GREENwire By Pamela King | 07/19/2021
The biggest obstacle a conservative Supreme Court could pose to the environment may not be rulings against clean air, pure water and a healthy climate.
It may be a refusal to allow environmentalists into the courtroom.
Under the standing doctrine, a court can toss out lawsuits in their early stages if it finds that a legal challenger has not presented a concrete harm that meets the standard of a "case" or "controversy" eligible for judicial review under Article III of the Constitution.
Some conservative jurists may view issues like climate change — which has many contributors and affects every person on the planet — as too diffuse to address in the courts.
"The bigger the harm and the more impacts, the more difficult it is for parties to establish standing. That’s a perverse incentive for polluters," said Karen Sokol, a law professor at Loyola University in New Orleans. "If you hurt everyone, you’re no longer accountable."
Justice Amy Coney Barrett’s approach to standing was top of mind for environmentalists when she was appointed last year to replace the late Justice Ruth Bader Ginsburg. Her addition tipped the bench from a 5-4 to a 6-3 conservative majority.
In her limited record as a judge on the 7th U.S. Circuit Court of Appeals, Barrett had nixed a challenge from a nonprofit park preservation group against the construction of the Obama Presidential Center in Chicago’s Jackson Park on standing grounds.
Barrett’s potentially narrow views on standing were of particular concern to environmentalists because she was tapped to fill the vacancy left by Ginsburg, who in 2000 steered the nation’s highest bench away from a campaign by Justice Antonin Scalia — Ginsburg’s ideological opposite and Barrett’s professed mentor — to place substantial limits on who can bring a case to federal court.
During her first term on the high court, Barrett did not have an opportunity to show her hand on standing for environmentalists, but Case Western Reserve University law professor Jonathan Adler pointed to recent cases that might indicate where the court is headed on the issue.
Last month, the justices turned away a challenge by Republican-led states in California v. Texas against the Affordable Care Act on the basis that the states lacked standing for their claims. The 7-2 decision was led by Justice Stephen Breyer of the court’s liberal wing and joined by Barrett.
“You see a broad coalition of justices suggesting they are skeptical of new innovative ways to establish standing,” Adler said.
At the same time, he added, the court’s six-member conservative block isn’t speaking with one voice on the matter of standing.
While Chief Justice John Roberts has espoused a hawkish view on the issue, Justice Clarence Thomas has indicated in recent rulings that he could be an unexpected ally for green groups on standing, Adler said.
“When the court shows that it cares about standing,” he said, “folks in environmental law will be paying attention.”
‘Heads they win, tails we lose’Standing was a pet issue for Scalia during his three decades on the Supreme Court.
More:
https://www.eenews.net/articles/inside-a-legal-doctrine-that-could-silence-enviros-in-court/
