Zijun Zeng, ELR Staffer, Class of 2026

In modern American law, the doctrine of legal standing operates as a powerful gatekeeping device that often limits plaintiffs’ remedies and perpetuates systemic injustices.

To satisfy the standing requirement and enter federal court, a plaintiff must meet three requirements: they must show a direct, cognizable injury,demonstrate that this injury is fairly traceable to the defendant’s conduct, and establish that the injury is likely to be redressable by a favorable judicial decision. In theory, these requirements ensure that courts resolve concrete disputes rather than abstract policy questions. In practice–especially in climate litigations–they frequently operate to shut the courthouse doors before communities can even present the merits of their claims.

In climate litigations, private citizen plaintiffs who seek to enforce federal greenhouse-gas limits by alleging climate injuries face significant challenges with legal standing. Courts in the U.S. tend to characterize the causal chain from any one emitter—or even a small group of emitters—to a plaintiff’s climate-related harm as too speculative, given the global and cumulative nature of greenhouse-gas emissions. Unlike the majority in Massachusetts v. EPA that accepts partial responsibility and incremental relief as sufficient for standing, Chief Justice Roberts articulated his skepticism in the approach of incremental relief in his dissent, arguing that the alleged injuries were too attenuated from the EPA’s regulation of a subset of emissions, which includes air quality and water safety, but not the climate as a whole. As time went by, more conservative justices were sworn in to the Supreme Court and some of the more liberal-leaning justices retired, and this change in dynamics turned the originally minority, narrower view of causation and traceability more popular. For example, in American Electric Power Co. v. Connecticut, which is a more recent case compared to Massachusetts, four of the eight deciding justices at the Supreme Court either adhered to the Massachusetts dissent or distinguished Massachusetts from the current case and they would have held that none of the plaintiffs had Article III standing at all. This case suggests that what was once considered a minority view can become majority view in the future, and private citizen plaintiffs as a result must live with this reality and adapt their litigation strategies to avoid raising these “attenuated” claims even though these claims may have substantial merits.

The logic embraced by the conservative wing of the Court would result in a traceability challenge: requiring plaintiffs seeking to challenge climate harms to account for an impossibly large set of contributing human activities in order to show that a particular defendant’s emissions are causally responsible for their injuries. That approach effectively rejects the more incremental reasoning adopted by the Massachusetts majority, which was willing to accept partial responsibility and incremental relief as sufficient for standing. Now, because three of the four Massachusetts dissenters still sit on the Court and form part of a conservative majority generally inclined to narrow standing, this strict understanding of traceability is likely to remain a formidable barrier for climate-related citizen suits in the near future. 

The current moment in environmental citizen suits also illustrates how much standing doctrine could constrict access to justice. The Supreme Court recently refused to review the Fifth Circuit’s en banc decision in Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp. Because the en banc decision set no binding precedent, the competing opinions of judges at the Fifth Circuit left many more questions with regards to whether a plaintiff’s legal standing requires particular traceability. In that case, ExxonMobil’s own records documented 16,386 “violation-days” between 2005 and 2013, which are the days when the alleged Clear Air Act violations happened, and the district court imposed a $20 million civil penalty. Exxon argued that penalties should be limited only to those violation-days for which the plaintiffs’ individual members can actually prove concrete, member-specific injuries. Exxon’s argument effectively transforms a broad public enforcement mechanism into something resembling a patchwork of individualized nuisance claims. A rule requiring plaintiffs to prove the exact violation-days and member-specific injuries would slash penalties, reward chronic violators, and dramatically undercut the deterrent force of citizen suits by turning the citizen suits into the equivalent of individual common-law nuisance suits for damages. It would also limit potential civil penalties to a trivial amount and would eliminate any deterrent effect because proving the exact amounts of unlawful emissions on individual days is more difficult than proving the amounts of unlawful emissions over a relatively long period of time. 

Against this backdrop, the idea of extending legal standing to nonhuman entities—such as ecosystems, air basins, and water bodies—offers a provocative and potentially transformative alternative. If courts could grant nonhumans standing in courts, they could ease many of the most severe preliminary hurdles in climate litigations, and they could resolve more cases on their substantive merits rather than dismissing the cases on procedural grounds.

For example, plaintiffs could frame their claims around injuries to the atmosphere, oceans, or specific ecosystems, rather than needing to tie every ton of emissions to an individualized human injury. In this way, even if courts adopt the conservative view of standing and thereby increase the traceability challenge for plaintiffs, these courts can then no longer argue that diffuse, cumulative harms to human plaintiffs are somehow categorically nonjusticiable because they do not tie neatly to the human plaintiffs’ injuries. In a situation like that in Env’t Tex. Citizen Lobby, if the air and surrounding environment had standing, plaintiffs need not show that particular humans suffered on particular violation-days to sustain the full $20 million penalty. Each day a company unlawfully polluted would represent an actual and redressable injury to the local environment itself, supporting penalties commensurate with the total scope of documented violations.

Granted, the expansion of legal standing to nonhumans cannot address all existing problems. For example, how do courts define the boundaries of claims by nonhumans? Even after nonhumans obtain legal standing, who then has the right to represent on behalf of the nonhumans in a judicial proceeding? How do courts determine the amounts of damages to award the human representatives of the nonhumans and make sure that the damages actually promote the wellbeing of the nonhumans themselves? One way to address these problems would be to adopt an approach of democratic stewardship. In adopting such an approach, courts recognize that multiple human communities maintain distinct, overlapping, and sometimes conflicting relationships with the same environments when determining the appropriate stewards of nonhuman entities. Articulating the rights of nature requires an inclusive model allowing all communities to find their expression. Courts may also consider the historical context of local ecological injustices before deciding who should serve as a nonhuman entity’s steward.