Skidmore College
Task Force on
Divestment
Community Forum
February 25, 2015
1 and 5:30 pm Gannett
Standing
• capacity of a party to bring suit in court.
• the requirement that plaintiffs have sustained or will sustain
direct injury or harm and that this harm is redressable.
• citizen suit provisions
Liberal Perspective
• These cases are only the beginning of what promises to
become a flood of new litigation-litigation seeking judicial
assistance in protecting our natural environment. Several
recently enacted statutes attest to the commitment of the
Government to control, at long last, the destructive engine of
material "progress." But it remains to be seen whether the
promise of this legislation will become a reality. Therein lies
the judicial role. . .. Our duty, in short, is to see that important
legislative purposes, heralded in the halls of Congress, are not
lost or misdirected in the vast hallways of the federal
bureaucracy. Calvert Clifs
• Judge Skelly Wright
Conservative Perspective
• [The judicial doctrine of standing is a crucial and inseparable
element of the separation of powers] principle, whose
disregard will inevitably produce ... an over-judicialization of
the processes of self-governance ... [Courts need to accord
greater weight than they have in recent times to the
traditional requirement that the plaintiff's alleged injury be a
particularized one, which sets him apart from the citizenry at
large.
• Justice Scalia
• Lujan v. Defenders of Wildlife
• ESA requires federal agencies consult with Dept of Interior
• DOI doesn’t apply overseas
• DOW- we travel to see endangered critters, are harmed.
• Scalia- “it is beyond all reason, and “pure speculation and
fantasy” to suggest that a wildlife biologist would be “appreciably
harmed” when a project in another part of the world kills a
member of that species.
• “Judges provide access to the courts to individuals who seek
to further the political and ideological agenda of judges”
(foreshadowing—takings legislation, interstate commerce)
• Issues of Standing- GOP judges voted to deny standing to
environmental plaintiffs 79.2% versus Democratic judges 18.2%
• Standing more difficult
• "direct connection between [their] members' use of public land
and the location where the action of the third party will occur.”
• Friends of Earth suit recruit residents on creek
Standing
• without standing, EGs would not have legal authority to
challenge the case.
• Standing is not easily determined-- Different courts have
different views
Standard of Review
• courts have impact in whether it will give a hard look at
actions of public officials or defer to administrative
expertise
• 1997, EPA revises NAAQS for particulate matter and ozone, set
stringent standards.
• American Trucking Association sues, saying that law that
delegates authority to EPA was unconstitutionally vague,
• Standards of review vary on cases and judges. Judicial
philosophies and predispositions become important.
establish precedent on how
ambiguous laws will be interpreted
• Endangered Species Act rules unlawful to take endangered
species. (takings is defined as harassing, harming, pursuing,
hunting, shooting, wounding, killing, trapping, capturing or
collecting any of the protected wildlife.”
• Sec. of Interior Bruce Babbitt takings now includes “significant
habitat modification or degradation where it actually kills or
injures wildlife.”
• Majority of Supreme Court rules that secretary’s definition of
harm was reasonable
• Determine who has Standing
• Standard of Review of administrative agencies
• Establish precedent on how ambiguous laws will be
interpreted
• Apply Constitutional Standards
• Judicial philosophies and predispositions are important.
Mass vs. EPA
• Massachusetts argue
• that EPA was required to regulate these "greenhouse gases" by
the Clean Air Act - which states that Congress must regulate "any
air pollutant" that can "reasonably be anticipated to endanger
public health or welfare.“
• EPA claims
• the Clean Air Act does not authorize the Agency to regulate
greenhouse gas emissions.
• Even if it did, EPA argued, the Agency had discretion to defer a
decision until more research could be done on "the causes,
extent and significance of climate change and the potential
options for addressing it."
Does Mass. have standing?
• Causation (has it been harmed)
• “particularized” injury is the requirement that a plaintiff be
affected in a “personal and individual way,”
• Redressability
• seek relief that “directly and tangibly benefits him”
• Defenders of Wildlife v. Lujan
Standing
• Justice John Paul Stevens .
• “States are not normal litigants for the purposes of invoking
federal jurisdiction,” given “Massachusetts’ stake in protecting
its quasi-sovereign interests, the Commonwealth is entitled
to special solicitude in our standing analysis.”
• (see Georgia v.Tennessee Copper Co. (1907))
Roberts Dissent
• The plaintiffs do not have standing because they can show no
concrete injury, the evidence of causation by greenhouse
gases of rising coastal water in Massachusetts was minimal
(and undercut by its own expert's affidavit), and there was no
showing that a rule issued by the EPA could provide
measurable relief to the plaintiffs. The plaintiffs' claim cannot
truly be resolved by decision of a federal court
• One of petitioners’ declarants predicts global warming will
cause sea level to rise by 20 to 70 centimeters by the year
2100.
• accepting a century-long time horizon and a series of
compounded estimates renders requirements of imminence
and immediacy utterly toothless.
• To establish standing, petitioners must show a causal
connection between that specific injury and the lack of new
motor vehicle greenhouse gas emission standards, and that
the promulgation of such standards would likely redress that
injury.
Standard of Review
• Clean Air Act — Section 302(g) —
• “The term “air pollutant” means any air pollution agent or
combination of such agents, including any physical, chemical,
biological, or radioactive (including source material, special
nuclear material, and by-product material) substance or
matter, which is emitted into, or otherwise enters, the
ambient air. Such term includes any precursors to the
formation of any air pollutant, to the extent that the
Administrator has identified such precursor or precursors for
the particular purpose for which the term “air pollutant” is
used.”
• Global warming may be a “crisis,” even “the most pressing
environmental problem of our time.” Pet. for Cert. 26, 22.
Indeed, it may ultimately affect nearly everyone on the planet
in some potentially adverse way, and it may be that
governments have done too little to address it. It is not a
problem, however, that has escaped the attention of
policymakers in the Executive and Legislative Branches of our
Government, who continue to consider regulatory, legislative,
and treaty-based means of addressing global climate change.
• EPA reasoned that climate change had its own “political
history”: Congress designed the original Clean Air Act to
addresslocal air pollutants rather than a substance that “is
fairly consistent in its concentration throughout
the world’satmosphere,”
Robert’s Dissent
• Apparently dissatisfied with the pace of progress on this issue
in the elected branches, petitioners have come to the courts
claiming broad-ranging injury, and attempting to tie that injury
to the Government’s alleged failure to comply with a rather
narrow statutory provision. I would reject these challenges as
nonjusticiable. Such a conclusion involves no judgment on
whether global warming exists, what causes it, or the extent
of the problem. Nor does it render petitioners without
recourse. This Court’s standing jurisprudence simply
recognizes that redress of grievances of the sort at issue here
“is the function of Congress and the Chief Executive,” not the
federal courts.
• 1) May the EPA decline to issue emission standards for motor
vehicles based on policy considerations not enumerated in the
Clean Air Act?
• 2) Does the Clean Air Act give the EPA authority to regulate
carbon dioxide and other greenhouse gases?
Mass vs. EPA
• greenhouse gases covered as pollutants under the Clean Air
Act,
• EPA does have the authority to regulate global warming
pollution
• "only if it determines that greenhouse gases do not contribute
to climate change, or if it provides some reasonable
explanation as to why it cannot or will not exercise its
discretion to determine whether they do."
Pygmy Owl, also known as Ferruginous or
Gnome Owl http://www.sonoranaudubon.org/Ferruginous%20Pygmy%20Owl.jpg
Emergence of Adversarial
Legalism
• judicial arena site for bitter and fundamental policy conflicts
who outcomes veer sharply between poles rather than
converging on pragmatic center
• Policy instability; dependent on partisan makeup of Judiciary
• Disaffected groups (policy losers) can attack next generation
policy compromises
• Takings
• Interstate commerce