Global Warming Challenges Environmental Law

By Kelpie Wilson, TruthOut.org. Posted April 16, 2007.

On April 2, 2007 the U.S. Supreme Court ruled in favor of the State of Massachusetts in the landmark global warming case, Massachusetts v. EPA. Environmentalists were pleased that the high court ruled on the merits of the case, agreeing that carbon dioxide meets the definition of a pollutant and that the EPA has run out of excuses for not regulating it.

But some legal scholars were even more gratified by another aspect of the case, the court's ruling on the right of the plaintiffs to sue, known as their "standing." Michael C. Dorf, a law professor at Columbia University, said that "the most important practical effect of Massachusetts v. EPA may be what it does to standing doctrine. And on that point, the decision marks a welcome turn away from recent precedents that imposed gratuitous obstacles to courts' reaching decisions on the merits."

On the other side, Case Western Reserve law professor Jonathan H. Adler decried the court's admission of standing, saying that "Justice Stevens almost certainly lowered the standing bar for future environmental litigants." Adler had participated in amicus briefs submitted in the case by the Cato Institute.

Prior to the court's ruling, many analysts speculated that it would dismiss the case based on the standing issue. The court could have ruled that the coalition of states and environmental groups lacked standing to bring the case to court because they could not show a concrete and imminent harm that was redressable through the courts. The minority, consisting of Justices Roberts, Scalia, Alito and Thomas, would have denied standing to the plaintiffs based on these tests.

The tests for standing have been tightened considerably since the 1970s, and justices who take a narrow view of standing have kept countless environmental and civil rights cases out of the courts, denying petitioners the right to be heard on the merits of their cases. Lily Henning, in an article in Legal Times, explains that an extreme narrow view of standing has become a constitutional litmus test for conservatives and that "the philosophy grew in popularity -- both in the courts and among government lawyers -- during the Reagan administration."

The Reagan administration is where Chief Justice Roberts cut his teeth. In one of his early memos, Roberts said: "It will be our policy to raise standing and other justiciability challenges to the fullest extent possible." During Roberts's confirmation process as Supreme Court chief justice, a letter from environmental groups to the Senate Judiciary Committee pointed out that Roberts's statement was sweeping and unqualified and "it was not limited to cases in which the Justice Department believed there was no standing or even to cases where there was a serious question."

Raising the bar on standing in order to deny citizen access to the courts whenever possible became a key plank in the quest for the "unitary executive" espoused by the Federalist Society and other neocon groups. These groups promoted the notion that all of the executive powers of the government must be consolidated and tightly controlled by the president. From this perspective, citizen lawsuits to enforce government regulations amount to "stealing power" from the executive branch and they should be thrown out of court whenever possible.

Commenting on the nomination of Justice Alito to the Supreme Court last year, Robert Parry of Consortium News said:

The Supreme Court's embrace of the "unitary executive" would sound the death knell for independent regulatory agencies as they have existed since the Great Depression, when they were structured with shared control between the Congress and the President. Putting the agencies under the President's thumb would tip the balance of Washington power to the White House and invite abuses by letting the Executive turn on and off enforcement investigations.

Turning off enforcement is exactly what the White House did in the case of EPA's obligation to regulate carbon dioxide, and that is what brought Massachusetts and the other plaintiffs to court.

In pursuing the unitary executive, Justices Roberts, Scalia and Alito say they are protecting the Constitutional balance of powers, as the framers intended it. In a speech in 2000, Alito gave his version of history, saying that the constitutional framers "saw the unitary executive as necessary to balance the huge power of the legislature and the factions that may gain control of it."

But most historians would say that the framers were far more concerned with the concentration of power in the executive; having just defeated one monarchy, their overriding concern was to avoid creating another.

Looking back on the now 220-year-old Constitution, it seems to have served us well but for one exception. The document apportions powers laterally between the legislative, the judiciary and the executive branches, and vertically between the states and the federal government. Its Bill of Rights protects the individual. But there is one huge elephant in the room that is never addressed by the Constitution, and that is the corporation.

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Kelpie Wilson is Truthout's environment editor. Trained as a mechanical engineer, she embarked on a career as a forest protection activist, then returned to engineering as a technical writer for the solar power industry. She is the author of Primal Tears, an eco-thriller about a hybrid human-bonobo girl.

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