Professional Documents
Culture Documents
SUSAN MULLER
The author has taught global warming law and policy as an adjunct at the New England
School of Law since 2006 and previously worked as an enforcement attorney with the U.S.
Environmental Protection Agency for ten years.
1. See Michael B. Gerrard & J. Cullen Howe, Climate Change Litigation in the U.S.,
http://www.climatecasechart.com (last visited Feb. 1, 2010) (listing over one hundred active
cases).
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I. Massachusetts v. EPA
In its first encounter with the subject of global warming, in
Massachusetts v. EPA, the Roberts Court was almost evenly divided on the
preliminary question of whether any of the plaintiffs had suffered an injury
of the kind necessary to support judicial standing. Typical of the claims
involved were those brought by the lead plaintiff, the Commonwealth of
Massachusetts, which alleged among other things that global warming had
2. The particularlization requirement arises from the test for standing set forth by the
Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-62 (1992). Questions
also persist regarding whether the harm associated with global warming is sufficiently
imminent and whether it may be traceable to a particular defendant and redressable by
courts, in order to fully meet the Lujan test. See, e.g., Massachusetts v. EPA, 549 U.S. 497,
536 (2007) (Roberts, C.J., dissenting). This Article focuses only on the question of whether
the harm from global warming is general or particularized.
3. 549 U.S. 497 (2007).
4. Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 338 (2d Cir. 2009); Comer v.
Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009); Ctr. for Biological Diversity v. Dept of
Interior, 563 F.3d 466, 477-79 (D.C. Cir. 2009). Adding to the likelihood that this issue will
come before the Court again sooner rather than later are current efforts in Congress to pass
new legislation to restrict greenhouse gas emissions, and recent steps taken by the U.S.
Environmental Protection Agency (EPA) to regulate emissions under the existing Clean
Air Act. See American Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong.
(2009); 74 Fed. Reg. 66495, et seq. (Dec. 15, 2009). It is widely expected that any new law
or regulation will be immediately challenged in the courts by a variety of interested parties.
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led to inundation and increased flooding of its coastal land.5 From the point
of view of the dissent, precisely because of the causal connection to global
warming, this type of harm was generalized, rather than particularized, and
therefore it could not form the basis of a case or controversy which the
Court had the authority to resolve6:
The very concept of global warming seems inconsistent with
th[e] particularization requirement. Global warming is a
phenomenon harmful to humanity at large, and the redress
petitioners seek is focused no more on them than on the public
generallyit is literally to change the atmosphere around the
world.7
In addition to being generalized, other defects with the harms at
issue, as perceived by the dissent, included their lack of imminence, lack of
traceability to defendant EPA, and lack of redressability by courts.8 On
these grounds the dissenting Justices, which included Chief Justice Roberts
and Justices Thomas, Alito, and Scalia, concluded that all of the plaintiffs
lacked standing before the Court and therefore the case should have been
dismissed.9
The majority opinion, which was written by Justice Stevens and
joined by Justices Breyer, Ginsburg, Kennedy, and Souter, proceeded from
a very different view of the harm involved. With respect to Massachusetts,
it concluded that the alleged injury, a loss of sovereign territory due to
rising sea levels caused by global warming, was a particularized harm and
not a general one.10 Specifically, the majority stated:
That these climate-change risks are widely shared does not
minimize Massachusetts interest in the outcome of this
litigation. According to petitioners unchallenged affidavits,
global sea levels rose somewhere between 10 and 20 centimeters
over the 20th century as a result of global warming. These rising
seas have already begun to swallow Massachusetts coastal land.
Because the Commonwealth owns a substantial portion of the
states coastal property it has alleged a particularized injury in
11
its capacity as a landowner.
test for standing.25 It then went on to hold that none of the petitioners had
met that test:
[C]limate change is a harm that is shared by humanity at large,
and the redress that Petitioners seekto prevent an increase in
global temperatureis not focused any more on these petitioners
than it is on the remainder of the worlds population. Therefore
Petitioners alleged injury is too generalized to establish
standing.26
The D.C. Circuit thus sought to establish as the default rule the idea
that the harm associated with global warming is too generalized to support
standing under the traditional Lujan test.27 As a corollary to this rule,
Massachusetts would provide a separate, more lenient test for unusual
circumstances involving a sovereign entity:
Massachusetts stands only for the limited proposition that,
where a harm is widely shared, a sovereign, suing in its
individual interest, has standing to sue where that sovereigns
individual interests are harmed, wholly apart from the alleged
general harm.28
The court briefly discussed the possibility that the Village of Point
Hope, as a sovereign entity, might have met the test for standing under
Massachusetts, but it then rejected this idea, stating among other things that
Point Hope had not demonstrated that climate change would directly
cause any diminution of Point Hopes territory any more than anywhere
else.29
Significantly, Judge Rogers concurred in the opinion, but wrote
separately in part to state that because the court had found that petitioners
had standing on other grounds, it was unnecessary to determin[e] the
precise scope of the holding on standing in Massachusetts, and whether the
Native Village of Point Hope ha[d] identified by affidavit particularized
harms to its culture and way of life from climate change sufficient to
from global warming may satisfy the traditional test under Lujan.
Consistent with this interpretation, the Second Circuit went on to find that
the plaintiffs in the case before it had alleged a variety of harms that were
sufficiently particularized to satisfy the Lujan test, including: damage to
property and coastal infrastructure of coastal states and New York City
(due to sea level rise); damage to Californias water supply system (due to
a diminished snow-pack); disruption of hydropower production for states
bordering the Great Lakes (due to lowered water levels in the Great Lakes);
and the loss of physical property and property value by the three land trusts
(due to sea level rise).36
36. Id.
37. 585 F.3d 855.
38. Id. at 860-61.
39. Federal subject matter jurisdiction was based on 28 U.S.C. 1332(d)(2) (2006). Am.
Elec. Power, 582 F.3d at 860 n.1.
40. Id. at 863 (emphasis added).
41. Id. at 864 n.3 (It is only when a question is of a public nature that the interested
bystander is likely to attempt suit.).
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III. The Roberts Court and the Idea of Harm in Recent Environmental
Decisions
42. Id. at 868-69 (emphasis added) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 n.1 (1992)).
43. 129 S. Ct. 1142 (2009).
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comment process.44 In analyzing the harm involved, the Court first found
that one affidavit submitted by the plaintiffs, that of Ara Marderosian,
would have been adequate to establish particularized harm because it
identified a specific timber sale, the Burnt Ridge Project in the Sequoia
National Forest, and demonstrated that Marderosian had repeatedly visited
the Burnt Ridge site and had imminent plans to do so again.45 However, the
Court held that plaintiffs could not rely upon the Marderosian affidavit
because the original dispute over the Burnt Ridge Project had since been
resolved.46 The Court then reviewed a second affidavit, that of Jim
Bensman, which mentioned his desire to visit several unnamed National
Forests in the future.47 The Court emphatically took issue with this as a
basis for standing, pointing out that:
The National Forests occupy more than 190 million acres, an
area larger than Texas. . . . There may be a chance, but is hardly
a likelihood, that Bensmans wanderings will bring him to a
parcel about to be affected by a project unlawfully subject to the
regulations. . . . Accepting an intention to visit the National
Forests as adequate to confer standing to challenge any
Government action affecting any portion of those forests would
be tantamount to eliminating the requirement of concrete,
48
particularized injury in fact.
Thus, the Court made clear that the harm from the Forest Service
regulations could not be particularized in the absence of firm plans to visit
a discrete part of a specific National Forest that was affected by the
regulations.49
On its surface, the decision in Summers seems to align with the view
of the dissent in Massachusetts in finding that the alleged environmental
harm was not particularized,50 and it is tempting to infer that the viewpoint
of the dissenting Justices in Massachusetts may have gained additional
adherents. However, a closer inspection reveals that the two opinions rest
on arguments that are in fact quite different. Rather than finding that the
alleged harm was incapable of being particularized, as the dissent argued in
Massachusetts,51 the majority in Summers found only that the harm was
insufficiently particularized.52 This leaves open the possibility of
particularization. With slightly different facts, such as another plaintiff with
specific plans to visit a specific location affected by the Forest Service
regulations, the particularization requirement presumably would have been
satisfied, just as the Marderosian affidavit would have satisfied the
requirement during the time that a live dispute over the Burnt Ridge Project
existed. Summers thus concerns a curable defect with an alleged harm,
rather than a fatal defect of the kind perceived by the dissent in
Massachusetts.
The district court characterized the harm to the Navy as the harm that
would incur if it was prevented from using MFA sonar . . . during a subset
of their regular activities in one part of one state for a limited period.58
The court of appeals also downplayed the harm from a potential injunction,
characterizing it as speculative because the Navy had not previously
conducted its training program under the proposed restrictions.59 Upon
review, the Roberts Court strongly disagreed with these characterizations,
finding that:
In this case, the District Court and the Ninth Circuit
significantly understated the burden the preliminary injunction
would impose on the Navys ability to conduct realistic training
exercises.60
And later:
Again, we think the Ninth Circuit understated the burden this
requirement [to power down sonar during significant surface
ducting conditions] would impose on the Navys ability to
conduct realistic training exercises.61
The Court suggested several times that the lower courts
mischaracterization of the harm to the Navys interests resulted from the
courts failure to defer to the Navys identification of the relevant facts.62
By deferring to the Navys perspective, the Court then restored what, in its
view, was the proper characterization of the harm on that side, and on that
basis vacated the injunction that the district court had imposed, to the
extent that it was challenged by the Navy.63
Because the outcome of Winter v. Natural Resources Defense Council
turned on the comparative weighing, and therefore on the contrasting
characterization, of two competing types of harm, advocates on each side
focused on defining, or redefining, each harm in a manner that worked to
their advantage, with varying success before different courts. As a result,
the judicial articulation of the harms at issue can be seen to fluctuate
significantly over the course of the litigation, up to and including the final
opinion from the Roberts Court. The case thus illustrates succinctly that,
even when the factual content of a given harm is relatively fixed, the
legal idea of harm remains elastic; its shape can always be changed, to a
certain degree, through the emphasis or de-emphasis of specific facts.
C. Entergy v. Riverkeeper
Although the idea of harm did not play a central role in Entergy v.
Riverkeeper,64 it nevertheless featured as a prominent backdrop to much of
the Courts analysis, which centered on divining Congresss intent in
directing the EPA to reduce various kinds of damage to the aquatic
environment. There, in the process of reviewing whether the EPA had
permissibly engaged in a cost-benefit analysis when issuing certain
regulations for power plants, the Court undertook to interpret section
316(b) of the Clean Water Act, 33 U.S.C. 1326(b).65 This provision
states, in relevant part: Any standard . . . applicable to a point source shall
require that the location, design, construction, and capacity of cooling
water intake structures reflect the best technology available for minimizing
adverse environmental impact.66
To aid its interpretation of this language, the Court compared section
316(b) with several other roughly analogous provisions in the Clean Water
Act, including section 301(b)(2)(A),67 which requires the EPA to set
effluent limitations [which] shall require the elimination of discharges of
all pollutants if the Administrator finds . . . that such elimination is
technologically and economically achievable.68
The Court compared the explicit goals of the two provisions and
found it significant that section 316 has the relatively modest goal of
minimizing adverse environmental impact as compared with [section 301-
mandated] [Best Available Technology Economically Achievables] goal
of eliminating the discharge of all pollutants.69 And elsewhere:
When Congress wished to mandate the greatest feasible
reduction in water pollution, it did so in plain language: The
provision governing the discharge of toxic pollutants into the
Nations waters requires the EPA to set effluent limitations
which shall require the elimination of discharges of all pollutants
if the Administrator finds that such elimination is technologically
70. Id. at 1506 (citations omitted) (citing 33 U.S.C. 1311(b)(2)(A), 1326(b) (2006)).
71. This would be true even in the case of closed loop systems, because the water must
initially be drawn in from a natural source.
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life, and further, that [w]hether aquatic life will eventually be able to
inhabit the lake again is uncertain.86
Although the outcome of the case did not turn on the Courts analysis
of harm, it nevertheless appears that the competing definitions of that harm
may have played a significant role in the background, exerting an influence
over one or more Justices in either accepting or rejecting the results that
would flow from a decision finding that authority over the proposed
discharge rested with the Corps. When viewed together with the decisions
in Entergy and Burlington Northern, this case lends support to the idea that
there is a tendency by a majority of Justices on the Roberts Court to
analyze environmental harm at a certain distance from the underlying
facts.87 While this tendency may not always affect the outcome of the
Courts decisions, it is at least arguable that in some cases, such as Coeur
Alaska, significant aspects of the real harm at issue can be entirely omitted
from the legal analysis of that harm when the distance between the analysis
and the facts is too great.
Roberts Court may be inclined to analyze the harm from global warming
at a great distance from the facts. For example, in support of its view that
the harm is too generalized to support standing, the four dissenting Justices
in Massachusetts did not cite to any facts at all, but instead simply
referenced an assertion by Judge Sentelle in the case below:
The very concept of global warming seems inconsistent with
[the] particularization requirement. Global warming is a
phenomenon harmful to humanity at large . . . . Massachusetts
v. EPA, 549 U.S. 497, 541 (2007) (Roberts, C.J., dissenting)
(citing Massachusetts v. EPA, 415 F.3d 50, 60 (D.C. Cir. 2005)
(Sentelle, J., dissenting in part and concurring in judgment)).
In another example, during oral argument in Massachusetts, Justice Scalia
indicated a reluctance to delve into the underlying facts of global warming:
JUSTICE SCALIA: Mr. Milkey . . . . your assertion is that after
the pollutant leaves the air and goes up into the stratosphere it is
contributing to global warming.
(Laughter.)
88. Transcript of Oral Argument at 22-23, Massachusetts v. EPA, 549 U.S. 497 (2007)
(No. 05-1120).
89. The website maintained by climate scientists at www.realclimate.org provides one
example of the seemingly endless stream of scientific facts pertinent to the phenomenon of
global warming. See RealClimate, Climate Science from Climate Scientists, http://www.
realclimate.org (last visited Feb. 1, 2010).
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perspective of the law, the factual terrain in such areas is akin to quicksand,
and therefore it is rightly regarded with caution by courts.90 However, most
issues presented in global warming cases do not require a foray into areas
where the science is unsettled, but instead they merely require judicial
reliance on facts that are well established and accepted among climate
scientists, and the question of particularization is one such issue.
As a preliminary matter, it is arguable that the particularization
inquiry, when it is properly conducted, mandates against any discussion of
global warming at all. This is because in asking whether a harm is concrete
and personally experienced, and whether it gives the plaintiff a personal
stake in the outcome of the litigation, the inquiry requires a court to focus
on the plaintiff and what has happened to the plaintiff, rather than on what
has happened to the planet as a whole. Therefore, to the extent the judicial
focus stays on the plaintiff, and the problems directly experienced by the
plaintiff, a discussion of the alleged injuries does not require a review of
the physics of greenhouse gases. Instead, it requires a review of familiar,
even mundane, aspects of traditional problems, such as the diminution in
property value experienced by the owner of property that has been flooded,
or the loss of income incurred by a farmer whose supply of irrigation water
has fallen off.
90. Courts are not alone in keeping at a distance from the facts. The general public has
also demonstrated a tendency to avoid engagement with the available scientific information
pertaining to global warming, to the point that a minor specialty has emerged among
psychologists, journalists, and others working in the field of communication in trying to
explain the reasons for this tendency. See generally Nicholas D. Krisof, When Our Brains
Short-Circuit, N.Y. TIMES, July 2, 2009, at A23; DEBIKA SHOME & SABINE MARX, THE
PSYCHOLOGY OF CLIMATE CHANGE COMMUNICATION: A GUIDE FOR SCIENTISTS,
JOURNALISTS, EDUCATORS, POLITICAL AIDES, AND THE INTERESTED PUBLIC (Andria Cimino
ed., 2009), available at http://cred.columbia.edu/guide/pdfs/CREDguide_full-res.pdf; Pew
Research Center for the People & the Press, http://people-press.org (last visited Feb. 1,
2010).
91. See for example Order Granting Defendants Motions to Dismiss for Lack of
Subject Matter Jurisdiction at 13, Native Village of Kivalina v. Exxonmobil Corp., 663 F.
Supp. 2d 863 (N.D. Cal. 2009) (No. 08-1138): In a global warming scenario, emitted
greenhouse gases combine with other gases in the atmosphere which in turn results in the
planet retaining heat, which in turn causes the ice caps to melt and the oceans to rise, which
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in turn causes the Arctic sea ice to melt, which in turn allegedly renders [plaintiffs home]
Kivalina vulnerable to erosion and deterioration resulting form winter storms. (emphasis in
original).
92. Greenhouse gases.
93. See GLOBAL CLIMATE CHANGE IMPACTS IN THE UNITED STATES 16 (Karl et al. eds.,
2009). Some have noted that a more accurate term for this phenomenon would be global
heating. See Matthew F. Pawa, Global Heating and Tort Law, in LITIGATING CLIMATE
CHANGE (ALI-ABA Telephone Seminar/Audio Webcast, Feb. 24, 2010).
94. See GLOBAL CLIMATE CHANGE IMPACTS IN THE UNITED STATES, supra note 93, at 16.
95. Intergovernmental Panel on Climate Change, Summary for Policymakers, in
CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS 4 (Susan Solomon et al. eds., 2007),
available at http://www.ipcc-wg1.unibe.ch/publications/wg1-ar4/ar4-wg1-spm.pdf.
MULLER_FINAL 4/19/2010 10:07:54 AM
96. Id. at 5.
97. Id.
98. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007:
SYNTHESIS REPORT, available at http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.
pdf. In contrast to the term global warming, the term climate change is generally used to
encompass both the addition of energy to the climate system and its effects, and therefore it
is not used in this article, which is focused on distinguishing these two things.
99. See GLOBAL CLIMATE CHANGE IMPACTS IN THE UNITED STATES, supra note 93, at 99
(Climate change will affect different segments of society differently because of their
varying exposures and adaptive capacities.); id. at 107-49 (discussing the varying effects in
the Northeast, Southeast, Midwest, Great Plains, Southwest, Northwest and Alaska and the
Islands).
100. See Intergovernmental Panel on Climate Change, Technical Summary, at 37, in
CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS, supra note 95, available at
http://ipcc-wg1.ucar.edu/wg1/Report/AR4WG1; GLOBAL CLIMATE CHANGE IMPACTS IN THE
UNITED STATES, supra note 93, at 17.
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people everywhere.101 The Arctic, where temperatures are rising the fastest,
best illustrates this point.102
The rise in global average sea levels is a similar type of effect. It is
also an average of measurements taken at thousands of locations around the
world, and the underlying facts reveal that in some places sea level is rising
more than in others, while in yet other places it is falling.103 A perhaps
more obvious feature of sea level rise is that it has no impact on people
living away from coasts, while people living on coasts and owners of
coastal property are affected in a very concrete and personal way,
demonstrating that the effect is hardly uniform in distribution.104
The effect of melting snow and ice also shares this feature; it is not
distributed evenly around the world and it is not actually experienced by
those who live at a distance from snow and ice or who are not somehow
dependent on it, for example, for drinking water or irrigation. However, in
the locations where it is occurring, the damage is very concrete and
specific, and very personally experienced.105 Again the best illustration of
this is in the Arctic, where the damage associated with the loss of sea ice is
approaching catastrophic levels for both the ecosystem and the people who
depend on it.106
101. Compare GLOBAL CLIMATE CHANGE IMPACTS IN THE UNITED STATES, supra note 93,
at 110 (In the Northeast, particularly in Rhode Island and Massachusetts, lobster catch has
dramatically decreased since the 1990s due to a temperature-sensitive bacterial shell
disease.), with id. (In the Midwest, an increase in temperature will raise the cost of
livestock production as higher temperatures stress livestock, decreasing productivity and
increasing costs associated with the needed ventilation and cooling equipment.).
102. See Andrew C. Revkin, Arctic Melt Unnerves the Experts, N.Y. TIMES, Oct. 2, 2007,
http://www.nytimes.com/2007/10/02/science/earth/02arct.html?_r=1.
103. See GLOBAL CLIMATE CHANGE IMPACTS IN THE UNITED STATES, supra note 93, at 37.
104. See id. at 24-25 (Higher ocean temperatures lead to stronger storms with higher
wind speeds and more rainfall.); Associated Press, Crumbling Cliffs Dont Deter Pacifica
Residents, ABC NEWS, Jan. 23, 2010, available at http://abcnews.go.com/US/wireStory?
id=9642959 (detailing that storm-driven surf and heavy rain have taken a toll on this
stretch of coastline and resulted in a two million dollar project to construct a sea wall in
order to protect the beachfront property); Meredith Goldstein, State Aid Sought on Beach
Erosion: Residents, Officials Will Meet Tonight, BOSTON GLOBE, June 30, 2005, available at
http://www.boston.com/news/local/massachusetts/articles/2005/06/30/state_aid_sought_on_
beach_erosion/ (commenting on the problems of erosion faced by beachfront residents in
Massachusetts and New Hampshire).
105. Massachusetts v. EPA, 549 U.S. 497, 521 (2007) (The effects of global warming
include significant reduction in water storage in winter snowpack in mountainous regions
with direct and important economic consequences.).
106. See Oleg A. Anisimov et al., Polar Regions (Arctic and Antarctic), in CLIMATE
CHANGE 2007: IMPACTS, ADAPTATION AND VULNERABILITY. CONTRIBUTION OF WORKING
GROUP II TO THE FOURTH ASSESSMENT REPORT OF THE IPCC 653 (Roger Barry et al. eds.,
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107. Massachusetts, 549 U.S. at 526; Ctr. for Biological Diversity v. U.S. Dept of
Interior, 563 F.3d 466, 475-76 (D.C. Cir. 2009); Comer v. Murphy Oil USA, 585 F.3d 855,
859 (5th Cir. 2009); Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 314 (2d Cir. 2009).
108. See Massachusetts, 549 U.S. at 540-41 (Roberts, C.J., dissenting) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992)).
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CONCLUSION
When examined closely, the facts relevant to the phenomenon of
global warming reveal that a significant distinction exists between global
warming itself, understood as a net addition of energy to the Earths
climate system, and the effects of that warming. When this distinction is
recognized, it becomes clear that the harm associated with global warming
itself is indeed a generalized harm, which affects humanity at large, and for
this reason a legal claim based solely on global warming should not meet
the requirement of particularization contained in the Lujan test for standing.
However, the facts also show that the effects of global warming, such as the
loss of specific portions of coastline, changed precipitation patterns in
specific places, or increased temperatures in specific locations, are highly
particularized and experienced by individuals in very concrete and personal
ways, and therefore a claim based on one of these effects arguably should
satisfy the particularization requirement.
Unfortunately, due to a tendency by the Roberts Court to analyze
environmental harm at a distance from the facts, there is a danger that this
factual distinction between global warming and its effects will remain
obscured, and if this distinction is not sharply drawn then the judicial
analysis of the harm arising from global warming will remain
correspondingly confused. Considerable confusion already exists due to
ambiguity in the Massachusetts holding on this issue, and the varied
attempts of circuit courts to apply that holding. The question is thus ripe for
resolution by the Supreme Court through a return to the underlying facts,
and advocates of standing in global warming cases could benefit by seeking
specifically to achieve judicial recognition of the critical distinction
between global warming and its effects.