Thoughts on Bush's Supreme Court Nominee
Any thoughts on President Bush's recent Supreme Court nominee, Judge Alito? How will this new conservative affect Environmental administration?
Earthjustice posted the following: "While we are still studying his record, a few of Judge Alito’s past decisions are especially frightening. In one case, Judge Alito joined in a 2-1 ruling that denied citizens’ access to courts under the Clean Water Act, which authorizes citizens to bring a civil enforcement action against alleged polluters. Judge Alito ruled that a citizen group did not have standing to sue because it had not demonstrated that serious harm to the environment had occurred, despite the fact that the trial court had imposed a rare $2.6 million fine for the company’s violations of the Act. The Supreme Court has since rejected Alito's analysis."
Though we must ask, how long before that changes?
posted by ELS @ 6:41 PM
6 Comments:
Well, in Alito's defense, the expert testimony in that case showed that the violation of the industry's NPDES permit actually improved the quality of the water. It seemed as if the majority of the Third Circuit thought that in this situation, the EPA or NJDEP should have been responsible for enforcing the violation, not private citizens.
That might make citizens' fear leading to their disuse 'unreasonable' (shades of the Supreme Court's later decision in Laidlaw), but the panel's point in PIRG v. MEI doesn't seem to be whether the injury is one in fact.
It's looking at causation and saying that a violation of an environmental regulation can't cause an injury to a plaintiff unless it causes an environmental harm that then causes that injury to the plaintiff.
I think that opens them up to the same criticism offered in...Defenders of Wildlife, wasn't it? About forcing environmental plaintiffs to jump through extra hoops that would not be imposed on a garden-variety injured plaintiff.
I agree that the case may have come out differently had the court had the benefit of Laidlaw. Yet, I think you are misguided in what the panel is saying. There can be no causation if there is no injury in fact. In other words, does it matter who caused what if nobody is injured? The court found that the evidence presented actually benefitted plaintiffs.
The best argument that the court is wrong is that the court should not be deciding issues that were already decided. Had they been on notice that standing was still an issue, plaintiffs most likely would have found some evidence to contradict MEI's expert. Since they thought that they did not need to because standing was already settled, plaintiffs did not attempt to rebut this expert.
But loss of use of a river (loss of recreational and aesthetic enjoyment) is an injury. The only difference I see between this case and Laidlaw is that the "reasonable fear" caused by MEI's permit violation may not actually be reasonable. (Which, arguably, wouldn't so much make it less of an injury in fact, as make it unredressable by courts -- how can courts make someone's phobia go away?)
What the panel in PIRG v. MEI (and Justices Scalia and Thomas in their dissent to Laidlaw) seem to be saying is that you have to have a physical injury to the river before you can have any kind of injury in fact to the plaintiff, whether physical or aesthetic.
I get your point, and the 3rd Circuit's point, that there was no harm, and potentially there was even a benefit, to the river.
My point is that standing would work just fine with loss of use due to NPDES permit violations. The act that causes injury is the permit violation. The "injury" -- and in this case, injury that's potentially a benefit and therefore not an injury at all -- is people not using the river. Because of the permit violation.
I keep bringing up Laidlaw, even though it came after the 3rd Cir's decision, because the language in the Laidlaw dissent is almost identical to the language in PIRG v. MEI: that there must be injury to the waterway that then causes injury to the plaintiff, for the plaintiff to have standing. But standing just requires *an* injury to the plaintiff -- physical or aesthetic. Not that environmental damage occurred first.
I mostly agree with the Laidlaw majority, I think, but I see how the 3rd Cir got to its decision from Defenders of Wildlife, which goes on about needing more than a procedural injury to create standing. The 3rd Cir was looking for a procedural violation that led to a harm to a substantive interest -- water quality -- that could then create the plaintiff's harm of decreased use. And they didn't find it, as you explain, because water quality was allegedly improved rather than damaged.
wups, the second paragraph in my preceding comment got snarled up:
My point is that standing would work just fine with loss of use due to NPDES permit violations. The act that causes injury is the permit violation. The "injury" (and in this case one with an irrational basis) is people not using the river.
Post a Comment
<< Home