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.

Corporations today are so gigantic that the largest ones command far more resources than many nation states. They buy and sell our politicians and our media, and yet there are no constitutional checks on their power. Congress, in a momentary fit of wisdom in the 1970s, passed a group of environmental laws such as the Clean Air Act to protect land, air and water from the abuses of industry. They included citizen enforcement provisions that gave citizens the power, exercised through the courts, to watchdog the enforcement of these laws regulating corporate activities.

Neocons refer to this power of the courts to watchdog executive enforcement as "judicial imperialism," but that is way off the mark. The reality is that courts have tended to defer to the discretion of agencies to enforce the laws how they see fit, only ruling against agencies in extreme cases, like Massachusetts v. EPA.

Still, that's not how Justice Scalia sees it. He wrote in his dissent:

This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.

The idea of executive discretion to enforce or ignore the law as it sees fit is the reason why environmental laws have failed to avert the ecological crisis we find ourselves in today. Law professor Mary C. Wood of the University of Oregon addressed this issue in a speech to the Public Interest Environmental Law Conference on March 4, 2007:

The heart of the problem is this: while the purpose of every local, state and federal environmental law is to protect natural resources, nearly every law has also provided authority to the agencies to permit, in their discretion, the very pollution or land damage that the statutes were designed to prevent.

Of course, the permit systems were never intended to subvert the goals of environmental statutes. But most agencies today spend nearly all of their resources to permit, rather than prohibit, environmental destruction. Essentially, our agencies have taken the discretion in the law and have used it to destroy Nature, including its atmosphere.

Why would public servants, who draw their salaries from the taxpayers, do such a thing? It is because the call of private property rights is sounded in the halls of nearly every agency, nearly every day. Asphalt plant operators and chemical manufacturers, land developers and timber companies, automakers and coal-fired plant investors, industrialists and individuals of all sorts scream out to these agencies not to draw that regulatory line on their activity -- because doing so would hurt their economic goals. This private property rights rhetoric has cowered officials at every level of government.

Professor Wood is calling for a new approach to environmental law that would bypass the debate over property rights vs. the environment and replace the discretion to regulate with the obligation to protect. She proposes a new view of the environment -- the air, land and water -- as a trust for future generations. The trust principle uses the idea of property to protect the environment rather than destroy it through the familiar idea of a trust with beneficiaries. Here is how she frames it:

We all hold a common property interest in Nature's Trust. You could think of this as Nature's treasure to be passed down through all generations of humankind. With every trust there is a core duty of protection. The trustee must defend the trust against injury. Where it has been damaged, the trustee must restore the property in the trust. Protecting our natural trust is more consequential than anything else government does.

When we look at the Preamble to the U.S. Constitution, we can see that the Nature's Trust idea is already there. The benefits sought by We the People are to be secured not only for today, but for Posterity. As Congress considers legislation to address global warming, it would do well to incorporate the trust idea into that legislation.

In the face of a threat as overwhelming as global warming, We the People must reject the vain projects of corporate domination and the unitary executive and harken back to our first principles. On that basis we can create a new approach to environmental law that will actually work to protect nature and future generations.

              

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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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