by publius
Scott Lemieux has already posted on Summers – the standing case the Supreme Court released yesterday. To me, Summers illustrates just how important it is for public interest litigators to pick the “right facts.” Here, the environmental organization had to fight on very unfavorable terrain – and they lost. To borrow loosely from Holmes, bad facts make bad law.
Very briefly, the Court in Summers said that various environmental organizations lacked standing to challenge a Bush era Forest Service regulation.
Let’s say that a fire burns through a big chunk of a national forest. The Forest Service can arrange to sell the timber, but they must first allow for a notice, comment, and appeal process. In 2003, the Forest Service passed a regulation exempting small tracts of land from these procedural requirements.
In Summers, a fire had occurred in a national park and the Forest Service authorized a timber salvage sale for 238 acres of land (which was small enough to be exempted). Environmental groups sued, trying to get the regulation invalidated.
Here’s the key – the parties eventually settled their dispute before the court had ruled on the regulations. Despite that fact, the district court (and 9th Circuit) went on to invalidate the regulation even though the dispute had basically been settled. Scalia reversed, concluding that the environmental groups lacked standing because the case had settled.
The problem, then, is that these facts were very bad terrain to fight a standing battle on. Standing is important because it’s the doctrine conservative Justices have used to prevent citizens from suing for environmental violations (the idea is that you yourself aren’t necessarily injured by harms to the environment). The stricter that standing requirements are, the harder it is for public interest groups to bring litigation. That’s the political dimension here (in fact, I’d argue that standing is approximately 95% politics).
You can see the problem – the environmental groups were not only fighting a tough standing battle, they were doing it in a case where the underlying dispute had already been settled. Strategically, it’s just a horrible case to bring before the Court. I don’t know the details – but if the environmental groups had a chance to get out earlier, they should have done so and waited for a better case. But maybe the issue was forced on them – I don’t really know.
But the larger point is that picking the right case is a huge deal. Lawrence v. Texas is a great example – the facts of that case were so absurd that it was very favorable terrain to fight on.
Anyway, maybe the Court was right, maybe it was wrong – it sort of depends on if you buy the idea of strict standing requirements in the first place. But regardless, the facts couldn’t have been worse for the environmental groups.
This is a nitpick, but just for the record, the fire in Summers must have been in a national forest, not a national park. National parks are under the control of the Department of the Interior. National forests are under the Forest Service, which is in the Department of Agriculture.
“Standing is important because it’s the doctrine conservative Justices have used to prevent citizens from suing for environmental violations”
It’s the doctrine ALL Justices use to keep citizens from suing to enforce ANYTHING they don’t want to be bothered to uphold. It’s hardly just conservative Justices who resort to standing when they don’t want to reach the merits of a case.
The liberal wing of the court restricting standing? Doesn’t sound familiar, but Con. Law was many years ago. A few cites please?
I doubt any cites will be forthcoming, Francis. It is, in fact, “just conservative Justices who resort to [unduly restrictive interpretations of] standing when they don’t want to reach the merits of a case.” It’s how they roll.
I think a much better case demonstrating this point is Kelo, because it compares so closely with Midkiff, and O’Connor wrote an opinion in both.
They’re the exact same eminent domain case, but Midkiff is a 9-0 decision and Kelo is 5-4, solely because the libertarian thinktank that prosecuted Kelo cherrypicked a case defending a small homeowner against Pfizer and a corrupt zoning board, whereas Midkiff took land from Hawaiian monarchy, and well, Down With The Man! and all that.
yes – kelo is a great example too. agreed on that
Picking the plaintiff or defendant is a time-honored tradition. Ever wonder why Plessy concerned someone who had only one black great-grandparent? Or why the law-school integration cases concerned Oklahoma and Texas, rather than deep-south states? For a good article on Heller, another great example, see this New York Times article.
From my brief skim of Earth Island, it looks like the fatal error was not joining in the government’s motion to dismiss after the case was settled. Or in settling the case to start with. Even if the government withdrew its planned sale, the voluntary cessation exception to mootness might have allowed a court to reach the merits.
The liberal wing of the court restricting standing? Doesn’t sound familiar, but Con. Law was many years ago. A few cites please?
Not to provide cites, or anything, but at the core, the standing doctrine involves a matter of common sense that is essential from every ideological viewpoint. You wouldn’t want the responsibility for arguing against this regulation to go to some antienvironmentalist, who got his lawsuit in first, then rolled over.
The differences between the Midkiff and Kelo fact patterns are a lot deeper than just whose land was being taken.
The differences between the Midkiff and Kelo fact patterns are a lot deeper than just whose land was being taken.
I look forward to the fruits of the fevered research — no doubt taking place at this very moment — attempting to find some basis for this brilliant assertion.