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The issue of who has standing to bring a lawsuit is one that many people glossed over in law school. In most lawsuits, it’s not an issue to which people give much thought. But, at its core, the doctrine of standing is based on a political choice about which branch of government is best to fix the problem at hand. For example, is the judicial branch best able, or able at all, to deal with national or global problems like injury to the ozone layer? Does the answer change if the legislative or executive branches are unable or unwilling to act? Consider the recent case Covington v. Jefferson County, 358 F.3d 626 (9th Cir. 2004). In Covington, Judge Ronald Gould of the 9th U.S. Circuit Court of Appeals, in a concurrence to an opinion that he wrote, described a novel theory of universal standing under the Clean Air Act (CAA) for personal injury claims based on degradation of the ozone layer by the release of chlorofluorocarbons (CFCs). In Covington, a family in Jefferson County, Idaho, who lived across the street from a county dump, filed suit against the county under the Resource Conservation and Recovery Act and the CAA after the county ignored their complaints about the dump. One such complaint was that the county did not prohibit or clean up CFCs leaking from old refrigerators. The 9th Circuit opinion, authored by Gould, held that the Covingtons had standing to bring the Resource Conservation and Recovery Act and CAA claims. On the CAA claim, the court held that evidence of leakage of CFCs showed injury in fact because the leakage had increased the risk of harm to the Covingtons’ property. The unanimous opinion did not go beyond this analysis of CAA standing and did not discuss any potential personal injuries to the Covingtons. Gould took the unusual step of writing a concurrence to his own opinion to describe an additional theory of standing under the CAA based on ozone degradation. After reviewing the scientific evidence linking CFCs to ozone layer degradation, Gould described the dangers, such as skin cancer, that the ozone layer protects people against and stated that “[t]he Covingtons, with every person on this planet, face an increased risk of these maladies if the landfill releases CFCs into the air.” Id. at 650. Gould recognized the minimal contribution to this risk of the 100 or so old refrigerators in the Jefferson County dump, and wrote that “[t]he Covingtons suffer no greater injury than any other person” because of the CFCs in the dump. Id. Consulting precedent Gould then asked whether “current U.S. Supreme Court precedent supports standing for a citizen suit asserting environmental claims raising a threat of widespread or even global injury.” Id. at 651. Supreme Court cases discussing standing invoke two sets of rules, one arising from Article III of the Constitution, and the other from a set of judge-made “prudential” rules. The Article III analysis examines three factors: whether there has been injury in fact to the plaintiff in a concrete, particularized, nonhypothetical way; whether the alleged injury is fairly traceable to the defendant’s actions; and whether a court ruling in the plaintiff’s favor is likely to redress the injury. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The prudential rules focus on whether the alleged injury is within the zone of interests protected by the statute or constitutional provision in question, and whether invocation of the court’s jurisdiction is contrary to “the proper-and properly limited-role of the courts in a democratic society.” Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80 (1978), citing Warth v. Seldin, 422 U.S. 490, 498 (1975). See also Sierra Club v. Morton, 405 U.S. 727 (1972); Wright, Miller and Cooper, Federal Practice And Procedure: Jurisdiction 2d � 3531.3. With respect to the injury-in-fact requirement, Gould noted that the Supreme Court in Federal Election Commission v. Akins, 524 U.S. 11 (1998), appeared to reject the idea that injury to all is injury to none for standing purposes. In Akins, voters opposed to the views of an advocacy group sued to challenge a decision of the Federal Election Commission (FEC) not to bring an enforcement action against the group for violation of the Federal Election Campaign Act of 1971. The FEC argued that the plaintiffs did not have standing because their alleged harm-the failure to obtain certain information that would be public if the group were forced to comply with the Federal Election Campaign Act-is one that was shared by all or a large class of citizens, and was the kind of generalized grievance that did not confer standing. The court in Akins pointed out that the “generalized grievance” idea “invariably appears in the cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature.” 524 U.S. at 23. As examples, the court cited cases in which the interest asserted was in general obedience to the law. In contrast to those cases, the court wrote that “where a harm is concrete, though widely shared, the Court has found ‘injury in fact.’ ” Id. at 24. The court found that the Akins plaintiffs did have standing. Gould summarized Akins thus: “[T]he Supreme Court’s precedent may be read to support a general rule of standing along these lines: If the injury is not concrete, there is no injury in fact even if the injury is particularized; and if the injury is concrete and particularized, there is injury in fact even if the injury is widespread.” 358 F.3d at 651. Concrete and particularized In Covington, Gould found concrete and particularized injury by virtue of the “scientifically proven link” between CFC releases and ozone depletion. Id. at 654. To him, any release of CFCs anywhere increases the risk of skin cancer to everyone everywhere; this is exactly analogous to Akins in which the FEC’s actions concerning a national interest group potentially affected every U.S. citizen. Risk of skin cancer caused by ozone depletion provided Gould with a concrete and particularized injury to the Covingtons-and to everyone else. With respect to the redressability aspect of standing, Gould acknowledged that CFCs that have been released cannot be recaptured, but argued that the civil penalties available under the CAA will “deter future violations,” citing Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167 (2000). Laidlaw was a challenge under the Clean Water Act to discharges of mercury into the North Tyger River in South Carolina, and sought civil penalties and other relief. The defendant argued that civil penalties were irrelevant to redressability because the penalties were paid to the government, not to the plaintiffs. The court rejected this argument, holding that “[i]t can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress. Civil penalties can fit that description.” Id. at 186. The very liberal language in Laidlaw permitting suit based on a “threat of future injury” is fully consistent with Gould’s concurrence in Covington. And although the court in Laidlaw noted that the deterrent power of civil penalties can become “so insubstantial or so remote that it cannot support citizen standing,” it held that “[t]he fact that this vanishing point is not easy to ascertain does not detract from the deterrent power of such penalties in the ordinary case.” In the case before it, the court found that the civil penalties “carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress [plaintiffs'] injuries by abating current violations and preventing future ones.” Id. at 186-87. Members of the plaintiff organizations in Laidlaw offered proof that they lived near the North Tyger River and used to swim, boat and fish in the river and hike and picnic near it. These facts make the ideas of actual harm, causation and redressability as to these plaintiffs seem reasonable, not speculative, and a good fit within the Article III rules of standing discussed earlier. But could a plaintiff in South Carolina sue for harm caused by the Jefferson County, Idaho, dump and assert that removal of the 100 leaky refrigerators there would redress that plaintiff’s risk of skin cancer caused by ozone depletion? Gould tried to address this obvious problem by invoking the prudential standing rule as a potential limitation on environmental standing, citing Allen v. Wright, 468 U.S. 737 (1984). He wrote that “the courts would have the ability to limit the scope of permissible litigation through the application of the prudential standing doctrine.” 358 F.3d at 655. However, reliance on Allen does not appear to hold up as a limitation on standing under Gould’s view of the facts. The plaintiffs in Allen sued the Internal Revenue Service for not adopting standards and procedures for denying tax-exempt status to racially discriminatory schools. The court held that they did not have standing to bring the action because they did not allege any individual, particularized injury. This is a typical example of use of the judge-made prudential rule to deny standing to those who are essentially advocating the interests of third parties. See, e.g., Hodel v. Irving, 481 U.S. 704 (1987); Lujan, supra. But under Gould’s reasoning in the Covington case, a plaintiff anywhere in the world can allege a personal, first-party claim to damages arising from the 100 leaky refrigerators in the Jefferson County dump because those refrigerators are contributing to depletion of the ozone layer and thus increasing the risk of skin cancer and other ailments. Taken to its limit, this reasoning might permit anyone to sue General Motors Corp. for manufacturing a single Chevy whose tailpipe emissions contribute to global warming. In cases such as these, it seems likely that courts would be sensitive to the concerns expressed in Warth and Lujan about the courts overstepping their role with respect to other branches of government. Many courts are likely to conclude that such broad issues as ozone layer depletion, acid rain and global warming should be dealt with by Congress, absent a showing of direct and traditional personal injury or property damage with a strong showing of causation-in which cases traditional remedies for damage or threatened damage caused by contamination are available now under common law theories of negligence, strict liability, nuisance and trespass. ‘You’ve got to be kidding’ rule Finally, although perhaps not doctrinally sound, there is also the “you’ve got to be kidding” rule as applied by Judge Richard Posner in North Shore Gas Co. v. Environmental Protection Agency, 930 F.2d 1239, 1242 (7th Cir. 1991), a case involving the cleanup of a Superfund site in Waukegan Harbor, on Lake Michigan. Posner wrote: “Manufacturers of brass fittings for yachts may incur business losses because sales of yachts decline in northern Illinois as a consequence of pollution in Waukegan Harbor, but it would be absurd to allow them to invoke the environmental laws in an effort to enjoin a measure that they think might aggravate that pollution. Plaintiffs would be tripping over each other on the way to the courthouse if everyone remotely injured by a violation of law could sue to redress it.” While it cannot be denied that depletion of the ozone layer, acid rain, global warming and other large-scale environmental problems have the capacity of causing widespread injury, the prospect of redressing these problems through the court system, using the theory of standing “at a distance,” so to speak, seems dim. It remains to be seen whether that prospect will brighten if the legislative and executive branches do not make progress in solving these national or global environmental issues. David Pettit is a partner at Los Angeles’ Caldwell, Leslie, Newcombe & Pettit. He practices in the areas of land use, as well as environmental, complex commercial and intellectual property litigation. He can be reached at [email protected].

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