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

Date01 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
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.
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 rest rictive
doctrine has profound implications. But the modern doctrine
is an aberration; this Ar ticle shows that for most of American
history there were no c omparably severe sta nding 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 d issent, this Art icle then
charts a path forward, and argues for the pa ssage 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 buildin g, the li ne extending out the hug e,
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 gat hered to hear two lawyers do batt le
in what they believed to be perhaps the most importa nt
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 va l-
ley from being turned into a ski resort, but the arg uments
before the Justices in 1971 barely reached the merits of the
case. Rather, the lawyers’ arg uments 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 ea rly
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 Harla n 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 c ase. 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 liberali zing
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®,, 1-800-433-5120.
courthou se to environmental plainti s every where.8 Ye t,
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 cor porations.10
Justice Douglas’ powerful rhetoric immediately cap-
tured the popular imagination,11 but his colleague Jus-
tice Harry Black mun recognized at the time that it was
not actually that radical a proposal. Practically speaking,
according to Justice Douglas, a river could appea r 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’ ana lysis
is just an imaginative and novel method of arriving at
Stew art’s r es 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 ordinar y, run-of-the-mill litigation. e
case poses—if only we choose to acknowledge and reach
them—signi cant aspects of a w ide, growing, and dis-
turbing problem, that is, the Nation’s and the world’s
deteriorating environment with its res ulting ecologica l
disturbanc es. Must our law be so rigid and our procedural
concepts so inexible th at we render ourselves helpless
when the existing me thods and the trad itional 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, Justic e 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 indiv iduals
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 sta nding 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 Bl ack mun,
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 Consider ing the c oming envi ronmental catast rophe
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®,, 1-800-433-5120.

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