Earthjustice Errs (Again) on Alito

by Jonathan H. Adler

Yesterday Judge Alito was asked about his opinion in the Magnesium Elektron case. Earthjustice did not like Judge Alito’s decision in the case (as I discussed here). In a new release, Earthjusitce continues its patern of misrepresenting the holding of the case, in which the Third Circuit found environmental plaintiffs lacked standing because they failed to provide any evidence of any adverse environmental impact resulting from a companies violations of the Clean Water Act. “Unless people can prove they are sick from drinking the water, citizens are going to have a tough time protecting waters that they use and care about from industrial pollution if Alito is confirmed,” commented Joan Mulhern, a senior legislative counsel at Earthjustice. “Effectively, what Judge Alito is saying is: don’t drink the water.” This is wrong. The opinion does not hold that the plaintiffs have to “prove they are sick” from pollution. All they had to show was some impact on the water — any impact at all — from the illegal pollution. A tiny, yet measurable, increase in contaminant levels in the water would have been sufficient, yet they showed none at all. All three judges on the panel believed this was insufficient for purposes of standing under then-prevailing Supreme Court precedent. The only dispute was whether the plaintiffs should get another chance to provide additional evidence. Environmental activists are correct that this aspect of the decision has been overruled by the Supreme Court’s decision in Friends of the Earth v. Laidlaw, but even under that case it is unlikely the Magnesium Elektron plaintiffs would have standing, as they failed to allege any connection to the area most likely to be effected by the illegal discharges, instead relying upon their interest in portions of the Delaware River, miles downstream. Earthjsutice errs further by claiming that Magnesium Elektron “relates directly” to the two Clean Water Act cases the Supreme Court will hear in February. This too is false, as standing is not an issue in either of the two cases. Nor is Earthjustice’s characterisation of the issues in these cases accurate. Alas, this sort of thing has become par for the course.

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