Academic journal article Duke Environmental Law & Policy Forum

Friends of the Earth, Foes of Federalism

Academic journal article Duke Environmental Law & Policy Forum

Friends of the Earth, Foes of Federalism

Article excerpt

I

In its January 2000 decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,(1) the United States Supreme Court re-empowered environmental interest groups to enforce the nation's environmental laws through public fines, whether or not the plaintiff-enforcers have suffered any tangible injury. Six members of the Bench joined Justice Ruth Bader Ginsburg's opinion for the Court. Only Justice Antonin Scalia dissented, joined by Justice Clarence Thomas.

Laidlaw has almost uniformly been viewed as something of a surprise because it breaks a string of restrictive environmental standing decisions.(2) Equally surprising, the decision was issued against the background of highly publicized events that have reminded us of the costs and dangers attendant to empowering unelected, unaccountable law enforcers to do the public's business. An effectively unremovable Independent Counsel nearly brought down the President of the United States. Tort lawyers have exacted some $240 billion from tobacco producers and their consumers, effectively imposing a tax no citizen or elected official ever voted for. Gun manufacturers, managed health care providers, and other industries have been targeted with similar litigation campaigns.

Misgivings over unleashing law enforcers from executive control should apply with even greater force to advocacy groups that enforce environmental laws as "private attorneys general." Unlike the real Kenneth Starr, the "green" Ken Starrs are not appointed by anyone, and they conduct their law enforcement business without public scrutiny or government supervision. And, unlike the multimillionaire anti-tobacco lawyers who are doing the bidding of the (elected) state attorneys general and legislatures they bought and paid for, ecological law enforcers lack any measure of public accountability. In short, environmental citizen suits involve--centrally, not incidentally--the delegation of governmental authority to private parties and the diversion of public funds into private hands.

Laidlaw, however and alas, roundly ignores questions of public accountability and responsibility. This, too, is a surprise: the Supreme Court's conservative-centrist majority has generally placed a premium on public accountability and responsibility. The Court's federalism jurisprudence is the most prominent illustration of these themes. In treating environmental citizen suits as utterly unproblematic, the Laidlaw majority breaks with more than a few environmental standing decisions.

Most attorneys and legal scholars probably think of standing and federalism issues as separate fields, and, perhaps, the Justices, too, compartmentalize constitutional law in that fashion. As shown below, however, standing and federalism are in fact quite closely connected. (Indeed, Laidlaw itself involved a non-trivial federalism issue, albeit one the Supreme Court chose to ignore.)(3) Legal taxonomy alone cannot explain why Laidlaw studiously avoids the issue of political responsibility that plays a central role in the Court's federalism decisions. Nor, this paper argues, can this departure be attributed to a judicial perception of environmental values and their private enforcers as uniquely important, efficient, or irreplaceable. The Laidlaw majority makes no mention of environmental values and treats citizen suits as simply an interest group vehicle.

What seems to be at work in Laidlaw is judicial caution--to my mind, excessive caution. In re-asserting constitutional norms that enhance political responsibility, the Court has often lacked the nerve to confront entrenched political coalitions and their congressional patrons. Environmental citizen suits enjoy firm congressional support, and they serve as an institutional support system for potent interest groups. Confronted in Laidlaw with that reality, the centrist Justices backed off. In so doing, they underestimated and perhaps undermined the force of the Court's agenda for a more responsible government. …

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