Abortion ruling may add hurdle to climate lawsuits

By Lesley Clark, Pamela King | 06/27/2022 06:40 AM EDT

The ominous sign for environmentalists in Dobbs v. Jackson Women’s Health Organization comes 63 pages into the 79-page opinion written by Justice Samuel Alito.

People protest outside the U.S. Supreme Court after the court announced its decision in Dobbs v. Jackson June 24, 2022.

People protesting outside the Supreme Court after the court announced its decision in Dobbs v. Jackson on Friday. Francis Chung/E&E News/POLITICO

The Supreme Court’s decision last week to topple decades of abortion law may signal the court is less willing to allow climate change and other environmental lawsuits into the courthouse.

The ominous sign for environmentalists in Dobbs v. Jackson Women’s Health Organization comes 63 pages into the 79-page opinion as Justice Samuel Alito, writing for the majority, argues that earlier abortion cases have “diluted” the law and “ignored the court’s third-party standing doctrine” — which generally requires parties before the court to have some proof of injury (Greenwire, June 24).

Environmentalists have worried the court would use the standing doctrine to determine who can be heard. Alito took a narrow approach to standing when he was a federal appeals court judge, and his reference to the provision in a draft copy of Dobbs that was obtained last month by POLITICO set off alarms (Climatewire, May 6).


“The difference now, of course, is that the language appears in an opinion for the court, authored by Justice Alito and joined in full by four other justices,” said John Echeverria, a professor at Vermont Law School. “Dobbs can be read as a signal that the new conservative majority is poised to embrace a once minority viewpoint on third-party standing, making it harder for environmental advocates and other public interests to pry open the courthouse door.”

Alito’s reference to the standing doctrine cites, among other cases, the 2020 decision June Medical Services v. Russo, in which the court struck down a Louisiana law that would have limited access to abortions. In that case, which split the court 4-1-4, Chief Justice John Roberts agreed that abortion providers had third-party standing.

Echeverria noted that while three justices joined in Alito’s dissenting opinion in the June Medical case, Justice Brett Kavanaugh did not join in the part of the opinion that addressed third-party standing.

But with Dobbs, Echeverria said, “whatever qualms Justice Kavanaugh had (or might still have) about Alito’s restrictive view of standing, Justice Kavanaugh chose not to stake out an independent position on the standing issue in this case.”

Josh Gellers, a professor at the University of North Florida who studies environmental politics, predicted the court would further narrow the standing doctrine, rather than clarify it.

“Restricting third-party standing, which is a major tool for civil society groups in environmental litigation, is clearly within the court’s sights,” Gellers said.

Some legal experts have expressed fears that the Supreme Court’s conservative wing could seize on the opportunity to revisit a climate-related standing doctrine that was established in the 2007 case Massachusetts v. EPA. That may happen if the justices were to eventually review the “youth climate case” filed against the government, Juliana v. United States.

The Massachusetts case split the justices 5-4 over a ruling that said EPA has authority to regulate greenhouse gases as air pollutants under the Clean Air Act. It also said states have “special solicitude” for standing in court.

Jonathan Adler, director of Case Western Reserve University’s environmental law center, said Dobbs “underscores that substantive due process rights are disfavored,” which he said could have implications for arguments like those in the Juliana case.

Still, other observers suggested environmental advocates may be reading too much into the wording.

“The majority opinion’s passing reference to third-party standing doesn’t imply there should be a tightening of standing for environmental cases,” said Jonathan Brightbill, who served as principal deputy assistant attorney general of the Justice Department’s environment division under former President Donald Trump. “To the contrary, the majority was observing that the standing principles that are applied in other cases — like environmental cases — were ignored in the context of abortion.”

He said the Dobbs decision “reaffirms the high standard traditionally applied before the Supreme Court will recognize a ‘fundamental liberty’ protected by the Fifth or 14th amendments of the Constitution.”

Yet Brightbill added that the language “further calls into question the decision of the Oregon district court in Juliana v. United States to recognize a constitutional ‘right to a climate system capable of sustaining human life,’“ and he argued that the “Juliana opinion expressly relied on Roe.”

That’s a reference to a 2016 ruling from Judge Ann Aiken of the U.S. District Court for the District of Oregon that found the young challengers had a fundamental right to a healthy climate. A three-judge panel of the 9th U.S. Circuit Court of Appeals, however, “reluctantly” scrapped the case in 2020. The challengers are now awaiting a ruling from Aiken on whether the lawsuit can proceed (Climatewire, Nov. 2, 2021).

Andrea Rodgers, co-counsel in the case and senior litigation attorney at Our Children’s Trust, which represents the young challengers, said the reference to third-party standing in Dobbs has no bearing on the case.

She said Juliana instead involves individual harm to the youth plaintiffs and that neither the 2020 9th Circuit opinion, “nor any forthcoming opinion from Judge Aiken, will discuss third-party standing.”

Rodgers said the Juliana plaintiffs allege their lives are being harmed by the federal government’s support for fossil fuels, and she argued that Dobbs “emphasizes the fundamental importance of protecting life, a right explicitly enumerated in the Constitution. No matter how hard the current Supreme Court’s conservative majority may seek to curtail fundamental rights, you simply can’t read or interpret ‘life’ out of the U.S. Constitution.”

She said Aiken cited Roe to support the legal theory that some rights only can be exercised when other rights exist, adding, “Much of what came out of the Dobbs decision … actually reemphasizes the need for a trial in Juliana. No court should make judgments on fundamental rights without hearing and considering the facts and evidence.”

Democrats have long questioned Alito’s views on standing in environmental cases, quizzing him during his 2006 Supreme Court confirmation hearings.

Sen. Dianne Feinstein of California cited Alito’s position on standing when she voted against him for the high court seat, saying she was troubled that he had adopted a narrow reading of standing in a case in which environmentalists unsuccessfully fought to sue a chemical company over water pollution.

Friends of the Earth echoed her argument, writing at the time that it opposed Alito because he had held that Friends of the Earth and “other environmentalists lacked standing to sue a polluter — even though it was uncontested that the company had violated the Clean Water Act 150 times.”