traceable” is simply a question of what a judge regards as fair. The third element replicates the problems of the first one, since the Court must decide whether the benefits sought by the plaintiff through the remedy should count for constitutional purposes. One need only look at Massachusetts, where the conservatives were certain that the case failed all three prongs of the test whereas the liberals were equally certain that it passed the hurdles. From what can be gleaned from the Court’s cryptic comment in AEP, the dissenters in Massachusetts held their ground in AEP.

Moreover, the standing determination is supposed to be jurisdictional but can often require the Court to decide elements of a case’s merits. AEP is the perfect illustration. The governmental plaintiffs alleged harm to public lands, infrastructure, and health, while the plaintiff trusts alleged harm to the lands under their protection. The heart of the plaintiffs’ claim was that the defendants’ carbon-dioxide emissions created a “‘substantial and unreasonable interference with public rights,’ in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law.” Thus, to prove liability, they would need to show a violation of rights under their protection (element 1 of standing) and show that the defendants’ conduct “unreasonably interfered” with those rights (element 2 of standing). To justify a claim for relief, they would need to show that the relief would address the unreasonable interference (element 3 of standing). So, if the plaintiffs were successful on the merits, they would necessarily have standing; logically, for the court to reject their standing claim would amount to a determination that they would lose on the merits. Thus, the standing determination substantially overlapped with the merits of the case, although it was still possible for the plaintiffs to lose on the merits on other grounds.

The same jurisdiction/merits issue was present in Massachusetts v. EPA but in even more troublesome form. Under the Clean Air Act, it is up to the EPA to determine whether carbon emissions from vehicles endanger human health or welfare. But to find standing, the Court itself first had to determine that carbon emissions are harmful. Similarly, in order to get a court to order an agency to investigate whether a government action will cause a significant environmental harm in a National Environmental Policy Act (NEPA) case, an environmental group first has to prove that the action actually will cause significant environmental harm. None of this makes much sense.

The climate change cases illustrate another key problem with standing doctrine: the “injury” that forms the basis for Article III standing does not need to have any logical connection with the legal claim. That is, the plaintiff can challenge a defendant’s actions under a constitutional or statutory provision if the action also happens to cause a different harm to the plaintiff satisfying the other prongs of the standing test.

For instance, in AEP, the plaintiffs complained about the defendants’ carbon emissions. Coal and oil fired plants do not merely produce carbon dioxide; they produce a host of other pollutants, many of which are transported between states. Reducing CO2 emissions would require a decrease in the consumption of fossil fuels, which would inevitably reduce co-pollutants as well. The EPA has found that power plants in the Midwest and Texas cause massive pollution harms in downwind states. A successful remedy in AEP would have forced utilities in these upwind states to further reduce their use of carbon fuels, thereby decreasing the harm of the co-pollutants to the downwind states. This byproduct of the climate litigation would be a sufficient injury-in-fact to give the plaintiffs standing to litigate the issue of climate change, even though the harm was caused by ordinary pollution rather than climate change.

Similarly, in Massachusetts v. EPA, reducing the carbon from vehicles necessarily means decreasing the amount of gasoline and diesel burned by those vehicles by improving fuel efficiency. All things being equal, using less fuel means less production of pollutants. Thus, plaintiffs suffering from urban air pollution due to vehicles would suffer an injury (harm from co-pollutants), traceable directly to EPA’s failure to regulate carbon, and remediable by EPA carbon regulations. In short, even if injury from climate change was considered too indirect or delayed to give rise to standing, a determined plaintiff with the resources to obtain the necessary expert evidence could have established standing based on harm from co-pollutants in AEP and Massachusetts v. EPA.

Many law review pages have been consumed with efforts to discern the purpose of standing doctrine. None of the efforts seem to have proved particularly persuasive to judges or to the scholarly community. More importantly, the doctrine as it is currently constituted seems incapable of serving any purpose—unless randomly hassling the plaintiffs in public interest cases can be considered a valid judicial goal.

While its accomplishments are unclear, standing doctrine carries substantial costs. It burdens litigants and takes up large amounts of judicial time. Extraneous factors, rather than any intelligible goal, seem to drive outcomes. The manipulability of the doctrine makes outcomes turn all too often on the judge’s ideology. The potential for end-runs by resourceful, well-lawyered plaintiffs means that the ability of a case to survive a standing challenge turns as much on the plaintiff’s resources as on the inherent quality of the case. As AEP illustrates, judicial agonizing over standing can be a complete waste of time—regardless of the standing issue, the plaintiffs were going to lose on the merits anyway. Surely it is time for the Court to rethink this “exquisitely murky” doctrine and find some more sensible way to determine which cases are suitable for judicial resolution.

Daniel A. Farber is the Sho Sato Professor of Law and the Chair of the Energy and Resources Group (ERG) at the University of California, Berkeley.

Preferred Citation: Daniel A. Farber, Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine, 121 Yale L.J. Online 121 (2011),