concluded as follows:
As noted above, there must be a causal connection between the injury and
the conduct of which plaintiffs complained. In other words, the injury has
to be fairly traceable to the challenged action ofthe defendant, and not the
result ofthe independent action ofsome third party not before the court.
Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42
(1976).
The government asserts that the association between the
complained of conduct (such as subsidizing the fossil fuel industry,
favorable revenue code provisions, allowing transport of fossil fuels, and
authorizing fossil fuel combustion in the
energy/refinery/transportation/manufacturing sectors) and the associated
greenhouse gas emissions that ultimately cause the harm is tenuous and
filled with countless intervening actions by unidentified third parties.
However, as alleged, without the complained of conduct, the third parties
would not be able to engage as extensively in the activities that allegedly
cause climate change and the resulting harm ...
In cases where a chain of
causation involves numerous third parties whose independent decisions
collectively have a significant effect on plaintiffs' injuries, the causal chain
may be too weak to support standing at the pleading stage. See Allen, 468
U.S. at 759.
But here, there is an alleged strong link between all the
supposedly independent and numerous third party decisions given the
government's regulation of C02 emissions. See, e.g., 42 U.S.C. § 7409
(providing the EPA the authority to regulate national ambient air quality
standards for the attainment and maintenance of the public health);
Massachusetts v. EPA, 549 U.S. 497 (2007) (EPA has power to regulate
greenhouse gas emissions). If the allegations in the complaint are to be
believed, the failure to regulate the emissions has resulted in a danger of
constitutional proportions to the public health. Presumably, sweeping
regulations by this agency (the EPA) alone could result in curtailing of major
C02 producing activities by not just the defendant agencies, but by the
purported independent third parties as well. At this pleading stage, the
court need not sort out the necessity or propriety of all the various agencies
and individuals to participate as defendants, at least with respect to issues
of standing.
For now, it is sufficient that EPA's action/inaction with respect to the
regulation of greenhouse gases allegedly results in the numerous instances
of emissions that purportedly cause or will cause the plaintiffs harm.
Conclusion
The 'commingled product' theory developed in the US is essentially a variant of the
'material contribution' test.
Applying either approach to the context of climate change loss and damage implies
the imposition of a two-stage test:
47
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