A FIGHTING STANCE IN ENVIRONMENTAL JUSTICE LITIGATION.

• Author: Todd, Jeff

1. INTRODUCTION 559 II. AN OVERVIEW OF ENVIRONMENTAL 565 JUSTICE LITIGATION A. Corrective Injustice: The 567 Challenges of Environmental Justice Litigation B. Changing the Law Through 570 Environmental Justice Litigation C. Procedural Hurdles: The 573 Motion to Dismiss 1. Justiciability Doctrines: 574 Political Question and Standing 2. Failure to State a Claim 577 Upon Which Relief Can Be Granted III. A RHETORIC OF STASIS: 579 CLASSICAL THEORY WITH CONTEMPORARY INSIGHTS A. The Basics of Stasis Theory 579 B. Assuming a Fighting Stance 584 1. The Stases of Conjecture 584 and Definition: The Higher 2. The Stasis of Qualification: 585 Justice, Honor, and the Four Legal Sub-Stases 3. The Stasis of Procedure: 588 The Defendant Creates Multiple Issues by Shifting the Ground, but the Judge Chooses the Issue IV. STASIS THEORY APPLIED TO 592 ENVIRONMENTAL JUSTICE LITIGATION A. A Weak Conjectural 592 Argument Lets Defendants Win Dismissal by Shifting the Ground to Procedure: Native Village of Kivalina v. ExxonMobil Corp B. Surviving and Thriving 599 by Assuming a Fighting Stance in the Lower Stasis of Qualification: Juliana v. United States V. CONCLUSION 609 I. INTRODUCTION

   Common law torts, constitutional provisions, as well as civil rights and environmental statutes have limited efficacy for remedying the harms done to environmental justice communities. (1) Accordingly, their attorneys file suit not only to obtain relief but also to urge courts to modify the common law or to expand civil rights or to interpret a statute in new ways. (2) Defendants often respond by moving to dismiss, with one ground that the court does not have subject matter jurisdiction, such as the plaintiffs' lack of standing or because of the political question doctrine. (3) The defendants also assert that plaintiffs fail to state a claim, such as if common law causes of action are preempted or displaced or if the plaintiffs cannot enforce a statute. (4)

   To avoid the catch-22 that highlighting corrective injustice creates the grounds to perpetuate it, plaintiffs must decide how they will frame their lawsuit. (5) If they fear that courts will not stray far from settled law when a case raises controversial political and moral issues, (6) plaintiffs might adopt a conservative strategy by employing neutral language and familiar causes of action. (7) Such language would reinforce a framing of the case as needing little more than application of established black-letter law. (8) Some commentators, however, urge plaintiffs to tap into the broader environmental justice narrative and to tell the court a story that features sympathetic protagonists facing a villainous obstacle. (9) After all, the story of environmental justice is compelling because it pits minorities and the poor against rich and powerful adversaries. (10) Individual narratives include African-American communities disproportionately targeted for the siting of waste facilities and hazardous operations, (11) low-income residents of New York City public housing affected by mold and lead that the housing authority failed to address and remediate, (12) and indigenous peoples in the Arctic losing not only their land but their traditional way of life because of worsening winter storms and eroding sea ice related to anthropogenic climate change. (13) These stories provide the emotional basis for the plaintiffs to appeal to and persuade the judge to be bold and creative in applying the law to correct the injustice. (14)

   While the second approach seems riskier, literary and rhetorical theory supports it as more effective, at least for plaintiffs asserting novel legal claims. For example, some commentators have analyzed the filings and opinions in environmental cases and concluded that courts sometimes respond favorably to plaintiffs' narratives, including by incorporating the plaintiffs' environmental tropes and allegories into their opinions. (15) Others detail cases where the plaintiffs' indigenous or minority identity was relevant to resolution of the claim. (16) Another builds upon these to describe how plaintiffs have a better chance of surviving a motion to dismiss by arguing environmental injustice rather than a legal entitlement. (17) That article applies the new rhetoric of Chaim Perelman--who considers questions of justice and procedure in the adjudication of legal disputes--to explicate the pleadings, motions, and opinions in two similar climate justice cases. (18) The plaintiffs in Native Village of Kivalina v. ExxonMobil Corp. (19) downplayed their status as indigenous peoples losing their cultural identity and instead framed a complex lawsuit against two dozen energy and utility companies as a straightforward nuisance, a portrayal that the court rejected when it dismissed for lack of standing and the political question doctrine. (20) By contrast, the plaintiffs in Juliana v. United States (21) created a conflict of values by embracing the novelty of their due process and public trust doctrine claims and highlighting the injustice of their situation, and the court denied the defendants' motions to dismiss even while recognizing that the case was "no ordinary lawsuit." (22)

   Perelman may be "the head of the canon of twentieth-century rhetorical thought," but rhetoricians writing 2,000 years before him also considered the effect of arguments about justice and procedure in legal cases, so their works might provide additional insight into environmental justice litigation. (23) In classical Greek and Roman rhetoric, litigants relied upon the theory of stasis--or status in Latin--as a formulaic means to identify the likely issues in dispute and assume a fighting stance upon the strongest ground. (24) Stasis theory dominated rhetorical invention from the second century B.C. through the end of the Renaissance and continues to influence rhetorical studies, (25) such as with more nuanced understandings of the potential for the stasis of procedure to shift the argument away from substantive issues and of the role of the arbiter in choosing between disputed issues. (26)

   This Article applies stasis theory to environmental justice litigation to argue that plaintiffs should fight their cases in the stasis of qualification because that gives them a better chance of prevailing in a motion to dismiss. Part II opens with environmental justice litigation, specifically how the inadequacy of existing substantive laws pushes environmental justice litigators to use lawsuits to change the law but also how that inadequacy creates grounds for defendants to move for dismissal. Part III summarizes stasis theory. Although stasis can seem complicated when writers use Greek and Latin rather than English terms (27) or when they go into detail with the recommended common arguments or topoi that formed a large part of the classical treatises, (28) a distillation of the major writers and their contemporary commentators reveals a compact structure and straightforward application. (29) In a lawsuit, a question needing judicial resolution raises potential issues of conjecture, definition, qualification, and procedure, so the advocate must identify the most likely issue upon which the judge will rule and then develop arguments and counterarguments around it. (30) If a party lacks strong arguments for an issue, then that identification might require conceding a preferred ground--such as one based only upon whether the evidence shows that the defendant did some act--and instead basing the argument in a lower stasis--such as whether the spirit, if not the letter, of the law supports the claim. (31) Though conceding the higher stases is not ideal, the advocate at least assumes a fighting stance upon a strong rather than shaky ground because an appeal to justice might better connect with the judge and thus lead to a favorable ruling. (32)

   Part IV applies stasis theory to the pleadings, motions, and opinions in Kivalina and Juliana. The Kivalina plaintiffs framed the tort of federal common law nuisance as settled law when applied to climate change by grounding their case in the conjectural stasis as a dispute of facts, but the defendants prevailed in the motion to dismiss by shifting to procedural grounds and raising sufficient doubt that judicial action, as opposed to legislation, could provide the remedy. (33) By contrast, the Juliana plaintiffs framed their argument in the lower stasis of qualification by telling personal stories of injustice and demanding a new right to an environment capable of sustaining human life and a broad expansion of the public trust doctrine. (34) This impassioned plea for justice not only resonated with the judge, but it also gave the court a basis for denying the defendants' procedural challenges. (35) The Article concludes in Part V.

2. AN OVERVIEW OF ENVIRONMENTAL JUSTICE LITIGATION

   The idea of environmental justice began with distributive injustice: the politically and economically powerful exploited environmental laws in ways that left "urban ghettos, barrios, ethnic enclaves, rural 'poverty pockets,' and Native American reservations" bearing the burdens from waste facilities, incinerators, and smelters. (36) In response, the communities initiated grassroots challenges against companies that conducted, and governments that permitted, environmentally hazardous activities where they lived, worked, played, and went to school. (37) The movement spread to other countries because nations like the U.S. benefit from trade and investment treaties that incentivize multinational corporations to conduct heavy manufacturing, mineral extraction, and chemical-intensive agriculture in Latin America and Asia where the resulting environmental harms remain concentrated in poor and indigenous communities. (38) Similarly, climate justice advocates point to studies showing that the richest companies in the world are the largest anthropogenic emitters of greenhouse gases, (39) but "the global impacts of...