Erin Ryan (Florida State University, College of Law), Molly Adamo (Florida State University), and Nicola Strouse (Florida State University), The Endangerment Finding, State Climate Claims, and Standing: Could a State Sue the Feds on Behalf of Citizen Environmental Rights?, N.Y.U. Envt’l L. Rev., forthcoming 2027 on SSRN. Here is the abstract:
In the wake of the recent revocation of EPA’s Endangerment Finding—the seminal 2009 conclusion that greenhouse gas pollution warrants Clean Air Act regulation for endangering public health—this Article explores possibilities for states to overcome the jurisprudential standing hurdles that have blocked private citizens, and especially young citizens, from suing the federal government over climate policy. It indulges the thought-experiment of whether a state could bring the kind of climate litigation that individuals have so far failed to move through the federal courts, including the atmospheric trust, due process, and separation of powers claims raised in Juliana vs. United States and Lighthiser vs. Trump. Setting aside ongoing debate over the wisdom of these private claims, and drawing on a public trust reciprocal rights theory, the analysis provides valuable insight into the options available to states seeking to uphold their own environmental obligations—and protect their citizen’s corresponding environmental rights—at a time when federal environmental law is, at best, decreasingly protective. The analysis suggests that particularized injuries to a state’s public trust resources, territory, and obligations could provide a viable administrative law platform for redressable state litigation against federal climate actions—for example, challenging recission of the Endangerment Finding, or narrower challenges to federal fossil fuel permitting decisions—given the special solicitude that federal courts extend to state standing on matters of sovereign interest, and especially in the context of climate change. We further consider whether the long federal recognition of state public trust responsibilities—which, Hohfeld-like, necessarily imply reciprocal public rights to the benefits of trust protections—could become the basis for the state’s assertion of parens patriae standing to represent its citizen’s climate-related trust rights. Given federal recognition of state public trust obligations since the framing of the Constitution, the reciprocal public rights they create could potentially even qualify as fundamental due process rights. The analysis considers parens patriae suits against both the federal government and private permittees. Although states cannot usually bring parens patriae suits against the United States (which is presumptively the superior protector of its citizen’s rights), state assertions of fundamental trust rights presents a unique circumstance, because federal courts have thus far rejected federal obligations under the public trust doctrine. A parens patriae claim predicated on the public trust doctrine might allow the state to serve as the predominant representative of the people’s rights, because in this context, it is the only protector. To defeat it, the U.S. would have to assert that there actually is a federal trust responsibility that it will assume, making either outcome a win for states and citizens concerned about climate change. Passionate youth climate advocacy signals the urgency of their concerns, and it is the duty of the state to protect their interests. Indeed, it is hard to conceive of a more important use of state sovereign authority than protecting the health, safety, and welfare of its children. As federal environmental law continues to wane, environmental leadership by the states becomes ever more important—making it critical to understand all available avenues for them to engage with federal regulation of climate harms.
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