The Blackbird Whistling - The Silence Just After: Evaluating the Environmental Legacy of Justice Blackmun

Iowa Law Review

Volumn 85, Issue 2, 2000, Pages 429-515

  Manus, Peter ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034419848     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (401)

1. Wallace Stevens, Thirteen Ways of Looking at a Blackbird, stanza v (1923).
2. See, e.g., Stephen L. Wasby, Justice Harry A. Blackmun in the Burger Court, 11 HAMLINE L. REV. 183, 198 (1988) ("Over the years, [Blackmun] developed a measured, thoughtful approach . . . . Along with his growing appreciation of his own position and the Court's direction, he moved from a seemingly unreflective centrism to a more responsive, intentional centrism."); Note, The Changing Social Vision of Justice Blackmun, 96 HARV. L. REV. 717 (1983) ("In twelve years on the Supreme Court, Justice Harry A. Blackmun has undergone a remarkable transformation . . . . Court watchers have noted Justice Blackmun's migration 'from the Court's "right" to a more left of center position of several issues.'"); Glen Elsasser, Blackmun and the Death Penalty: In the End, Supreme Court Justice Opposed Execution, CHI. TRIB., Mar. 7, 1999, at 3 ("Blackmun, who died Thursday, came to the court as a law-and-order judge. But his views and reputation changed as he was too much a student of human experience to ignore the realities."); David G. Savage, Blackmun, Author of Roe vs. Wade, Dies, L.A. TIMES, Mar. 5, 1999, at A1 ("Blackmun's 24-year career on the Supreme Court saw one of the most remarkable transformations in the Court's history. Appointed in 1970 as a law-and-order conservative by President Nixon, he retired in 1994 as the Court's last true liberal - a champion of women's rights, an advocate of gay rights and an outspoken opponent of capital punishment.").
3. See, e.g., Stephen L. Wasby, Justice Harry A. Blackmun in the Burger Court, 11 HAMLINE L. REV. 183, 198 (1988) ("Over the years, [Blackmun] developed a measured, thoughtful approach . . . . Along with his growing appreciation of his own position and the Court's direction, he moved from a seemingly unreflective centrism to a more responsive, intentional centrism."); Note, The Changing Social Vision of Justice Blackmun, 96 HARV. L. REV. 717 (1983) ("In twelve years on the Supreme Court, Justice Harry A. Blackmun has undergone a remarkable transformation . . . . Court watchers have noted Justice Blackmun's migration 'from the Court's "right" to a more left of center position of several issues.'"); Glen Elsasser, Blackmun and the Death Penalty: In the End, Supreme Court Justice Opposed Execution, CHI. TRIB., Mar. 7, 1999, at 3 ("Blackmun, who died Thursday, came to the court as a law-and-order judge. But his views and reputation changed as he was too much a student of human experience to ignore the realities."); David G. Savage, Blackmun, Author of Roe vs. Wade, Dies, L.A. TIMES, Mar. 5, 1999, at A1 ("Blackmun's 24-year career on the Supreme Court saw one of the most remarkable transformations in the Court's history. Appointed in 1970 as a law-and-order conservative by President Nixon, he retired in 1994 as the Court's last true liberal - a champion of women's rights, an advocate of gay rights and an outspoken opponent of capital punishment.").
4. See, e.g., Stephen L. Wasby, Justice Harry A. Blackmun in the Burger Court, 11 HAMLINE L. REV. 183, 198 (1988) ("Over the years, [Blackmun] developed a measured, thoughtful approach . . . . Along with his growing appreciation of his own position and the Court's direction, he moved from a seemingly unreflective centrism to a more responsive, intentional centrism."); Note, The Changing Social Vision of Justice Blackmun, 96 HARV. L. REV. 717 (1983) ("In twelve years on the Supreme Court, Justice Harry A. Blackmun has undergone a remarkable transformation . . . . Court watchers have noted Justice Blackmun's migration 'from the Court's "right" to a more left of center position of several issues.'"); Glen Elsasser, Blackmun and the Death Penalty: In the End, Supreme Court Justice Opposed Execution, CHI. TRIB., Mar. 7, 1999, at 3 ("Blackmun, who died Thursday, came to the court as a law-and-order judge. But his views and reputation changed as he was too much a student of human experience to ignore the realities."); David G. Savage, Blackmun, Author of Roe vs. Wade, Dies, L.A. TIMES, Mar. 5, 1999, at A1 ("Blackmun's 24-year career on the Supreme Court saw one of the most remarkable transformations in the Court's history. Appointed in 1970 as a law-and-order conservative by President Nixon, he retired in 1994 as the Court's last true liberal - a champion of women's rights, an advocate of gay rights and an outspoken opponent of capital punishment.").
5. See, e.g., Stephen L. Wasby, Justice Harry A. Blackmun in the Burger Court, 11 HAMLINE L. REV. 183, 198 (1988) ("Over the years, [Blackmun] developed a measured, thoughtful approach . . . . Along with his growing appreciation of his own position and the Court's direction, he moved from a seemingly unreflective centrism to a more responsive, intentional centrism."); Note, The Changing Social Vision of Justice Blackmun, 96 HARV. L. REV. 717 (1983) ("In twelve years on the Supreme Court, Justice Harry A. Blackmun has undergone a remarkable transformation . . . . Court watchers have noted Justice Blackmun's migration 'from the Court's "right" to a more left of center position of several issues.'"); Glen Elsasser, Blackmun and the Death Penalty: In the End, Supreme Court Justice Opposed Execution, CHI. TRIB., Mar. 7, 1999, at 3 ("Blackmun, who died Thursday, came to the court as a law-and-order judge. But his views and reputation changed as he was too much a student of human experience to ignore the realities."); David G. Savage, Blackmun, Author of Roe vs. Wade, Dies, L.A. TIMES, Mar. 5, 1999, at A1 ("Blackmun's 24-year career on the Supreme Court saw one of the most remarkable transformations in the Court's history. Appointed in 1970 as a law-and-order conservative by President Nixon, he retired in 1994 as the Court's last true liberal - a champion of women's rights, an advocate of gay rights and an outspoken opponent of capital punishment.").
6. See Wasby, supra note 2, at 198 ("When ideology threatened to move the Court too far to the right, [Blackmun] was stimulated to try to maintain a centrist philosophy for the Court."); see also EDWARD P. LAZARUS, CLOSED CHAMBERS 380 (1998) (commenting on the effect of Blackmun's supposed shift). Lazarus notes: I think it is easy to overestimate the extent of Blackmun's philosophical conversion. To some degree, the politics of the Court moved (rightward) around him. And to some degree, his original labeling as a bland conservative was overplayed. Still, I expect there is some truth to the alleged explanatory power of Roe. No person could suffer such ugly assaults on his character and intelligence over such a long period without accumulating emotional scar tissue. But I would venture that this was only one side of the psychological calculus. For every brutal insult, for every protestor shadowing Blackmun's public appearances, there was someone, usually a woman, telling the Justice he had saved her life, preserved her family, or allowed her to realize the life she sought for herself. To the extent that the experience of Roe moved Blackmun leftward over the years, I would say he was not only pushed by criticism but pulled by a certain kind of praise. Id.
7. 410 U.S. 113 (1973). For a discussion of Roe as Blackmun's most significant opinion, and the one which influenced his development as a justice more than any other, see LAZARUS, supra note 3, at 23 ("You could see that [Blackmun] lived with the heavy mantle of that case [Roe v. Wade] every day of his life."); Tony Mauro, Blackmun at Peace with Roe Decision, DET. NEWS, Jan. 21, 1998, at A10 ("Now, in the winter of his life, Harry Blackmun is proud of the Roe vs. Wade decision he tortured over 25 years ago. It was not always that way."); Savage, supra note 2, at A1. Savage commented: [Blackmun] was always best known, however, as the author of Roe vs. Wade, the 7-2 decision that gave women a constitutional right to choose abortion. The 1973 decision made him a hero to millions of American women and a villain to nearly as many people. In a somber interview a decade after the ruling, Blackmun noted that no matter what followed, he would be remembered simply as "author of the abortion decision." "I'll carry this one to my grave," he said. Id.
8. But see Wasby, supra note 2, at 196. Wasby commented: Perhaps Roe v. Wade started the process of change as greater attention was given to Blackmun, but he did not show across-the-board elevated change immediately after that ruling. Justice O'Connor's appointment to the Court does mark a step-increase in change, at least in the tartness of Blackmun's comments and his greater public outspokenness. However, we must be careful not to confuse the greater visibility those comments brought with actual change in doctrine or in voting. Id.
9. 405 U.S. 727 (1972); see BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 163-64 (1979) (discussing how Blackmun "struggl[ed] with the knowledge that Douglas held him in professional contempt," and how Sierra Club created a bond between them).
10. See WOODWARD & ARMSTRONG, supra note 6, at 164 ("Douglas was delighted by Blackmun's support [in connection with Sierra Club v. Morton] and by his somewhat radical approach to broadening standing. He sought him out. 'You like the out of doors, don't you, Harry?' Douglas said, patting Blackmun on the back. He did not need to say more.").
11. See THE DOUGLAS LETTERS: SELECTIONS FROM THE PRIVATE PAPERS OF JUSTICE WILLIAM O. DOUGLAS at x (Melvin I. Uroksky ed., 1987) ("[Douglas] wrote his opinions quickly - some would say in a slapdash manner - and they lacked the rigorous analysis and logical coherence which could have formed the basis for a lasting jurisprudence.").
12. See WOODWARD & ARMSTRONG, supra note 6, at 164 ("Blackmun did not feel that he could join Douglas's dissent [in Sierra Club]. It was too personal. But he would vote with him, and he would provide the mathematical equivalent of Douglas's imagery.").
13. For a general discussion of Blackmun's case-by-case approach, see DAVID A. SCHULTZ & CHRISTOPHER E. SMITH, THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA 99 (1996) ("Some justices appear to recognize the complexity of issues as they ponder thoughtfully the difficult questions that confront the Supreme Court. For example, in Mistretta [v. United States], Justice Blackmun demonstrated that he recognized and was troubled by the potential problems that could develop from involving federal judges in activities outside of traditional adjudication.") Id. See also Dan T. Coenen, Justice Blackmun, Federalism and Separation of Powers, 97 DICK. L. REV. 541, 541-42 (1993) (describing Blackmun's "proclivity for non- absolutist, case-specific balancing" in opinions concerning federalism and separation of powers).
14. For a general discussion of Blackmun's case-by-case approach, see DAVID A. SCHULTZ & CHRISTOPHER E. SMITH, THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA 99 (1996) ("Some justices appear to recognize the complexity of issues as they ponder thoughtfully the difficult questions that confront the Supreme Court. For example, in Mistretta [v. United States], Justice Blackmun demonstrated that he recognized and was troubled by the potential problems that could develop from involving federal judges in activities outside of traditional adjudication.") Id. See also Dan T. Coenen, Justice Blackmun, Federalism and Separation of Powers, 97 DICK. L. REV. 541, 541-42 (1993) (describing Blackmun's "proclivity for non-absolutist, case-specific balancing" in opinions concerning federalism and separation of powers).
15. 497 U.S. 871, 900 (1990) (Blackmun, J., dissenting); see infra notes 238-49 and accompanying text (discussing Blackmun's restrained dissent in Lujan v. National Wildlife Fed'n).
16. 504 U.S. 555, 589 (1992) (Blackmun, J., dissenting); see infra notes 250-61 and accompanying text (discussing Blackmun's somewhat confrontational dissent in Lujan v. Defenders of Wildlife).
17. 505 U.S. 1003, 1036 (1992) (Blackmun, J., dissenting); see infra notes 263-94 and accompanying text (discussing Blackmun's highly combative dissent in Lucas v. South Carolina Coastal Council).
18. See Dolan v. City of Tigard, 512 U.S. 374 (1994) (complicating the standards for determining whether state exercise of police power is tailored enough to withstand takings challenge).
19. 520 U.S. 154 (1997); see infra notes 300-07 and accompanying text (discussing the flaws in the Court's opinion in Bennett v. Spear).
20. 523 U.S. 83 (1998); see infra notes 308-16 and accompanying text (discussing the opinion in Steel Co. v. Citizens for a Better Environment as another Supreme Court statement against environmental standing).
21. 523 U.S. 726 (1998); see infra notes 317-20 and accompanying text (discussing the opinion in Ohio Forestry Ass'n v. Sierra Club).
22. 154 F.3d 426 (D.C. Cir. 1998), en banc reh'g of 130 F.3d 464 (D.C. Cir. 1997); see infra notes 324-41 and accompanying text (discussing Animal Legal Defense Fund v. Glickman, in which the D.C. Circuit concluded that animal rights activists had standing to litigate on the issue of animal cruelty).
23. It is important to note at the outset that this exercise is as non-definitive as it is potentially useful to legal scholars. As another commentator noted about his study of Blackmun: Legal philosophies are subtle things, legal observers are not psychoanalysts, and justices are complex creatures who act solely in response to small numbers of individualized cases as a part of a complex institution. Even so, efforts at describing judicial tendencies are inevitable and may even be enlightening if taken with a proper grain of salt. Coenen, supra note 10, at 550 (offering a discussion of key themes in Blackmun's work in the area of constitutional structures).
24. See infra notes 24-100 and accompanying text.
25. See infra notes 101-294 and accompanying text.
26. See infra notes 298-341 and accompanying text.
27. See infra notes 342-83 and accompanying text.
28. See Sierra Club v. Morton, 401 U.S. 907 (1971) (granting the petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit).
29. 401 U.S. 402, 422-23 (1971) (Blackmun, J., concurring).
30. Id. Blackmun, defining the problem as one involving administrative rather than environmental issues, stated: I merely wish to state the obvious: (1) The case comes to this Court as the end product of more than a decade of endeavor to solve the interstate highway problem at Memphis. (2) The administrative decisions under attack here are not those of a single Secretary; some were made by the present Secretary's predecessor and, before him, by the Department of Commerce's Bureau of Public Roads. (3) The 1966 [Department of Transportation] Act and the 1968 [Federal-Aid Highway] Act have cut across former methods and here have imposed new standards and conditions upon a situation that already was largely developed. This undoubtably is why the record is sketchy and less than one would expect if the project were one which had been instituted after the passage of the 1966 Act. Id. at 422-23.
31. See Harold Hongju Koh, Justice Blackmun and the "World Out There," 104 YALE L.J. 23, 24 (1994) (discussing how "[Blackmun's pre-Court experiences] imbued him with an idealistic, almost naive, faith in government and institutions. In early opinions, he deferred easily to governmental authority and seemed out of touch with common problems.") (footnote omitted).
32. See LAZARUS, supra note 3, at 102 (discussing President Nixon's appointment of Blackmun to the Court as part of a political effort to combat the Warren Court activism by appointing a Justice anticipated to follow Chief Justice Burger's lead in a docile manner).
33. See, e.g., Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301 (1974) (identifying a "credibility gap" in the Army Corps' consideration of safety issues associated with an expensive dam project, and strongly implying that the Corps favored completing a project that might pose safety risks for economic reasons); Scenic Hudson Preservation Conference v. Federal Power Comm'n, 407 U.S. 926, 932 (1972) (Douglas, J., dissenting to denial of certiorari) (accusing the Federal Power Commission of ignoring environmental concerns unless challenged by private citizens, an approach Douglas identified as "symptomatic of the phenomenon of bureaucratic 'industry-mindedness'"); 2,606.84 Acres of Land in Tarrant County, Texas v. United States, 402 U.S. 916 (1971) (Douglas, J., dissenting) (writing an angry essay accusing the U.S. Army Corps of Engineers ("Army Corps") of dishonest and illegal practices in its taking of land for building projects). For examples of Douglas's publicly proclaimed views on agencies in forms other than judicial opinions, see Interview with Eric Sevareid, William O. Douglas Collection, CBS Interview File, Box 851, Library of Congress Manuscript Division, transcript of interview at 5, 8 (CBS television broadcast, Sept. 6, 1972) [hereinafter Interview with Eric Sevareid] (criticizing the Park Service, then the Forest Service). WILLIAM O. DOUGLAS, A WILDERNESS BILL OF RIGHTS 135-37 (1965) [hereinafter DOUGLAS, BILL OF RIGHTS] (questioning the economic and environmental effect of an Army Corps dam project); id. at 169 ("The Corps of Engineers is obsessed with building dams across most of our navigable and non-navigable rivers."); WILLIAM O. DOUGLAS, GO EAST, YOUNG MAN 213 (1974) [hereinafter DOUGLAS, GO EAST] ("[O]ver the years we began to rate [federal agencies that would degrade the environment] as public enemies. Number One was the Corps of Engineers, obsessed with building dams."); id. ("I took part in almost innumerable crusades across the country to save a river here, a lake there, a bit of woods somewhere else. The culprit was . . . frequently . . . a federal agency[.]").
34. See, e.g., Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301 (1974) (identifying a "credibility gap" in the Army Corps' consideration of safety issues associated with an expensive dam project, and strongly implying that the Corps favored completing a project that might pose safety risks for economic reasons); Scenic Hudson Preservation Conference v. Federal Power Comm'n, 407 U.S. 926, 932 (1972) (Douglas, J., dissenting to denial of certiorari) (accusing the Federal Power Commission of ignoring environmental concerns unless challenged by private citizens, an approach Douglas identified as "symptomatic of the phenomenon of bureaucratic 'industry-mindedness'"); 2,606.84 Acres of Land in Tarrant County, Texas v. United States, 402 U.S. 916 (1971) (Douglas, J., dissenting) (writing an angry essay accusing the U.S. Army Corps of Engineers ("Army Corps") of dishonest and illegal practices in its taking of land for building projects). For examples of Douglas's publicly proclaimed views on agencies in forms other than judicial opinions, see Interview with Eric Sevareid, William O. Douglas Collection, CBS Interview File, Box 851, Library of Congress Manuscript Division, transcript of interview at 5, 8 (CBS television broadcast, Sept. 6, 1972) [hereinafter Interview with Eric Sevareid] (criticizing the Park Service, then the Forest Service). WILLIAM O. DOUGLAS, A WILDERNESS BILL OF RIGHTS 135-37 (1965) [hereinafter DOUGLAS, BILL OF RIGHTS] (questioning the economic and environmental effect of an Army Corps dam project); id. at 169 ("The Corps of Engineers is obsessed with building dams across most of our navigable and non-navigable rivers."); WILLIAM O. DOUGLAS, GO EAST, YOUNG MAN 213 (1974) [hereinafter DOUGLAS, GO EAST] ("[O]ver the years we began to rate [federal agencies that would degrade the environment] as public enemies. Number One was the Corps of Engineers, obsessed with building dams."); id. ("I took part in almost innumerable crusades across the country to save a river here, a lake there, a bit of woods somewhere else. The culprit was . . . frequently . . . a federal agency[.]").
35. For evidence of Douglas's regard for Muir, see William O. Douglas, America's Vanishing Wilderness, LADIES HOME J., July 1964 (draft on file in William O. Douglas Collection, Speeches and Writing File, Box 873, Library of Congress Manuscript Division): A boy or girl should have the opportunity to grow in the . . . Muir tradition - learning about survival in the woods, ridding the mind of fear, filling the heart with affection for all the mysteries of the forests, acquiring reverence, wonder, and awe for all the handiwork of the Creator. Here a person can come to an understanding basis with the earth and all its creatures . . . . . . . [T]hese are ways for building character. Id. at 5; see also id. at 17 (quoting Muir). See generally WILLIAM O. DOUGLAS, MUIR OF THE MOUNTAINS (1961) (writing about the topic). For evidence of Douglas's view that an agency maintained its focus on its public purpose only if policed, see Sierra Club v. Morton, 405 U.S. 727, 748 (1972) (calling the Forest Service "notorious" in its alignment with lumber companies). See also DOUGLAS, GO EAST, supra note 29, at 207: My old hero, Gifford Pinchot, once said, "Conservation is the foresighted utilization, preservation and/or renewal of forests, water, lands and minerals, for the greatest good of the greatest number for the longest time." But he left behind a group of "experts" who specialize in conquering nature. One who watches the "experts" in Washington, D.C., who are supposed to be guardians of the "public interest," will conclude that we have no conservation ethic . . . . America is dedicated to the dollar sign and the pressure of the Establishment on any of these bureaus is overwhelming. Id.
36. For evidence of Douglas's regard for Muir, see William O. Douglas, America's Vanishing Wilderness, LADIES HOME J., July 1964 (draft on file in William O. Douglas Collection, Speeches and Writing File, Box 873, Library of Congress Manuscript Division): A boy or girl should have the opportunity to grow in the . . . Muir tradition - learning about survival in the woods, ridding the mind of fear, filling the heart with affection for all the mysteries of the forests, acquiring reverence, wonder, and awe for all the handiwork of the Creator. Here a person can come to an understanding basis with the earth and all its creatures . . . . . . . [T]hese are ways for building character. Id. at 5; see also id. at 17 (quoting Muir). See generally WILLIAM O. DOUGLAS, MUIR OF THE MOUNTAINS (1961) (writing about the topic). For evidence of Douglas's view that an agency maintained its focus on its public purpose only if policed, see Sierra Club v. Morton, 405 U.S. 727, 748 (1972) (calling the Forest Service "notorious" in its alignment with lumber companies). See also DOUGLAS, GO EAST, supra note 29, at 207: My old hero, Gifford Pinchot, once said, "Conservation is the foresighted utilization, preservation and/or renewal of forests, water, lands and minerals, for the greatest good of the greatest number for the longest time." But he left behind a group of "experts" who specialize in conquering nature. One who watches the "experts" in Washington, D.C., who are supposed to be guardians of the "public interest," will conclude that we have no conservation ethic . . . . America is dedicated to the dollar sign and the pressure of the Establishment on any of these bureaus is overwhelming. Id.
37. For evidence of Douglas's regard for Muir, see William O. Douglas, America's Vanishing Wilderness, LADIES HOME J., July 1964 (draft on file in William O. Douglas Collection, Speeches and Writing File, Box 873, Library of Congress Manuscript Division): A boy or girl should have the opportunity to grow in the . . . Muir tradition - learning about survival in the woods, ridding the mind of fear, filling the heart with affection for all the mysteries of the forests, acquiring reverence, wonder, and awe for all the handiwork of the Creator. Here a person can come to an understanding basis with the earth and all its creatures . . . . . . . [T]hese are ways for building character. Id. at 5; see also id. at 17 (quoting Muir). See generally WILLIAM O. DOUGLAS, MUIR OF THE MOUNTAINS (1961) (writing about the topic). For evidence of Douglas's view that an agency maintained its focus on its public purpose only if policed, see Sierra Club v. Morton, 405 U.S. 727, 748 (1972) (calling the Forest Service "notorious" in its alignment with lumber companies). See also DOUGLAS, GO EAST, supra note 29, at 207: My old hero, Gifford Pinchot, once said, "Conservation is the foresighted utilization, preservation and/or renewal of forests, water, lands and minerals, for the greatest good of the greatest number for the longest time." But he left behind a group of "experts" who specialize in conquering nature. One who watches the "experts" in Washington, D.C., who are supposed to be guardians of the "public interest," will conclude that we have no conservation ethic . . . . America is dedicated to the dollar sign and the pressure of the Establishment on any of these bureaus is overwhelming. Id.
38. For commentary on the evolving politicization of Douglas's position as Associate Justice, see JAMES F. SIMON, INDEPENDENT JOURNEY 275 (1980) ("The Court became Douglas's power center . . . . [T]hrough the fifties, sixties and into the seventies, then, Douglas would . . . speak out on every public issue that he considered vital to the national interest.") (citation omitted).
39. See id. at 9 ("[Justice] Frankfurter . . . had written in his diaries that Douglas was fueled by political ambition while he was on the Court and that every opinion, it seemed to Frankfurter, was calculated to further that ambition.").
40. 381 U.S. 479 (1965).
41. Only two justices questioned the concept without directly disparaging it. Id. at 530 (Stewart, J., joined by Black, J., dissenting) ("[T]he Court says [that there exists] the right to privacy 'created by several fundamental constitutional guarantees.' With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.").
42. See Interview with Eric Sevareid, supra note 29, at 8 ("[T]he Forest Service, again a group of high-minded men, nothing venal about them, but they're largely the mouth of the lumber companies. And the lumber companies log, log, log, and the Forest Service does very little except to cater to the desires of the lumber companies.").
43. See WOODWARD & ARMSTRONG, supra note 6, at 164 (noting that Blackmun "struggl[ed] with the knowledge that Douglas held him in personal contempt").
44. 398 F.2d 138 (5th Cir. 1968).
45. See id. at 141, 148. A third argument, less pertinent to this discussion, was that the jury selection process was subject to racial discriminatory practices. Id. at 151. Blackmun dismissed this element of the petition as factually unsubstantiated in the case at hand, as had been determined in a prior habeas corpus proceeding. Id. at 152.
46. See id. at 146-47. Blackmun faulted the statistical analysis for various reasons, including that it did not relate to the county where the offense in the case had been committed, and that it did not show that the jury in the case acted with racial discrimination. Id. "What we are concerned with here is Maxwell's case and only Maxwell's case." Id. at 147. As the statistical analysis had been submitted to substantiate its creator as an expert, and not in and of itself to prove racial discrimination in the case at hand, Blackmun's objections serve as a better example of his efforts to exercise judicial restraint than they do of his reputedly painstaking logic. "Although the investigation and study made by Professor Wolfgang in the summer of 1965 is interesting and provocative, we do not, on the basis of that study, upset Maxwell's conviction and, as a necessary consequence, cast serious doubt on every other rape conviction in the state courts of Arkansas." Id. at 147-48. Blackmun went on to make clear that, while he respected the premise of the condemned man's argument, he considered the courts to be the wrong place to address even such a relevant issue of social concern. Id. at 148.
47. See id. at 148-51.
48. See LAZARUS, supra note 3, at 100 (noting that Douglas was not "content with striking a solid blow against the death penalty, [instead going] for a knockout punch").
49. See id. at 99-100. Justices Warren and Brennan, like Douglas, wanted to strike down both the single verdict system and the process that allowed unfettered jury discretion. Id. at 100. Justices Fortas and Marshall agreed only to strike the single verdict system, and Justice Harlan remained open to this position. When Fortas and Marshall thus refused to go along with Douglas's draft, Douglas adjusted his opinion. Id. The case was stalled again by Brennan, who decided to write separately so as to set forth the jury discretion arguments that Douglas had struck from his opinion. Id.
50. See LAZARUS, supra note 3, at 100 (noting that Fortas was accused of having been involved in "a highly improper moneymaking scheme").
51. In addition to Fortas's resignation, Harlan demanded that the Court hear reargument on Maxwell. Before that took place, Warren retired. Id. at 101. In spite of Harlan's eventual decision to join Douglas's position, Douglas lost his majority. Id. at 100-01. During this time, House Republicans were seeking to impeach Douglas, arguably in retaliation for the defeat of Nixon's first two nominees to fill Fortas's seat. See DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 98-99 (1986). The grounds for impeachment were ostensibly Douglas's political activities that created an appearance of impropriety breaching the American Bar Association's canon of judicial ethics. Id. at 98. In actuality, Douglas's personal lifestyle, which included several affairs and two marriages to women young enough to have been Douglas's granddaughters, along with his rebellious attitude on the Court, may have motivated the move to impeach. But at least some of the scrutiny of Douglas was alleviated by Blackmun's confirmation, through which it was learned, and deemed acceptable, that Blackmun had maintained associations with the Mayo Clinic, among other private associations. Id. at 99. Thus, Douglas could have had a reason to welcome Blackmun to the Court.
52. LAZARUS, supra note 3, at 102; see O'BRIEN, supra note 44, at 36 (explaining that Nixon's four Supreme Court appointees "were all selected for their conservative 'strict constructionist' judicial philosophy").
53. See Maxwell v. Bishop, 398 U.S. 262 (1970) (vacating the judgment of the court of appeals and remanding the case to the district court on the basis of the case Witherspoon v. Illinois, 391 U.S. 510, 522 n.21 (1968), in which the Court determined that a death sentence could not be carried out if jury selection had included "for cause" exclusions on the basis of potential jury members voicing various objections to the death penalty).
54. 402 U.S. 183 (1971). Blackmun's Eighth Circuit decision in Maxwell is cited with approval on the jury discretion issue. Id. at 196 n.8.
55. See WILLIAM O. DOUGLAS, THE COURT YEARS 55 (1980) ( "[This is] the so-called hands-off policy, by which many Court-made rules promote the policy of judicial abstinence. This tradition meant that the Supreme Court would have symbolic value but little beyond that. That Court would sedulously avoid meeting contentious issues and would sit in resplendent dignity aloof from the issues of the day."); see also Flast v. Cohen, 392 U.S. 83, 112 (1968) (Douglas, J., concurring) ("When the judiciary is no longer 'a great rock' in the storm, . . . when courts are niggardly in the use of their power and reach great issues only timidly and reluctantly, the force of the Constitution in the life of the Nation is greatly weakened.") (footnote omitted).
56. 408 U.S. 238 (1972).
57. See id. at 405-06 ("Were I a legislator [Blackmun observed], I would vote against the death penalty for the policy reasons argued by counsel for the respective petitioners and expressed and adopted in the several opinions filed by the Justices who vote to reverse these judgments."). Blackmun acknowledged that the scope of the Eighth Amendment to the U.S. Constitution might evolve, and that the Court had a duty to recognize the culture's maturing standards of decency. His problem with the decision at hand, however, was "the suddenness of the Court's perception of progress in the human attitude since decisions [favoring the death penalty] of only a short while ago." Id. at 409-10. Ultimately, he determined: I do not sit on these cases . . . as a legislator, responsive, at least in part, to the wills of the constituents . . . . [Judges] should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great. In fact, as today's decision reveals, they are almost irresistible. Id. at 410-11.
58. For another view on the Blackmun-Douglas relationship, see PHILIP J. COOPER, BATTLES ON THE BENCH 129 (1995) (characterizing the Douglas battles with Blackmun, as well as those with Justices Powell and Rehnquist, as battles for votes on the bench, and not personal).
59. 410 U.S. 113 (1975).
60. See Wasby, supra note 2, at 190 ("In his early Court years, Harry Blackmun appears to have been influenced rather than to have exerted influence . . . . Perceptions of the Chief Justice's influence on Blackmun were underscored by his withdrawal of his opinion in the abortion cases at the end of the 1971 Term, purportedly after a visit from Burger, an act certainly consistent with the Chief Justice's wishes.") (footnote omitted).
61. See O'BRIEN, supra note 44, at 30 ("A 'freshman' in his second year on the Court and assigned to write a very difficult opinion, Blackmun found himself in the middle of the cross-pressures of a growing dispute. Blackmun was psychologically and intellectually torn. On the one hand, Burger had been his longtime friend and had recommended his appointment to the Court; on the other, Blackmun was attracted to Douglas's position on the issue of abortion.").
62. See LAZARUS, supra note 3, at 24 ("Such extortionist demands [between justices offering to join one another's opinions on conditions] often arrived gloved in flattery, as in one Justice William Douglas wrote to Justice Stanley Reed: 'I like your opinion in No. 18 very much. You have done an excellent job in a difficult field. And I want to join you in it. But -'"); see also id. at 136 (quoting Justice Jackson's characterization of Douglas's political grandstanding in connection with the Rosenberg case as "the dirtiest, most shameful, most cynical performance that I have ever heard in matters pertaining to law").
63. Id. at 349.
64. Id. at 351.
65. Id.
66. Id. at 351-53. Douglas feared that reargument would allow the inclusion of new Justices Powell and Rehnquist in the decision, with the potential for a switch in the majority; see O'BRIEN, supra note 44, at 31 (expressing Douglas's fears).
67. See O'BRIEN, supra note 44, at 31 (citing Memorandum from Justice Brennan to Chief Justice Burger (June 1, 1972) (on file with the William J. Brennan Collection, Box 281, Library of Congress, Manuscript Division, Washington, D.C.)).
68. See LAZARUS, supra note 3, at 357 ("Douglas, Stewart, and Powell each wrote to commend [Blackmun] for an 'excellent,' 'admirably thorough,' and 'fine' job.").
69. See id. at 365-66 ("The [clerk] story captures much of what is wrong with Roe. The opinion's actual legal argument is stunningly brief.").
70. See id. at 367-68: Like the vast majority of well-educated, non-Catholic, professionally successful males, the Justices in the Roe majority thought the nation's abortion laws excessively restrictive, ineffective, and potentially highly dangerous. To them, abortion was a private tragedy to be handled discreetly between a woman and her doctor, not a matter for political decision or the business of the criminal law . . . . From this perspective, Roe was simply the right and decent thing to do Thus, while Blackmun's Roe opinion acknowledged that abortion was a subject marked by fierce division, this was an intellectual observation divorced from the Court itself. Id.
71. Indeed, in the years following Roe, Blackmun's "appreciation of Roe as an engine for social equality [has grown] more fully considered and expressed." Id. at 380. Blackmun's perceived drift from moderate conservative to outspoken liberal resulted from an extreme defensiveness of Roe in the face of harsh and sometimes ridiculing criticism. By this account, "Blackmun's turn to the left was . . . not intellectual but psychological" and took the form of a personal bond with those, like Brennan and Marshall, who defended Roe and a distancing from those who assaulted it). Id. at 380 n.* (citing JOHN C. JEFFRIES, JUSTICE LEWIS F. POWELL, JR.: A BIOGRAPHY 364-69 (1994)).
72. Blackmun was offended by the derogatory label, along with its companion, "Hip Pocket Harry." See John A. Jenkins, A Candid Talk with Justice Blackmun, N.Y. TIMES, Feb. 10, 1983 (Magazine), at 20 ("'I have a little anger underneath it all,' he says. 'Anger from being categorized over the 12 years I've been here in a way I think never fit.'"); see also Wasby, supra note 2, at 196 ("We cannot know how Blackmun would have supported Burger over the longer term if Burger, instead of showing inability to shepherd potentially useful resources, had respected Blackmun's autonomy.").
73. See LAZARUS, supra note 3, at 23 ("You could see that he lived with the heavy mantle of that case [Roe] every day of his life . . . .").
74. See WOODWARD & ARMSTRONG, supra note 6, at 164 ("Blackmun admired Douglas for the passion of his opinions. He was particularly moved by the poetic force of [Douglas's dissent in Sierra Club v. Morton] . . . Blackmun did not feel he could join Douglas's dissent. It was too personal.").
75. Id. (unnumbered footnote).
76. Sierra Club v. Morton, 405 U.S. 727, 728-29 (1972). The project involved a "$35 million complex of motels, restaurants, swimming pools, parking lots and other structures designed to accommodate 14,000 visitors daily," to be constructed on 80 acres of the valley floor and mountain slopes of Mineral King. To access the resort, the State of California proposed a 20 mile highway through Sequoia National Park. Id.
77. See id. at 730-41; see also Brief for Petitioner at 19, Sierra Club (No. 70-34) (arguing in favor of standing for conservation organizations); Transcript of Oral Arguments at 6-7, Sierra Club (No. 70-34) (on file with author) (same).
78. See Brief for Petitioners at 19, Sierra Club (No. 70-34) stating: [In environmental cases] administrative action has wide-ranging effects important to the whole society . . . [and] well-financed, well-organized private interests are arrayed against broader but less specific interests of the defenseless and unorganized population at large. In these circumstances, it is unlikely that lawless administrative action will be judicially reviewed and corrected unless at the behest of some organization acting as "private Attorney General." . . . The federal judiciary should not abdicate its responsibility by denying standing to the only private plaintiffs likely to frame and present the issues to the Court. Id.
79. See Transcript of Oral Arguments at 6-7, Sierra Club (No. 70-34) (on file with author) (recording an exchange between Justice Blackmun and Sierra Club counsel): As an incident of the Club's interest in the area, some of its members use Mineral King. Q: Does the record show that? MR. SELNA: Mr. Justice Blackmun, the record contains a letter which is written by a member of the Board of Directors of the Sierra Club, in which he in turn refers to his trips to Mineral King. Id.
80. As the Solicitor General argued, the Sierra Club did not include specific allegations of personal injury to individual Club members in its complaint. [T]he Wilderness Society says that the Sierra Club really has more specific grounds of standing, and in its Reply Brief and in the oral argument here, the Club now adopts the position of the Wilderness Society. But there are no allegations in the complaint to warrant such a decision. The complaint was based solely on the baldest grounds of standing interest. Id. at 27.
81. For evidence that Douglas lobbied Blackmun to join his dissent, see Letter from William A. Alsup to Justice Douglas, Sierra Club v. Morton Case File, File of Douglas Law Clerk, William H. Alsup, Manuscript Division, Library of Congress (Apr. 7, 1972) [hereinafter Letter from William A. Alsup to Justice Douglas] (discussing Alsup's queries on Douglas's behalf about whether Blackmun might join Douglas's dissent, as well as some strategizing in that pursuit).
82. See Sierra Club v. Morton, 405 U.S. 727, 745 (1972) (Douglas, J., dissenting) ("The Solicitor General . . . considers the problem in terms of 'government by the Judiciary.' With all respect, the problem is to make certain that the inanimate objects, which are the very core of America's beauty, have spokesmen before they are destroyed.").
83. See id.; see also id. at 745-46. Justice Douglas stated: It is, of course, true that most of [the environment is] under the control of a federal or state agency . . . . Yet the pressures on agencies for favorable action one way or another are enormous . . . . The federal agencies of which I speak are not venal or corrupt. But they are notoriously under the control of powerful interest who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity with the agency which in time develops between the regulator and regulated. Id.
84. See id. at 753 (setting forth an extract from the oral argument of the Solicitor Genera in the appendix).
85. See id. at 743 (Douglas, J., dissenting) ("[T]he river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water - whether it be a fisherman, a canoeist, a zoologist, or a logger - must be able to speak for the values which the river represents and which are threatened with destruction."); see also id. at 749 n.8 ("Permitting a court to appoint a representative of an inanimate object would not be significantly different from customary judicial appointments of guardian ad litem, executors, conservators, receivers, or counsel for indigents.").
86. Christopher D. Stone, Should Trees Have Standing? - Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972) [hereinafter, Stone, Should Trees Have Standing?].
87. For Douglas's use of Stone's article, see Sierra Club, 405 U.S. at 742 (citing the Stone article for the proposition that elements of nature stand as litigants with commentary regarding the article). See also Christopher D. Stone, Commentary: William O. Douglas and the Environment, in HE SHALL NOT PASS THIS WAY AGAIN 231 (Stephen L. Wasby, ed., 1990) [hereinafter, Stone, Commentary] (discussing Douglas's Sierra Club dissent and noting that "the standing of nature, as [Douglas] endorsed it, is principally rested on functional grounds (that is, he recognized the power of the idea as a sort of legal fiction for getting environmentalists into court)"). In short, Stone considered Douglas to have made scant use of his thesis.
88. See Sierra Club, 405 U.S. at 752 (Douglas, J., dissenting) (arguing that the law must recognize environmental issues as brought before the courts in the name of the element of nature injured as the only way that "[t]here will be assurances that all of the forms of life which [a particular ecosystem] represents will stand before the court - the pileated woodpecker as well as the coyote and bear, the lemming as well as the trout in the streams"). Douglas followed that plea with a quote from Leopold's A SAND COUNTY ALMANAC that ended his dissent: Ecology reflects the land ethic, and Aldo Leopold wrote in A SAND COUNTY ALMANAC 204 (1949), "The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land." That, as I see it, is the issue of "standing" in the present case or controversy. Id. at 752.
89. See id. at 758 (Blackmun, J., dissenting) (characterizing Douglas's dissent as an "eloquent opinion [in which Douglas] imaginatively suggested [a scheme for environmental standing] with obvious, appropriate, and self-imposed limitations as to standing").
90. See id. at 741 (Douglas, J., dissenting) (advocating that the court "fashion[ ] a federal rule that allow[s] environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage"); see also id. at 752 (returning to the idea that "environmental issues should be tendered [in court] by the inanimate object itself"). Compare with Blackmun's thesis statement: I would permit an imaginative expansion of our traditional concepts of standing in order to enable an organization such as the Sierra Club, possessed, as it is, of pertinent, bona fide, and well-recognized attributes and purposes in the area of environment, to litigate environmental issues. This incursion upon tradition need not be very extensive. Certainly, it should be no cause for alarm. It is no more progressive than was the decision in Data Processing itself. It need only recognize the interest of one who has a provable, sincere, dedicated, and established status. We need not fear that Pandora's box will be opened or that there will be no limit to the number of those who desire to participate in environmental litigation. The courts will exercise appropriate restraints just as they have exercised them in the past. Id. at 757-58 (Blackmun, J., dissenting).
91. Douglas advocated that courts recognize standing in persons who are able to present themselves as occupying a level of intimacy with a particular ecological unit, or intermingled microcosm of flora, fauna, and terrain. This level of intimacy would establish that such persons understood, and thus could competently assert, the legal interests of the various elements of nature that made up the ecological unit. Sierra Club, 405 U.S. at 743 (Douglas, J., dissenting). Examples of such intimacy include hiking, fishing, camping, or mere visitation so as to appreciate nature's beauty. Id. at 744-45. Douglas explained that such persons were in a sense members of the ecological unit with which they had developed their intimate association, and thus were suitable spokespersons. Id. at 745. Douglas distinguished these appropriate environmental spokespersons from "[t]hose who merely are caught up in environmental news or propaganda and flock to defend [nature]." Id. at 752. Thus, Douglas indicated that he favored a standing rule that allowed individuals personally injured by a threat to the environment to bring those claims to court along with associated issues impacting the area of environment threatened, and that he disfavored a standing rule that allowed an environmental organization to bring a public interest claim on behalf of the environmental interests of that organization. Such a literal reading of Douglas's opinion arguably puts him in agreement with the majority opinion and opposed to the argument offered by the Sierra Club. See id. at 740 n.15 ("The test of injury in fact goes only to the question of standing to obtain judicial review. Once this standing is established, the party may assert the interests of the general public in support of his claim for equitable relief."); id. at 737 ("[O]nce review is properly invoked, [an individual plaintiff] may argue the public interest in support of his claim that the agency has failed to comply with its statutory mandate"); see also id. at 730 ("Sierra Club sued as a membership corporation with 'a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests . . . .'"); Brief for Petitioner at 19, Sierra Club v. Morton, 405 U.S. 727 (1972) (No. 70-34): The standing issue has particular significance for cases involving the environment . . . . [In environmental cases,] administrative action has wide-ranging effects important to the whole society . . . [and] well-financed, well-organized private interests are arrayed against broader but less specific interests of the defenseless and unorganized population at large. In these circumstances, it is unlikely that lawless administrative action will be judicially reviewed and corrected unless at the behest of some organization acting as "private Attorney General." Id.
92. See Sierra Club, 405 U.S. at 759 (Blackmun, J., dissenting): [A]ny user of the Mineral King area - the real 'user' - is an unlikely adversary for this Disney-governmental project. He naturally will be inclined to regard the situation as one that should benefit him economically. His fishing or camping or guiding or handyman or general outdoor prowess perhaps will find an early and ready market among the visitors. But that glow of anticipation will be short-lived at best. If he is a true lover of the wilderness - as is likely, or he would not be near Mineral King in the first place - it will not be long before he yearns for the good old days when masses of people - that 14,000 influx per day - and their thus far uncontrollable waste were unknown to Mineral King. Id.
93. See Stone, Should Trees Have Standing?, supra note 79, at 464-73 (discussing potential legal claimants, or "friends" that the scheme he proposed would allow to assert standing on behalf of natural objects, including the Sierra Club, the Environmental Defense Fund, the Friends of the Earth, the Natural Resources Defense Council, and the Izaak Walton League). Similarly, Blackmun advocated that the law recognize environmental standing in well-reputed environmental organizations. Sierra Club, 405 U.S. at 757-58. For a discussion of Stone's plan to influence Douglas's thinking in Sierra Club with his article, see Garrett Hardin, Foreword to CHRISTOPHER D. STONE, SHOULD TREES HAVE STANDING? at xiii-xiv (1974) ("[The Sierra Club case] . . . was the needed case, a ready-made vehicle to bring to the Court's attention the theory [that Stone] was developing . . . . Justice Douglas (who, if anyone on the Court, might be receptive to the notion of legal rights for natural objects) . . . would be supplied with a draft of [the article] . . . . Thus he would at least have the idea in his hands.").
94. See Stone, Should Trees Have Standing?, supra note 79, at 464-73 (discussing potential legal claimants, or "friends" that the scheme he proposed would allow to assert standing on behalf of natural objects, including the Sierra Club, the Environmental Defense Fund, the Friends of the Earth, the Natural Resources Defense Council, and the Izaak Walton League). Similarly, Blackmun advocated that the law recognize environmental standing in well-reputed environmental organizations. Sierra Club, 405 U.S. at 757-58. For a discussion of Stone's plan to influence Douglas's thinking in Sierra Club with his article, see Garrett Hardin, Foreword to CHRISTOPHER D. STONE, SHOULD TREES HAVE STANDING? at xiii-xiv (1974) ("[The Sierra Club case] . . . was the needed case, a ready-made vehicle to bring to the Court's attention the theory [that Stone] was developing . . . . Justice Douglas (who, if anyone on the Court, might be receptive to the notion of legal rights for natural objects) . . . would be supplied with a draft of [the article] . . . . Thus he would at least have the idea in his hands.").
95. See Sierra Club, 405 U.S. at 748 (Douglas, J., dissenting) (accusing the Forest Service of being "notorious for its alignment with lumber companies," as well as being "influenced by powerful logging interests [into] pa[ying] only lip service to its multiple-use mandate and . . . auction[ing] away millions of timberland acres without considering environmental or conservation interests). Shortly thereafter, Douglas included a quote stating that "in Wyoming . . . the Forest Service is very much . . . nursemaid . . . to the lumber industry . . . ." Id. at n.7 (quoting Senator Gale McGee). Later in his dissent, Douglas quoted at some length from Leopold's ROUND RIVER, presenting its discussion of the long term environmental impact of actions taken in the Middle Ages on a mountain slope in Germany. Id. at 750 n.8. The general pertinence of these ideas to Douglas's argument is clear. Nevertheless, the passages read more like lobbying than legal analysis.
96. See id. at 755 (Blackmun, J., dissenting): The ultimate result of the Court's decision today, I fear, and sadly so, is that the 35.3-million-dollar complex, over 10 times greater than the Forest Service's suggested minimum, will now hastily proceed to completion; that serious opposition to it will recede in discouragement; and that Mineral King, the "area of great natural beauty nestled in the Sierra Nevada Mountains," to use the Court's words, will become defaced, at least in part, and, like so many other areas, will cease to be "uncluttered by the products of civilization." Id. Later in his dissent, Blackmun presented some more specific figures regarding the impact of the Disney resort on Sequoia National Park. Id. at 758-59.
97. See Hardin, supra note 85, at xv (observing that Douglas's Sierra Club dissent "resound[ed] in newspapers and editorials across the country . . .").
98. See Oliver A. Houck, The Secret Opinions of the United States Supreme Court on Leading Cases in Environmental Law, Never Before Published!, 65 U. COLO. L. REV. 459, 497-98 (1994) ("Th[e] holding has become all but forgotten. Instead, Sierra Club v. Morton has become a monument in administrative environmental law for the degree of standing that it did in fact confer . . . . The legacy of Sierra Club v. Morton is perhaps more pervasive, if less visible, than any opinion in environmental law.").
99. See Charles F. Wilkinson, Justice Douglas and the Public Lands, in HE SHALL NOT PASS THIS WAY AGAIN 233, 243 (Stephen L. Wasby ed., 1990) ("[B]ecause of Justice Douglas's popularization of Stone's concept, the question, 'Should trees have standing?' personifies, for lawyers and nonlawyers alike, many of the root philosophical questions in the policy and jurisprudence of our natural resources.").
100. Douglas's argument on this issue is that agency capture and the whimsical nature of public concerns, along with the importance and vulnerability of nature, combine to create an imperative that the law address environmental issues in the name of threatened elements of the environment themselves. See Sierra Club, 405 U.S. at 741-42 ("Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation."); id. at 748-49 ("The Forest Service . . . has been notorious for its alignment with lumber companies, although its mandate from Congress directs it to consider the various aspects of multiple use in its supervision of the national forests . . . . The voice of the inanimate object [in court], therefore, should not be stilled."); id. at 751 (worrying about the inadequate knowledge about, and dedication to, the environment of "[t]hose who merely are caught up in environmental news or propaganda and flock to defend these waters or areas," and thus arguing that "[t]hat is why these environmental issues should be tendered by the inanimate object itself").
101. For a commentary on Douglas's legacy generally, and specifically in connection with Sierra Club, see Stone, Commentary, supra note 79, at 227, 229 ("In the public mind, no member of the U.S. Supreme Court, and few government figures in any area, were so closely identified with Nature as William O. Douglas. One is therefore struck to realize how little judicial legacy Douglas left for contemporary environmental law or theory.").
102. See Sierra Club, 405 U.S. at 742-43. Douglas cited a number of instances in which the law recognized non-human litigants, such as the corporate sole from early common law, as well as ships in admiralty. The problem with his corporate analogy is that corporations are entities recognized in the law as representing the collective interests of stockholders and other human individuals affiliated with the corporations. Douglas's scheme for environmental representation did not follow that pattern. As for admiralty's recognition of the ship as a legal entity, the peculiarities of that legal fiction derive from historical purposes that are not analogous to those behind Douglas's environmental representative, and do not provide assurance that the idea is worth emulating. See Matthew P. Harrington, Rethinking In Rem: The Supreme Court's New (and Misguided) Approach to Civil Forfeiture, 12 YALE L. & POL'Y REV. 281, 286 (1994) ("The purpose of the action in rem [in the admiralty context] is to declare status, rather than guilt of a criminal sense. The thing is not punished; instead, the court is asked to recognize a change in the status of its ownership. The intent is to enable the government to enforce its laws without the need to ascertain the identity of the owner of the goods.").
103. See Sierra Club, 405 U.S. at 753. Douglas included the Solicitor General's argument without much commentary. As that argument was both eloquent and persuasive, Douglas's decision to include it might have been a mistake. Blackmun identified it as a problem with Douglas's dissent. See Letter from William A. Alsup to Justice Douglas, supra note 74 (discussing Blackmun's view that Douglas should not include the appendix with his dissent).
104. See, e.g., Porter County Chapter of the Izaak Walton League of Am. v. Atomic Energy Comm'n, 515 F.2d 513, 522 n.11 (7th Cir. 1975) (citing Douglas's Sierra Club dissent for the point that a regulatory agency may become
105. Sierra Club, 405 U.S. at 757-58.
106. See id.
107. See id. at 756-57. In fact, Blackmun presented his more conservative option as the first of the two courses of action he identified as preferable to the one taken by the Court.
108. See id. at 758-59. Blackmun wrote: The [Disney] complex, the Court notes, will accommodate 14,000 visitors a day (3,100 overnight; some 800 employees; 10 restaurants; 20 ski lifts) . . . . [The proposed 9.2 mile road through Sequoia National Park] will accommodat[e] 700-800 vehicles per hour and a peak of 1,200 per hour . . . . If we assume that the 14,000 daily visitors come by automobile . . . and that each visiting automobile carries four passengers . . . those 14,000 visitors will move in 3,500 vehicles. If we confine their movements . . . to 12 hours out of the daily 24, the 3,500 automobiles will pass any given point on the two-lane road at the rate of about 300 an hour. This amounts to five vehicles per minute, or an average of one every 12 seconds. This frequency is further increased to one every six seconds when the necessary return traffic along that same two-lane road is considered. And this does not include service vehicles and employees' cars. Is this the way we perpetuate the wilderness and its beauty, solitude, and quiet? Id.
109. See id. at 760 n.2 (quoting JOHN DONNE, DEVOTIONS UPON EMERGENT OCCASIONS (1624)). Blackmun contrasted the philosophy of integrated interests between men and between men and the earth, elicitable from the Donne poem, with the majority's reference to ALEXIS DE TOCQUEVILLE'S, DEMOCRACY IN AMERICA, from which the majority extracted the sentiment that "judicial review is effective largely because it is not available simply at the behest of a partisan faction." Id. at 740-41 n.16 (quoting DE TOCQUEVILLE, supra, at 280). Thus, the majority revealed that it considered environmentalism the concern of a fringe partisan faction, a characterization Blackmun warned against "[i]n this environmental context." Id. at 760.
110. See id. at 760 n.2 (quoting JOHN DONNE, DEVOTIONS UPON EMERGENT OCCASIONS (1624)). Blackmun contrasted the philosophy of integrated interests between men and between men and the earth, elicitable from the Donne poem, with the majority's reference to ALEXIS DE TOCQUEVILLE'S, DEMOCRACY IN AMERICA, from which the majority extracted the sentiment that "judicial review is effective largely because it is not available simply at the behest of a partisan faction." Id. at 740-41 n.16 (quoting DE TOCQUEVILLE, supra, at 280). Thus, the majority revealed that it considered environmentalism the concern of a fringe partisan faction, a characterization Blackmun warned against "[i]n this environmental context." Id. at 760.
111. In fact, several of these so-called jurisprudential tenets may be readily elicited from Blackmun's early Court decisions, discussed above. For example, the early death penalty cases demonstrate Blackmun's close adherence to a code of judicial restraint under which he was capable of rendering decisions that were contrary to his personal ethics. See supra notes 37-50 and accompanying text. Roe, on the other hand, illustrates Blackmun's ability and willingness to address controversial social issues placed before the Court. See supra notes 52-65 and accompanying text. Blackmun's faith in the professional integrity of governmental and agency experts may be discerned in his terse Overton Park concurrence. See supra notes 25-28 and accompanying text.
112. See Savage, supra note 2, at A1 ("At the court, Blackmun developed a reputation as a scholarly plodder. He worked prodigiously long hours and drove his clerks to check and recheck facts and citations."). Blackmun could also be accused of undisciplined self-indulgence in certain cases, including his opinion in Flood v. Kuhn, 405 U.S. 258 (1972) (containing a lengthy tribute to baseball greats). Justices White and Burger, in separate concurrences, declined to join that section of Blackmun's opinion. Id. at 285. Self-indulgence might also be charged in connection with Blackmun's dissent in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), although his inclusion of the mawkish "Poor Joshua!" exclamation in his dissent has also been lauded as evidence of his sensitivity to the human element underlying the legal analysis. See Edward P. Lazarus, Blackmun: Union - and Equal Justice, L.A. TIMES, Mar. 7, 1999, at M1 ("Blackmun was sometimes mocked for [his recognition that cases arise from the unseen anguish of real people]. When he [wrote in a] dissenting opinion 'Poor Joshua!' in a case where the court relieved a state child-welfare agency of liability after it failed to protect a young boy from violent parental abuse, Blackmun's critics had a field day."). The exclamation, read in context, is far less weepy and more steely than it seems when considered in isolation. See DeShaney, 489 U.S. at 213 (Blackmun, J., dissenting): Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles - so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" - that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Id.
113. For further commentary on Blackmun's controlled approach to the development of a jurisprudence, see, for example, Coenen, supra note 10: Justice Blackmun often seems uncomfortable with "bight-line," rigid rules, reflecting strong forms of categorical balancing . . . . Rather, his propensity is for open-textured, multi-faceted standards that avoid absolutist pronouncements and facilitate case-specific application of the policies underlying relevant constitutional principles . . . . And, in general, he is careful to decide only the dispute at hand, eschewing opportunities to use judicial opinions to address as well large numbers of future, distinguishable cases. Id. at 554-55 (footnotes omitted). For a contrasting approach, see discussion of Justice Scalia's jurisprudential approach, infra notes 234, 237-42, 250-82, 299-315 and accompanying text. "Ever since his 1986 appointment, Justice Antonin Scalia has waged a full-scale campaign against methods of statutory interpretation that depend on assembling historical evidence and in favor of textual exegesis - that is, affixing meaning by looking solely at the words of a law itself." LAZARUS, supra note 3, at 25; see also Peter B. Edelman, Justice Scalia's Jurisprudence and the Good Society: Shades of Felix Frankfurter and the Harvard Hit Parade of the 1950s, 12 CARDOZO L. REV. 1799 (1991): When the methodology has to vine in order for the merits to go as Justice Scalia wants, it gives. There is often a tone that the process was much more important than the outcome, a sort of "gee whiz, look what I found" quality to the outcome. We know enough now, though, to know that it is the outcome that counts for him just as it does for most of the rest of us. Id. at 1800.
114. See infra notes 140-62 and accompanying text (discussing cases in which Blackmun exhibited insensitivity to the position of the regulated industries).
115. See infra notes 199-233 and accompanying text (discussing Blackmun's rising comfort level with adding his own views to his opinions).
116. See infra notes 219-33 and accompanying text (discussing opinions in which Blackmun's voice emerged).
117. See RESTATEMENT OF PROPERTY §§ 1-4; Arthur L. Corbin, Foreword to WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS at xiii (Walter Wheeler Cook ed., 1964) (describing Hohfeld's contribution to the Restatement of Property). Hohfeld's view of legal relations has been identified as the culmination of a jurisprudential movement that included the theorists Oliver Wendell Holmes, Henry Terry, Edward Weeks and John Salmond. See Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence From Bentham to Hohfeld, 1982 WIS. L. REV. 975, 985. These writers asserted that the legal liberties held by persons provide the freedom to engage in the pursuit of happiness and at the same time jeopardize the security against injury that we expect the law to provide. In other words, the more freedoms all of us hold, the more vulnerable we are to injuries caused by others in their exercise of such freedoms. A particular contribution Hohfeld brought to this school was that the status of holding such freedoms is generally referred to as the status of holding rights, but that rights were more properly identified as those freedoms that a holder may protect against injuries through legal claims asserting that others have duties to refrain from inhibiting the freedom holder's enjoyment of his freedoms. Where the law does not provide such claims and associated duties, leaving freedom holders into an uncontrolled competition as far as the exercise of such freedoms, Hohfeld asserted that the freedom should be termed a privilege rather than a right. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 30-32 (1913).
118. See RESTATEMENT OF PROPERTY §§ 1-4; Arthur L. Corbin, Foreword to WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS at xiii (Walter Wheeler Cook ed., 1964) (describing Hohfeld's contribution to the Restatement of Property). Hohfeld's view of legal relations has been identified as the culmination of a jurisprudential movement that included the theorists Oliver Wendell Holmes, Henry Terry, Edward Weeks and John Salmond. See Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence From Bentham to Hohfeld, 1982 WIS. L. REV. 975, 985. These writers asserted that the legal liberties held by persons provide the freedom to engage in the pursuit of happiness and at the same time jeopardize the security against injury that we expect the law to provide. In other words, the more freedoms all of us hold, the more vulnerable we are to injuries caused by others in their exercise of such freedoms. A particular contribution Hohfeld brought to this school was that the status of holding such freedoms is generally referred to as the status of holding rights, but that rights were more properly identified as those freedoms that a holder may protect against injuries through legal claims asserting that others have duties to refrain from inhibiting the freedom holder's enjoyment of his freedoms. Where the law does not provide such claims and associated duties, leaving freedom holders into an uncontrolled competition as far as the exercise of such freedoms, Hohfeld asserted that the freedom should be termed a privilege rather than a right. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 30-32 (1913).
119. See RESTATEMENT OF PROPERTY §§ 1-4; Arthur L. Corbin, Foreword to WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS at xiii (Walter Wheeler Cook ed., 1964) (describing Hohfeld's contribution to the Restatement of Property). Hohfeld's view of legal relations has been identified as the culmination of a jurisprudential movement that included the theorists Oliver Wendell Holmes, Henry Terry, Edward Weeks and John Salmond. See Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence From Bentham to Hohfeld, 1982 WIS. L. REV. 975, 985. These writers asserted that the legal liberties held by persons provide the freedom to engage in the pursuit of happiness and at the same time jeopardize the security against injury that we expect the law to provide. In other words, the more freedoms all of us hold, the more vulnerable we are to injuries caused by others in their exercise of such freedoms. A particular contribution Hohfeld brought to this school was that the status of holding such freedoms is generally referred to as the status of holding rights, but that rights were more properly identified as those freedoms that a holder may protect against injuries through legal claims asserting that others have duties to refrain from inhibiting the freedom holder's enjoyment of his freedoms. Where the law does not provide such claims and associated duties, leaving freedom holders into an uncontrolled competition as far as the exercise of such freedoms, Hohfeld asserted that the freedom should be termed a privilege rather than a right. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 30-32 (1913).
120. See RESTATEMENT OF PROPERTY §§ 1-4; Arthur L. Corbin, Foreword to WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS at xiii (Walter Wheeler Cook ed., 1964) (describing Hohfeld's contribution to the Restatement of Property). Hohfeld's view of legal relations has been identified as the culmination of a jurisprudential movement that included the theorists Oliver Wendell Holmes, Henry Terry, Edward Weeks and John Salmond. See Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence From Bentham to Hohfeld, 1982 WIS. L. REV. 975, 985. These writers asserted that the legal liberties held by persons provide the freedom to engage in the pursuit of happiness and at the same time jeopardize the security against injury that we expect the law to provide. In other words, the more freedoms all of us hold, the more vulnerable we are to injuries caused by others in their exercise of such freedoms. A particular contribution Hohfeld brought to this school was that the status of holding such freedoms is generally referred to as the status of holding rights, but that rights were more properly identified as those freedoms that a holder may protect against injuries through legal claims asserting that others have duties to refrain from inhibiting the freedom holder's enjoyment of his freedoms. Where the law does not provide such claims and associated duties, leaving freedom holders into an uncontrolled competition as far as the exercise of such freedoms, Hohfeld asserted that the freedom should be termed a privilege rather than a right. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 30-32 (1913).
121. Using Hohfeld's terminology, then, in U.S. law our enjoyment and exploitation of wilderness and other environmental media that have not been designated as private property is presumptively a freedom fitting the definition of Hohfeld's privilege. Therefore, there is no right that any individual holds that may serve as the basis of a legal claim asserting a duty in others to refrain from inhibiting the individual's enjoyment of the environment. This observation, combined with Hohfeld's point about all legal relations existing between individual humans, renders the idea that a private attorney general may assert a claim on behalf of nature a legal impossibility. See Peter Manus, One Hundred Years of Green: A Legal Perspective on Three Twentieth Century Nature Philosophers, 59 U. PITT. L. REV. 557, 573-77, 584-587 (1998);
122. Arthur L. Corbin, Jurai Relations and Their Classification, 30 YALE L.J. 226 (1920): [A] jural relationship is always that of one individual person to another. This fact . . . sends to the scrap heap a deal of juristic nonsense about corporate "entities" and rights of "the state" and "social interests" and other cherished fictions . . . It helps us to realize that . . . rules of law are made for individuals; and that human and social welfare is, in the last analysis, always individual welfare. Id. at 227 n.2.
123. Support for the use of Hohfeld's thesis as a reference point from which to compare the various positions expressed in Sierra Club is also provided by the fact that the majority opinion references it. See Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972) (citing Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968)).
124. Hohfeld asserted that, whether or not the law expresses itself correctly, in actuality all rights are held by individual persons and secured against other individual persons. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 718 (1917).
125. See Singer, supra note 107, at 1025-26 ("From approximately 1880 to 1920, damnum absque injuria emerged as the central issue of theoretical concern for critical analytical jurists . . . . The end result of the theoretical incorporation of damnum absque injuria was Hohfeld's category of 'no-right.'").
126. See id. Hohfeld used the terms "no-right" to characterize the status of a person for whom the law provides no legal claims (who have no right) against a privilege holder, even where her exercise of her privilege causes personal injury. In environmental terms, both the exploiter and the lover of nature have a privilege to exercise their preference. Unfortunately, where the exploiter of nature exercises her privilege in a manner that injures the lover of nature's ability to exercise his privilege, the nature lover bears the status of "no-right" as against the exploiter. In other words, the law has relegated the nature lover's injury to the unprotected state of damnum absque injuria. See Manus, supra note 107, at 577-79.
127. 412 U.S. 669 (1973).
128. SCRAP claimed that its members suffered economic, recreational, and aesthetic harm because the ICC neglected to conduct a NEPA study of the environmental impacts of its decision to raise freight rates. Higher freight rates, SCRAP argued, would discourage the use of recyclable materials and promote the use of new raw materials, thereby encouraging mining and lumber harvesting as well as littering of otherwise recyclable waste materials. See id. at 675-76, 678 (explaining SCRAP's assertions).
129. See id. at 699 (arguing that SCRAP's members should have standing "based on allegations of harm to the environment").
130. Id. Justice Douglas, in contrast, filed a lengthy dissent presenting, first, an essay on the importance of recycling and a condemnation of littering, and, second, a disagreement with the Court over the authority of the ICC to avoid the environmental impact analysis requirement of NEPA when setting freight rates. See id. at 699-722 (Douglas, J., dissenting).
131. Other early Blackmun opinions indicate that he espoused a narrow view of judicial access outside the environmental field. See e.g., Nixon v. Fitzgerald, 457 U.S. 731, 798-99 (1982) (arguing in favor of a finding of mootness where a settlement had been reached in connection with the case); Gilligan v. Morgan, 413 U.S. 1 (1973) (denying judicial access for students protesting National Guard procedures).
132. 483 U.S. 711 (1987).
133. The majority worried that using the risk of loss to increase the lodestar (or conventionally derived) figure for attorney compensation would encourage marginal litigation. See id. at 719-20 (noting that using risk of loss to measure the lodestar figure would compensate attorneys "not only for their successful efforts in one case, but for their unsuccessful claims asserted in related cases").
134. Blackmun cited the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988, the purpose of which he determined was "to encourage the enforcement of federal law through lawsuits filed by private persons" and which was "fully applicable to statutes that protect the environment." Delaware Valley Citizens' Council, 483 U.S. at 737.
135. Id. at 740.
136. See id. at 743 ("In effect, the plurality would place the entire burden of injunctive actions and modest damage claims on the shoulders of the public-interest bar. But it is unrealistic to think that 600 public-interest lawyers in 90 public-interest law centers around the country would be able to pick up the slack from the rest of the bar, with its approximately 400,000 lawyers.").
137. 445 U.S. 198 (1980).
138. See Costle, 445 U.S. at 200 ("This case, in a sense, is a tale of a great city's - and the Nation's - basic problem in disposing of human waste. 'How' and 'where' are the ultimate questions, and they are intertwined . . . . The issues presently before the Court, however, center in the administrative processes by which the city and the Nation seek to resolve these basic questions.").
139. See id. at 217 ("Notwithstanding the orientation of these regulations toward the encouragement of public participation in the [National Pollution Discharge Elimination System (NPDES)] permit issuance process, our examination of the record leads us to reject respondents' contention that EPA failed to comply with its regulations in this case."). Blackmun perceived that the real issues in contention related to the substantive plan for sludge removal, and so refused to allow the public interest advocates to reopen that discussion through hearing requests relating to a proposed permit modification that in no way related to that substantive plan. Id.
140. The EPA had, in fact, held a public hearing before extending the city's NPDES permit the first time, citing inadequate time to review the city's application for a new permit as the reason for the extension. Id. at 206. The EPA did not, however, provide a public hearing in connection with its decision to extend the permit a second time. Id. at 207-08. Blackmun noted that the EPA did, in fact, publish notice of its proposed second extension, along with an invitation for persons to submit requests for a public hearing on the extension. Castle, 445 U.S. at 208. He also noted that the California Regional Water Quality Control Board had, in fact, held a public hearing in extending the expiration of the associated state permit to the date to which the EPA conformed in its second extension. Id.
141. See id. at 213-15. In fairness to Blackmun's conclusion, the EPA had, in fact, published a written advisory that persons interested in a public hearing on the permit extension should submit requests for a hearing. Blackmun would not have been illogical to sympathize with the EPA's conclusion that there was no interest in such a hearing, based on both the fact that a public hearing had been held in connection with an earlier extension and the fact that the EPA received no requests for a public hearing on the second extension. Id. at 208.
142. The facts noted at supra note 125, along with Blackmun's lengthy detailing of related lawsuits claiming violations of NEPA and the Endangered Species Act in connection with an alternative sludge disposal plan being developed by Los Angeles and the EPA, create a clear sense that Blackmun had concluded that "enough was enough" as far as public interest judicial challenges to the Los Angeles water/sewage situation. See Costle, 445 U.S. at 206 n.7.
143. 446 U.S. 578 (1980).
144. 409 U.S. 902 (1972); see supra notes 49-50 and accompanying text (discussing acknowledgment of judicial restraint).
145. See Harrison, 446 U.S. at 589 (determining that the phrase "'any other final action,' in the absence of legislative history to the contrary, must be construed to mean exactly what it says, namely, any other final action"). The Court thus determined that an agency decision interpreting the applicability of its regulations to a certain set of facts triggered the judicial review provision.
146. See id. at 595 (displaying a familiar dichotomy between the conclusion to which his own logic led and that dictated by the non-judicial authority at hand): Like my dissenting Brethren, I find it difficult to believe that Congress would undertake such a massive expansion in the number of Agency actions directly reviewable by the courts of appeals without some palpable indication that it had given thought to the consequences. Nonetheless, I agree with the Court that the dearth of evidence to the contrary makes its broad interpretation of the statute inescapable. On this legislative record, we must leave to Congress, should it be so inclined, the task of introducing some clear limitation on appellate jurisdiction over review of informal Agency determinations like the one before us now. Id.
147. See supra notes 25-28 and accompanying text (discussing Overton Park); see also supra notes 122-27 and accompanying text (discussing Costle).
148. Harrison, 446 U.S. at 595.
149. See id. at 604-05: [In determining that an EPA decision constituted final agency action, the] Court relies exclusively on [the fact that the EPA Regional Administrator herself signed the letter expressing EPA's decision], along with the fact that the parties agree that the action is "final." I would not place much reliance on the parties' agreement, however, since they share a common interest in having the threshold jurisdictional question resolved in the affirmative . . . PPG wants judicial review as soon as possible. It also serves EPA's interest because broadening the category of agency actions that are final and reviewable only in the courts of appeals increases the number of agency actions that cannot be challenged in enforcement proceedings under the Act. Id. at 604 n.3.
150. Id.; see also id. at 605 ("In my view, it will also distort the concept of final agency action by giving the EPA virtually unlimited discretion to transform its informal advise into final agency action subject to court of appeals' review.").
151. 454 U.S. 139, 147 (1981) (Blackmun, J., concurring).
152. See id. at 141-46. As required under NEPA, the Navy prepared an environmental impact assessment focusing on the impact of its plan to construct a facility capable of storing nuclear weapons at a particular location on Hawaii. That assessment concluded that construction of the facility required no further action under NEPA. Challengers claimed that the Navy should have studied and published the risks associated with nuclear weapons storage at the facility, a study that should have triggered the need for further action under NEPA. The Court determined that the Freedom of Information Act, 5 U.S.C. § 552 (1976), exempted public disclosure of the Navy's efforts here because the Navy's plans for the storage facility could pose a threat to national security if made public.
153. Weinberger, 454 U.S. at 147 (Blackmun, J., concurring) (accusing the majority of focusing its attention too exclusively on the nondisclosure issue and, in contrast, stressing the NEPA goal that federal agents make environmentally sensitive decisions whether or not they may be challenged by the public).
154. See id. at 148: It remains true, however, that the statute is in part intended to inform the public, and this information purpose does not entirely lose its vitality when classified documents are involved. Again, the Defense regulations specifically direct that "[when] feasible, [EIS's] shall be organized in such a manner that classified portions are included as annexes so that the unclassified portions can be made available to the public." (internal citations omitted) Id.
155. 496 U.S. 530 (1990).
156. See id. at 535-37. General Motors had obtained approval from the Commonwealth of Massachusetts for a change to the Commonwealth's Clean Air Act State Implementation Plan (SIP) on the basis of General Motor's proposal to convert its plant to a new automobile painting technology. The EPA failed to complete its review of the revised SIP within four months, a deadline Blackmun concluded was inapplicable to the circumstances. See id. at 535 (determining that a four month approval deadline applied to the original SIP only, and not to proposed SIP revisions).
157. See id. at 535 (noting that in December of 1985, the Commonwealth approved the GMC proposal to postpone its air emissions compliance deadline until the summer of 1987, and that EPA had not filed an enforcement action against GMC alleging violations of the original 1985 deadline until August of 1987).
158. See id: [I]n November 1984, GMC sought an extension from the December 31, 1985, compliance date imposed by the existing SIP, not for the new technology, but rather for additional time to install emission controls on its existing lines . . . . In June, 1985, GMC proposed converting to the new technology and requested a summer 1987 deadline.
159. See id.
160. Twice in the opinion, Blackmun referenced "appropriate remedies" for agency inaction provided in the Clean Air Act itself, including the regulated party bringing a suit to compel agency action and the regulated party submitting a request for reduction or elimination of penalties during the period in which unreasonable agency delay resulted in prejudice. General Motors Corp., 496 U.S. at 536, 541 n.4. Both options impose expense and other burdens on the regulated party that Blackmun neglected to acknowledge.
161. 411 U.S. 655 (1973).
162. See id. at 675-76 (Blackmun, J., and Rehnquist, J., concurring in part).
163. See id.
164. 384 U.S. 224 (1966).
165. See Pennsylvania Indus. Chem. Corp., 411 U.S. at 675-76. The majority relied on Standard Oil for its construction of the scope of the Act, but determined that the district court erred in refusing to permit evidence of whether the Army Corps had affirmatively led the defendant into believing that its discharges did not violate the Act. See id. at 670-75.
166. See supra notes 122-27 and accompanying text (accommodating the EPA in Clean Water Act permit dispute); see also supra notes 128-35 (characterizing as burdensome a Clean Air Act provision allowing judicial review of the EPA decisions regarding the applicability of certain regulatory standards to particular air emissions).
167. See Standard Oil Co., 384 U.S. at 225. Douglas was aided in his cause by the fact that the lower court had narrowly construed the Act's use of the term "refuse" to differentiate between discharges of usable oil and waste oil, determining that the Act applied only to waste oil discharges. This narrow reading allowed Douglas to vilify the "rule of strict construction," and point out that "[o]il is oil and whether useable or not . . . its presence in our rivers and harbors is both a menace to navigation and a pollutant." Id. at 225-26. Douglas hammered away on the point that the Act and its predecessors are best construed as applying to a broader spectrum of deposits into water than materials determined to constitute waste. He never addressed the issue, however, of whether the Act applied to discharges other than those impacting navigation. Instead, he simply asserted that the Act applied to any discharge having a "deleterious effect on waterways." Id. at 226; see also id. at 230 ("The word 'refuse' includes all foreign substances and pollutants apart from those 'flowing from streets and sewers and passing therefore in a liquid state' into the watercourse.").
168. 448 U.S. 242 (1980).
169. See id. at 254 (determining that "in the light of what we have found to be overwhelming evidence that Congress intended to create a penalty civil in all respects and quite weak evidence of any countervailing punitive purpose or effect it would be quite anomalous to hold that [the pertinent provision of the Clean Water Act] created a criminal penalty . . .").
170. See id. at 255 ("I agree with the Court that a proceeding for assessment of a monetary penalty under [the civil penalty section of the Clean Water Act] is not a 'criminal case' within the meaning of the Fifth Amendment. I reach this conclusion, however, for a number of reasons in addition to those discussed in the Court's opinion."); see also id. at 256 ("I do not agree with [the Court of Appeals'] apparent conclusion that none of the Mendoza-Martinez factors strongly supports a 'civil' designation for a penalty proceeding under [the Clean Water Act].").
171. See id. at 256-57 (applying the Mendoza-Martinez factors).
172. Id. at 257.
173. See L.O. Ward, 448 U.S. at 244-45: Section 311(b)(5) of the [Clean Water] Act imposed a duty upon "any person in charge of a . . . facility" to report any discharge of oil or a hazardous substance into navigable waters to the 'appropriate agency' of the United States government. Should that person fail to supply such notification, he or she was liable to a fine of not more that $10,000 or of imprisonment of not more than one year . . . . Section 311(b)(6) provided for the imposition of a "civil penalty" against "[a]ny owner or operator of [a facility] from which oil or a hazardous substance is discharged in violation" of the Act. In 1975, that subsection called for a penalty of up to $5,000 for each violation of the Act. In assessing penalties, the Secretary of the appropriate agency was to take into account "the appropriateness of such penalty to the size of the business or of the owner or operator charged, the effect on the owner or operator's ability to continue in business, and the gravity of the violation . . . ." Id.
174. See id. at 257 (endorsing the majority view that minimized the significance of the Rivers and Harbors Act).
175. For Blackmun's endorsement of the view that the Rivers and Harbors Act applied to modern environmental degradation, see supra note 152 and accompanying text (discussing Standard Oil).
176. See Martha J. Dragich, Justice Blackmun, Franz Kafka, and Capital Punishment, 63 MO. L. REV. 853 (1998) (noting Blackmun's fervent belief in procedural safeguards in death penalty cases).
177. L.O. Ward, 448 U.S. at 246. The Court states only that "oil escaped from an oil retention pit at a drilling facility," making no statement as to the cause or preventability of the release. Id.
178. For further discussion of Blackmun's evolution in the criminal law area, see Dragich, supra note 161; Stephen L. Wasby, Justice Blackmun and Criminal Justice: A Modest Overview, 28 AKRON L. REV. 125 (1995) [hereinafter Wasby, Modest Overview].
179. For further commentary about Blackmun's increasingly "refined . . . views about the process of adjudication," see Wasby, supra note 2, at 186 ("He learned to look at the broader picture and to recognize the need to consider the Court's internal politics.").
180. Non-environmental opinions published at around this time offer further indication that Blackmun was beginning to assert his personality in his legal writing. See, e.g., California v. Ramos, 463 U.S. 992, 1029 (1983) (accusing the majority of "an intellectual sleight of hand" in a criminal procedure case); Toll v. Moreno, 458 U.S. 1, 20 (1982) (characterizing Justice Rehnquist's analysis as "simplistic to the point of caricature"); Cabell v. Chavez-Salido, 454 U.S. 432, 449 (1982) (publishing a blunt if not scalding opinion of the majority view upholding a state ban on noncitizens serving as deputy probation officers). See also Wasby, supra note 2, at 193-94, 200 (identifying the 1980 election as the time around which the change in Blackmun's approach was most evident).
181. 436 U.S. 371 (1978).
182. Challengers alleged violations of the Privileges and Immunities Clause of the Constitution, U.S. CONST., art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment. Baldwin, 436 U.S. at 372; see id. at 378-88, 388-90 (discussing the merits of the claims).
183. See Baldwin, 436 U.S. at 374-75: Elk are prized by big-game hunters who come from near and far to pursue the animals for sport. The quest for big game has grown in popularity . . . Elk are not hunted commercially in Montana. Nonresident hunters seek the animal for its trophy value; the trophy is the distinctive set of antlers. The interest of resident hunters more often may be the meat. Id. (footnotes omitted); see also id. at 388: Elk hunting by nonresidents in Montana is a recreation and a sport . . . It is not a means to the nonresident's livelihood. The mastery of the animal and the trophy are the ends that are sought . . . . The elk supply, which has been entrusted to the care of the State by the people of Montana, is finite and must be carefully tended in order to be preserved . . . . Whatever rights or activities may be "fundamental" under the Privileges and Immunities Clause, we are persuaded, and hold, that elk hunting by nonresidents in Montana is not one of them. Id.
184. As an illustration, see id. at 375-77: Elk are now found in the mountainous regions of western Montana and are generally not encountered in the eastern two-thirds of the State where the plains prevail. During the summer the animals move to higher elevations and lands that are largely federally owned. In the late fall they move down to lower privately owned lands that provide the winter habitat necessary to their survival. During the critical midwinter period elk are often supported by ranchers. Elk management is expensive . . . . . . . The animal's preservation depends on conservation. Id. This predominantly non-legal discussion, which airs pertinent factual determinations reached by the lower courts, set up Blackmun's constitutional discussions of privileges and immunities and equal protection, coming later in the opinion. Indeed, the ecological discussion wholly presaged the conclusions Blackmun reached. See id. at 386 ("The fact that the State's control over wildlife is not exclusive and absolute in the face of federal regulation and certain federally protected interests does not compel the conclusion that it is meaningless in their absence."). Certainly Blackmun laid the groundwork to belie any notion that the State had no meaningful role to play - socially or legally - in wildlife management. See also id. at 389 ("We need not commit ourselves to any particular method of computing the cost to the State of maintaining an environment in which elk can survive in order to find the State's efforts rational, and not invidious, and therefore not violative of the Equal Protection Clause"). By that point in the opinion, Blackmun had painted a picture of a State engaged in an environmentalist effort lofty enough to meet a rational basis standard without need for further legal argumentation.
185. See id. at 384, 385-86, 388: Many of the earlier cases embrace the concept that the States had complete ownership over wildlife within their boundaries, and, as well, the power to preserve this bounty for their citizens alone . . . . It appears to have been generally accepted that although the States were obligated to treat all those within their territory equally in most respects, they were not obligated to share those things they held in trust for their own people . . . . In more recent years, however, the Court has recognized that the States' interest in regulating and controlling those things they claim to "own," including wildlife, is by no means absolute. States may not compel the confinement of the benefits of their resources, even their wildlife, to their own people whenever such hoarding and confinement impedes interstate commerce. Nor does a State's control over its resources preclude the proper exercise of federal power. And a State's interest in its wildlife and other resources must yield when, without reason, it interferes with a nonresident's right to pursue a livelihood in a State other than his own, a right that is protected by the Privileges and Immunities Clause. . . . [Nevertheless], [t]he fact that the State's control over wildlife is not exclusive and absolute . . . does not compel the conclusion that it is meaningless . . . . . . . The elk supply, which has been entrusted to the care of the State by the people of Montana, is finite and must be carefully tended in order to be preserved . . . . Whatever rights or activities may be "fundamental" under the Privileges and Immunities Clause, we are persuaded, and hold, that elk hunting by nonresidents in Montana is not one of them. Id. (citations omitted).
186. See id. at 405 ("'[I]t is pure fantasy to talk of "owning" wild fish, birds, or animals . . . . The "ownership" language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction . . . .'") (quoting Douglas v. Seacoast Prods. Inc., 431 U.S. 265, 284 (1977)).
187. 460 U.S. 300 (1983).
188. See id. at 320-21 (considering both the federal government's power to acquire wetland easements for waterfowl protection, and the state's authority to revoke or condition on that federal power).
189. See id. at 304 (discussing waterfowl breeding in the northern Great Plains, including the evolution of prairie potholes and the ecological advantages of those natural phenomena as habitats for ducks to rear their young); id. at 309-10 (discussing the history and national interest in protecting migratory birds).
190. For examples of Douglas's propensity to subsume his legal argument beneath his environmental argument, see Murphy v. Butler, 362 U.S. 929, 932-35 (1960) (Douglas, J., dissenting to denial of certiorari) (presenting an argument against government program to eradicate the gypsy moth with DDT) and United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 703-10 (1973) (Douglas, J., dissenting in part) (presenting what amounts to an essay on recycling).
191. 477 U.S. 131 (1986).
192. The Lacey Act Amendments of 1981, 16 U.S.C. § 3372(a)(2)(A) (1994), made it a crime to receive in interstate commerce any fish or wildlife where doing so violates the law o any state. Taylor, 477 U.S. at 132.
193. See Taylor, 477 U.S. at 137-152.
194. See id. at 151-52 ("This is not a case of arbitrary discrimination against interstat commerce; the record suggests that Maine has legitimate reasons, 'apart from their origin, t treat [out-of-state baitfish] differently.'") (citation omitted).
195. The suggestion that Blackmun manipulated his logic in favor of his environmental values does not stand up, however. First, Baldwin and Taylor are wholly consistent, with Baldwin addressing the privileges and immunities of citizens, and Taylor addressing the illegality of state protectionism under the Commerce Clause in similar manners. North Dakota is easily distinguishable as a case primarily involving a statute's construction.
196. Blackmun allowed a quote from the district court to make the point that Maine's import ban was justified "because 'substantial uncertainties' surrounded the effects that baitfish parasites would have on the State's unique population of wild fish, and the consequences of introducing nonnative species were similarly unpredictable." Taylor, 477 U.S. at 142-43 (citation omitted).
197. Id. at 152 (Stevens, J., dissenting).
198. See id. at 153 ("This is not to derogate the State's interest in ecological purity.").
199. See id. ("[T]he invocation of environmental protection or public health has never been though to confer some kind of special dispensation from the general principle of nondiscrimination in interstate commerce . . . . If Maine wishes to rely on its interest in ecological preservation, it must show that interest, and the infeasibility of other alternatives, with far greater specificity.").
200. Generally, Blackmun had little trouble finding that federal interests preempted state interests. See, e.g., Rice v. Rehner, 463 U.S. 713, 735 (1983) (Blackmun, J., dissenting) (arguing that federal interests in American Indian affairs preempted states from requiring state liquor licenses for federally licensed Indian traders); Fidelity Fed. Sav. & Loan Assoc. v. Cuesta, 458 U.S. 141 (1982) (finding state law preempted by a federal mortgage regulation); Kaiser Aetna v. United States, 444 U.S. 164 (1979) (supporting the federal interests in navigation over states' authority to allow private interests to control navigable waters).
201. 461 U.S. 190 (1983).
202. See id. at 197-98 (discussing California's Warren-Alquist State Energy Resources Conservation and Development Act, CAL. PUB. RES. CODE §§ 25000-25986, 25524.2 (West 1977 & Supp. 1983)).
203. Id. at 212-13 ("[T]he Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States . . . . A state moratorium on nuclear construction grounded in safety concerns falls squarely with the prohibited field."); id. at 222 ("Congress has allowed the States to determine - as a matter of economics -whether a nuclear plant vis-a-vis a fossil fuel plant should be built. The decision in California to exercise that authority does not, in itself, constitute a basis for pre-emption.").
204. Id. at 225.
205. Pacific Gas & Elec. Co., 461 U.S. at 226-27 ("'Congress has not evidenced a dictatorial intent for every state to build nuclear powerplants.'") (citation omitted).
206. See id. at 229 ("In my view, a ban on construction of nuclear powerplants would be valid even if its authors were motivated by fear of a core meltdown or other nuclear catastrophe.").
207. See supra notes 172-75 and accompanying text (discussing North Dakota).
208. 467 U.S. 986 (1984).
209. FIFRA instituted a mandatory data-licensing scheme that only exempted from public disclosure data designated as trade secrets or commercial or financial information. FIFRA further requires public disclosure of health, safety, and environmental data to "qualified requesters." See id. at 992-93, 995-96 (discussing the data-disclosure provisions of FIFRA).
210. Id. at 1014-16 (determining that the public use exception to a finding of a taking is "coterminous with the scope of a sovereign's police power") (citing Hawaii Hous. Auth. v. Mikkill, 467 U.S. 229, 240 (1984)).
211. See id. at 1016 (holding that "any taking of private property that may occur in connection with EPA's use or disclosure of data is a taking for a public use").
212. See infra notes 263-94 and accompanying text (discussing Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)). Blackmun's property discussion in Ruckelshaus reminded his readers that property, while protected by the takings clause, is created, and thus shaped and limited, by multiple independent sources of law. Ruckelshaus, 467 U.S. at 1001. Thus, the law defining trade secrets can create property interests in data developed by a private pesticide company that the Fifth Amendment will tend to protect against mandated public disclosure without compensation. Id. at 1003-04. Blackmun went on to explain, however, that such protection was not absolute, and that particularly in the case of health, safety, and environmental data, disclosure mandated for a public purpose may be compensable as a taking only where "justice and fairness" require compensation for an economic injury resulting from a public action. Id. at 1005. In the case at hand, Blackmun determined that the 1978 FIFRA amendments destroyed any investment-backed expectation that Monsanto could have harbored that the EPA would keep submitted health, safety, and environmental data confidential, thus compelling the conclusion that justice and fairness required no compensation for Monsanto's claimed economic injury. Id. at 1005-07.
213. 406 U.S. 498 (1972).
214. See id. at 520-23 (stating that the vessel owners challenged the Michigan law on interstate commerce, preemption, and supremacy grounds).
215. See id. at 506-08. The Court was pointed in differentiating its conclusion on ripeness by the district court, which apparently took into consideration the probability that the Michigan sewage control requirements might become obsolete when the federal government issued its own requirements. Id. at 507.
216. See id. at 510-12 (discussing abstention and concluding that "we are satisfied that authoritative resolution of the ambiguities in the Michigan law is sufficiently likely to avoid or significantly modify the federal questions appellants raise to warrant abstention, particularly in view of the absence of countervailing considerations that we have found compelling in prior decisions").
217. Id. at 513 (Blackmun, J., concurring).
218. Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 506-07.
219. Texas v. Pankey, 441 F.2d 236, 240 (10th Cir. 1971). That opinion suggested a limit on federal environmental common law as being where no federal statute addressed the issue at hand. Id. In Illinois, Douglas conceded only that: It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suit alleging creation of a public nuisance in water pollution. While federal law governs, consideration of state standards may be relevant. Id. at 107 (quoting Missouri v. Illinois, 200 U.S. 496, 520-21 (1972)). Thus, Douglas advocated for the possibility of all voices - federal, state, and judicial - addressing environmental concerns.
220. 451 U.S. 304, 332 (1981) (Blackmun, J., dissenting).
221. Blackmun expressly segregated his view of the balance of power between state and federal authorities in the environmental area from his view of that balance otherwise. See National League of Cities v. Usury, 426 U.S. 833, 856 (1976) (Blackmun, J., concurring) (expressing disapproval of the Court's view as to the authority of states emanating from the Tenth Amendment, but then observing in a tone of consolation that "I may misinterpret the Court's opinion, but it seems to me that it adopts a balancing approach, and does not outlaw federal power in areas such as environmental protection, where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essential").
222. City of Milwaukee, 451 U.S. at 310. Blackmun cited the same sentence from Illinois again. Id. at 314.
223. See id. at 333-34. Blackmun, in his dissent, further contrasted the presumption against federal common law and preemption: In contrasting congressional displacement of the [federal] common law with federal pre-emption of state law, the Court assumes that as soon as Congress "addresses a question previously governed" by federal common law, "the need for such an unusual exercise of lawmaking by federal courts disappears." This "automatic displacement" approach is inadequate in two respects. It fails to reflect the unique role federal common law plays in resolving disputes between one State and the citizens or government of another. In addition, it ignores this Court's frequent recognition that federal common law may complement congressional action in the fulfillment of federal policies. Id.
224. Id.; see id. at 334 n.2 ("The whole concept of interstitial federal lawmaking suggests cooperative interaction between courts and Congress that is less attainable where federal-sta questions are involved.").
225. See id. at 335: Both before and after Erie, the Court has fashioned federal law where the interstate nature of a controversy renders inappropriate the law of either state . . . . Long before the 1972 decision in Illinois v. Milwaukee, federal common law enunciated by this Court assured each State the right to be free from unreasonable interference with its natural environment and resources when the interference stems from another State or its citizens . . . . Id.; see also id. at 337 ("Thus, quite contrary to the statements and intimations of the Court today, Illinois v. Milwaukee did not create the federal common law of nuisance.").
226. See id. at 339-46 (analyzing the Clean Water Act, 33 U.S.C. §§ 1365(e), 1370, 1371 (1976), and legislative history of the 1972 amendments).
227. City of Milwaukee, 451 U.S. at 347: The Justice Department's position on the survival of federal common law is consistent with the stance taken by the EPA both in this litigation and throughout the period since the 1972 Amendments were enacted . . . . [W]here, as here, the agency's continued reliance on federal common law is firmly grounded in the language and structure of the statute, I fail to see how the Court can so lightly disregard its interpretation. Id.
228. Justices Marshall and Stevens joined Blackmun's City of Milwaukee dissent.
229. 466 U.S. 96 (1984).
230. The case involved a boundary dispute between Mississippi and Louisiana, and focused on the law and earth sciences addressing river boundaries.
231. See Ohio v. Wyandotte Chem. Corp., 401 U.S. 493, 504 (1971) (Douglas, J., dissenting) (arguing that the Court should appoint a special master and perhaps scientific advisors rather than avoid environmental litigation because of the difficulty of the science involved). He argued to no avail that "[t]he problem, though clothed in chemical secrecies, can be exposed by the experts." Id. at 512.
232. 464 U.S. 238 (1984).
233. See id. at 248-56 ("[Although] there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a state may nevertheless award damages based on its own law of liability, . . . Congress intended to stand by both concepts and to tolerate whatever tension there was between them. We can do no less.").
234. See id. at 260 (Blackmun, J., dissenting) ("Thus, the fundamental teaching of Pacific Gas is that state regulation of nuclear power is pre-empted to the extent that its purpose is to regulate safety.").
235. See id. at 263.
236. See id. at 263-65 (explaining that punitive damages are calculated to compel adherence to standards of safety).
237. See Silkwood, 464 U.S. at 263-65 ("The crucial distinction between compensatory damages and punitive damages is that the purpose of punitive damages is to regulate safety, whereas the purpose of compensatory damages is to compensate victims.").
238. See id. at 263-64 ("Because the Federal Government does not regulate the compensation of victims, and because it is inconceivable that Congress intended to leave victims with no remedy at all, the pre-emption analysis established by Pacific Gas comfortably accommodates - indeed it compels - the conclusion that compensatory damages are not pre-empted whereas punitive damages are.") (footnote omitted).
239. In fairness, another view of Blackmun's Silkwood dissent is that it conformed to his general support for federal preemption in fields where he considered federal autonomy to serve a beneficial purpose. Silkwood was not a typical environmental case, and thus Blackmun may have perceived it as one to which he would apply the jurisprudential standards of preserving both federal and state authority that characterized his environmental decisions.
240. See id. at 259 (remarking on the "fundamental incongruity of the Court's result," as well as the fact that the majority "tortures its earlier decisions and, more importantly, wreaks havoc with the regulatory structure that Congress carefully created"); id. at 265 (finding it "incredible to suggest that Congress intended the Federal Government to have the sole authority to set safety regulations, but left intact the authority of States to require adherence to a different state standard through the imposition of jury fines," and thus concluding that federal authority over the nuclear industry preempts punitive damages in state tort actions addressing nuclear industry injuries); id. at 266-67 (discussing the majority's confusion and obfuscation of the issue in the case where it appeared to frame the issue as whether Congress intended to preempt all state court recourse in the nuclear field); id. at 267-69 (discussing "[t]he irony of the Court's approach" in presented a tortured analysis to accommodate Pacific Gas & Electric Co. when the precedent actually supported Blackmun's untortured argument).
241. See id. at 267-69.
242. See infra notes 238-93 and accompanying text (exploring the clashes between Blackmun and Scalia in National Wlidlife Fed'n, Defenders of Wildlife, and Lucas).
243. See supra notes 122-27 and accompanying text (discussing Costle); notes 128-35 and accompanying text (discussing Harrison).
244. See supra notes 82-100 and accompanying text (discussing Sierra Club); notes 112-14 and accompanying text (discussing SCRAP); see also infra notes 238-49 and accompanying text (discussing Lujan v. National Wildlife Fed'n); infra notes 250-62 and accompanying text (discussing Lujan v. Defenders of Wildlife).
245. See, e.g., supra notes 117-21 and accompanying text (discussing Pennsylvania); notes 172-75 and accompanying text (discussing North Dakota); infra notes 194-98 and accompanying text (discussing Ruckelshaus); supra notes 204-15 and accompanying text (discussing City of Milwaukee).
246. See, e.g., supra notes 166-71 (discussing Baldwin); supra notes 176-84 and accompanying text (discussing Taylor); supra notes 186-92, 220-29 and accompanying text (discussing Pacific Gas & Electric Co.); infra notes 263-93 and accompanying text (discussing Lucas).
247. See SCHULTZ & SMITH, supra note 10, at 101 ("The sharp language in Justice Scalia's opinions has contributed to one commentator's
248. See infra notes 238-61 and accompanying text (discussing environmental standing in Lujan v. National Wildlife Fed'n and Lujan v. Defenders of Wildlife); see also infra notes 263-93 and accompanying text (discussing Lucas v. South Carolina Coastal Council).
249. As one Blackmun clerk described the situation: Justice Antonin Scalia, a self-proclaimed originalist and outspoken promoter of the Court's image as politically sterile, struck out at environmentalists - both litigants and regulators - in an assault calculated to drive environmentalism out of the courts and even much of the law. Blackmun's dissents may be read as reactions to the legal arguments, the anti-environmentalist sentiments, and the hypocrisy of this campaign. It was Justice Scalia, though, who came close to dominating the Court through his overwhelming intellect and imposing personality. To a degree greater than any of his colleagues, Scalia could lay claim to following a clear-cut and comprehensive jurisprudence. When interpreting a statute, he was a 'textualist': he looked to the 'plain meaning' of the statute's words and vigorously opposed attempts to divine legislative intent from extrinsic evidence, such as congressional committee reports and floor debates. (Scalia considered such evidence unreliable.) By contrast, when interpreting the Constitution, Scalia was a self-described 'fainthearted originalist,' who . . . sought to define each provision according to the Framers' original understanding. Although Scalia sometimes deviated from these stated principles, generally speaking they lent his opinions an unusual power and rigor, which he amplified (and made intimidating) through the cleverest and most pungent prose style on the Court. On every important case, even ones on which he ended up in the minority, the gravitational pull of Scalia's ideas was strongly felt . . . . LAZARUS, supra note 3, at 275-76.
250. Id. at 279.
251. 497 U.S. 871 (1990).
252. See id. at 899 (summing up the Court's finding by referencing the various affidavits as "not sett[ing] forth the specific facts necessary to survive a Rule 56 motion").
253. See id. at 883-85, 888-89 (differentiating the case from other cases that considered allegations under a FED. R. CIV. P. 12(b) motion to dismiss on the pleadings).
254. See id. at 890-94 (ultimately observing that the environmentalists should look to the other branches for the "sweeping actions" against the federal land exploitation that they sought).
255. See id. at 890 n.2 (finding that the "land withdrawal review program," is not an "agency action" within the meaning of Administrative Procedures Act § 702, 5 U.S.C. 702 (1982), and then explaining in a footnote that the program exists, but not as an agency action for purposes of the APA).
256. See National Wildlife Fed'n, 497 U.S. at 900 (Blackmun, J., dissenting). As examples of Blackmun's nonadversarial tone, he concurred that the affidavits in question "were not models of precision," id. at 901, and "doubtless could have been more artfully drafted." Id. at 904. He also referenced himself a number of times, as if to admit that reasonable minds might differ on certain points. See id. at 900 ("In my view, the affidavits . . . were sufficient to establish standing."); id. at 902 ("[T]o my mind, the allegations contained in the . . . affidavits, in the context of the record as a whole, were adequate to defeat a motion for summary judgment.").
257. Instead, Blackmun pointed out that the agencies involved were themselves able to identify the particular federal action to which the affiants referred, and also that the agency referred to the federal land area in question in the same terms as had one of the affiants. Id. at 902-03.
258. See id. at 904-05.
259. Id.
260. Id. at 912-13.
261. National Wildlife Fed'n, 497 U.S. at 905.
262. Id. at 912.
263. 504 U.S. 555 (1992).
264. See id. at 566 (finding "beyond all reason" the idea that a keeper of Asian elephants in the Bronx Zoo might be injured when government agents bypass procedures intended to minimize harm to those elephants in connection with an overseas project).
265. See id. at 564 (determining that unspecified "some day" intentions to return to a particular habitat so as to study a species threatened by a particular government action is "simply not enough" to confer standing).
266. See id. at 566-67 ("It goes beyond the limit . . . and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection") (quoting United States v. SCRAP, 412 U.S. 669, 688 (1973)).
267. See id. at 568 (identifying the issue of whether the agencies acting overseas would abide by a DOI regulation requiring consultation on the impact on such action on endangered species as "very much an open question").
268. See Defenders of Wildlife, 504 U.S. at 589 (Blackmun, J., dissenting).
269. Id. at 589-90.
270. Id. at 590. Blackmun used Scalia's own justification for applying tough or relaxed procedural standards to plaintiffs, observing that "[t]he Court . . . confuses respondents' evidentiary burden (i.e., affidavits asserting 'specific facts') in withstanding a summary judgment motion under Rule 56(e) with the standard of proof (i.e., the existence of a 'genuine issue' of 'material fact') under Rule 56(c)." Id.
271. See id. at 593 ("I fear the Court's demand for detailed descriptions of future conduct will do little to weed out those who are genuinely harmed from those who are not. More likely, it will resurrect a code-pleading formalism in federal court summary judgment practice, as federal courts, newly doubting their jurisdiction, will demand more and more particularized showings of future harm.").
272. See id. at 595-97 ("I am not willing as the plurality is to assume that agencies at least will not try to follow the law.").
273. Defenders of Wildlife, 504 U.S. at 595 (distinguishing environmental claims from other claims).
274. See id. at 593 (applying the Court's injury-in-fact requirements to employment discrimination and loss of consortium settings). For direct accusation of anti-environmentalism, see id. at 595 ("As I understand it, environmental plaintiffs are under no special constitutional standing disabilities.").
275. See id. at 565-67. Scalia presented a cutting critique of the plaintiffs' environmentalist theories, casting the "ecosystem nexus" theory as "inelegantly styled," greeting the "animal nexus" theory with a derogatory "alas," and dismissing the "vocational nexus" theory as "speculation and fantasy." Blackmun endorsed these theories in brief, but forewent the opportunity to launch a full-fledged intellectual battle in favor of environmental standing. Id. at 594-95.
276. 505 U.S. 1003 (1992).
277. See id. at 1015 (launching discussion of "two discrete categories of regulatory action [that are] compensable without case-specific inquiry into the public interest advanced in the support of the restraint," including regulations imposing a physical invasion on private land and regulation stripping a landowner of the ability to derive any economically beneficial or productive use out of the land); see also id. at 1017-18 (discussing the "reciprocity of advantage" factor in determining the loss suffered by an owner of land regulated for the public's benefit); id. at 1022-26 (criticizing the related "harmful or noxious use" justification for an exercise of police power requiring no compensation).
278. Id. at 1028-29 (determining that "confiscatory regulations, i.e., regulations that pro hibit all economically beneficial use of land," just like government assertions of "permanen physical occupation," may not be "decree[d] anew (without compensation, no matter how weighty the asserted 'public interests' involved").
279. Id. at 1029.
280. Id. (footnote omitted).
281. See WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 86, at 571 (4th ed. 1971) ("There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.'"). As for the limits of nuisance as a branch of property law, the Court itself severely limited the application of nuisance law where statutory law addressed pollution. See supra notes 207-15 and accompanying text (discussing City of Milwaukee v. Illinois).
282. See Lucas, 505 U.S. at 1010, (citing Lucas v. South Carolina Coastal Council, 404 S.E.2d 895, 906 (S.C. 1991) (Harwell, J., dissenting).
283. See id. at 1029.
284. Id. at 1029 n. 16 (including the example of a state destroying property to prevent the spread of a fire).
285. See id. at 1010 (describing South Carolina's Beachfront Management Act, S.C. CODE ANN. § 48-39-250 (West Supp. 1990) as "designed to preserve . . . South Carolina's beaches," with a chief purpose of creating a "habitat for indigenous flora and fauna" (citing Lucas, 404 S.E.2d at 895)).
286. For further commentary on the agenda of the Lucas majority, see Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433, 1438 (1993): What, then, is the majority's agenda in the Lucas case? I believe Justice Scalia felt that the case presented a new, fundamental issue in property law, and that he had a clear message which he sought to convey: States may not regulate land use solely by requiring landowners to maintain their property in its natural state as part of a functioning ecosystem, even though those natural functions may be important to the ecosystem. In this sense, while the Lucas majority recognizes the emerging view of land as part of an ecosystem, rather than as purely private property, the Court seeks to limit the legal foundation for such a conception. Id. (footnote omitted).
287. Lucas, 505 U.S. at 1036 (Blackmun, J., dissenting).
288. Id. The majority defended its decision to hear the case by pointing to the fact South Carolina only amended its law to include the permit process of which Lucas had not availed himself after the case had been heard by the South Carolina Supreme Court. The issue of whether Lucas suffered a taking prior to the promulgation of that amendment thus was never considered by a court, but the Court determined that the breadth of the decision issued by the South Carolina Supreme Court nevertheless precluded Lucas from obtaining further state court adjudication on whether he had suffered a taking during the pre-amendment period. Thus, the Court decided, it had the discretion to hear the case under the prudential principles guiding the doctrine of ripeness. Id. at 1010-14.
289. Id. at 1036.
290. See id. at 1041 ("My disagreement with the Court begins with its decision to review this case."); id. at 1045 ("Clearly, the Court was eager to decide this case. But eagerness, in the absence of proper jurisdiction, must - and in this case should have been - met with restraint.") (footnote omitted); id. at 1045 ("The Court's willingness to dispense with precedent in its haste to reach a result is not limited to its initial jurisdictional decision.").
291. Compare the Lucas discussion of Blackmun's approach to threshold issues, supra notes 274-76, with discussions of his approach to such issues in National Wildlife Fed'n, supra notes 246-49 and accompanying text, and Defenders of Wildlife, supra notes 255-59 and accompanying text.
292. Lucas, 505 U.S. at 1043 n.5.
293. See id. at 1037-38, 1040 (relying on lower court transcripts as well as the history and language of the South Carolina Act to establish the unequivocal and traditional safety-based motivation for the Act).
294. For additional commentary on the flawed tactics employed, see Donald Large, Lucas: A Flawed Attempt to Redefine the Mahon Analysis, 23 ENVTL. L. 883, 884 (1993) ("[B]oth Justices Scalia and Blackmun weakened their arguments by trying to make every taking case in the last 100 years consistent with what they were saying. They would have done better to admit that there are some they couldn't square.").
295. See Lucas, 505 U.S. at 1047 ("If one fact about the Court's takings jurisprudence can be stated without contradiction, it is that 'the peculiar circumstances of each case' determine whether a specific restriction will be rendered invalid by the government's failure to pay compensation.").
296. See id. at 1055-56.
297. In his opening statement, Blackmun characterized the state trial court finding that Lucas's property had been rendered valueless as "implausible." Id. at 1036. Later he disputed the issue in terms of the Court's allowance that Lucas had demonstrated injury in fact. Id. at 1043 n.5. Still later, he noted the archaic designation of luxury home development, Lucas's plan for the land, as its "highest and best use," easily pointing out that much room for profitable use existed between the most profitable use of land and the land's designation as valueless. Id. at 1044.
298. Id. at 1044 ("Petitioner can picnic, swim, camp in a tent, or live on the property in a movable trailer . . . . Petitioner also retains the right to alienate the land, which would have value for neighbors and for those prepared to enjoy proximity to the ocean without a house.").
299. See id. at 1052-55.
300. See Lucas, 505 U.S. at 1055 ("There simply is no reason to believe that new interpretations of the hoary common-law nuisance doctrine will be particularly 'objective' or 'value free.'"; see also id. at 1055 n.19 (citing WILLIAM ROGERS, ENVIRONMENTAL LAW § 2.4 (1986) to describe nuisance as an area of law that "straddles the legal universe, virtually defies synthesis, and generates case law to suit every taste").
301. See Lucas, 505 U.S. at 1054-55 ("In determining what is a nuisance at common law, state courts make exactly the decision that the Court finds so troubling when made by the South Carolina General Assembly today: They determine whether the use is harmful. Common law public and private nuisance law is simply a determination whether a particular use causes harm.").
302. Id.
303. See id; see also id. at 1046 ("The Court offers no justification for its sudden hostility toward state legislators, and I doubt that it could.").
304. Id. at 1055 ("If judges in the 18th and 19th centuries can distinguish a harm from a benefit, why not judges in the 20th century, and if judges can, why not legislators?").
305. See Stevens v. City of Cannon Beach, 854 P.2d 449, 460 (Or. 1993), cert. denied, 510 U.S. 1207 (1994) (Scalia, J., dissenting) (holding that the city's limit on beach development did not constitute a taking as applied to the denial of a beach permit).
306. In a public address in 1992, Blackmun answered the question of what he had learned on the Supreme Court with the bleak observation: That feet today indeed are made of clay, and that there seems to be an element of larceny and of the unethical in so many people in public life; that life is or can be cruel; that man's inhumanity to man still prevails; that life itself is a controversy; and that we still are a racist society deep down in the core of our being. Koh, supra note 27, at 25 (citing Harry A. Blackmun, Address at the 69th Annual Dinner of the American Law Institute (May 14, 1992), in AMERICAN LAW INSTITUTE, REMARKS AND ADDRESSES AT THE 69TH ANNUAL MEETING 47, 47-48 (1992)).
307. Lucas, 505 U.S. at 1036.
308. LAZARUS, supra note 3, at 39.
309. Interestingly, at least one account characterizes Blackmun in a way that indicates that his temperament may have evolved toward that possessed by Douglas as he reached the end of his Court career. In connection with Planned Parenthood of Southeastern Pennsylvania v. Casey 510 U.S. 1309 (1994) for example, "Justice Blackmun, furious . . . confronted the Chief and demanded that he let the Casey petition come to a vote." See id. at 463.
310. To this end, Lazarus noted: Justice Blackmun, the third of the Court's octogenarians, was just hitting his stride as a full-fledged member of the Court's liberal wing, but he was too much a loner and too far under the shadow of Roe to command the attention of any more conservative Justice. Blackmun spent his days in a self-imposed exile in the spare and otherwise unused second-floor Justices' Library. There, amid small mountains of books, he agonized over the social consequences of the Court's decisions and, with an unrivaled attention to detail, immersed himself even more deeply in the compassionate jurisprudence that was increasingly becoming his trademark. LAZARUS, Supra note 3 at 275-279.
311. 512 U.S. 374 (1994).
312. See generally 510 U.S. 1207 (1994) (Scalia, J., dissenting) (arguing in favor of hearing a case in which the State of Oregon enjoined beachfront development under it's doctrine of custom, a part of it's background principles of property law under which the public acquired the right to use the beach for recreational purposes).
313. 520 U.S. 154 (1997).
314. The plaintiffs, Oregon ranchers and irrigation districts, challenged a Fish and Wildlife Service biological opinion recommending to the Bureau of Reclamation a number of actions to avoid jeopardizing particular fish species covered by the ESA. The plaintiffs alleged standing under the ESA citizen suit provision, 16 U.S.C. § 1540(g) (1994). Bennett, 520 U.S. at 158-60.
315. See Bennett, 520 U.S. at 161-62.
316. See id. at 163-64 (finding that by Congress granting standing to "any person," it "expressly negated" any zone of interest-based limits on its use).
317. See id. at 165 (justifying his literal reading of the "any person" language in the ESA citizen suit provision on the fact that the statute's focus is the environment, which he observed as "a matter in which it is common to think all persons have an interest").
318. See id. at 166 (discerning "no textual basis for saying that [the ESA citizen suit] applies to environmentalists alone").
319. Id. at 165 (determining that "the obvious purpose of the particular provision in question is to encourage enforcement by so-called 'private attorneys general,'" who, Scalia pointed out, may police federal agents for both overzealous and underzealous implementation of their legal duties).
320. See Bennett, 520 U.S. at 166.
321. 523 U.S. 83 (1998).
322. See id. at 89.
323. See id. at 105.
324. See id. at 104 n.6 (admitting that the EPCRA citizen suit provision allows "any person" to commence a suit, and that the statute defines "person" to include an association, but nevertheless concluding that the interests of the individual members of the respondent organization would have been the basis of the suit, had the Court needed to address that issue).
325. See id. at 106 ("[T]he civil penalties authorized by the statute . . . might be viewed as a sort of compensation or redress to respondent if they were payable to respondent. But they are not. These penalties . . . are payable to the United States Treasury.").
326. These justices objected to Scalia's presentation of an ordered approach to jurisdictional questions and questions on the merits. See Steel Co., 523 U.S. at 110, 111.
327. Id. at 134 (Ginsberg, J., concurring).
328. Id. at 112 (Stevens, J., concurring). Stevens cited Bennett to establish that Scalia himself would consider a statutory provision prior to discussing constitutional standing, thus undercutting Scalia's newly minted mandate that separation of powers required a particular ordering of constitutional and statutory jurisdictional issues. Id. at 1023.
329. Id. at 127.
330. 523 U.S. 726 (1998).
331. See id. at 734.
332. See id.
333. Breyer's opinion reads at least a bit more sympathetic to the goals of the environmentalists than other recent opinions, as when it observes that "[a]ny . . . later challenge [when the case is ripe] might also include a challenge to the lawfulness of the present Plan, if (but only if) the present Plan . . . plays a causal role with respect to the future, then-imminent, harm from logging." Id. at 734.
334. 94 F.3d 658 (D.C. Cir. 1996) (examining the standing of individual and environmentalist organization plaintiffs who brought a challenge under NEPA against the U.S. Secretary of the Treasury and Commissioner of the Internal Revenue Service for their authorization of a tax credit designed to encourage the use of ethyl tertiary butyl ether, a fuel additive derived from corn, sugar cane, and sugar beets, which authorization had not included a requirement to follow NEPA's environmental impact statement process designed to air environmental impacts of federal actions).
335. See id. at 664-65 (relying on Defenders of Wildlife to observe that "a plaintiff may have standing to challenge the failure of an agency to abide by a procedural requirement only if that requirement was 'designed to protect some threatened concrete interest' of the plaintiff' (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n.8 (1992)), and also relying on Defenders of Wildlife, along with cases interpreting that case, to conclude that procedural standing necessitates that the plaintiff establish "that it is substantially probable that the procedural breach will cause the essential injury to the plaintiff's own interests"). For a discussion of the speculative and thus supposedly faulty nature of the Florida Audubon plaintiffs' standing claim, see Florida Audubon, 94 F.3d at 667 (concluding that the plaintiffs "have not demonstrated that individual corn or sugar farmers in these areas will affirmatively respond to the tax credit by significantly increasing production"). Both the concurrence and dissent responded to this "unduly heavy burden." See id. at 672 (Buckley, C.J., concurring) ("Quite simply, the court now requires that a litigant be able to establish the nature and likelihood of the environmental injury that it is the purpose of an environmental impact statement to identify . . . . I regret that the court has adopted new criteria for the establishment of standing in NEPA cases that will erode the effectiveness of one of the most important environmental measures of the past generation."); see also id. (Rogers, C.J., dissenting): In cases involving a procedural right, such as the preparation of an [environmental impact statement] under NEPA, it is inherently speculative whether the decision maker will reconsider the decision that causes the plaintiff's injury in fact . . . The opinion for the court imposes so heavy an evidentiary burden on appellants to establish standing that it will be virtually impossible to bring a NEPA challenge to rulemakings with diffuse impacts. Id. at 674-75.
336. 54 F.3d 873 (D.C. Cir. 1995) (finding standing under NEPA, and stating the test for NEPA standing as requiring that a plaintiff demonstrates, first, that the government actor's failure to adhere to NEPA "'create[s] a risk that serious environmental impacts will be overlooked,'" and, second, that the plaintiff "'may be expected to suffer whatever environmental consequences the project may have'" (quoting City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975))).
337. 130 F.3d 464 (D.C. Cir. 1997) (denying standing for an animal rights organization and various individual members which plaintiffs alleged that the U.S. Department of Agriculture's failure to promulgate regulations adequate to enforce the Animal Welfare Act, along with its failure to follow proper Administrative Procedures Act process in promulgating of its regulations, had allowed and resulted in abusive treatment of various zoo animals, inflicting distress upon the individual animal rights activists who viewed this distress).
338. Id. at 469: Granted, when the government takes action that has a 'determinative or coercive effect' on a third party, the government may be said to have 'caused' injuries which are directly attributable to the third party . . . . But we are aware of no cases - and appellees have provided us with none - in which the government was said to have caused a constitutional injury by failing to issue regulations that would have forbidden third parties from engaging in conduct that caused a plaintiff's injury, (emphasis added) (citation omitted).
339. The conditions upon which the plaintiffs had based their allegations of personal distress, particularly when coupled with the individual plaintiffs' personal knowledge about the injuries that such conditions were visiting on the primates that suffered them, were before the court, as made clear in Circuit Judge Wald's dissent: For his entire life, Mr. Jurnove [a plaintiff] has "been employed and/or worked as a volunteer for various human and animal relief and rescue organizations." "By virtue of [his] training in wildlife rehabilitation and [his] experience in investigating complaints about the treatment of wildlife, [he is] very familiar with the needs of and proper treatment of wildlife." . . . . Mr. Jurnove's first visit to the Game Farm . . . lasted approximately six hours. While there, Mr. Jurnove saw many animals living under conditions that caused him deep distress. For instance, the Game Farm housed one primate, a Japanese Snow Macaque, in a cage lacking both a solid floor and any kind of heating device. Mr. Jurnove reports that he saw this monkey "shivering," "huddled up with her head tucked in and arms hugging herself." The Fame Farm also placed adult bears next to squirrel monkeys, although Jurnove immediately saw evidence that the arrangement made the monkeys frightened and extremely agitated. Id. at 471 (citations to plaintiffs' affidavit eliminated).
340. See id. at 469-70 ("[A]ll of the appellees claim to suffer persisting, painful memories of animal mistreatment . . . . Appellees do not claim, much less demonstrate, that their painful memories are likely to be obliterated by compelling the Secretary to promulgate new legal regulations.").
341. See id. at 470 ("Appellees' claims of redressability are further undercut, given that the district court, whether directly or through appellants, has no power to compel the exhibitors to continue maintaining primates at all, let alone in a manner aesthetically pleasing to appellees."). In the above passage, among others, the court either purports to be ignorant of the goal of the animal rights activists, which is, of course, to stop the abuse, or the court simply cannot fathom that persons might suffer from witnessing animal abuse. It seems more likely that the court's intent was to frustrate the appellees and demonstrate how patently incompatible the law and environmental values are. This message is strongly suggested in the court's characterization of the appellee's goal as compelling the zoos to display primates "in a manner aesthetically pleasing to appellees." Id. Even granting the unfortunate development of the term "aesthetic injury" as one covering multiple environmental claims, this court's use of language appears designedly insensitive.
342. See Animal Legal Defense Fund, 130 F.3d at 470-71 (determining that an organization dedicated to animal welfare maintains no more than a general injury common to all members of the public where a government actor promulgates regulations addressing the psychological enrichment of primates in a manner that allegedly bypasses part of its statutory obligation to allow public participation).
343. 154 F.3d 426 (D.C. Cir. 1998).
344. See id. at 431-38 (discussing numerous federal cases in which an individual or an organization successfully established injury in fact by showing an environmental interest).
345. See id. at 435 ("In the environmental context . . . plaintiffs must establish that they have actually used or plan to use the allegedly degraded environmental area in question.").
346. See id. at 432 ("[T]he fact that many may share an aesthetic interest does not make it less cognizable.").
347. See id. at 437 ("It has never been the law, and is not so today, that injury in fact requires the elimination (or threatened elimination) of either the animal species or environmental feature in question.").
348. See Animal Legal Defense Fund, 154 F.3d at 438-43 (applying the causation test for constitutional standing to the plaintiff's allegation that the U.S. Department of Agriculture regulations failed to meet its directive under the Animal Welfare Act, 7 U.S.C. § 2143 (1994), to adopt minimum standards for the humane treatment of primates).
349. See id. at 443-44. The plaintiff's affidavit stating his specific intent to return to the zoo in question illustrates Blackmun's point in Defenders of Wildlife regarding the ease with which any plaintiff could meet the "empty formality" of the specificity requirement, whether truthfully or through fabrication, that the majority treats as so constitutionally crucial in that case. See generally Lujan v. Defenders of Wildlife, 504 U.S. 555, 592 (1992) (Blackmun, J., dissenting). Similarly, the court's rejection of the idea that speculations regarding the cooperativeness of the agency in question might defeat the redressability element echoes Blackmun's argument in Defenders of Wildlife regarding the majority's speculation that agencies acting overseas might refuse to cooperate with a directive issued by the Secretary of the Interior that they evaluate the impact of their actions on endangered species. See generally Defenders of Wildlife, 504 U.S. at 595-98 (1992) (Blackmun, J., dissenting).
350. See Animal Legal Defense Fund, 154 F.3d at 444-45.
351. For cases cited by the court that support, either in their holding or their dicta, its arguments regarding the existence and breadth of environmental standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990); Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221 (1986); United States v. SCRAP, 412 U.S. 669 (1973); Sierra Club v. Morton, 405 U.S. 727 (1972); Motor & Equip. Mfrs. Ass'n v. Nichols, 142 F.3d 449 (D.C. Cir. 1998); Mountain State Legal Found, v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996); Humane Soc'y v. Babbitt, 46 F.3d 93 (D.C. Cir. 1995); Animal League Defense Fund v. Espy, 29 F.3d 720 (D.C. Cir. 1994); Animal League Defense Fund v. Espy, 23 F.3d 496 (D.C. Cir. 1994); Didrickson v. U.S. Dep't of the Interior, 982 F.2d 1332 (9th Cir. 1992); Save Our Community v. U.S. EPA, 971 F.2d 1155 (5th Cir. 1992); Fund for Animals, Inc. v. Lujan, 962 F.2d 1391 (9th Cir. 1992); Public Interest Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir. 1990); United States v. Metropolitan St. Louis Sewer Dist., 883 F.2d 54 (8th Cir. 1989); Sierra Club v. Simkins Indus. Inc., 847 F.2d 1109 (4th Cir. 1988); Humane Soc'y v. Hodel, 840 F.2d 45 (D.C. Cir. 1988); National Wildlife Fed'n v. Hodel, 839 F.2d 694 (D.C. Cir. 1988); Chesapeake Bay Found, v. American Recovery Co., 769 F.2d 207 (4th Cir. 1985); Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57 (2d Cir. 1985); Montgomery Envtl. Coalition v. Costle, 646 F.2d 568 (D.C. Cir. 1980); Community for Auto Responsibility v. Solomon, 603 F.2d 992 (D.C. Cir. 1979); Animal Welfare Inst. v. Kreps, 561 F.2d 1002 (D.C. Cir. 1977).
352. See Animal Legal Defense Fund, 154 F.3d at 432 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992), for the proposition that a plaintiffis desire to observe an animal for purely aesthetic purposes constitutes a cognizable interest for standing purposes); id. at 433 (citing Defenders of Wildlife, 504 U.S. at 566, stating that a person who observes a particular animal threatened by a government decision faces perceptible harm); see also id. at 435 (citing Lujan v. National Wildlife Fed'n, 497 U.S. 871, 886 (1990), for the proposition that federal action alleged to threaten the aesthetic beauty and wildlife population of an area met constitutional standing requirements for injury).
353. See Animal Legal Defense Fund, 154 F.3d at 435 (citing National Wildlife Fed'n, 497 U.S. at 901 n.2 (Blackmun, J., dissenting), where Blackmun discussed government reports projecting the adverse impacts on various animal populations, recreational facilities, and land in support of his argument that the plaintiffs in that case established standing, to support the court's determination that an individual's interest in maintaining humane living conditions for animals constitutes an environmental injury in fact).
354. See id. at 430 (discussing the plaintiff's "aesthetic harm and emotional and physical distress" as the bases for his standing, rather than the conditions of cruelty in which he described certain primates suffering in captivity).
355. Even Scalia's opinion in Bennett v. Spear tacitly acknowledged the existence and legal validity of environmental standing, a milestone that did not go unnoticed by environmentalists. See Mark Hansen, Angling for a Right to Sue, A.B.A. J., June, 1997, at 22 (quoting John Kostyack, counsel to the National Wildlife Federation, as stating, "[w]hen legal standing is denied, it's usually done to keep environmentalists out of court . . . so I'm very pleased with the ruling," and also quoting Patrick Parenteau, professor of environmental law, as stating, "[i]t's almost a neutral decision . . . because it suggests that courts will be available for review, regardless of the relief sought").
356. See Reply Brief for Petitioner at 6, Sierra Club v. Morton, 405 U.S. 727 (1972) (No. 70-34): The government seeks to create a "heads I win, tails you lose" situation in which either the courthouse door is barred for lack of assertion of a private, unique injury or a preliminary injunction is denied on the ground that the litigant has advanced private injury which does not warrant an injunction adverse to a competing public interest. Counsel have shaped their case to avoid this trap. Id.
357. See Sierra Club, 405 U.S. at 740 n. 15 ("The test of injury in fact goes only to the question of standing to obtain judicial review. Once this standing is established, the party may assert the interests of the general public in support of his claim for equitable relief."); see also id. at 737 ("[O]nce review is properly invoked, [a plaintiff] may argue the public interest in support of his claim that the agency has failed to comply with its statutory mandate.").
358. See id. at 756-57: I would reverse that judgment [of the Court of Appeals] and, instead, approve the judgment of the District Court which recognized standing in the Sierra Club and granted preliminary relief. I would be willing to do this on condition that the Sierra Club forthwith amend its complaint to meet the specifications the Court prescribed for standing. If Sierra Club fails or refuses to take that step, so be it; the case will then collapse. But if it does amend, the merits will be before the trial court once again. As the Court . . . so clearly reveals, the issues on the merits are substantial and deserve resolution. They assay new ground. They are crucial to the future of Mineral King. They raise important ramifications for the quality of the country's public land management . . . . Lack of compliance with existing administrative regulations is also charged. These issues are not shallow of perfunctory. Id.
359. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998). Scalia admitted that the EPCRA citizen suit provision allows "any person" to commence a suit, and also that EPCRA defines "person" to include an association, but nevertheless concluded that the injuries of the individual members of the respondent organization would have been the focus of the suit had it progressed on the merits, and not the public interests of concern to the organization.
360. Sierra Club, 405 U.S. at 755-56 (emphasis added).
361. See Transcript of Oral Arguments at 12-13, Sierra Club (No. 70-34): Q: Why does it have to be an association? Why couldn't it be a man, let's make him an old man, who, for 70 years, has had a very genuine interest in what the Sierra Club is interested in. He's now 75, and he's had this very genuine interest since he was five years old, for 70 years. And he can show it to the satisfaction of a court. . . Why couldn't he bring this lawsuit? MR. SELNA [Sierra Club attorney]: Mr. Justice Stewart, I think that he could. Q: [possibly Blackmun] John Muir, for instance, if he were still living today? MR. SELNA: Right. He could do it. Id.
362. See id; see also id. at 28-29: [Solicitor General:] If such as result [as the Sierra Club argued] is reached, I believe that any individual, whether he be citizen or alien, and in the Amchitka case we had a Canadian club of a few hundred members as a party, would have standing to raise any question in court in which he asserts he has an interest without more. I don't think there's any magic in the fact that the Sierra Club is a club, or that [it] has members, or a long and distinguished history, [or that] many of [its] members may well share the interest which its management now advances . . . . What reason is there for picking a number? If any group has standing because it has an intellectual or emotional interest, does it not inevitably follow that any individual who asserts an interest likewise has standing to raise these legal questions? If the Sierra Club has standing, as Mr. Justice Blackmun suggested, would not John Muir have standing? If the Sierra Club has standing, why does it not follow that John Gardner, and my estimable former student Ralph Nadar likewise have standing to raise in court any questions of law which appeal to them as being in the public interest? Id.
363. See id.
364. See id. at 29-35: If there is standing in this case, I find it very difficult to think of any legal issue arising in government which will not have to await one or more decisions of the Court before the administrator, sworn to uphold the law, can take any action. I'm not sure that this is good for the government. I'm not sure that it's good for the courts. I do find myself more and more sure that it is not the kind of allocation of governmental power in our tripartite constitutional system that was contemplated by the Founders. Id. at 34-35
365. See id. at 10 (responding to questions from Justice Stewart about the fictitious Friends of Walt Disney, the Sierra Club attorney admitted that such an organization might successfully assert standing under the Club's argument). The Sierra Club's attorney also concluded that it was conceivable that, under die Club's conception of public interest standing, the Friends of Bigger Highways might successfully bring a lawsuit. Id. at 12.
366. See Transcript of Oral Arguments at 13, Sierra Club (No. 70-34) ("Now, I take it, Mr. Selna [the Sierra Club attorney] . . . you concede there is some limitation [on standing] - and that a broad general interest in the problems of ecology is not enough.").
367. See Sierra Club, 405 U.S. at 757-58 (Blackmun, J., dissenting) ("This incursion upon tradition need not be very extensive. Certainly, it should be no cause for alarm. It is no more progressive than was the decision in Data Processing itself . . . . We need not fear that Pandora's box will be opened or that there will be no limit to the number of those who desire to participate in environmental litigation.").
368. See Transcript of Oral Arguments at 29, Sierra Club (No. 70-34).
369. See Sierra Club, 405 U.S. at 757 (Blackmun, J., dissenting) (advocating in favor of environmental standing for "organizations such as the Sierra Club, possessed, as it is, of pertinent, bona fide, and well-recognized attributes and purposes in the area of environment"). Unfortunately, Blackmun was not completely clear in his view that standing be limited to organizations only, later referring to the environmental plaintiff as "one who has a provable, sincere, dedicated, and established status." Id. at 757-58. Likewise, Blackmun's language, distinguishing his own environmental standing model from the model advocated by Douglas, was not completely clear: And Mr. Justice Douglas, in his eloquent opinion, has imaginatively suggested another means and one, in its own way, with obvious, appropriate, and self-imposed limitations as to standing. As I read what he has written, he makes only one addition to the customary criteria . . . that is, that the litigant be one who speaks knowingly for the environmental values he asserts. Id. at 758. Later in his dissent, Blackmun listed with approval a series of cases in which courts recognized environmental standing. Id. at 760 n.1. As almost all of the plaintiffs in those cases were environmental organizations, the list could further support a reading of Blackmun's dissent that strictly limits his vision of environmental standing to organizational standing. Unfortunately, the last case Blackmun listed was Honchok v. Hardin, 326 F. Supp. 988 (D. Md. 1971). That case involved two individuals who asserted standing for themselves as individuals and the environmental organization to which one of them belonged, suing on behalf of the three plaintiffs and "others similarly situated." Id. at 989. Thus, in spite of its tone of environmental concern and open-mindedness on the standing issue, the case did not stand for the proposition that environmental standing was constitutionally sound if limited to organizations, undercutting the idea that Blackmun intended the remainder of the cases cited to deliver that message. In short, it appears that Blackmun viewed organizational standing as a safer, clearer way to allow and control environmental standing, but that he did not want his dissent to openly counsel against the broader model presented by Douglas and the Sierra Club.
370. See Transcript of Oral Arguments at 10-12, Sierra Club (No. 70-34).
371. See Sierra Club, 405 U.S. at 759; Transcript of Oral Arguments at 16-17, Sierra Club (No. 70-34).
372. See Transcript of Oral Arguments at 16-17, Sierra Club (No. 70-34): Q [Blackmun]: Mr. Selna [Sierra Club attorney], let me . . . ask my question in the reverse, although I realize it's one that perhaps I should ask the Solicitor General. If an organization like the Sierra Club is not qualified to bring litigation of this kind, who would be? . . . I take it, private plots of land are not anywheres [sic] near the Mineral King development? Mr. SELNA: Mr. Justice Blackmun, in fact there are private holdings . . . In many instances, and in the case of Sequoia National Park itself . . . [t]here aren't users in the sense of people who have private holdings that would be affected one way or another by the development. So, in answer to your question, if not the Sierra Club, in many instances nobody; or if not an environmental organization, nobody. Id.
373. Sierra Club, 405 U.S. at 759 (reflecting a point made during the oral argument); see Transcript of Oral Argument at 16-17, Sierra Club (No. 70-34).
374. Transcript of Oral Arguments at 11, Sierra Club (No. 70-34).
375. See Sierra Club, 405 U.S. at 758 (Blackmun, J., dissenting) (arguing that courts have historically exercised appropriate restraints).
376. See Transcript of Oral Arguments at 30, Sierra Club (No. 70-34) (recording the Solicitor General's speculation that environmental standing could result in "a thousand suits brought by interested individuals and organizations in the 93 Judicial Districts of the United States, with resulting vast confusion"); id. at 32 (featuring the Solicitor General posing and then answering the question "[w]hy should not the courts decide any question that any citizen wants to raise?" with the response that "[o]urs is not a government by the Judiciary").
377. See Bennett v. Spear, 520 U.S. 154, 177 (1997) (criticizing federal agents as "zealous[ ] but unintelligent[ ]" and their actions as "erroneous").
378. Compare supra notes 250-62 and accompanying text (discussing Defenders of Wildlife), with supra notes 300-07 and accompanying text (discussing Bennett).
379. See Wilkinson, supra note 90, at 243 ("[T]he question, 'Should trees have standing?' personifies, for lawyers and nonlawyers alike, many of the root philosophical questions in the policy and jurisprudence of our natural resources.").
380. See Stone, Should the Trees Have Standing?, supra note 79, at 464 ("[W]e should have a system in which, when a friend of a natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship.").
381. See id. at 464-65 (proposing that the state statutes providing for the guardianship of incompetent persons be interpreted to include natural objects).
382. Id. at 466.
383. See id. at 464 (describing instances in which a court assigns a guardian to "oversee [their ward's] affairs and speak for it in court when that becomes necessary").
384. See id. at 466-67: As guardian, [an organization] might be given rights of inspection (or visitation) to determine and bring to the court's attention a fuller finding on the land's condition. If there were indications that under the substantive law some redress might be available on the land's behalf, then the guardian would be entitled to raise the land's rights in the land's name . . . . Guardians would also be looked to for a host of other protective tasks, e.g., monitoring effluents (and/or monitoring the monitors), and representing their "wards" at legislative and administrative hearings on such matters as the setting of state water quality standards. Id.
385. See Stone, Should Trees Have Standing?, supra note 79, at 471 (discussing how, when litigation arose and a guardian represented the environment, the court could be assured "that the plaintiff has the expertise and genuine adversity in pressing a claim which are the prerequisites of a true 'case or controversy'").
386. See id. at 456 n.26: [T]here are large problems involved in defining the boundaries of the "natural object." For example, from time to time one will wish to speak of that portion of a river that runs through a recognized jurisdiction; at other times, one may be concerned with the entire river, or the hydrologic cycle -or the whole of nature. One's ontological choices will have a strong influence on the shape of the legal system, and the choices involved are not easy. Id.
387. See id. at 464 n.49: One can conceive a situation in which a guardian would be appointed by a county court with respect to a stream, bring a suit against alleged polluters, and lose. Suppose now that a federal court were to appoint a guardian with respect to the larger river system of which the stream were a part, and that the federally appointed guardian subsequently were to bring a suit against the same defendants in state court, now on behalf of the river, rather than the stream. (Is it possible to bring a still subsequent suit, if the one above fails, on behalf of the entire hydrologic cycle, by a guardian appointed by an international court?). Id.
388. Stone did address the idea that environmental guardians, like other guardians and trustees, could be removed from their role as guardian. See id. at 466-67 ("Procedures exist, and can be strengthened, to move a court for the removal and substitution of guardians, for conflicts of interest or for other reasons, as well as for the termination of the guardianship.").
389. The concept of the natural resource damages trustee is incorporated into a number of environmental statutes, including the Trans-Alaska Pipeline Authorization Act of 1973, 43 U.S.C. § 1653(a)(1) (1994); the Deepwater Port Act of 1974, 33 U.S.C. § 1517(i)(3) (1994); the Clean Water Act Amendments of 1977, 33 U.S.C. § 1321(f)(4) (1994); the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a)(4)(C) (1994); and the Oil Pollution Act of 1990, 33 U.S.C. § 2701 (1994).
390. See Clean Water Act, 33 U.S.C. § 1321(f)(4) (1994); CERCLA, 42 U.S.C. § 9607(f)(1) (1994).
391. Stone, Should the Trees Have Standing?, supra note 79, at 475-76.
392. See id. at 477 (critiquing the difficulties in calculating environmental damage in monetary terms).
393. For cases in addition to Bennett in which statutory standing proved ineffective, see Public Interest Research Group v. Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir. 1997) (finding that public interest group members lacked standing under the citizen suit standing provision in the Federal Clean Water Act where the admitted polluter's expert convinced the court that the illegal discharges had not harmed the aquatic ecosystem of the receiving waters, thus calling into question the existence of an actual harm suffered by the plaintiffs); see also supra notes 250-62 and accompanying text (construing standing in context of ESA standing provision). For other citizen suit standing provisions in environmental statutes, see for example, Energy Supply and Environmental Coordination Act, 15 U.S.C. § 797(b)(5) (1994) (stating that "any person suffering legal wrong because of any act or practice arising out of any violation . . . of this section may bring a civil action for appropriate relief"); Toxic Substances Control Act § 20, 15 U.S.C. § 2619(a) (1994) (stating that "any person may commence a civil action . . . against any person . . . who is alleged to be in violation of this chapter . . . or . . . against the Administrator to compel the Administrator to perform any act or duty under this chapter which is discriminatory"); Surface Mining Control and Reclamation Act, 30 U.S.C. § 1270(a) (1994) (stating that "any person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this chapter"); Clean Water Act, 33 U.S.C. § 1365(a) (1994) (stating that "any citizen may commence a civil action on his own behalf. . . against any person . . . [for specified violations]"); Solid Waste Disposal Act, 42 U.S.C. § 6972 (1994) (stating that "any person may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of [this Act] . . . against any person . . . [whose actions] may present an imminent and substantial endangerment to health or the environment . . . or . . . against the [EPA] Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter"); Ocean Thermal Energy Conversion Act, 42 U.S.C. § 9124(a) (1994) (stating that "any person having a valid legal interest which is or may be adversely affected may commence a civil action for equitable relief on his own behalf . . . whenever such action constitutes a case or controversy").
394. For discussion of the historical absence of politically high-profile leadership with environmental values, see MARK GROSSMAN, THE ABC-CLIO COMPANION TO THE ENVIRONMENTAL MOVEMENT at xiii (1994): As opposed to other movements, such as the civil rights, union, and women's rights movements, the conservation and environmental movements have never had a leader per se, although men like John Burroughs and Theodore Roosevelt, and women like Rachel Carson and Anna Botsforth Comstock, have risen to become effective spokespersons for the cause. This lack of cohesion . . . has been the environmental movement's Achilles' heel. Id.
395. See Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997) (determining as a matter of law that Title VI provides for a private right of action for federal regulatory actions allegedly resulting in discriminatory environmental impact). For a compact overview of the history of the environmental justice effort, see Steven A. Light & Kathryn R.L. Rand, Is Title VI a Magic Bullet?: Environmental Racism in the Context of Political-Economic Processes and Imperatives, 2 MICH. J. RACE & L. 1, 47-48 (1996) ( expressing caution about the effectiveness of a Title VI claim for environmental exposure) and Peter Manus, The Owl, the Indian, the Feminist, and the Brother: Environmentalism Encounters the Social Justice Movements, 23 B.C. ENVTL. AFF. L. REV. 249, 274-88 (1996). For examples of recent claims brought under Civil Rights Act Title VI, 42 U.S.C. § 3601 (1999) in connection with instances of race-based environmental exposure, see for example, Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180 (4th Cir. 1999) (dismissing as untimely appellants' Title VI claim alleging that road project would have disproportionate environmental impact on African American community). South Bronx Coalition for Clean Air v. Conroy, 20 F. Supp.2d 565, 571-73 (S.D.N.Y. 1998) (dismissing as conclusory, general, and unsupported allegations of an administrative policy "to site obnoxious environmental activity only in minority neighborhoods and to exclude such activities from neighborhoods occupied by white residents of the State"); Goshen Road Envtl. Action v. U.S. Dep't of Agriculture, 891 F. Supp. 1126 (E.D.N.C. 1995) (denying as unsubstantiated the motion for temporary injunction where a town planned to locate a wastewater treatment facility in an African American neighborhood and also denying as unsubstantiated the town's motion to dismiss the residents' Title VI action as failing to state a claim upon which relief could be granted).
396. See Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997) (determining as a matter of law that Title VI provides for a private right of action for federal regulatory actions allegedly resulting in discriminatory environmental impact). For a compact overview of the history of the environmental justice effort, see Steven A. Light & Kathryn R.L. Rand, Is Title VI a Magic Bullet?: Environmental Racism in the Context of Political- Economic Processes and Imperatives, 2 MICH. J. RACE & L. 1, 47-48 (1996) ( expressing caution about the effectiveness of a Title VI claim for environmental exposure) and Peter Manus, The Owl, the Indian, the Feminist, and the Brother: Environmentalism Encounters the Social Justice Movements, 23 B.C. ENVTL. AFF. L. REV. 249, 274-88 (1996). For examples of recent claims brought under Civil Rights Act Title VI, 42 U.S.C. § 3601 (1999) in connection with instances of race-based environmental exposure, see for example, Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180 (4th Cir. 1999) (dismissing as untimely appellants' Title VI claim alleging that road project would have disproportionate environmental impact on African American community). South Bronx Coalition for Clean Air v. Conroy, 20 F. Supp.2d 565, 571-73 (S.D.N.Y. 1998) (dismissing as conclusory, general, and unsupported allegations of an administrative policy "to site obnoxious environmental activity only in minority neighborhoods and to exclude such activities from neighborhoods occupied by white residents of the State"); Goshen Road Envtl. Action v. U.S. Dep't of Agriculture, 891 F. Supp. 1126 (E.D.N.C. 1995) (denying as unsubstantiated the motion for temporary injunction where a town planned to locate a wastewater treatment facility in an African American neighborhood and also denying as unsubstantiated the town's motion to dismiss the residents' Title VI action as failing to state a claim upon which relief could be granted).
397. For recent articles reviewing the brownfields redevelopment initiatives, see for example Robert W. Wells, Jr., Brownfields for Beginners, 71 FLA. B.J. 74, 74-78 (May 1977) (discussing the program generally, particular pilot programs, and risk-based corrective action as applied in Florida); Christine K. Carver, Note, Brownfields Blues, 22 SETON HALL LEGIS. J. 24, 244-67 (1997) (presenting an overview of brownfields history as well as of federal and New Jersey programs).
398. For recent articles reviewing the brownfields redevelopment initiatives, see for example Robert W. Wells, Jr., Brownfields for Beginners, 71 FLA. B.J. 74, 74-78 (May 1977) (discussing the program generally, particular pilot programs, and risk-based corrective action as applied in Florida); Christine K. Carver, Note, Brownfields Blues, 22 SETON HALL LEGIS. J. 24, 244-67 (1997) (presenting an overview of brownfields history as well as of federal and New Jersey programs).
399. LAZARUS, supra note 3, at 23.
400. See supra note 95 and accompanying text (summarizing the lower court decisions citing Justice Douglas's dissent in Sierra Club).
401. See Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 1107 (9th Cir. 1988) (observing that "[a]s an endangered species . . . the [Palila,] a member of the Hawaiian honeycreeper family [of birds], also has legal status and wings its way into court as a plaintiff in its own right").