YLJ Online Symposium: Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine
The Yale Law Journal Online‘s new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions, continues with the fourth installment of its symposium on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP).
In Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine, Professor Daniel Farber argues that AEP is “a powerful illustration of the deep flaws” in the Court’s Article III standing jurisprudence. As Professor Farber points out, “the ‘injury’ that forms the basis for Article III standing does not need to have any logical connection with the legal claim” asserted by the plaintiff. While other commentators have suggested that standing doctrine may pose an insuperable obstacle for climate-change plaintiffs, Professor Farber shows how a “determined plaintiff with the resources to obtain the necessary expert evidence” can rely on harms from co-pollutants other than carbon dioxide to meet the standing test under the Supreme Court’s current standards. This is true “even if the injury from climate change [i]s considered too indirect or delayed to give rise to standing.” Notwithstanding its manipulability, “standing doctrine carries substantial costs” in terms of both litigants’ and judges’ resources. Professor Farber concludes that “it is time for the Court to rethink this ‘exquisitely murky’ doctrine and find some more sensible way to determine which cases are suitable for judicial resolution.”
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