Law Commons^™

Lest We Be Lemmings, Claire Wright

Faculty Articles

Lest We Be Lemmings concerns global warming, which is the most grave threat facing humanity today. In this article, I first: (1) discuss how the U.S. Congress and the U.S. Executive Branch, for decades, have been aware of the existence of global warming and its main cause – the burning of fossil fuels and emission of CO₂ - but have consistently failed to regulate the fossil fuel industry, reduce the lucrative subsidies that they provide to the fossil fuel industry, and hold the fossil fuel industry responsible for global warming; (2) explain how the fossil fuel industry, for decades, …

Assessing China’S Environmental Ngo Public Interest Litigation Against The U.S. Citizen Suit Model, Huishihan Wang

Dissertations & Theses

This dissertation introduces the U.S. and China’s environmental governance evolution, the background of their private enforcement provisions, including each country’s environmental legislative, administrative, and judicial development before establishing private enforcement. After the introduction, the second section examines the U.S. environmental citizen suits’ origin, environmental movements during the 1960s and 1970s, and pioneer ENGOs’ legal experiences. Statutory provisions are reviewed in various aspects in order to fully present this significant U.S. private enforcement measure. The third section analyzes the trajectory of Chinese ENGO EPIL development, including the provisions and typical actions according to several scattered provisions. Section four compares the theoretical …

Tribes, Cities, And Children: Emerging Voices In Environmental Litigation, Nina A. Mendelson

Articles

an environmental nongovernmental organization ("NGO") on behalf of a neighbor or hiker.1 The NGO would allege that the individual faced health risks, that her property was contaminated, or that she could no longer hike, fish, swim, or view wildlife such as the endangered Nile crocodile, as in the well-known case of Lujan v. Defenders of Wildlife.

Constitutional Environmental Law, Or, The Constitutional Consequences Of Insisting That The Environment Is Everybody's Business, Robin Kundis Craig

Utah Law Faculty Scholarship

Constitutional environmental law has become a recognized and institutionalized specialty within environmental law, an acknowledgement of the pervasive interactions between the U.S. Constitution and the federal environmental statutes that go well beyond the normal constitutional underpinnings of federal administrative law. This Article posits that constitutional environmental law is the result of Congress consciously deciding that environmental protection is everybody’s business — specifically, from Congress’s that states should participate in rather than be preempted by federal environmental law, that private citizens and organizations should help to enforce the statutes, and that private land and water rights are necessary components of national …

Article Iii Standing For Private Plaintiffs Challenging Greenhouse Gas Regulations, Bradford Mank

Faculty Articles and Other Publications

An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may …

Standing To View Other People's Land: The D.C. Circuit's Divided Decision In Sierra Club V. Jewell, Bradford Mank

Faculty Articles and Other Publications

In its divided 2014 decision in Sierra Club v. Jewell, the D.C. Circuit held that plaintiffs who observe landscape have Article III standing to sue in federal court to protect those views even if they have no legal right to physically enter the private property that they view. The D.C. Circuit’s decision could significantly enlarge the standing of plaintiffs to sue federal agencies or private parties over changes to private lands that the plaintiffs have no right to enter. Because the Supreme Court has inconsistently applied both strict and liberal approaches to standing, it is difficult to predict how it …

No Article Iii Standing For Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit's Decision In Washington Environmental Council V. Bellon, Bradford Mank

Faculty Articles and Other Publications

In Washington Environmental Council v. Bellon, the Ninth Circuit recently held that private plaintiffs did not have standing to sue in federal court to challenge certain state greenhouse gas (GHG) regulations because the plaintiffs failed to allege that the emissions were significant enough to make a “meaningful contribution” to global GHG levels. By contrast, in Massachusetts v. EPA, the Supreme Court held a state government had standing to sue the federal government for its failure to regulate national GHG emissions because states are “entitled to special solicitude in our standing analysis.” Massachusetts implied but did not decide that private parties …

Judge Posner’S 'Practical' Theory Of Standing: Closer To Justice Breyer’S Approach To Standing Than Justice Scalia’S, Bradford Mank

Faculty Articles and Other Publications

In American Bottom Conservancy v. U.S. Army Corps of Engineers, Judge Richard Posner of the Seventh Circuit questioned three different grounds articulated by the U.S. Supreme Court for the constitutional doctrine of standing in federal courts and instead argued that the “solidest grounds” for the doctrine of standing are “practical.” In part because of his self-described “pragmatic” approach to legal reasoning, Judge Posner’s maverick views may have led Republican presidents to pass him over for being nominated to the Supreme Court in favor of less brilliant but more predictable conservative judges. Judge Posner’s pragmatic or practical approach to standing …

Informational Standing After Summers, Bradford Mank

Faculty Articles and Other Publications

In its recent The Wilderness Society v. Rey decision, the Ninth Circuit addressed the difficult question of when a statute may establish a right to informational standing. The D.C. Circuit and the Sixth Circuit had previously reached different conclusions about whether environmental statutes promoting public participation or requiring environmental assessments in certain circumstances create a right to informational standing. The Ninth Circuit in its The Wilderness Society decision interpreted the Supreme Court’s 2009 decision in Summers v. Earth Island Institute, which explicitly narrowed procedural rights standing, as implicitly narrowing standing rights in general and concluded that general notice and …

Standing For Private Parties In Global Warming Cases: Traceable Standing Causation Does Not Require Proximate Causation, Bradford Mank

Faculty Articles and Other Publications

This Article argues courts should apply a relatively liberal approach in deciding standing issues for private plaintiffs pursuing climate change suits even if courts ultimately conclude that it is inappropriate to grant relief on the merits to those same plaintiffs because the Supreme Court has clearly declared that standing is a preliminary question that should be treated separately from decisions on the merits and standing causation requires less proof than proximate causation on the merits. The Supreme Court in its 2007 decision in Massachusetts v. EPA held that a state had standing under Article III of the U.S. Constitution to …

Standing In Monsanto Co. V. Geertson Seed Farms: Using Economic Injury As A Basis For Standing When Environmental Harm Is Difficult To Prove, Bradford Mank

Faculty Articles and Other Publications

Many of the Supreme Court’s important standing cases have involved environmental disputes. Most recently, in 2010, the Court again addressed standing in an environmental dispute, Monsanto Co. v. Geertson Seed Farms. In Monsanto, the Court did not announce a new standing doctrine. Nevertheless, the Court recognized that an environmental plaintiff may sue without proof of actual environmental harm if it can demonstrate that he or she may suffer economic losses from testing and mitigation measures related to a threatened harm. During the oral argument in Monsanto, Justice Scalia expressed skepticism that the plaintiffs could prove that the …

Reading The Standing Tea Leaves In American Electric Power V. Connecticut, Bradford Mank

Faculty Articles and Other Publications

In American Electric Power v. Connecticut (AEP), the U.S. Supreme Court by an equally divided vote of four to four affirmed the Second Circuit’s decision finding standing and jurisdiction in the case. Even though it did not announce the identities of the justices who voted for standing and against standing, the AEP decision took the unusual step of providing some explanation for how the Court divided on the standing question, and, as a result, provided important information about the positions of the justices on the issue. While it is not binding as a decision for the lower courts except …

The Constitutionality Of Citizen Suit Provisions In Federal Environmental Statutes, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The Supreme Court’s decisions under the pollution control statutes administered by the Environmental Protection Agency (EPA) reach startlingly anti-environmental results, but they are explained more by the Court’s overwhelming hostility toward the private enforcement of statutes, rather than an anti-environmental bias. Adding insult to injury, in one of the rare victories for private environmental plaintiffs in those decisions, Justice Kennedy queried whether citizen suits intrude on the President’s Article II executive power and violate the separation of power principles. While other Justices have raised the same concern, Justice Kennedy’s invitation is particularly significant because he is a swing vote in …

Revisiting The Lyons Den: Summers V. Earth Island Institute's Misuse Of Lyons's Realistic Threat Of Harm Standing Test, Bradford Mank

Faculty Articles and Other Publications

In Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), the majority and dissenting opinions disagreed about how to apply the “realistic threat” test set forth in Los Angeles v. Lyons, 461 U.S. 95, 107 (1983)). According to Justice Scalia’s majority opinion in Summers, the plaintiff organizations did not have standing to obtain injunctive relief because they failed to prove that their members were likely in the near future to hike on government land on which the Forest Service conducted allegedly illegal sales of timber without public notice and comment and that the facts alleged by …

Equal Standing With States: Tribal Sovereignty And Standing After Massachusetts V. Epa, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to "special solicitude" in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to "special solicitude" as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. …

Summers V. Earth Island Institute Rejects Probabilistic Standing, But A 'Realistic Threat' Of Harm Is A Better Standing Test, Bradford Mank

Faculty Articles and Other Publications

In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies …

Standing, On Appeal, Amy J. Wildermuth, Lincoln L. Davies

Articles

Scholarly criticism of standing doctrine is hardly new, but a core problem with standing jurisprudence remains overlooked: How do parties challenging administrative decisions factually prove that they have standing on appeal when appellate courts normally do not conduct fact finding? This Article attempts to tackle that problem. It combines a four-pronged normative procedural justice model with an empirical study of appellate cases to conclude that (1) although this issue arises in a relatively narrow set of cases, the number of such cases is growing and (2) existing judicial solutions to the problem are deficient. Thus, after exploring several options — …

Standing And Statistical Persons: A Risk-Based Approach To Standing, Bradford Mank

Faculty Articles and Other Publications

This Article proposes that any individual has standing to challenge government action that exposes her to an increased lifetime risk of 1 in 1 million or greater of death or serious injury. Because most regulation involves statistical probabilities of harm, a plaintiff challenging a government regulatory action or inaction as insufficiently protective cannot demonstrate that he or she would likely be harmed by the allegedly inadequate regulation, but merely that a different regulation might reduce the probability of future harm. The beneficiaries of a suit seeking better government regulation are, therefore, statistical persons rather than identifiable persons. By contrast, standing …

Standing And Future Generations: Does Massachusetts V. Epa Open Standing For Generations To Come?, Bradford Mank

Faculty Articles and Other Publications

Many issues, especially potential environmental catastrophes caused by climate change, affect not just the living, but also future generations. The bias in our political system against addressing the interests of future generations poses serious obstacles in solving long-term environmental problems such as global warming. Because future generations cannot vote, unelected federal judges are more suited to protect their interests than the political branches.

An important question is whether anyone has standing to sue on behalf of future generations in the federal courts. The Supreme Court's Article III standing test requires plaintiffs to demonstrate that they have personally suffered an injury …

Ideological Plaintiffs, Administrative Lawmaking, Standing And The Petition Clause, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

In the 1992 Lujan v. Defenders of Wildlife decision, Justice Scalia declared that business interests subject to regulation had automatic standing to challenge regulations in court, but that where “the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” This article explores the impact this differential standard for court access has on ideologically-motivated public interest plaintiffs, and suggest heightened scrutiny of standing rules under the Petition Clause of the First Amendment based on the viewpoint differential effect of current standing doctrine. This …

God, Gaia, The Taxpayer And The Lorax: Standing, Justiciability, And Separation Of Powers After Massachusetts And Hein, Jonathan H. Adler

Faculty Publications

The Supreme Court decided two important standing cases during the October 2006 term: Hein v. Freedom from Religion Foundation and Massachusetts v. EPA. The latter is important for what it did, the former for what it did not do. Whereas Hein hewed closely - perhaps too closely - to prior standing precendents, the Massachusetts decision substantially departed from existing precedent and established a new doctrine of special solicitude to state standing. Both decisions involved generalized grievances about federal government policies that affect citizens as a whole, but point in opposite directions. In many respects the opinions are in significant tension …

Massachusetts V. Epa And The Future Of Environmental Standing In Climate Change Litigation And Beyond, Randall S. Abate

Journal Publications

This Article focuses on the future scope of environmental standing after Massachusetts v. EPA. Injury in fact has been and remains the most controversial component of the environmental standing test within and outside the context of global environmental harms. Part I of this Article discusses the background context of environmental standing for global environmental harms and its corresponding origins in procedural and substantive injury claims in cases involving purely domestic environmental harms. Part II examines the landmark decision in Massachusetts v. EPA and considers how it confirms and extends standing jurisprudence for global environmental harms, yet fails to resolve some …

Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts V. Epa's New Standing Test For States, Bradford Mank

Faculty Articles and Other Publications

In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Supreme Court held that carbon dioxide (CO²) and other greenhouse gases (GHGs) are air pollutants within the meaning of the Clean Air Act (CAA). Although its decision on the merits is important, the Court's conclusion that Massachusetts had standing to file suit because states are entitled to more lenient standing criteria may have a greater impact in the long-term on legal doctrine. In Massachusetts, the Supreme Court for the first time clearly gave greater standing rights to states than ordinary citizens. The Court, however, failed to explain to what extent …

Slides: What's In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: James R. Rasband, J. Reuben Clark Law School, Brigham Young University

23 slides

What’S In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

14 pages.

Includes bibliographical references

"James R. Rasband, Associate Dean of Research & Academic Affairs and Professor of Law, J. Reuben Clark Law School, Brigham Young University"

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Warming Up To Climate Change Litigation, Jonathan H. Adler

Faculty Publications

The surprise in Massachusetts v. EPA was not that it was a close, hotly contested case. Rather, the surprise was the facility and ease with which the Court majority dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens' majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the United States Environmental Protection Agency. Under the Court's new interpretation, the Clean Air Act ("CAA" or "the Act") provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to …

Justice Scalia's Footprints On The Public Lands, Bret C. Birdsong

Scholarly Works

This article explores Justice Scalia's views of judicial review of administrative action, as revealed in his writings on public land law, as both a scholar and a Supreme Court justice. It examines and explains why Professor Scalia favored judicial review of public land administration while Justice Scalia seems to abhor it. In a sweeping law review article published in 1970, Professor Scalia argued that the doctrine of sovereign immunity historically did not apply in public lands cases. On the Court he has penned two of the most significant decisions addressing judicial review of public lands administration, each of them imposing …

Is Voting Necessary? Organization Standing And Non-Voting Members Of Environmental Advocacy Organizations, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

This article will examine the law of standing, and specifically, the conflicting decisions concerning the importance of voting rights in order to establish organizational standing. The article concludes that voting rights should not be essential to the assertion of representational standing. Nevertheless, the article will also consider alternate forms of organization that will improve an organization's chances of establishing representational standing, while addressing the concerns that lead organizations to avoid a voting membership in the first place.

The Law Of Words: Standing, Environment, And Other Contested Terms, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), exposes fundamental incoherencies within environmental standing doctrine, even while it ostensibly makes standing easier to prove for plaintiffs in environmental citizen suits. According to Laidlaw, an environmental plaintiff needs only to show personal injury to satisfy Article III's standing requirement; she need not show that the alleged statutory violation actually harms the environment. This Article argues that Laidlaw's distinction between injury to the plaintiff and harm to the environment is nonsensical. Both the majority and dissent in Laidlaw incorrectly assume that there exists an objective …