Posted on June 9, 2016 by James May
Justice Scalia’s jurisprudence had a huge impact on environmental law. Part I focuses on standing. Part II (a forthcoming post) then turns to takings and Administrative Law.
Justice Scalia’s most lasting legacy on environmental law is how his jurisprudence makes it more difficult for environmental plaintiffs to demonstrate constitutional standing under Article III of the Constitution. Since at least Sierra Club v. Morton, plaintiffs needed to show that they possessed an “injury in fact,” which could be commercial, economic, aesthetic, or environmental. Raising the bar, Scalia stated that plaintiffs must demonstrate at an “irreducible minimum”: (1) imminent and concrete “injury-in-fact” that is (2) fairly “traceable” to the defendant’s actions, and (3) “redressible” by the court. Applying this standard, Scalia found standing lacking in Lujan v. National Wildlife Federation, because using land “in the vicinity of” affected federal land wasn’t sufficient, and in Lujan v. Defenders of Wildlife, due to the absence of what has come to be known as “tickets in hand” to return to the places of alleged injury. Dissenting in Defenders of Wildlife, Justice Blackmun, bemoaned Scalia’s new requirements as “a slash-and-burn expedition through the law of environmental standing.”
Justice Scalia then dissented in Friends of the Earth v. Laidlaw Environmental Services v. EPA, when the majority held that it is injury to the person, and not the environment, that matters in standing analysis. There, he complained that the majority had proceeded “to marry private wrong with public remedy in a union that violates traditional principles of federal standing—thereby permitting law enforcement to be placed in the hands of private individuals. I dissent from all of this.”
Justice Scalia was skeptical that the effects of climate change could ever support standing, even for states. Speaking from his dissent in Massachusetts v. EPA, Scalia would have found that petitioning states lacked standing to challenge the U.S. Environmental Protection Agency’s (EPA’s) failure to institute rulemaking to regulate greenhouse gas emissions from stationary sources, thereby rejecting that states are entitled to “special solicitude” in standing analysis.
Justice Scalia was more inclined to find standing when litigants challenged environmentally-protective agency action. For example, writing for a plurality, he found that alleged injury to economic interests to water districts and to corporate ranching and agricultural interests was sufficient injury in Bennett v. Spear. Moreover, he held that homeowners possessed both standing and a cause of action to challenge an EPA-issued but not enforced administrative compliance order in Sackett v. EPA.
Concur or not, Justice Scalia’s standing test took hold and stands firm. For further reading on this subject, please see Principles of Constitutional Environmental Law.