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ENVIRONMENTAL RIGHTS – CLIMATE CHANGE, CONSERVATION AND THE ECJ – SANDS :: :: : (2008) 20 ELM 125
all practical possibility of holding Community institutions tangibly benefits him’ in a manner distinct from its
to account? There seems to be little scope for optimism. impact on the public at large.
In the European Community legal order there has been
no real progress in 20 years, since that article in the You will see straight away the similarity with the approach
Harvard International Law Journal. Twenty-seven states are taken by the European courts. As Roberts CJ put it:
part of a quasi-federal legal order in which there is no
possibility of any person or any organisation challenging Without particularised injury, there can be no
an act which is – on the face of it – inconsistent with confidence of a real need to exercise the power of
environmental science and advice. In this unhappy judicial review.
situation the vital connection between the citizens of the
Community order and its institutions is broken. He then takes us to the very heart of the issue:
By way of comparison, it may be useful to look at
another recent decision, this time from the United States The very concept of global warming seems
Supreme Court, in Massachusetts and Others v the United inconsistent with this particularisation requirement.
19
States Environmental Protection Agency. The judgment Global warming is a phenomenon ‘harmful to humanity
was handed down on 2 April 2007. A number of states, at large’ and the redress petitioners seek is focused
led by Massachusetts, together with a number of local no more on them than on the public generally – it is
governments, including the District of Columbia, New York literally to change the atmosphere around the world.
City and others, and a large number of NGOs, challenged If petitioners’ particularised injury is loss of coastal
the decision by the United States Environmental land, it is also that injury that must be actual or
Protection Agency not to designate carbon dioxide as a imminent, not conjectural or hypothetical.
pollutant. They went to the federal courts and eventually
the case reached the United States Supreme Court. The What Chief Justice Roberts seems to be saying is that in
issue of standing came up. circumstances in which the injury is to a global
By a narrow majority (5–4), the Supreme Court ruled environmental asset – the climate system – an applicant
the applicants did have standing to challenge the failure will not be able to meet the test of particularised injury,
to designate carbon dioxide as a pollutant. The lead another formulation perhaps for ‘individual concern’ in
majority judgment is written by Justice Stevens. He focused EU parlance. This seems similar to the approach of the
on the situation of Massachusetts, one of the 50 states European courts, but of course is rejected by the majority
of the United States, and concluded that a state within (although one cannot ignore the fact that the State of
the Union had a particular interest in challenging an act Massachusetts is more akin to a privileged applicant in
such as this because it was likely to suffer direct harm. In the European Community legal order). The view adopted
his view, Massachusetts had a responsibility to protect its by Chief Justice Roberts articulates the approach of the
coastal environment, and one of the consequences of European Court of Justice, but he is in a minority. The
climate change is that the sea level will rise, with majority rejects that notion and recognises that the state
implications for the state of Massachusetts. The majority of Massachusetts has a particular interest in the protection
ruled that Massachusetts could show that it would suffer of its coastal area which it found on the fact that it could
an injury in fact, that the harm was not purely hypothetical. be affected by sea level rise consequent to climate change.
Since Massachusetts had standing, the majority found that The majority is careful not to go as far as opening the
it didn’t need to decide the standing of everyone else. door all the way to recognise the standing of the NGOs,
None of the other applicants was struck out, including although that is not excluded as such. But it adopts a
the non-governmental organisations. more liberal view than the European courts have done so
Against that must be read the powerful dissent by far, and it also takes a more open view on the issue of
the new Chief Justice John Roberts, who strongly disagreed direct concern: standing is not precluded because of the
with the majority’s approach. His view was not that these gap between the decision (or not) to designate carbon
applicants were not individually or particularly personally dioxide as a pollutant and the long-term consequences
affected by the act, but that they couldn’t pass an ‘injury to Massachusetts’s coastline.
in fact’ test. Essentially what he says is, when the court These differences of approach reflect competing
applies the test it focuses on the state’s asserted loss of visions about the function of judicial review, the nature of
coastal land as the injury in fact. He then goes through interests in the environment, and the role of different
the test that is set out: actors. The majority in the United States Supreme Court
has found a way to ensure that an issue of general interest
That alleged injury must be ‘concrete and particularised’. may be addressed by the courts. The European courts
Central to this concept of particularised injury is the seem unable to budge.
requirement that a plaintiff be affected in a ‘personal Ironically, today, 11 June 2008 is the start of the third
and individual way’ and seek relief that ‘directly and meeting of the parties to the Aarhus Convention, and also
the tenth anniversary of the adoption of the Aarhus
Convention in 1998. The failure of the European courts
to do justice on this issue, to recognise any qualitative
19 Massachusetts et al. v EPA et al. – U.S.–, 127 S. Ct. 1438 (2007). See differences in the nature of legal interests in the
also A Kimbrell ELM 20 (2008) 64–70.

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