Sierra Club v. Morton

Hey everyone, Leon Nafok here with a message about our new sponsor, Give Well.

At a time when deep cuts to foreign aid have raised real concerns about people's well-being in some of the world's poorest communities, it can be hard to know what's actually happening or how to help.

GiveWell doesn't claim to have all the answers, but its team of researchers are analyzing the impact of foreign aid funding cuts in real time, identifying highly cost-effective ways to save and improve lives, and sharing what they're learning for free so that everyone can have a big impact.

GiveWell has spent 18 years researching global health and poverty alleviation and only directs funding to the highest impact opportunities they found.

Over 150,000 donors have already trusted GiveWell to direct more than $2.5 billion.

Rigorous evidence suggests that these donations will save over 300,000 lives and improve the lives of millions more. You can find all of their research and recommendations on their site for for free.

And thanks to the donors who chose to sponsor their research, GiveWell doesn't take a cut from your tax-deductible donation to their recommended funds.

To make a tax-deductible donation today, go to givewell.org and pick podcast and enter the numbers 5-4 at checkout.

Make sure they know that you heard about GiveWell from 5-4.

Again, that's givewell.org to donate or find out more.

Mr.

Chief Justice Berger, and may it please the court, the Sierra Club brought this proceeding against the Secretaries of Agriculture and Interior to establish that their plans to authorize a huge private recreational development at Mineral King were illegal.

Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Sierra Club v.
Morton.

In this case, the Sierra Club brought a lawsuit to prevent development in a federally owned wilderness area called Mineral King.

Mineral King was a beautiful, is, a beautiful high basin in the Sierra Nevadas, and it was an area that the Walt Disney Corporation was interested in exploiting as a ski area.

The Sierra Club sued to block permits allowing the project to go forward, but their claim was rejected, not because the court determined that there was no injury in the case, because the court believed the Sierra Club did not have the right to bring the case at all.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that are sinking our civil rights like orcas are sinking boats off the coast of Gibraltar. Yes.
Yes. Yes.
Yes. I'm Peter.

I'm here with Michael. Hey, everybody.
And Rhiannon. You can call me White Gladys, actually.

Yeah, this is sort of old news at this point, but it's very on theme today for us.

But in case you haven't heard, there is a group of orcas out there in Europe led by a single orca nicknamed White Gladys,

sinking boats, like attacking boats in coordinated fashion. There's a theory that perhaps White Gladys experienced some trauma at the hand of a boat and is seeking revenge

to the tune of hundreds of attacks and several vessels sunk. Yeah.
That's right.

She's teaching her comrades how to do it.

This is mother behavior. This is icon behavior.
That's right. Real five foreheads will know that I

fucking love. orcas.
That's right. Favorite animal by far.
I'm obsessed with them. And now the world is recognizing it.

Yeah. I mean, no matter what, you got to respect it.

I have been a little off-put by how many people are throwing in on the side of the orcas. Now, obviously, it's the morally correct side,

but I sort of believe that after a lifetime of enjoying

the spoils of humanity,

living a life of largesse,

predicated off of our exploitation of the environment, to think that you can just switch sides when the tide starts to turn? No. That's right.
No, no, no, no.

White Gladys is putting you up against the wall, bitch. Absolutely.
White Gladys is going to kill you, and you need to accept that.

I am ready. I am ready for it.

I will be staring white Gladys in the eyes.

and accepting my fate.

You know, they're speculating that maybe White Gladys, you know, had some trauma or something, but we can't rule out that she's just listening to very radical leftist podcasts and has been radicalized that way.

Yeah, I only hope our listenership will be similarly radicalized.

Now, we've all heard of that lonely whale that can only hear at one frequency. Don't remind me.

But what you didn't know is that that frequency transmits 5-4.

All right.

Let's get it going. Today's Today's case, Sierra Club v.
Morton.

This is a case about environmentalism. It is a case about how trees cannot speak and the question of who will therefore speak for them.

Wow.

Nobody. Getting philosophical, getting poetic.
Well, Ree, you know, you mentioned something the other day that made me think, you know, I don't want to fall into a rut with this show. Yeah.

We've been utilizing death threats less than we used to. That's right.
It made me think, have we lost the juice? You know, yeah.

You may have noticed I subtly encouraged our listeners to commit violence just minutes ago.

So I thought, you know, I'm going to put a little more flair into the intros. You know, I'm not going to phone it in.
Yeah.

You know, I think part of the reason this happened is because we got a little more popular and then it's.

started to become a thing where it's like, well, I guess we probably should be avoiding making actionable threats against Supreme Court justices, etc. Right.
Right. Just so that Leon was at ease.

But I've been thinking about what the edges of the law are. The majority in this case was written by Justice Potter Stewart.
So I'm going to say it.

If I ever see Justice Potter Stewart, I will kill him.

Wow. Uh-huh.
Now, this is legal to say because Justice Potter Stewart died in December of 1985. Yeah.
But when you see that bitch in hell,

he is fucked. Absolutely.

If someone figures out the science of how to reanimate Justice Potter Stewart, it's going to be a short-lived experiment because I'm going to fucking put him back in the ground. Okay.

Again, all of this is legal because Justice Potter Stewart died in December of 1985, which, by the way, was like a couple months after I was born because he knew I was coming.

All right, moving on. So Mineral King Valley is a valley in the Sierra Nevada Mountains located on public land in a national forest.

The federal government in the 1960s solicited bids for development on the land and accepted a bid from Disney, the woke corporation trying to corrupt our youth, who wanted to build a large commercial ski resort.

The Sierra Club, an environmentalist organization, of course, sued to halt the development on account of it would be shitty for the environment.

And this case is about whether the Sierra Club had the right to sue over this. You need standing to sue, meaning that you need some claim that you've been injured.

And the Sierra Club is not arguing that they would be directly harmed by the development or that their members would be directly harmed by the development.

They're arguing that the development would hurt the public generally.

But the Supreme Court says no dice, holding that they have no right to sue and tossing their hippie asses out of court. That's right.
Yep. Re, I'll hand it over to you.

So this is a case where, yes, definitely the majority is stupid and wrong, and we will talk about that.

But there are like some really genuinely interesting ideas and like legal imagination in the dissents. So I think a lot of our story is actually there.

And so one of the dissents, probably the more famous one, is written by Justice William Douglas. Definitely one of the most famous opinions he ever wrote on the court in more than 40 years of tenure.

Just a little bit about him for purposes of this episode. He was a lifelong environmentalist and conservationist.
He was born and raised in Yakima, Washington.

And as a child, he had a form of paralysis, after which, like a big part of his recovery was building back strength in his legs by hiking in the woods and like exploring mountain wilderness around his home.

He wrote a lot about wilderness and the outdoors,

spiritual connection with nature. He wrote a sort of semi-autobiographical book called Of Men and Mountains in the late 40s.

In the 50s, he spearheaded a protest hike on the Chesapeake and Ohio Canal to save the canal from a proposed construction project. That protest was successful.

And in 1970, Congress approved a protected park for that site. He later protested a proposed highway down the Olympic coast in his home, Washington State.

He went on an expedition with conservation advocates to the Brooks Range in Alaska to tell the story of like the Arctic landscape and its fragility.

This was all, by the way, while he was on the Supreme Court. What a fucking guy.
What a guy. Yeah.

By comparison, Sam Alito is on Twitter right now, just scrolling and getting mad.

Yeah, yeah, exactly. I was reading an article about the history of this case, of the Sierra Club case, and it was talking about Justice Douglas's love for the environment.

It had a picture of Justice Douglas on that Chesapeake protest hike.

And one of his clerks, his Supreme Court clerks, is on the hike with him.

You just like wonder if he like made him come or like, was that like an option?

He just offered it up to all his clerks, like, yeah, we're going to go protest. Do you want to come? Right.
You want to come with?

In addition to doing all of this stuff, while he was a Supreme Court justice, he used his position as a justice on the court to literally badger and annoy other federal government officials, you know, the Secretary of the Interior, Forest Service and National Park Service officials, senators, members of Congress.

in favor of supporting causes to preserve wilderness and the environment.

In 1965, again, on the court, he published a wilderness bill of rights, which he said was needed, quote, to protect those whose spiritual values extend to rivers and lakes, the valleys and the ridges, and who find life in a mechanized society worth living only because those splendid resources are not despoiled.

So...

That's William Douglas. That is one of the dissenters in this case.
So let's talk about the Sierra Club and the land that is at issue in this case.

The Mineral King Valley is a 12-mile glacial valley in the Sierra Nevada Mountains in California. We're talking verdant meadows.
We're talking ancient conifers, bro. We're talking towering peaks, bro.

The flora is unbelievable. The fauna.
Get the fuck out, bro. There's black bears.
There's mule deer. There's yellow-bellied marmots.
There's freshwater fish, bro. This is pristine wilderness, okay?

But in 1969, like Peter said, little company, don't know if you've heard of it, it's called Walt Disney Productions, decided that they wanted to put their grubby mouse hands on these unspoiled vistas of Mineral King.

So the U.S. Forest Service had approved a plan by Disney to develop a $35 million ski resort in the Mineral King Valley.

That plan included 14 ski lifts, a chapel, an ice skating rink, convenience shops, restaurants, two big-ass hotels, a big ass parking facility, as well as a 60,000 square foot underground facility where all the resort services would be housed.

Disney estimated that in the first year, the resort would have 2.5 million visitors. This is more than Big Bend National Park gets in visitors every year today.

That's more than Bryce Canyon National Park gets in visitors today.

I mean, like Yosemite gets 3.5 million visitors a year. This is tiny in comparison to Yosemite.
This is the 1960s, and they're saying it's 2.5 million. Yep, but Yosemite does not have the mouse.

That's right.

So very clearly, this massive corporate development project was going to contribute to ecological destruction in the Mineral King Valley.

Conservationists and environmental and community activists, they registered a ton of opposition. There were bumper stickers all around that said keep Mineral King natural.

There were hike-ins, again, like protest hikes to protest the development. There was a march on Disneyland.
So enter the Sierra Club.

The Sierra Club, if you don't know, it's an environmental organization founded in the 1890s.

It's both operated as a social and recreational society with local chapters across the country, but as well as like an environmental advocacy and political sort of lobbying organization over the course of its history.

The Sierra Club was involved in the creation of some of the country's first national parks.

It's historically been known as playing a large part in the development of mountaineering and rock climbing as pastimes in the U.S.

And the Sierra Club has also led conservation and environmental campaigns to protect areas of wilderness from development and construction.

This is far from a perfect leftist or progressive organization. There have been very

highly problematic, let's say, consequences of actions that the Sierra Club has taken. Just want to say that.

But the Sierra Club is a prominent entity at this time of the Disney Mineral King development proposal, and they are looking to oppose Disney's plans through litigation.

So, the Sierra Club sues over this proposed development by Disney. They're saying that Disney's proposal would violate federal laws governing the preservation of national parks and wildlife.

What Sierra Club wanted was injunctions from the court, basically, a court order saying that the federal government could not approve the proposed development, right?

But in order for the lawsuit to get to the merits, meaning like in order for a court to decide whether or not Sierra Club should get those injunctions, Sierra Club had to show that they had standing to sue.

So that's what's at issue here and what gets appealed up to the Supreme Court, whether Sierra Club has standing and can sue to ask for those injunctions in the first place. Right.

So we've talked about standing before, but again, yeah, it just means your right to sue. And what that generally means under the law is that you have to have suffered an injury of some kind.

The case the Sierra Club is bringing is novel because they aren't claiming that their members would be directly injured by the development.

Instead, they're saying that they are essentially bringing this case on behalf of the public in the public interest. And we should say that it's not like a physical injury, right?

It's an injury in the legal sense, meaning you have suffered a legal harm. You've lost money.

Something that belongs to you was destroyed or taken, you know, all of the ways that you can be legally injured. Right, right.

And, you know, they're sort of making this basic claim that they're an environmental organization. This is an environmental issue.
They should have standing, right?

But the court does not accept that rationale.

In a four to three decision, there are a couple of recusals here, I believe, the court says the Sierra Club does not have standing because they did not allege that they incurred a specific and individualized injury.

Now, before we discuss the rationale a little bit more, I think it's important to understand why standing exists as a concept. Why do you need to be directly injured in order to sue?

And there are a few reasons, but the main one is simple logistics, right? If everyone could sue for every injustice, there would simply be more litigation than our system could handle. Sure.

The flip side of that, I think, is that in an ideal world where litigation was totally frictionless and did not have a cost, standing probably would not exist, right?

There's no moral reason to prevent people from suing on behalf of others. It's just a way of limiting what gets brought into court.

By the way, to that point, Peter, I was looking through my Fed courts outline in preparation for this episode, and I had a little thing here. The four values behind standing.
Oh.

Promote separation of powers by restricting judicial review,

improves judicial decision-making by making sure there's a specific controversy, serves the overall fairness, and last, serves judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome.

That is a professed and like one of the driving purposes of standing is to close the doors of the courts. Right.
Also, all of those other reasons are very very abstract. Oh, yeah.

And also note that the problem of too much litigation pointed out in that reason, this is what you fucking learn in law school, is that there's a problem with people bringing lawsuits for ideological

reasons

when there is no recognition that like the very act of adjudication in this country is fucking ideological, right? Of course of course.

You might be wondering where this comes from, why this exists in a sort of theoretic sense.

And so if you actually go to the Constitution, Article III, which was about the courts, says the judicial power shall extend to all cases arising under the Constitution, the laws of the United States, blah, blah, blah, to all cases affecting ambassadors, to controversies between two or more states, et cetera, et cetera.

This is what's sort of colloquially in law called the cases and controversies requirement, which is the idea that courts can't just do whatever they want.

They have to be brought specific cases or specific controversies that they can decide. And so the question is, what is a case or controversy?

And that is inherent to what standing is. Standing is demonstrating as a plaintiff that you have a case or controversy.

And the elements of that, the big one, is showing that you individually are injured in a legal sense, that the action you're complaining about caused your injury, and that the court can redress your injury, that there's something the court can order that will make you whole, right?

That is the idea. That is where this comes from.
There's also prudential reasons for standing that the courts engage in beyond that.

And there are statutory aspects to standing because a lot of times... you're suing under laws created by Congress and Congress gets to shape the jurisdictions of the courts as well.

So Congress often gets to decide who does and does not get to sue and for what reasons.

So we're swimming in sort of murky waters when we're talking about standing. It's always, well,

are we talking about a statutory, constitutional, prudential?

And it's a lot of bullshit. Yep.
And when you're talking about the constitutional standard, it's just so abstract. Like, what's a case? What's a controversy? Right.
Right.

These things can mean all sorts of shit, obviously, which basically means that the court gets to define it however they want. That's right.

So what makes the standing analysis here sort of interesting is that the CR Club is saying, hey, we aren't just any old person bringing a lawsuit that we're not really involved in, right?

We are, again, an environmental organization. This is an environmental concern.
We are a special interest organization, and so this is a matter of particular concern to us.

And the court basically says, well, If we allow special interest organizations to sue on behalf of their interests, it's a slippery slope because it would be hard to prevent anyone from forming an organization just to sue for whatever cause they wanted, which doesn't seem correct, right?

Like, I mean, the Sierra Club is an established organization with a large membership.

Surely you can distinguish between that and an organization someone cobbled together just to file a lawsuit or someone who's not an organization, who's just a person bringing a lawsuit.

And even if you're concerned about someone doing that, why worry about it now, right? Like we know that the Sierra Club is a legit organization with a legitimate interest here.

Why are we trying to solve a problem that doesn't exist yet, right? Why are we trying to create a rule? for all of these unforeseen situations that have not yet occurred.

Yeah, and you know, this wasn't such a problem in the 70s, but the Supreme Court, the federal judiciary, is not concerned with that problem today, right?

And just to make this distinction clear, the reason that Citizens United, for example, can bring a lawsuit, but the Sierra Club can't is because Citizens United was claiming that they were like individually and specifically harmed by campaign finance laws, which basically gets them through on a technicality because

everyone knows that the actual reason that that lawsuit was brought, for example, was that they believe and their backers believe in a political project that involves removing restrictions in campaign finance laws.

So we're just dealing with technicalities that don't actually fucking matter.

Students for Fair Admissions, the Alliance Defending Freedom, these are organizations created to bring litigation for ideological purposes, right?

Every fucking major Supreme Court case now is just brought by some organization with a vague ass name. Yeah, funded by the Koch brothers.
Right.

Now, maybe more importantly, one thing about standing is that it's often meant to ensure that the best person to bring the case brings it, right?

Like if Michael gets injured, he's the best person to represent his own interests. So it makes sense that the court might require that he be the one to do it.
But here, the environment...

cannot speak for itself, right? It needs a third party to step in and represent its interests. So it makes sense to be flexible, right?

Now, Justice Blackman files a a dissent here, and he brings this all up.

He asks, quote, must our law be so rigid and our procedural concepts so inflexible that we render ourselves helpless when the existing methods and the traditional concepts do not quite fit and do not prove to be entirely adequate for new issues?

Are we to be rendered helpless to consider and evaluate allegations and challenges of this kind? because of procedural limitations rooted in traditional concepts of standing? Go off. Yeah.
Right.

Just to the point. He's just sort of like, what's this fucking technical bullshit? Right.
You don't have to do this. There's no particular reason to be this technical about it.

And to really highlight how technical this is, what the court is saying is that if the Sierra Club had just said, hey, some of our members like to camp on this land. Yeah.

That's a legitimate lawsuit. Then you have standing.
Right. And if that's all you need to allege, then what the fuck is even the point of it, right? Just let them bring the case.
Yeah. Yeah.
Yeah.

Like,

what are we even doing here? But you know, the majority is kind of engaged in some bullshit, right?

Like, obviously, what we're talking about with the legal stuff, clear bullshit, but there's something else that jumped out at me, which is like they opened their decision by talking about how Mineral King is basically not a well-attended park, right?

Like, sort of hinting at like this land isn't really being used, so like development might actually improve it by bringing people to it and letting them see the beautiful countryside or whatever.

And setting aside whether or not that's correct, they're sort of like offhand, yeah.

And in order to do this, they'd have to build a 20-mile highway through Sequoia National Park, which is a massively well-attended national park, like a really well-attended park, like over a million visitors a year now.

And what a special one, like trees that you can't see. anywhere else in the world.
And they're like, yeah, well, we'll just put a fucking highway through it. Yeah, why not?

And the the majority is like, Well, you know, but it's just a 20-mile highway, so who cares? Right, it's very weird when someone is like, Hey, this nature is beautiful, let's not destroy it.

For a court to be like, Well, no one's using it, though,

right? It's like, right, that's sort of what nature is. I don't know,

I don't know if you're grasping the argument the absence of humans that make it special.

The more there's human presence there, the less people want to be be there, like for real. Right.

Like a justice of the Supreme Court is just looking at like these beautiful environments and being like, there's new Disney here, though.

I wish I was a fucking ski lodge with some hot roads. Right, right, exactly.
Where are the motels?

This feels like a good time to take a break.

And we are back. So let's talk about Douglas's descent.
As Ree mentioned, it is one of his most famous opinions where he sort of throws out, you know, like, maybe trees should have standing.

Like, why, why shouldn't the trees have standing? Yes. And this was played for laughs in law school.
And I think, especially if you read it like 1L, it seems so silly, but I think it's kind of right.

I think it's almost certainly right. He makes the point that like lots of inanimate objects actually get.

treated like as persons in our law and get to sue right and get to have beliefs right hobby Lobby is a corporation. It's just a legal entity.
It's a legal fiction.

It's a piece of paper that has a bunch of properties associated with it, but those properties are just buildings. It's considerably less real than a beautiful meadow.
That's right.

Yeah. But nonetheless, not only does it get to sue and be sued, it gets to have sincerely held religious beliefs, right? Yep.
It gets to do discrimination against gay people for some reason.

That's right. Because of its religious beliefs.
He has this very funny passage where he drops in a footnote. He talks about the way ships get treated in the law and quotes a Supreme Court opinion

describing ships. And I'm just going to read it.
A ship is born when she is launched and it lives so long as her identity is preserved.

Prior to her launching, she is a mere congaries of wood and iron. In the baptism of launching, she receives her name, And from the moment her keel touches the water, she is transformed.

She acquires a personality of her own.

Jesus Christ. And you're telling me white Gladys can't sue? Can't walk into court and sue some fucking bugs?

But so he makes the point, like, this is kind of dumb. So someone who hikes in Mineral King can sue.

Someone who cares a lot about the environment and doesn't live near Mineral King, but is concerned about like you know conservation can't sue and he's like this doesn't clarify issues this doesn't bring a case or controversy into focus this doesn't make it more real right what would make it more real is taking seriously the consideration of the entire ecosystem the trees the land the animals that live there and is making sure that people who are bringing suit are well situated to speak to those things right exactly and that's what's at issue here right whether it's somebody who hikes in mineral king or not or someone who just cares about the environment the real question is are they well situated to advocate

for an entire living ecosystem right right and that's the injury for real that we're talking about here we're not talking about someone's lessened pleasure right in their ability to go hiking because they have to see power lines, right?

Like that's bullshit. That's illegal fiction we're throwing on this to allow for the consideration of these real things that we actually care about.
So we should just say we care about them.

And that's the case in controversy. And we should have someone sue on behalf of the trees.
And you know what? Fucking damn right. Yeah.

Like, I think Mineral King has a better claim to standing than Hobby Lobby. That's right.
Yeah, absolutely. Exactly.
Fuck corporations, right? Like, fuck that. Yeah.
Or ships for that matter. Exactly.

Exactly. And, you know, this isn't like unheard of in the law in other countries, right? Many countries confer rights of nature onto environmental entities, right?

There are legal protections for land that should be preserved. There are legal protections for certain species in the environment, right?

That they have legal rights that can't be infringed and are cognizable in the law, right?

You mentioned, Michael, that like this dissent is sort of laughed off in law school as being like this crazy Douglas on standing doctrine, you know, but these concepts are not unheard of.

And I also wanted to mention there's the Douglas dissent in conjunction with Blackman's dissent here. Brennan also dissents.
It's very, very short.

He just says he agrees with the dissenters, basically. But these are liberals.
putting in real work in dissent, right?

This is very fucking different from Kagan using textualism and precedent to come to a different result than the conservatives or whatever it the fuck she's doing, which everyone like fawns over as the liberals lose on issue after issue after issue over and over and over again.

And you know, I don't know, maybe it doesn't matter because they're in dissent here too.

Like, it's not like they win, but it's just like a look into a much different approach on the law, a much different approach to what it means to dissent, to take a position that is in opposition to what conservatives are doing, right?

Douglas and blackmen are not using the conservatives' tools here and saying, but wait, when I use your tools, I can make something different. I come to a different answer, right?

This is progressive legal thinking saying, fuck your tools. We don't have to do it this way.
We don't have to think about it like this. Putting forward their own vision of the law

that like meaningfully differs from the conservatives.

And Kagan is sort of the output of liberals spending decades being cowed by conservative arguments about what the law should be what principles we should be operating from and so yeah someone like her will often end up just trying to do textualism and do originalism better than the conservatives yeah rather than reject the premise and

think creatively about what the law should look like. Exactly.
Yeah.

Peter, you wrote an article for Balls and Strikes where you talk about hypocrisy and misunderstanding what hypocrisy is right okay go on i've been thinking about that where is it something like look a mugger might ask you what time it is just to get you to stop and orient to you before like demanding your cash you don't wonder later on like oh man why'd he lose interest in knowing what time it is and it's not really that sharp a rejoinder to be like oh i thought you wanted to know what the time is bro as you're handing over your cash right like

what are we doing here like why are we playing along with this charade you're not doing anything yes real with that right i do want to say too like some of the language like douglas is i do not know mineral king i have never seen it nor traveled it though i've seen articles describing its proposed development etc etc and like i think stuff like that can be easy to mock if you don't spend time outdoors.

But like, when I was in college in New England, there was like a lot of national parks, but there was one I went to a lot, Franconia Notch. I went to it all the time.

I hiked a bunch of different trails. Some of the trails I hiked repeatedly.
And I would say I knew it. And it meant a lot to me at the time.

And if something happened to it, it would have meant a lot to me. I would have been very sad, right? It was

important for me. Right.
And I miss it. And I have

emotional attachment to it. I think it's so easy to be cynical and shitty about this stuff.

But it's true. People have connections to the land.

That's good. People should.
Yeah. What if we thought about ecological destruction as a loss? Yeah.
An emotional loss, a real fucking loss, right? Absolutely.

This case, the dissent, especially maybe like have me thinking about the role of the adjudicator, the role of judge in our system in substantive versus procedural adjudication, right?

So there are cases about procedure. This is one of them, particularly those procedures that keep people out of court.

For example, here, standing doctrine, you know, there's standards about what you have to plead, right? And heightened pleading standards. That's like Iqbal v.
Ashcroft. Abstention doctrine, right?

Those doctrines that are procedural question about like what question can a federal court even answer.

Those kinds of cases, those kinds of questions really show us that judges have kind of two separate categories of things that they actually have to judge.

There are substantive questions that they're judging and there are procedural questions that they're judging.

And we should be thinking in both categories about what incentives are in play, what biases, what political and ideological inputs are being fed into the adjudication process, right?

So yeah, when the Supreme Court is ruling on a substantive legal matter, like for example, saying the 14th Amendment doesn't protect the right to an abortion, we definitely, at least on this podcast, we analyze, of course, like these judges are Trump appointees or they're interpreting the Constitution through a conservative ideology, but the procedure questions, even though the opinions about procedure can be like

maybe the most formalistic and act like they are purely about rules, Those are also answered by a human being operating in an ideological and political space. In these cases, the law, right?

Not politics like Democrat versus Republican. I'm talking politics like assumptions and principles brought to a thing.
We know Dobbs is a contribution to American politics of gender, right?

Adjudicating procedural questions is a political contribution too. This case is a contribution to the politics of the environment in this country, even though it is quote unquote just.

about standing, just about a legal process, right? It is an expression of political values.

And I think it's just important to recognize that you can conceive of the role of the adjudicator as one that expands justice and fashion procedural rules so that important substantive questions are reached and answered.

Or you can conceive of the role of the adjudicator as deciding who gets kept out of court.

So Standing was in the news most recently with the challenges to the Biden student loan forgiveness program, right?

Conservatives were struggling to find a party that had standing to bring the challenge. And it remains the biggest issue in the case, or at least it seems to be the biggest issue in the case.

But for a while, it wasn't clear that anyone could challenge the rule.

And I have to say, like, yes, there's a difference between using this for good and using it for evil, but in general, if there is a federal law or regulation that is functionally unchallengeable, I think that is probably bullshit.

And I will say that across the board, if there is a situation where Joe Biden, the president, can pass a reg and literally no one can challenge it, that is stupid.

But conservatives have been narrowing the concept of standing since its inception, and it's funny to just turn that against them and use it to prevent them from challenging this like hot button issue.

And I don't think you need to have an analysis beyond that. I include this to say that I'm a man of deep principle when it comes to standing.

I think that if you like look at existing law, that case should get tossed on standing. And I also think that the existing law is stupid as hell.
Yeah. Yeah.
Yeah. I think that's really fair.

And that was unrelated to anything substantive we've been discussing. It's just a quick aside.

Thank you, Peter. Important.
Love your thoughts, as always.

Another

thing that Sierra Club, this case, kind of represents, just putting it in sort of a historical context in terms of like conservative legal movement, right?

This case and others about standing from the mid-1970s through the early 80s, certainly. You know, I'm thinking about LA v.
Lions, a case we did an episode about early on.

It said that a man who had been nearly killed by a police chokehold did not have standing to sue for an injunction saying that LAPD had to stop using chokeholds because he couldn't show that LAPD would use chokeholds in every interaction with people in the future.

That's why he didn't have standing. Like absolutely ridiculous.

In conjunction with this case, Sierra Club and others, these cases represent what scholars started to call at the time, the death of public law litigation.

So here here you see conservatives on the court who are just done with lawsuits on behalf of a public right or public good, right?

And they're using procedural rules to say, you person, you organization, you cannot sue over this. You don't even get in the door, right? Again, it's not reaching the actual substance.

Does the public or does the environment or do residents of Los Angeles who live under LAPD control actually have this right? If so, what does the right mean, right? It's not even getting to that.

It's a procedural tactic that nonetheless completely halts this kind of litigation from moving forward, right?

There's another huge case about standing and the environment that comes, I think it's the early 1990s for sure, might be 1990. This one is authored by Scalia.

It's called Luhan versus Defenders of Wildlife. In that case, an environmental organization was suing after an amendment to the Endangered Species Act was passed.

That amendment limited some of the requirements of the Endangered Species Act based on where the environmental threat was happening.

And Scalia's majority opinion just heightens the standing requirement, especially in environmental cases, even more than Sierra Club.

He says that public rights that have been legislatively pronounced do not belong to each individual who forms part of the public. Like in this situation, you know, on behalf of the environment.

So who do they belong to then?

Public rights, right, which have been created by the legislature in these cases about the environment. Scalia says, in this opinion, they don't belong to each individual who forms part of the public.

Okay, so who do they belong to then? You were just saying there is no lawsuit here, right?

It's so emblematic of what conservatism is that they would dismiss of the concept of the public interest in and of itself. Right.

Because their view of the world is so atomized that we can just require that for a lawsuit to be legitimate, you need to have personally suffered some direct injury.

To them, the idea that the Sierra Club, an environmentalist organization, could bring lawsuits related to the environment doesn't really compute because the idea that the Sierra Club actually has the public interest in mind is incomprehensible to them because they've never really thought about the public interest in their life, right?

They've thought about the narrow sets of interests that they want to represent, that they believe are important. Yeah.
And so that has me thinking about sort of like the state of things now.

So it's worth talking a little bit about like the fallout of this case and the movement that Reed and Peter are describing.

And going back to what I was saying before about where standing comes from, thinking about it again, cases and controversies, there's nothing in that that inherently says that's only people.

And in fact, as we noted, corporations can sue, ships can sue, trusts can sue,

infants can sue, juveniles who are otherwise not competent can sue, estates can sue on behalf of someone who's dead.

The general lay of the land is, yeah, trees could sue, but courts have decided they're not going to say who can stand for trees, who can speak for trees, or for porpoises, or for whoever.

White Gladys. That's right.
right. Maybe if Europe had been a little more proactive about this, Gladys would just be taking these ships to court.
That's right.

That's right rather than capsizing these boats. They've kicked the ball to Congress.
We've seen this several times.

There are a couple interesting cases in the Ninth Circuit that are kind of fun in the last 20 years. One called the Cetacean Community v.

Bush, where The Cetacean Community is the name chosen by the Cetaceans' self-appointed attorney for all the world's whales, porpoises, and dolphins,

which is dope.

That person was there ahead of the ball. Like, why didn't I self-appoint as the world's foremost cetacean legal representative, you know? That's right.

To stop like the Navy's use of sonar and stuff like that. Yeah.
Because it disturbs cetaceans. Then there was an intellectual property dispute a few years ago.

sort of affirming this after a photographer left his camera, you know, facility with some macaque monkeys, and a monkey took some selfies.

And then the photographer published the selfies and made some money. And then PETA sued on behalf of the macaque for violating the monkey's copyright,

which is so dope.

But again, as with the cetaceans, the courts were like, sorry, Congress has to authorize this. Congress has to tell us who is right for this.

I think you can make an argument that that's fair in a functioning government. I don't think we've had a functioning government for a very long time.

Except kicking things to Congress is just saying goodbye. It's not going to happen.
Yeah. You know,

I think there's a lot to be said after this case, too, about where the movement to protect the environment to fight climate change, like where legally does that go, right?

I think indigenous groups. Are you personally feeling hotter? Right, exactly.
Yes, yes. Like, are you forced to litigate just based on, you know, what climate change is doing to you personally?

Is there nothing that a movement can do in terms of legally holding environmental destroyers accountable, in terms of proactively creating a healthier and safer environment for everybody?

Other countries give legal rights to certain species or certain areas of land, right? Indigenous groups in the U.S.

and around the world have proposed really interesting theories of legal standing and legal personhood with regards to nature.

In 2017, the government of New Zealand entered into a record of understanding with Maori tribes that granted Mount Taranaki a legal personality.

This effectively gave the mountain many of the same legal protections as a person in New Zealand.

This was the third geographic feature, in fact, that had been granted a legal personality in New Zealand.

In 2008, Ecuador passed constitutional rights of nature that actually just in 2021 were cited by a constitutional court in Ecuador when they blocked a mining project in the Los Cedros cloud forest.

The court said in that case that the mining project would violate the rights of nature. And in the U.S., many examples, especially on more local levels.
In 2010, Pittsburgh became the first large U.S.

city to to enact a local law recognizing the rights of nature. In 2018, the White Earth Band of Chippewa Nation adopted a rights of Manuman law, Manuman M-A-N-O-O-M-I-N.
It's a kind of wild rice.

And that law secured legal rights of Manuman.

And that effort encompassed the idea that Manuman itself could sue. Manuman was a legal plaintiff.
In a case called Manuman v.

Minnesota, Menuman itself, again, the wild rice, brought suit against the state for a proposed water permit the state was going to exercise.

And so the legal argument was that this would have violated Menuman's right to water.

And the case was also brought to enforce Chippewa Nation's treaty rights because tribal members have the right to gather wild rice.

And in 2019, the Menominee Indian Tribe of Wisconsin asserted that the Menominee River has the right to exist naturally, the right to flourish, evolve, and remain unpolluted.

So, again, in Douglas's dissent in this case in Sierra Club, he's not just making up this crank idea. This is just thinking creatively beyond existing frameworks, right?

It's thinking creatively about what values are expressed through the law.

And if we value the environment, if we want to work to protect it, if it's something worth protecting and fighting for, then there should be legal avenues to do so preach yeah

and yeah i think before we wrap i'll say it again justice potter stewart if you ever come back to earth i will return you to hell immediately violently

not illegal also i want this on the record oh boy yep oh boy Next week, I'm not going to be joining you guys for an episode because I'm going to be in Alaska unless there's an emergency episode necessary.

And hopefully I'll be seeing some orcas. Amazing.

And if an orca happens to attack my boat, sink my dinghy, whatever, and I die, I'm giving you not only permission, I'm telling you, you must politicize my death to demand.

Demand we give trees and animals standing.

That's what I want done. If the orcas kill me.
It's a good way to go. If the orcas kill me,

let them sit. Hell yes.
We will politicize your death. We will also monetize it.
Good.

Cambridge kings and queens.

If the orcas came from me, I imagine it'd be like when the Fremen in Dune get eaten by the sandworm. They're just like, yes.

Yeah. Right.
Right. Exactly.
Returning to nature. It's a good way to go.
Exactly. Remember when the woman in Annihilation just turns into grass? Yeah, she just walks off and becomes a tree.

Yeah, exactly. Yeah, I'm ready.
Yeah.

Yeah. If Michael dies, we bring White Gladys on the podcast, new permanent co-host.

Our third host.

Now, one thing we want to do before we go is say goodbye to Percia Verlin, our good friend and now former production manager who has been a great asset to us. Yes, that's right.

And is now on to bigger and better things.

Thank you, you percia for all your help we love you very much thank you for everything percia we're gonna miss you so much should i have said we're in love with you

all right next week barring an emergency episode american shipbuilding the nlrb case from the 60s about unions

talking labor baby

subscribe to our patreon patreon.com slash five four pod for premium and ad-free episodes

access to our slack at the ten dollar tier all sorts of shit and also subscribe if you just want the premium episodes uh on apple podcasts apple.co slash five four pod all spelled out we'll see you next week bye everybody

five to four is presented by prologue projects Rachel Ward is our producer. Leon Napok and Andrew Parsons provide editorial support.

Our production manager is Percia Verlin, and our researcher is Jonathan DeBruyn. Peter Murphy designed our website, 54pod.com.

Our artwork is by Teddy Blanks at ChipsNY and our theme song is by Spatial Relations.

I mean, it's whatever the rock says for me, but you know. Well, you would know.
Fast X, Fast X.

Guys, it is actually fucking incredible. Like, we love bad movies.
So, here's a little fun Peter fact. I have never once seen any of the Fast and Furious movies.
Oh, really? Yeah. I've seen one.

I've seen the very first one, and that's it. I think I've seen two.
Yeah, you guys, we need another pandemic so you could just sit down and go to school. I don't know about that.

I don't know if that's what I would do with 24 hours of free time.