Bench Memos

This Day in Liberal Judicial Activism—April 19

1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.” The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.” Under this rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties. “The river as plaintiff speaks for the ecological unit of life that is part of it.” The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.” “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing. Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.  

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