Some Thoughts on the Constitution and the Environment

• Date: 01 October 2010

40 ELR 10974 ENVIRONMENTAL LAW REPORTER 10-2010

I. The Senate Filibuster

I think Richard La zarus was right when he said that the big-

gest constitutional impediment to environmental law in the

United States may be Article I, §5 of the U.S. Constitution,

which provides that each House of Congress may make its

own rules. We see t hat clearly in the “Sacred Quest for 60,”

as we try to craft a climate bill that c an make it through t he

U.S. Senate.

ere is a second, more subtle way in which the Rule of

60 makes things more dicult, which is that it muddles the

head count, and thus accountability in general. A 60-vote

threshold gives senators the opportunity to say, “Well, sure,

I’ll vote for it,” knowing that they may never have to, because

leadership rarely will take a vote on bills subject to a libuster

unless it has 60 votes locked up. us, many senators can

indicate support for a bill, while knowing t he odds a re that

they will never have to go on record and actually vote for it.

And if, for one procedural reason or another, the issue is then

recast into a form requiring a simple majority, anything ca n

happen. You may start out with a 58-vote head count when

you need 60, and then suddenly have 48 when you’re looking

for 51 on the same issue. Welcome to Washington.

Apropos of Senate whip counts, as soon as the Waxman-

Markey climate bill passed the U.S. House of Representa-

tives last year, I edited the automatic signature at the bottom

of my e-mails to include the statement: “Waxman-Markey:

if you don’t have 60, you’d better have 41.” If you don’t have

60 votes to pass a bill, you’d better have 41 to block whatever

bad thing the Senate may come up with instead. So, I put

that on my e-mail because I wanted people to keep that in

mind: If you don’t have 60, you’d better have 41.

II. Standing

Ed Kneedler was ta lking about the Article III standing issue

in Summers v. Earth Island Institute.1 I think that there is a

legitimate sepa ration-of-powers issue lurking in Article III,

when one branch of the federal government—Congress—

authorizes suit against another branch—the executive—and

makes the third branch—the judiciary—the arbiter of those

1. 129 S. Ct. 1142, 39 ELR 20047 (2009).

disputes. However, as it has evolved and expanded, I think it

has become one of the most profoundly antidemocratic fea-

tures of American law. Citizens go to court seeking to hold

the executive branch accountable to the law. ey ask fed-

eral courts, neutral third parties, to decide either that: “Yes,

the executive branch followed the law,” or “No, the execu-

tive branch didn’t follow the law.” And every time a court

declines to nd standing, t hat court is preventing citizens of

the United States from holding the executive branch account-

able to the very laws that those citizens, via their representa-

tives in Congress, created. So, keep in that mind when you

hear all that high-ying rhetoric about separation of powers.

I have a second criticism of Article III standing doc-

trine. I said that there is a core separation-of-powers con-

cern when federal courts are adjudicating cases brought

by citizens against the executive branch pursuant to an act

of Congress. However, what that has to do with litigation

exclusively between private parties is utterly beyond me. And

yet, somehow the federal courts have enthusiastically taken

this whole Article III standing analysis involving litigation

against the executive branch and dumped it onto litigation

solely between private parties.

And lastly, as to Summers itself, I’m not sure you quite

caught this part of it. e reg ulation being challenged in

Summers exempted certain timber sales in national forests

from the requirement of pubic notice and comment. e

point of the regulation was to deprive the public of advance

notice of these projects, a truly antidemocratic step. And the

U.S. Forest Service argued, and the U.S. Supreme Court

endorsed, the principle that citizens don’t have standing to

challenge logging plans for these projects unless they can

say: “We use that specic part of the forest,” but the Forest

Service doesn’t provide any public notice before it logs those

areas. In other words, unless the citizens are literally standing

there while the logging is going on, they will never be able to

establish standing to challenge the project. Neat, huh?

III. Climate Standing

Standing to sue for climate change-related injury was obvi-

ously a major issue in Massachusetts v. EPA.2 Massachuset ts

2. 549 U.S. 497, 37 ELR 20075 (2007).

Some Thoughts on the Constitution

and the Environment

by David Bookbinder

David Bookbinder is the former Chief Climate Counsel, Sierra Club.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.