Is Scalian Standing the Latest Sighting of the Lochner-Ess Monster? Using Global Warming to Explore the Myth of the Corporate Person

By Pleune, Jamie Gibbs | Environmental Law, Winter 2008 | Go to article overview

Is Scalian Standing the Latest Sighting of the Lochner-Ess Monster? Using Global Warming to Explore the Myth of the Corporate Person


Pleune, Jamie Gibbs, Environmental Law


  I. INTRODUCTION
 II. WHAT IS SCALIAN STANDING?
     A. Environmental Injuries Do Not Fit the Scalian Standing Paradigm
III. A CORPORATION IS NOT ANALOGOUS TO A PERSON: THE DIVERGENT INTERESTS
     OF CORPORATIONS AND PEOPLE IN THE CONTEXT OF GLOBAL WARMING
     A. Corporations and People Have Different interests and Constraints
        1. The Human Rights Implications of Global Warming
     B. Corporate Interests and Global Warming
        1. The Size and Power of Corporations
        2. Corporations Can Enact Laws in their Favor--or Get Rid of
           Unfavorable Laws
           a. The "Forgotten History" of Global Warming Regulation
           b. The Industry's Campaign Against Regulation
       3. Corporations Can and Have Molded Public Opinion
          a. Corporations and Public Education
 IV. PAIRING THE MYTH OF THE CORPORATE PERSON WITH SCALIAN STANDING:
     ARGUMENTS AGAINST ASSUMING CORPORATIONS ARE ANALOGOUS TO PEOPLE IN
     THE STANDING ANALYSIS
     A. The Corporation as an Individual
     B. The Corporation as the "Object of the Law's Requirement"
     C. The Consequences of Pairing Scalian Standing and Corporate
        Personhood
 V. THE LATEST SIGHTING OF THE LOCHNER-ESS MONSTER: SCALIAN STANDING AND
    THE MYTH OF THE CORPORATE PERSON
    A. The Lochner-ess Monster

I. INTRODUCTION

Across the nation, people are walking out their front doors and noticing that something is different. It may be that there are no snow banks on the side of the road like they remember from their youth. (1) Maybe their tulips are coming up in the middle of February, or their lilacs are blooming earlier. (2) Maybe they are preparing for another record breaking summer of heat waves, (3) or worrying about widespread forest fires. (4) Whatever the spark, people are noticing changes, and they are calling for action. (5)

In response to this call, many states across the nation have taken steps to address global warming. (6) In addition to taking action within their own borders, states are also forming regional coalitions for addressing climate change. (7) This state-level action stands in marked contrast to the approach taken by the federal government. In 2003, one scholar noted that the divergence between federal government and state government responses to global warming was like "liv[ing] in two different countries. At the federal level, all policy makers oppose all efforts to control GHG emissions.... In contrast, policy initiatives at the state level generally take the opposite approach, encouraging GHG mitigation actions, whether big or small, at every turn." (8) Little has changed between 2003 and 2007, and the tension between action and inaction is increasingly making its way into the courts. (9)

The causes of action for the various suits range from nuisance to NEPA. (10) The impetus, however, is an increasing awareness that "business as usual" poses serious threats to humanity. (11) Regardless of the actual legal issue in the case, global warming litigation can be categorized into two thematic camps. The first camp could be called the "plea for action" camp. These suits are generally brought by public interest groups or individuals demanding that various parties--usually federal government agencies--do something about global warming. These suits range from requesting the EPA to regulate carbon dioxide emissions from new automobiles (12) to requesting various agencies to include global warming as a factor in their NEPA analyses. (13) A few nuisance claims that have been brought could also be put in this category. (14)

The second category of suits can be placed in the "leave me alone" or the "business as usual" camp. These claims are brought by corporations or associations challenging regulations imposed on them. Only a few of these exist--but they are instructive for the dynamic they reveal. To date, these suits have been brought by auto manufacturers and dealers to challenge state laws in states that have adopted greenhouse gas emission standards for automobiles.

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