Earthjustice Errs (Again) on Alito

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.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

Most Popular

Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More
Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More