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Luann V. Defenders of Wildlife is such an important case because it announced
for the first time that
Justice Scalia would have an outsized influence on environmental law.
Scalia had been confirmed with the court just six years earlier,
and his views on environmental law were never mentioned or even discussed.
But in 1992, we learned that this is a justice who had a very significant view.
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The case arose under the Federal Endangered Species Act,
a law passed by Congress in 1973.
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In the case the Defenders of Wildlife was suing
the Department of Interior because the federal agency had concluded that
the Endangered Species Act didn't apply to activities
of the federal government oversees outside the US borders.
There are members of Defenders Wildlife were very worried about
some federally funded activities in
Egypt which were endanger the continued existence of the now crocodile.
In Sri Lanka they would jeopardize the endangered species,
the Asian elephant or the snow leopard.
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The DC circuit
in this case had concluded the Defenders of
Wildlife members had what's called Article III standing.
In Article III standing,
you have to show that you have an injury in fact.
That you're injured by the government's action,
the government's action caused your injury and the court can
provide redress that will address the injury you've had.
That was then the case was brought before the United States Supreme Court.
The Supreme Court we have related two issues.
There were first whether Defenders of wildlife and
his members had Article III standing to bring the case at all in federal court.
The second issue of the case,
which had been sitting through the big issue,
and that is weather Endangered Species Act applies extra territorially.
Trinkwald never reach that second issue.
The court basically tossed the case out for lack of Article III standing,
and that was the opinion written for the court by Justice Scalia.
Standing requires that the plaintiff has suffered an injury in fact.
A term of art which we have defined as
the actual or imminent invasion of
a concrete and particularized interests of the plaintiffs.
His notion was you had to actually suffer immediate, temporal,
and physically proximate injury to bring a case to enforce the federal environmental law.
Now in theory, that might seem benign,
but it's not because environmental statutes
protect injuries which are very far-flung in time and space.
If you say the person who is bringing the suit,
has to actually share physical and temporal proximity to the injury,
that's often going to be hard to do.
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During the 1970s and during most of the 1980s,
the federal courts had welcomed citizen suit standing,
ability of citizens to enforce federal environmental laws.
It's really one of the signature features of federal environmental law
is Congress concluded that you really couldn't get full enforcement of laws,
especially it hits the federal government itself.
Unless you basically allowed citizens to enforce the terms of the laws.
Scalia wrote opinion for the court rejecting the citizen suit standing,
and he actually mocked the idea that they were outstanding.
It wasn't just the ruling,
it was a tone of the case that was so
different than what we've read in judicial opinions before that.
We also reject respondents novel Nexus Injury Theories under
which anyone who either uses the same ecosystem as a threatened animal,
likes to observe animals or has a professional interest in
them may sue without having to make any further showing.
We do not think that a mirror interest in a type of animal
without more can create an injury in fact.
Justice Scalia tended not to be a moderate person.
He tend to swing for the fences and sometimes he alienated some of his colleagues.
While he swung a little far Luann,
and while he had a majority for most opinion,
he lost Kennedy for part of it,
he lost Souter for part of it,
and it even more for Bordernly.
He lost Justice O'Connor entirely.
Justice O'Connor, a moderate conservative, dissented.
She joined Justice Rehnquist which accused Just Scalia's majority opinion,
have him engage in a slash and burn expedition through the environmental law of standing.
Now the immediate impact of the ruling was to
basically reduce environmental citizens standing throughout the United States.
A lot of lower court judges throughout environmental citizen suits,
particularly in clean water at cases which are the bread and butter of a lot of them
environmental citizen suit saying that the basic problem with those cases,
was the plaintiff's had shown that
this particular water pollution would actually cause them some immediate physical horror.
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Farmer plaintiffs realized
if they can get a better case with better facts,
they could well break apart
Justice Scalia's majority coalition and Luann and they did just that.
They won and they won big.
They won Seven to two and Justice Scalia found himself in dissent.
Justice O'Connor, Justice Souter,
Justice Kennedy, and even the Chief Justice,
William Rehnquist then joined Justice Ruth Bader,
Ginsburg a pagan that was a sweeping wind for Robert Wolfe standing.
Now we have on the court three new justices added by President Trump.
All three justices are people who've said they basically
like Justice Scalia vision of law and they like to emulate Justice Scalia.
It's not yet clear what will happen in
environmental outstanding and whether or not we'll see
a resurrection more or less of Justice Scalia's views in the Luann case.
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I love teaching the Luann case in class.
The standing issue is a critical part of environmental law.
In this case, what I do is I show
the students more than just the final opinion of the court.
I have gone to the National Archives and I've
taken pictures of the conference notes in the case,
how the justices voted.
I have copies of the draft opinions.
I see all the memos back and forth as Justice Kennedy and Justice Souter,
and Just O'Connor debated with Justice Scalia and tried to get him to make compromises.
It's a case where I try to bring the life,
the decision-making process within the court itself,
and the different tension points in the quest of Article III standing,
which has proved to be ever since Justice Scalia joined
the court until his passing really after 2016.
A really critical central issue within environmental law.
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