Does the Future Have Standing?

by Daniel Farber | February 07, 2019

Originally published on Legal Planet.

Climate change is not just a long-range problem; it's one that will get much worse in the future unless major emissions cuts are made. For instance, sea levels will continue to rise for centuries. But the people who will be harmed by these changes can't go to court: they haven't been born yet. How can their interests be represented in court? And even people now alive who might still be around in, say, 2100, will have trouble proving any injury is "imminent," as the Supreme Court requires for standing.

Current Supreme Court precedents recognize three possible ways to get future injuries into court. The first is to find a present-day, real-world effect due to a possible future disaster. In the Duke Power case, a citizens' group was challenging a federal law that limits the liability of nuclear reactors for major accidents. The law would only affect them directly at some unknown future date when (if) there was a major nuclear accident at the site. That date might be decades in the future or might very likely never arrive at all. Yet the Court held that they had standing. The reason was that, without the liability shield provided by the federal law, insurance companies would not insure suppliers of nuclear equipment, which would mean that the reactor would never be built. And without the reactor, the plaintiffs would not suffer more immediate ...

Statutory Standing After the Spokeo Decision

by Daniel Farber | June 21, 2016
One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light – not a lot, but some – on this recurring question. The Court has made it clear that there is a constitutional core of the doctrine with three elements: a concrete injury in fact, a causal link between the injury and the defendant's conduct, and a ...

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