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Standing Underwater

Daniel A. Fiedler
85 Geo. Wash. L. Rev. 1554

The basic requirements of Article III standing are well known: injury in fact, causal connection between that injury and conduct being complained of, and likelihood that the injury would be redressed by a favorable decision. For cases where an injury has not yet occurred, however, the Supreme Court has failed to establish a clear standard for when the likelihood of an injury is sufficient to demonstrate an “injury in fact.” Regarding future injury caused by climate change, plaintiffs have had a particularly difficult time convincing the Court that the future injury is definite enough to establish standing.

In 2013, the Court in Clapper v. Amnesty International, USA established what seemed to be an insurmountable hurdle for plaintiffs complaining of future injury by declaring that “threatened injury must be certainly impending to constitute injury in fact.” In the same opinion, however, it conceded that plaintiffs are not uniformly required to show literal certainty. One year later, in Susan B. Anthony List v. Driehaus, the Court applied the “certainly impending” standard as well as a “substantial risk” standard for future injury. Lower courts attempting to apply these standards have had, unsurprisingly, incongruous outcomes.

This Essay argues that the seemingly conflicting standards are not only reconcilable, but were meant to be reconcilable, and that the Clapper standard does not mean absolute, literal certainty of future harm. Instead, as exemplified by the Sixth Circuit in Galaria v. Nationwide Mutual Insurance Co., plaintiffs should be permitted to recover costs reasonably incurred in response to the substantial risk of future injury. Accordingly, plaintiffs may satisfy the “injury in fact” requirement by reasonably incurring mitigation costs in response to a sufficiently substantial risk of harm. This result, consistent with a close reading of Clapper, would provide plaintiffs facing an imminent threat of harm caused by climate change with standing, and permit them to reasonably incur costs to avoid that harm.

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