Jonathan Nash, Visiting Professor of Law at the University of Chicago, posted a paper to SSRN earlier this week entitled "Standing and the Precautionary Principle." The abstract is below.
Standing and the Precautionary Principle
JONATHAN REMY NASH
Tulane University School of Law; University of Chicago Law School
U of Chicago, Public Law Working Paper No. 178
Tulane Public Law Research Paper No. 07-06
Columbia Law Review, Vol. 108, No. 2, 2008
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 Paper 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.