Standing for Everyone: Sierra Club v. Morton, Justice Blackmun's Dissent, and Solving the Problem of Environmental Standing

• Date: 01 January 2019

1-2019 NEWS & ANALYSIS 49 ELR 10063

Standing for

Everyone:Sierra

Club v. Morton,

Justice Blackmun’s

Dissent, and

Solving the

Problem of

Environmental

Standing

by Scott W. Stern

Scott W. Stern is a historian and the author of e Trials

of Nina McCall: Sex, Surveillance, and the Decades-Long

Government Plan to Imprison “Promiscuous” Women (2018).

He is currently a law student at Yale University.

Summary

e modern doctrine of environmental standing prevents

many worthy plaintis from presenting their cases in court.

Especially in the context of climate change, this restrictive

doctrine has profound implications. But the modern doctrine

is an aberration; this Ar ticle shows that for most of American

history there were no comparably severe standing require-

ments, that the Supreme Court Justices of the mid-20th

century who transformed the doctrine did so inadvertently,

and that Justices’ invocation of “tradition” in justifying the

modern doctrine is simply incorrect. e Article pays specia l

attention to the seminal standing c ase of Sierra Club v. Mor-

ton. ough remembered now for Justice Douglas’ bold dis-

sent arguing that tree s should have standing, the truly radica l

dissent belonged to Justice Blackmun. Drawing on two for-

gotten yet crucial insights from his dissent, this Article then

charts a path forward, and argues for the passage of state-

level environmental statutes that grant standing even in the

absence of an injury. It concludes by proposing a model law.

Wednesday, November 17, 1971, was a clear, chilly

day in Washington, D.C.1 A crowd of people

jostled to get into Cass Gilbert’s majestic U.S.

Supreme Court building, the line extending out the huge,

handsome doors, down the marble steps, and onto the

street below.2 is crowd had ventured to the Court that

morning to hear the oral arguments for a case. But not just

any case: they had gathered to hear two lawyers do battle

in what they believed to be perhaps the most important

environmental lawsuit of the century, Sierra Club v. Mor-

ton.3 Two years earlier, the Sierra Club had sued the federal

government in an attempt to stop a beautiful glacial val-

ley from being turned into a ski resort, but the arguments

before the Justices in 1971 barely reached the merits of the

case. Rather, the lawyers’ arguments mostly concerned

standing—should the Sierra Club have even been able to

bring this lawsuit in the rst place?

Uncontroversial for most of American history, standing

for decades had been much discussed but little u nderstood.

Judges began restricting who had standing in the early

20th century, and by the early 1970s, the standing doctrine

was muddled, confused, and strict: fewer and fewer plain-

tis had standing to sue. Standing doctrine was, as Justice

John Marshall Harlan II had written a few years earlier, “a

word game played by secret rules.”4

Seven months after hearing oral arguments, a closely

divided Court ruled that the Sierra Club did not have

standing to sue in this case. However, Justice Potter Stew-

art pointedly informed the Club that it could easily x

this. e Club had based its arguments for standing on

its well-established interest and expertise in environmen-

tal matters; if the Club could prove that its members had

suered a personal “injury-in-fact,” then those members

could have standing to sue.5 Such an injury did not have

to be physical or economic; it could be the result of harm

to the Club members’ “aesthetic and recreational” values.6

So, if Club members enjoyed hiking or camping in the

valley, the threatened destruction of that valley would be

injury enough.7

is decision has long been celebrated as liberalizing

standing, rmly expanding the denition of injury-in-fact

to encompass noneconomic injuries and thus opening the

1. Today’s Weather Report, E S, Nov. 17, 1971, at C6.

2. M. Rupert Cutler, Sierra Club v. Hickel 94 (1972) (unpublished report) (on

le in Folder 12, Carton 6, Sierra Club Legal Defense Fund Records, Univ.

of California, Berkeley).

3. 405 U.S. 727, 2 ELR 20192 (1972).

4. Flast v. Cohen, 392 U.S. 83, 129 (1968) (Harlan, J., dissenting).

5. Sierra Club, 405 U.S. at 734-35.

6. Id. at 735.

7. Id.

Editor’s Note: is Article is abridged and adapted from Scott W.

Stern, Standing for Everyone: Sierra Club v. Morton, Supreme

Court Deliberations, and a Solution to the Problem of Environmental

Standing, 30 F J. E. L. 20 (2018).

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

49 ELR 10064 ENVIRONMENTAL LAW REPORTER 1-2019

courthouse to environmental plaintis everywhere.8 Yet,

Sierra Club is probably more famous for the dissent writ-

ten by Justice William O. Douglas. Justice Dougla s argued

that “environmental objects” should be able “to sue for their

own preservation.”9 Rivers, valleys, trees, beaches—all of

these natural objects should be tre ated like other inanimate

objects to which courts have given legal personhood, like

ships or corporations.10

Justice Douglas’ powerful rhetoric immediately cap-

tured the popular imagination,11 but his colleague Jus-

tice Harry Blackmun recognized at the time that it was

not actually that radical a proposal. Practically speaking,

according to Justice Douglas, a river could appear in

court just as ships or corporations did—that is, repre-

sented by “people who have a meaningful relation to that

body of water.”12 is was not too far from Justice Stew-

art’s majority opinion, which also found a way to allow

those with a meaningful connection to the valley (i.e.,

the Sierra Club) to sue for its protection. is led Justice

Blackmun and his clerks to conclude, “Douglas’ analysis

is just an imaginative and novel method of arriving at

Stew art’s res ult.”13

Rather, the more radical dissent belonged to Justice

Blackmun. “If this were an ordinary case, I would join the

opinion and the Court’s judgment and be quite content,”

he wrote.14

But this is not ordinary, run-of-the-mill litigation. e

case poses—if only we choose to acknowledge and reach

them—signicant aspects of a wide, growing, and dis-

turbing problem, that is, the Nation’s and the world’s

deteriorating environment with its resulting ecological

disturbanc es. Must our law be so rigid and our procedural

concepts so inexible that we render ourselves helpless

when the existing methods and the traditional concepts

do not quite t and do not prove to be entirely adequate

for new issues?15

8. See, e.g., Lisa Schultz Bressman, Procedures as Politics in Administrative Law,

107 C. L. R. 1749, 1762 (2007); Robert V. Percival & Joanna B.

Goger, Citizen Suits and the Future of Standing in the 21st Century: From Lu-

jan and Laidlaw and Beyond: Escaping the Common Law’s Shadow: Standing

in the Light of Laidlaw, 12 D E. L.  P’ F. 119, 119-20 (2001);

Andrew C. Lillie, Tenth Circuit Survey: Agency Law Barriers to Successful

Environmental and Natural Resources Litigation: Tenth Circuit Approaches to

Standing and Agency Discretion, 78 D. U. L. R. 193, 197 (2000); Da-

vid R. Hodas, Standing and Climate Change: Can Anyone Complain About

the Weather?, 15 J. L U  E. L. 451, 459 (2000); James L. Hu-

man, Symposium on the Public Trust and the Waters of the American West:

Yesterday, Today, and Tomorrow: Introduction and Overview: A Fish Out of

Water: e Public Trust Doctrine in a Constitutional Democracy, 19 E.

L. 527, 546 n.82 (1989).

9. Sierra Club, 405 U.S. at 741-42 (Douglas, J., dissenting).

10. Id. at 742-43.

11. See correspondence in Club Memberships, Sierra Club, 1972-1977 Folder,

Box 1765, William O. Douglas Papers, Library of Congress [hereinafter

Douglas Papers]; Miscellaneous Memos, Cert Memos, Vote of Court Fold-

er, Box 1545, Douglas Papers.

12. Sierra Club, 405 U.S. at 743 (Douglas, J., dissenting).

13. George T. Frampton Jr., Re: Sierra Club No. 70-34, at 6 (Mar. 30, 1972)

(on le in Folder 7, Box 137, Harry Blackmun Papers, Library of Congress

[hereinafter Blackmun Papers]).

14. Sierra Club, 405 U.S. at 755 (Blackmun, J., dissenting).

15. Id. at 755-56.

Justice Blackmun proposed two alternatives to Justice

Stewart’s ruling. First, the Court could nd for the Sierra

Club “on condition that the Sierra Club forthwith amend

its complaint to meet the specications the Court pre-

scribes for standing.”16 Second, Justice Blackmun would

“permit an imaginative expansion of our traditional con-

cepts of standing in order to enable an organiz ation such as

the Sierra Club, possessed, as it is, of pertinent, bona de,

and well-recognized attributes and purposes in the area

of environment, to litigate environmental issues.”17 is

second option apparently would have allowed individuals

or groups with a deep interest in the environment to have

standing to bring environmental cases even in the absence

of an injury-in-fact.

In the decades following Sierra Club, the Supreme Cou rt

sharply restricted standing for environmental plaintis. In

1992, Justice Antonin Scalia wrote for the Court in Lujan

v. Defenders of Wildlife,18 articulating a new test that, while

still allowing for aesthetic or recreational injuries, made

attaining standing considerably harder: a plainti must

demonstrate that he or she has suered (1)a concrete, par-

ticularized, a nd actual or imminent “injury in fact,” which

is (2)“fairly traceable” to the defendant’s conduct, and

(3)which can be redressed by a favorable court decision.19

In Lujan, the Court also ruled, for the rst t ime ever,20 th at

an explicit congressional grant of standing to “citizens” to

sue for a violation of an environmental statute was uncon-

stitutional.21 It is apparent that Justice Sca lia’s opinion was

motivated, in part, by his “undisgui sed hostility toward the

purposes of the environmental laws.”22 Justice Blackmun,

in the twilig ht of his ca reer, accused Justice Scalia of going

on a “slash-and-burn expedition through the law of envi-

ronmental standing.”23

Today, environmental standing remains incredibly

restrictive. is is a shame, for it prevents many worthy

environmental plaintis from even presenting their cases

in a court of law; it allows those who would desecrate and

despoil the environment for prot to do so with impuni-

ty.24 Considering the coming environmental catastrophe

that climate change will almost certainly usher in, this is

a shame indeed. Yet, how to x environmental standing?

How to free ourselves from such a complicated, convo-

luted, conservative doctrine?

In this Article, I advocate for the elimination of the

injury-in-fact requirement, at least in environmen-

tal cases. To do so, I thoroughly retrace the history of

standing in general, and of environmental standing in

16. Id. at 756-57.

17. Id. at 757.

18. 504 U.S. 555, 22 ELR 20913 (1992).

19. Id. at 560.

20. Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,”

and Article III, 91 M. L. R. 163, 165 (1992).

21. Lujan, 504 U.S. at 573-77.

22.Percival & Goger, supra note 8, at 120; see also Antonin Scalia, e Doctrine

of Standing as an Essential Element of the Separation of Powers, 17 S

U. L. R. 881, 896-97 (1983).

23. Lujan, 504 U.S. at 606 (Blackmun, J., dissenting).

24. See Holly Doremus, e Persistent Problem of Standing in Environmental

Law, 40 ELR 10956 (Oct. 2010).

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.