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

January 2019

Citation: ELR 10063

Author: Scott W. Stern

The modern doctrine of environmental standing prevents many worthy plaintiffs 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 Article shows that for most of American history there were no comparably severe standing requirements, 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. The Article pays special attention to the seminal standing case of Sierra Club v. Morton. Though remembered now for Justice Douglas’ bold dissent arguing that trees should have standing, the truly radical dissent belonged to Justice Blackmun. Drawing on two forgotten yet crucial insights from his dissent, this Article then charts a path forward, and argues for the passage of statelevel environmental statutes that grant standing even in the absence of an injury. It concludes by proposing a model law.

Scott W. Stern is a historian and the author of The 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. 

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