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Summers v. Earth Island Institute: Its Implications for Future Standing Decisions

by Bradford C. Mank

In Summers v. Earth Island Institute, the U.S. Supreme Court in a 5-4 decision written by Justice Antonin Scalia rejected the concept of organizational standing based upon the statistical probability that some members of a plaintiff organization will likely be harmed in the near future by the defendant's future actions. The Court held that the plaintiff organizations failed to establish that they would suffer an "imminent" injury necessary for standing to sue in federal courts because they could not prove the specific places and times when their members would be harmed in the future by the defendant government's allegedly illegal policy of selling fire-damaged timber without public notice and comment. By contrast, Justice Stephen Breyer's dissenting opinion in Summers would have applied a "realistic threat" test to determine if some members of the organization were likely to be harmed in the future by the defendant government's actions even if it were impossible to determine when and where those members would be harmed by those actions.


Additionally, the Summers decision arguably placed a higher standing burden on plaintiffs who challenge the government's alleged violation of a mandatory procedural requirement. In footnote seven of Lujan v. Defenders of Wildlife (Defenders), Justice Scalia's majority opinion stated that plaintiffs who may suffer a concrete injury resulting from a procedural violation by the government are entitled to a more relaxed application of both the imminent injury and the redressability standing requirements to sue in federal courts. Seventeen years after the Defenders decision, Justice Scalia's Summers majority opinion did not overrule the analysis in Defenders' footnote seven, but his opinion arguably suggested that the Court was tightening the circumstances where it would relax the imminence standing requirement in cases where a plaintiff organization alleges that its members will be harmed in the future by the government's alleged violation of procedural requirements, but the plaintiff can provide no specific allegations about where and when those violations may occur.

Remarks on Connecticut v. American Electric Power

by Hon. Peter Hall

I was told that part of the reason I was invited to speak here was that I had given a warm welcome to participants at a recent "takings" program held at the Vermont Law School. The other reason was my involvement in the recent case from my circuit that my chambers has been in the habit of referring to as the "global warming" case, and which I think the legal community now knows as American Electric Power, or AEP, as I see it referred to in cases from time to time.


One thing to get ready to speak here, that I suspect anyone would do, is look to see what relevant commentary, if any, there is out there and also how any other courts have treated the analysis, if at all, that we undertook in the AEP decision. In doing so, I violated a cardinal rule I had as a trial attorney, which was never, ever read what the media is saying about you while you're mid-trial. I was delighted to find that the district courts in my circuit cited it with approval. In Central California, however, there was one case that was perhaps due for somewhat different treatment if it went up on appeal.

The Persistent Problem of Standing in Environmental Law

by Holly Doremus

The first panel at this conference discussed standing to invoke federal court review, and related doctrines that limit access to the courts. That a standing panel should begin the day's discussion of the relationship between constitutional and environmental law is fitting in three respects. First, establishing standing is the initial step in pressing a claim in federal court. Second, standing was the issue in one of the first U.S. Supreme Court cases of the modern environmental era, and it remains the most persistent constitutional quandary for environmental law. Third, citizen standing is critical to the success of environmental law.

The early architects of statutory environmental law understood that the executive branch might not always wholeheartedly pursue the environmental goals set by the U.S. Congress. They therefore sought to ensure that interested citizens could fill that role when the government did not. Environmental citizen suits presented the courts with a new situation, one that immediately raised standing issues.

Standing is the most important gatekeeper doctrine for the federal courts, determining who can, and who cannot, invoke their jurisdiction. The Supreme Court has derived (some might say invented) the doctrine of standing from the U.S. Constitution's description of the judicial power of the United States as extending to specified "cases" and "controversies." That forecloses friendly suits or requests for advisory opinions. In order to ensure that the process will be truly adversarial, and that the legal issues "will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action," the Court requires that a would-be plaintiff show that she has suffered (1) an "injury in fact;" (2) which is "fairly traceable" to the defendant's challenged action; and (3) that it is likely that a favorable ruling would redress that injury.

Some Thoughts on the Constitution and the Environment

by David Bookbinder

I. The Senate Filibuster

I think Richard Lazarus was right when he said that the biggest 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 that clearly in the "Sacred Quest for 60," as we try to craft a climate bill that can make it through the U.S. Senate.

There is a second, more subtle way in which the Rule of 60 makes things more difficult, 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 filibuster unless it has 60 votes locked up. Thus, many senators can indicate support for a bill, while knowing the odds are 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 can 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 Representatives 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.

The Scope of Congressional Authority to Protect the Environment

by Bruce Myers, William W. Buzbee, Wm. Robert Irvin, and Michael W. Evans

Bruce Myers: I'm fortunate to be moderating a panel with three very distinguished experts. Bob Irvin is Senior Vice President for Conservation Programs with Defenders of Wildlife here in Washington, D.C. Bob leads Defenders' Conservation Programs, including field conservation, conservation policy, international conservation, and litigation. Prior to joining Defenders, Bob held a range of posts at major environmental nongovernmental organizations and in the federal government, including service as senior counsel for fish and wildlife on the Majority Staff of the U.S. Senate Committee on Environment and Public Works. Bob has written and lectured extensively on biodiversity conservation issues. He also teaches at Vermont Law School and has taught at the University of Maryland Law School.

Prof. Bill Buzbee is with the Emory University School of Law in Atlanta. Professor Buzbee directs the Emory Environmental and Natural Resources Law Program and the Emory Center on Federalism and Intersystemic Governance. Professor Buzbee's scholarship covers environmental law, administrative law, and other public law topics, with his most recent publications focusing on regulatory federalism and design issues. He has served as a visiting professor at Columbia University and at Cornell University, among other institutions. He launched Emory's Environmental Law Clinic, and he also is a founding member of the Center for Progressive Reform. Professor Buzbee has been recognized for both his legal scholarship and his teaching, and he has testified before the U.S. Congress and its committees about environmental and federalism issues.

New and Emerging Constitutional Theories and the Future of Environmental Protection

by James R. May

I am honored to moderate and participate in today's panel, "New and Emerging Constitutional Theories and the Future of Environmental Protection." My charge is to introduce our esteemed panel speakers, and then to provide preliminary remarks outlining the landscape at the intersection of constitutional and environmental law in general and the political question doctrine in particular. My role is largely provocateur. In short, I'm to raise questions that challenge constitutional order as it applies to environmental protection.

Constitutionalism and constitutional law have unavoidable, ineluctable impacts on the fields of environmental, natural resources, and energy law, and these fields in turn shape constitutional law. The Constitution sets the boundaries for federal and state authority to exploit or protect natural resources and the environment. At the federal level, this includes defining the extent to which Congress may conserve rare species or regulate pollutant releases from mineral extractions on private property. Constitutional questions likewise infuse state actions designed to control the precursors of climate change or the interstate movement of energy, carbon allowances, natural resources, and wastes. Many states in the United States and national constitutions across the globe also explicitly address environmental concerns.

Accordingly, constitutional issues occupy center stage in federal and state efforts to protect land, air, water, species, and habitat, perhaps fueled by the U.S. Supreme Court's ambivalence about environmental protection. Indeed, from 2005­2010, more than 50 percent of the nearly 400 federal cases yielding a reported decision involving environmental, natural resources or energy law and policy turned on a constitutional question, including most often standing, sovereign immunity, takings and due process, and with increasing frequency, political question, preemption and federalism.

Owning Up to the Environment

by Daniel A. Farber

It may seem paradoxical to suggest that property law can shape constitutional doctrine, let alone that it can do so in a pro-environmental direction. As every law student learns, constitutional law trumps "ordinary" law such as property law. Yet, constitutional doctrines have to operate on facts--and those facts may be legal ("Has the government invaded the plaintiff's property rights?") as well as physical. Changing the legal facts can change the constitutional result. If we cannot directly persuade the U.S. Supreme Court to make the constitutional machinery more "environment friendly," we might be able to achieve similar results by changing the raw materials that are fed into the machine. Or, to use another metaphor, we may be able to change the legal landscape in which constitutional doctrine operates.

"Property rights advocates" typically oppose environmental regulation. Yet, property law actually has great potential to support environmental protection. This Article will argue that, rather than being a constitutional bulwark against environmental regulation, certain kinds of property rights can actually ease constitutional barriers created by current Supreme Court doctrine. These environmental property rights (EPRs) are either rights to prevent environmental degradation (such as conservation easements) or limited rights to impair the environment (such as tradable pollution permits). Among other possible benefits, these property rights may help nudge constitutional law in a more environmentally friendly direction.

The Constitution, the Environment, and the Prospect of Enhanced Executive Power

by Robert L. Glicksman

Environmental law poses many intriguing questions of constitutional law, including issues involving separation of powers. Separation-of-powers questions stemming from environmental law disputes have affected significantly the allocation of authority among the three branches of the federal government to determine the appropriate degree of restrictions to place on government and private conduct with the potential to harm the environment. The implications of judicial resolution of constitutional issues in environmental disputes are not confined to the environmental law arena, however. In some areas, such as the law governing standing to sue in federal court, environmental cases dominate the constitutional landscape, establishing landmark precedents that then apply to myriad other areas of law. In other cases, separation-of-powers jurisprudence outside the arena of environmental law has the potential to alter the ways in which the government adopts and implements environmental law.

This Article addresses two aspects of the separation of powers that have the potential to enhance the powers of the executive branch of the federal government vis-à-vis the U.S. Congress and the courts in the implementation of environmental legislation. First, I address the role of the Take Care Clause of Article II in restricting standing to sue in cases involving environmental law issues. Second, I address the potential for judicial invocation of the "unitary executive" theory to restrict congressional oversight of agency implementation of environmental laws. Although I focus on the impact of the unitary executive theory on the constitutionality of independent agencies, I also briefly address the theory's effect on presidential control of the exercise of agency discretion provided by statutory delegations of authority to agencies with environmental protection responsibilities. These two aspects of the separation of powers to date have been of relatively minor importance to environmental law. Increased reliance by the courts on the Take Care Clause to limit standing and on the unitary executive theory to loosen congressional control over the exercise of delegated authority to administrative agencies, however, has the potential to reshape environmental law in some potentially far-reaching ways.