Skidmore CollegeTask Force on DivestmentCommunity ForumFebruary 25, 20151 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