Academic journal article Harvard Law Review

Existence-Value Standing

Academic journal article Harvard Law Review

Existence-Value Standing

Article excerpt

That someone might have a real, quantifiable interest in an environmental good he will never see seems, at first, like quackery. (1) But questions such as, "What would I pay to know that the Grand Canyon will always be there? Or that African elephants will survive in the wild?" lead us to recognize that the mere fact that an environmental good exists may have real value. Economists call this interest "exis-tence value." While the methods used to calculate this value remain contested, many mainstream economists have come to accept the concept's validity. (2)

Among those economists are the regulators at the Office of Information and Regulatory Affairs (OIRA), the division within the Office of Management and Budget (OMB) that coordinates and evaluates regulations from across the federal government. (3) Beginning during the Reagan Administration and continuing through the Obama Administration, cost-benefit analysis (CBA) has played an increasingly prominent role in the analyses performed by OIRA--and, accordingly, by regulatory agencies themselves. (4) As a result, CBA now informs or, where legally permitted, dictates, much regulation. (5) Because regulators often incorporate existence values into CBAs, the concept is now being accounted for in rulemakings across the executive branch. (6)

Existence value reflects the psychological benefits that accrue from the mere knowledge that a good exists and will continue to exist. The precise nature of these psychological benefits is difficult to ascertain, and remains contested, (7) but perhaps the most enlightening framing is to consider existence-value harms as "psychic spillovers." (8) Like physical spillover effects, which cause harm beyond the immediate damage inflicted, a "psychic spillover" results where harm (or the threat of harm) damages the psychological welfare of someone not immediately present. Existence values are generally measured through "contingent valuation" surveys, which, despite considerable debate within the economic literature as to how best to design them, (9) remain a well-respected tool. (10) Existence values might also be reflected in the political process: when Congress decides to protect endangered species or wetlands, public-choice theories about interest-group preferences cannot fully explain those decisions, the argument goes. Rather, interests in the existence values of environmental goods must play some role in motivating such aggressively protective statutes. (11)

If the Executive has through its CBAs recognized existence value as a legitimate interest that an individual may have in an environmental good, should the judiciary also recognize such an interest? (12) That is, does the executive branch's acknowledgment of such an interest--and the corresponding risk of harm to that interest--provide a compelling reason for the courts to recognize an "injury in fact" for purposes of Article III standing? (13)

The reader familiar with standing doctrine might assume that precedent forecloses the Supreme Court from recognizing standing based on an injury to existence value. (14) This Note argues this is not so: the Court's decisions contain two strands of doctrine that, when combined, make standing based on an existence-value interest possible. First, the Court repeatedly has accepted that "environmental well-being" (15) and "esthetic" interests are "cognizable interest[s] for the purposes of standing." (16) Second, the Court has acknowledged both in persuasive concurrences and in an important majority opinion that an "injury in fact" may be created by Congress and that such an injury may extend beyond the confines of the common law. (17) The claim advanced in this Note is that an interest in the existence value of an environmental good is an aesthetic interest cognizable for the purposes of standing, and that it could be created by statute. Moreover, existence-value standing passes doctrinal muster where other proposals to liberalize standing rules do not, thanks to three unique characteristics. …

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