Wild Bill Douglas's last stand: A retrospective on the first supreme court environmentalist

Temple Law Review

Volumn 72, Issue 1, 1999, Pages 111-196

  Manus, Peter ^a,b,c  

^a New England School of Law   (United Kingdom)

^b MIT Sloan School of Management   (United States)

^c DARTMOUTH COLLEGE   (United States)

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EID: 9444283278     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (505)

1. John M. Naff, Jr., Reflections on the Dissent of Douglas, J., in Sierra Club v. Morton (unpublished manuscript, on file with the Library of Congress, Manuscript Division, William O. Douglas Collection). An unsigned note, apparently from William H. Alsup, Douglas's Sierra Club law clerk, implicates Chief Justice Warren Burger as the poet. See Note from William H. Alsup, Law Clerk for Justice Douglas, to Justice William Douglas (Nov. 14, 1972) (on file with Library of Congress, Manu-script Division) (stating "I received your copy of the lyrical attack leveled at your Sierra Club dissent. It looks as if the Chief has taken on both poor poetry and a pseudonym.").
2. Christopher D. Stone, Should Trees Have Standing? - Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450, 456 (1972).
3. Sierra Club v. Morton, 405 U.S. 727, 741 (1972) (Douglas, J., dissenting). Professor Stone wrote his article with the goal of influencing Justice Douglas in Sierra Club. See Garrett Hardin, Foreword to CHRISTOPHER D. STONE, SHOULD TREES HAVE STANDING? - TOWARD LEGAL RIGHTS FOR NATURAL OBJECTS xiii-xiv (1974). The author stated that: [Sierra Club] was the needed case, a ready-made vehicle to bring to the Court's attention the theory [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. Id.
4. See Hardin, supra note 3, at xvi (stating that "[t]he rapidity with which Stone's work has been favorably commented on by jurists, journalists, and legislators gives grounds for optimism as to the early incorporation into law of Stone's thesis that natural objects should have standing in court."); see also Charles F. Wilkinson, Justice Douglas and the Public Lands, in HE SHALL NOT PASS THIS WAY AGAIN: THE LEGACY OF JUSTICE WILLIAM O. DOUGLAS 233, 243 (Stephen L. Wasby ed., 1990) (stating that "because 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").
5. See, e.g., Oliver A. Houck, The Secret Opinions of the United States Supreme Court on Leading Cases in Environmental Law, Never Before Published!, 65 COLO. L. REV. 459, 497-98 (1994). In this article Professor Houck maintained that [t]his holding has become all but forgotten. Instead, Sierra Club v. Morton has become a monument in adminstrative 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. Id.
6. See Bennett v. Spear, 520 U.S. 154, 161-66 (1997) (discussing limits of standing under ESA). In contrast, the court of appeals opinion did express cognizance of an established area of environmental law. See Bennett v. Plenert, 63 F.3d 915, 919-22 (9th Cir. 1995) (holding that broad language of ESA standing provision included plantiffs interested in preservation of endangered species). The court stated that: we follow the approach that we have adopted in applying the zone of interests test to claims brought pursuant to other environmental statutes. In those cases, . . . we concluded that the asserted interests were not tied to the environmental purposes served by the respective statutes. For example, . . . we denied standing under the Clean Water Act to a plaintiff who sought grant funds but did not assert an interest that "arose from an interest in the environment" or "environmental concerns." Similarly, we held that plaintiffs do not have standing under [the National Environmental Policy Act ("NEPA")] . . . to protect "purely" economic interests, because the environmental purposes of the Act would not be furthered by permitting suits premised on such interests. Id. at 919-20 (citations omitted).
7. See generally Bennett, 520 U.S. at 166 (finding that plaintiffs had standing to sue under ESA despite fact that they were "seeking to prevent application of environmental restrictions rather than to implement them"). Bennett has been received as reinstating the dominance of private property rights over environmental laws: Now empowered to go to court to protest the federal government's enforcement of the Endangered Species Act, landowners may be less willing to pay stiff prices for the sake of compromise. . . . [M]any conservative members of Congress . . . are backing legislation to strengthen private property rights. Included among the proposals is one that, like [Bennett], would empower property owners to bring lawsuits protesting government species-protection activities under the act. In rendering its unanimous decision, of course, the court gave no hint whether it was aware that its action will smooth a lot of ruffled congressional feathers. Nonetheless, there is no doubt that the court's decision will have repercussions in Congress, as well as in the executive branch and the federal courts. Richard Littell, Is Ruling a Danger to Endangered Species Act?: High Court Says Feds Can Be Sued for 'Zealous but Unintelligent' Actions, FULTON COUNTY DAILY REPORT, Apr. 20, 1998, at 5, available in LEXIS, News Library, Papers File.
8. See, e.g., 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 that "[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 Patrick Parenteau, professor of environmental law, as stating that "[i]t's almost a neutral decision . . ." because it suggests the courts will be available for review, regardless of the relief sought).
9. This is a charge to which Justice Scalia is particularly vulnerable, as his "strident opinions continually warn his colleagues that they will cause serious harm to the governing system and the country if they do not heed [his views on separation of powers and the integrity of the judicial branch]." DAVID A. SCHULTZ & CHRISTOPHER E. SMITH, THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA 82 (1996). See infra notes 112-65 and accompanying text for a discussion of Justice Scalia's effect on Supreme Court environmental jurisprudence.
10. The Court reprised its unanimity (at least as to holdings) against environmentalist plaintiffs in Steel Company v. Citizens for a Better Environment, 523 U.S. 83 (1998) and Ohio Forestry Association v. Sierra Club, 523 U.S. 726 (1998). Those cases further substantiate the prospect that no member of the Court possesses an environmentalist perspective; they do not, however, provide as powerful an example as Bennett of the Court's unanimous refusal to stand up for environmentalists in the face of anti-environmentalist logic. See infra notes 139-65 and accompanying text for a discussion of the Supreme Court's lack of support for environmentalist plaintiffs.
11. See, e.g., Donald Worster, The Ecology of Order and Chaos, ENVTL. HIST. REV., Spring/Summer 1990, at 15. Professor Worster stated that: [i]f a single flap of an insect's wings in China can lead to a torrential downpour in New York, then what might it do to the Greater Yellowstone Ecosystem? What can ecologists possibly know about all the forces impinging on, or about to impinge on, any piece of land? What can they safely ignore and what must they pay attention to? What distant, invisible, minuscule events may even now be happening that will change the organization of plant and animal life in our back yards? Id.
12. See, e.g., Robert F. Kennedy, Jr., Thoughts on Environmental Rights and Ownership, 11 PACE ENVTL. L. REV. 11, 16-17 (1993) (stating that "[o]ur failure to persuade people [that every citizen has a right to a safe and healthy environment] has been the principal failure of the environmental movement").
13. See Christopher D. Stone, Commentary: William O. Douglas and the Environment, in HE SHALL NOT PASS THIS WAY AGAIN 227, 229 (Stephen L. Wasby ed., 1990) [hereinafter Stone, Commentary] (stating that "[i]n 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.").
14. See JAMES C DURAM, JUSTICE WILLIAM O. DOUGLAS 1 (1981) (stating that "[f]ew writers in the American liberal tradition reflect a closer connection between their life experiences and the content of their writing").
15. The examination lends itself to the broader issue of the durability of the entire movement, politically and socially as well as legally. For example, two commentators have stated: With the dramatic outburst of environmental concern some two decades ago, officials were generally quick to align their statements with the prevailing sentiment. Just as quickly, however, there emerged among them a sense that environmental problems had either been solved by modest reforms or displaced by more serious and pressing economic difficulties. Environmentalism, many hopefully believed, was going out of style and would not hold public attention. It seemed safe for officials to slight environmental concerns, and eventually neo-conservative forces were able to mount a determined assault upon environmentalism and the reforms it had initiated in the administrative state. Robert Paehlke & Douglas Torgerson, Environmental Politics and the Administrative State, in MANAGING LEVIATHAN: ENVIRONMENTAL POLITICS AND THE ADMINISTRATIVE STATE 285-86 (Robert Paehlke & Douglas Torgerson eds., 1990).
16. See Houck, supra note 5, at 497 (characterizing Justice Douglas as "perhaps the most outspoken conservationist ever to hold federal office").
17. See infra notes 20-165 and accompanying text.
18. See infra notes 166-404 and accompanying text.
19. See infra notes 405-70 and accompanying text.
20. See, e.g., Dolan v. City of Tigard, 512 U.S. 374 (1994) (holding City of Tigard's conditioning approval of building permit on construction of greenway and pedestrian/bicycle path uncompensated taking); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (holding South Carolina's ban on erecting permanent coastal structures an uncompensated taking of land by depriving respondent of furture economic use of land); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (holding that Defenders of Wildlife failed to assert any injury which would give them standing under ESA); Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990) (holding that National Wildlife Federation lacked standing to challenge actions of federal government on public lands). These leading cases have an emerging progeny. See, e.g., Ohio Forestry Ass'n v. Sierra Club, 118 S. Ct. 1665 (1998) (holding plaintiffs' challenge to government land use plan not ripe for judicial review); Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003 (1998) (holding that plaintiff lacked standing because plaintiff failed to request relief which would remedy alleged injury); Public Interest Research Group of N.J. v. Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir. 1997) (holding plaintiffs lacked standing because defendant's actions did not harm or threaten relevant waterway); Florida Audubon Soc'y v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996) (holding plaintiffs did not show risk of own injury to particularized environmental interest to have standing).
21. Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); see also Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 714 (1995) (Scalia, J., dissenting) (dissenting to reading of ESA favoring preservation).
22. See infra notes 83-111 and accompanying text for a discussion on Justice Scalia's hostility toward environmentalists in Defenders of Wildlife.
23. See, e.g., Gene R. Nichol, Jr., Justice Scalia, Standing, and Public Law Litigation, 42 DUKE L.J. 1141, 1167 (1993) (maintaining that "in the early 1980's, Justice Scalia began his personal crusade to markedly strengthen standing's curb on an overjudicialized' government."); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 881 (1983) [hereinafter Scalia, The Doctrine of Standing] (stating that "[m]y thesis is that the judicial doctrine of standing is a crucial and inseparable element of [the] principle [of separation of powers], whose disregard will inevitably produce - as it has during the past few decades - an oveijudicialization of the process of self-governance").
24. See, e.g., Gene R. Nichol, Jr., Justice Scalia, Standing, and Public Law Litigation, 42 DUKE L.J. 1141, 1167 (1993) (maintaining that "in the early 1980's, Justice Scalia began his personal crusade to markedly strengthen standing's curb on an overjudicialized' government."); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 881 (1983) [hereinafter Scalia, The Doctrine of Standing] (stating that "[m]y thesis is that the judicial doctrine of standing is a crucial and inseparable element of [the] principle [of separation of powers], whose disregard will inevitably produce - as it has during the past few decades - an oveijudicialization of the process of self-governance").
25. See, e.g., Gene R. Nichol, Jr., Justice Scalia, Standing, and Public Law Litigation, 42 DUKE L.J. 1141, 1167 (1993) (maintaining that "in the early 1980's, Justice Scalia began his personal crusade to markedly strengthen standing's curb on an overjudicialized' government."); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 881 (1983) [hereinafter Scalia, The Doctrine of Standing] (stating that "[m]y thesis is that the judicial doctrine of standing is a crucial and inseparable element of [the] principle [of separation of powers], whose disregard will inevitably produce - as it has during the past few decades - an oveijudicialization of the process of self-governance").
26. Nichol, supra note 23, at 1167.
27. See, e.g., Peter Manus, One Hundred Years of Green: A Legal Perspective on Three Twentieth Century Nature Philosophers, 59 U. PITT. L. REV. 557, 587 (1998) (applying theory of jurai relations developed by Wesley Newcomb Hohfeld to determine that, despite efforts by persons like John Muir and Rachel Carson, United States law continues to perceive the human status in association with environment primarily as one of privilege which is protected against legal claims).
28. Scalia, The Doctrine of Standing, supra note 23, at 895-96.
29. See, e.g., ESA § 2(a)(3), 16 U.S.C. § 1531(a)(3) (1994) (valuing species of fish, wildlife, and plants threatened with extinction for their "esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people"); ESA § 2(a)(5), 16 U.S.C. § 1531(a)(5) (1994) (identifying beneficiaries of government conservation programs as "all citizens"); but see ESA § 2(a)(1), (2), 16 U.S.C. § 1531(a)(1), (2) (1994) (indicating that concerns underlying ESA's implementation are that "various species of fish, wildlife, and plants in United States have been rendered extinct as consequence of economic growth and development untempered by adequate concern and conservation," and that "other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction"). The anthropocentric cast to some of the language fails to obscure the biocentric concern at the core of the Act.
30. See, e.g., Comprehensive Environmental Response, Compensation, and Liability Act § 107(f)(1), (2), 42 U.S.C. § 9607(0(1), (2) (1994) ("CERCLA") (defining natural resource damage actions as public actions in which government officials serve as trustees of present and future citizens' interest in the nation's natural resources).
31. See, e.g., Cass R. Sunstein, What's Standing after Lujan? Of Citizens Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 215-22 (1992) (discussing Justice Scalia's conception of standing); Nichol, supra note 23, passim (discussing Justice Scalia's judicial opinions on standing).
32. Bennett v. Spear, 520 U.S. 154, 157-61 (1997). The plaintiffs, Oregon ranch operators and irrigation districts, received water from two reservoirs that are part of the Klamath Project, an irrigation project administered by the Bureau of Reclamation ("Bureau"). Id. at 159. After determining that the Project could adversely impact two species of fish, the Bureau consulted with the Fish and Wildlife Service ("FWS") as required under the ESA. Id. The FWS prepared a biological opinion recommending a number of actions to avoid jeopardizing the species, among them the recommendation that the Bureau maintain water in the reservoirs at designated levels. Id The plaintiffs challenged the biological opinion due to the Bureau's decision to comply with it. Id. at 159-60.
33. Id. at 161. More specifically, the Ninth Circuit opinion indicated that the plaintiffs may have achieved constitutional standing, but that they had failed to meet prudential standing limitations by not bringing a claim within the zone of interests protected by the statute whose breach the plaintiffs claimed led to their injuries. Bennett v. Plenert, 63 F.3d 915, 922 (9th Cir. 1995). The court determined that the broad language of the ESA citizen suit provision did not override the need for a court to consider whether the plaintiffs' purpose in suing was consistent with or only marginally related to the purposes of the Act. Id. at 919. After engaging in such consideration, the court concluded that [b]ecause the plaintiffs' interests consist solely of an economic (and recreational) interest in the use of water, because their claims are at best 'marginally related' to the purposes that underlie the Act, and because, as the district court determined, their interests are inconsistent with the Act's purposes, we conclude that they lack standing. Id. at 921 (citations omitted).
34. See infra notes 84-111 and accompanying text for a discussion of Justice Scalia's more blatantly vituperative reception of environmentalist plaintiffs in Defenders of Wildlife. Even in Bennett, Justice Scalia could not resist describing federal land management agents as "zealously but unintelligently pursuing their environmental objectives" and reaching "uneconomic" conclusions. Bennett, 520 U.S. at 177. One commentator described Justice Scalia's tone as one that disingenuously purports to subordinate outcome to process. See 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, 1800 (1991) Professor Edelman states that [w]hen the methodology has to give 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.
35. See Bennett, 520 U.S. at 162-65 (analyzing standing by considering Constitution and zone of interests test).
36. Id. at 162-63. Some courts and commentators would agree that Justice Scalia properly applied the zone of interests test in Bennett, casting that test as a translation of a general prudential principle. See, e.g., Robert B. June, Citizen Suits: the Structure of Standing Requirements for Citizen Suits and the Scope of Congressional Power, 24 ENVTL. L. 761, 779-80 (1994) (discussing judicial language equating zone of interests test with general judicial principle). Alternatively, it may be argued that use of the zone of interests test is appropriate only where the statutory basis for standing is the Administrative Procedures Act § 10(9), 5 U.S.C. § 702 (1994), a general standing provision which specifically limits the injury providing standing to grievances defined within a relevant substantive statute. See Clarke v. Security Indus. Ass'n, 479 U.S. 388, 394-403 (1987) (applying zone of interests test in APA setting); June, supra at 773-78 (explaining ramifications of APA on standing); see infra notes 53-63 and accompanying text for further discussion of APA standing in environmental context.
37. Bennett, 520 U.S. 164. Justice Scalia described the effect of the ESA citizen suit provision language as "expandpng] the zone of interests," implying, perhaps unwittingly, that the status from which the citizen suit provision's language expands the statute's zone of interests was, in fact, the obvious legislative goal of the ESA of protecting species. Id. at 164-65.
38. Id. at 164.
39. See id. (noting that "[e]ven in some other environmental statutes, Congress has used more restrictive formulations" (citing 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 violation]"))). See also 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."); Energy Supply and Environmental Coordination Act, 15 U.S.C. § 797(b)(5) (1994) (stating that "[a]ny 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); 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"). A number of citizen suit provisions in environmental statutes are worded even more broadly. For example, the Solid Waste Disposal Act states in pertinent part: [A]ny person may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of [the Act] . . . against any person . . . [whose actions] may present an imminent and substantial endangerment to health or the environment . . . or . . . against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter. Solid Waste Disposal Act, 42 U.S.C § 6972 (1994); see also 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").
40. See Bennett, 520 U.S. at 166. The Court in Bennett explained that: [i]t is true that the plaintiffs here are seeking to prevent application of environmental restrictions rather than to implement them. But the "any person" formulation applies to all the causes of action authorized by § 1540(g) - not only to actions against private violators of environmental restrictions, and not only to actions against the Secretary asserting underenforcement under § 1533, but also to actions against the Secretary asserting overenforcement under § 1533. Id. The actual language of the ESA citizen suit provision directly addresses the first two types of causes of action Justice Scalia outlines, but does not address the action asserting overenforcement: [A]ny person may commence a civil suit on his own behalf - (A) to enjoin any person . . . who is alleged to be in violation of . . . [the Act]; or (B) to compel the Secretary to apply . . . the prohibitions set forth in . . . [the Act] with respect to the taking of any resident endangered species or threatened species within any State; or (C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary. Endangered Species Act § 11(g), 16 U.S.C. § 1540(g) (1994). Thus, nowhere does section 1540(g) expressly or impliedly authorize a cause of action for overenforcement, regardless of its use of the words "any person."
41. Bennett, 520 U.S. at 165 (stating that "the obvious purpose of the particular provision in question is to encourage enforcement by so-called 'private attorneys general'"). Justice Scalia relied on Trafficante v. Metropolitan Life Ins. Co. to support his expansive interpretation of the private attorney general role in connection with the ESA. Id. at 165-66 (citing Trafficante v. Metropolitan Life Ins. Co, 409 U.S. 205 (1972)). In that case, however, tenants sued under the Civil Rights Act of 1968, complaining that their landlord's racially discriminatory renting practices illegally prevented them from living in a racially diverse community. Trafficante, 409 U.S. at 207-08. Although the usual plaintiff in such a case would likely be a would-be tenant rather than a tenant, suggesting that Trafficante may stand for an expansive reading of standing for private attorneys general, the Trafficante plaintiffs were, in fact, suing to enforce the purpose of the Civil Rights Acts. Indeed, the opinion directly addresses this point in noting that "the complainants act not only on their own behalf but also 'as private attorneys general in vindicating a policy that Congress considered to be of the highest priority.'" Id. at 211. Thus, the case is not at all the precedent that Justice Scalia identifies it to be; in fact, it supports a reading of the ESA citizen suit provision limiting its use to persons who would vindicate the preservationist policy of that Act.
42. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 565-67 (1992) (discussing and discounting theories about interconnectedness of human and environmental concerns as bases for individuals asserting standing in United States due to injuries from activities overseas that threaten endangered species). See infra notes 91-92 and accompanying text for a discussion of Justice Scalia's dismissal of the "ecosystem nexus," the "animal nexus," and the "vocational nexus" theories.
43. Bennett, 520 U.S. at 165. Justice Scalia explained that: [o]ur readiness to take the term "any person" at face value is greatly augmented by two in-terrelated considerations: that the overall subject matter of this legislation is the environment (a matter in which it is common to think all persons have an interest) and that the obvious purpose of the particular provision in question is to encourage enforcement by socalled "private attorneys general."
44. Id. at 166 (maintaining that "the subject of the legislation makes the intent to permit en-forcement by everyman even more plausible").
45. Id.
46. Id. It is not completely clear whether the "textual basis" Justice Scalia referenced, in which legislative intent must be found in order to limit use of the ESA citizen suit provision to citizens who would vindicate the preservationist policy of the Act, includes the text of the citizen suit provision, the text of some substantive provision of the Act, or both. In connection with APA standing. Justice Scalia pointed out that zone of interests analysis focuses on substantive provisions and not the language of a statute's citizen suit provision. Id. at 175. Where a zone of interests analysis does not concern APA standing, however, Justice Scalia emphasized that: the breadth of the zone of interests varies according to the provisions of law at issue, so that what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the 'generous review provisions' of the APA may not do so for other purposes. Id. at 163 (citations omitted). Association of Data Processing Service Organization v. Camp, 397 U.S. 150, 156 (1972), while coining the term "zone of interests" in a case involving APA standing, did not expressly limit the test's application to that setting. Id. at 153. Although Clarke v. Securities Industry Association, 479 U.S. 388 (1987) presented an "exegesis" on the zone of interests test, id. at 410 (Stevens, J., concurring in part), that case also did not directly address the issue of whether a zone of interests analysis not involving the APA includes, disincludes, or is limited to analysis of the standing provision in the statute in question. Logical bases may be offered for any of the three approaches, but perhaps the approach most consistent with the initial application of the zone of interests test includes analysis of both the statutory provision alleged to have been breached causing the plaintiffs injury and the standing provision in the substantive statute. After all, in Data Processing, the Court engaged in a wide-ranging analysis so as to favor review while still "excluding those would-be plaintiffs not even 'arguably within the zone of interests to be protected or regulated by the statute.'" Clarke, 479 U.S. at 396-97 (quoting Association of Data Processing Serv. Org. v. Camp, 397 U.S. at 153). Justice Scalia's language in Bennett did not reveal the scope of his analysis in determining the ESA's zone of interests. See Bennett v. Spear, 520 U.S. 154, 166 (1997) (stating that "the citizen-suit provision does favor environmentalists . . . but there is not textual basis for saying that its expansion of standing requirements applies to environmentalists alone"). He did reference the Court's reasoning in Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972), as having relied on "textual evidence." Bennett, 520 U.S. at 166. In Trafficante the Court considered texts of both the standing provision and substantive provisions of the Civil Rights Act of 1968. Trafficante, 409 U.S. at 207-11. Regardless of which approach Justice Scalia believes in, by the time he completed his opinion in Bennett he engaged in zone of interests analyses in connection with both the ESA standing provision and, for a claim brought under the APA, the statute as a whole. The discussions are not identical, indicating that Justice Scalia's "textual basis" does include the text of the citizen suit provision. In neither discussion was he able to discern an exclusively preservationist orientation. Bennett, 520 U.S. at 174-77 (analyzing ESA's substantive provisions).
47. Bennett, 520 U.S. at 166 (concluding that causes of action under section § 1540(a) of the Act, which could be brought by "any person," included assertions of overcnforcement against Secretary).
48. Id. at 163-66.
49. Id. at 166.
50. Id. at 167-68 (finding that complaint does allege adequate specificity for Article III injury in fact).
51. Id. at 168-71 (finding that relationship between Bureau and Fish and FWS is such that plaintiffs injury is "fairly traceable" to FWS's biological opinion and that it is "'likely' to be redressed" if Court orders FWS to put aside that biological opinion).
52. Id. at 171-74 (finding that where ESA citizen suit provision did not encompass particular allegation, APA standing provision did, and also finding under zone of interests analysis, that substantive ESA provision alleged to have been breached expressed, perhaps as its primary objective, legislative concern over economic consequences of "agency officials zealously but unintelligently pursuing their environmental objectives").
53. Id. at 177-78 (finding that FWS's biological opinion had "direct and appreciable legal consequences," although it did not determine manner in which the Bureau will allocate water from Klamath Project).
54. 497 U.S. 871 (1990).
55. Bennett, 520 U.S. at 157-61. More specifically, the Court determined that the plaintiffs' allegations that the Secretary of the Department of the Interior ("DOI") had violated his duties under ESA § 7, 16 U.S.C. § 1536 (1994), in connection with the biological opinion were subject to APA standing criteria. Bennett, 520 U.S. at 179.
56. Id. at 163.
57. Id. at 175 (finding nothing in ESA citizen suit provision "expressly preclud[ing] review under the APA"). The contrary argument is that, by listing the claims to which the ESA citizen suit provision applies, legislators intended to preclude judicial review of other claims.
58. Id. at 176-77.
59. Id. In arriving at these conclusions about the legislative intent underlying the ESA's "best available science" directive, Justice Scalia certainly provided support for his general skepticism about the ability of courts in discerning legislative intent. He also illustrated his unwillingness to consider an environmental statute in the context of the field of environmental law. Had he done so, he might have uncovered the recent legal debate over "best available science" in the natural resource damages context. In assessing injury to a natural resource (similar in some of its uncertainties and other difficulties to the task of assessing potential injury to an endangered species), the CERCLA, like the ESA, requires that federal agents utilize "the best available procedures." CERCLA § 301(c)(2), 42 U.S.C. § 9651(c)(2) (1994). This provision has invited the legal conclusion that Congress meant to shield regulators' efforts from criticism; as long as regulators could establish that their procedures were the best available, they would be legally acceptable. See Peter Manus, Natural Resource Damages from Rachel Carson's Perspective: A Rite of Spring in American Environmentalism, 37 WM. & MARY L. REV. 381, 443-44 (1996).
60. Bennett, 520 U.S. 177.
61. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882 (1990). Plaintiffs claimed that violations of the Federal Land Policy and Management Act ("FLPMA") and the National Environmental Policy Act ("NEPA") had allowed the land withdrawal review program. Id. Neither statute contains a standing provision; plaintiffs relied upon APA standing. Id.
62. Id. at 882-83. Justice Scalia admitted that this language falls short of requiring a plaintiffs aggrievement to be set forth expressly in a statute. Id. at 883. In an article addressing the issue, he argued that the APA standing provision had been promulgated as a restatement of existing law, so that an aggrievement "within the meaning of any relevant statute" did, in fact, require that "standing already existed pursuant to traditional principles. . . . Quite evidently, one cannot be 'adversely affected or aggrieved within the meaning of [a] statute' that does not contain those - or at least substantially similar - words." Scalia, The Doctrine of Standing, supra note 23, at 887-88 (citations omitted).
63. National Wildlife Fed'n, 497 U.S. at 885. By couching each finding that the plaintiffs had achieved an element of APA standing in terms of the Court simply accepting an allegation that the defendant had not contested, Scalia weakened those findings as precedents for future public interest plaintiffs.
64. Id. at 886. Although it is tough to discern Justice Scalia's intent in emphasizing the word "sorts," one reading is that he accepted the FLPMA and NEPA as protectors of recreational and aesthetic interests only begrudgingly.
65. Id. at 886-87 (stating that "[w]e have no doubt that 'recreational use and aesthetic enjoyment' are among the sorts of interest those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected.").
66. Id. (finding that "in the vicinity" failed to establish that affiant's recreational use extended to 4,500 acres covered by federal decision to terminate protection against mining and oil and gas leasing).
67. Id. at 886.
68. Id. at 889.
69. Id. at 902 (Blackmun, J., dissenting); see also id. at 903 (Blackmun, J., dissenting) (stating that "[t]he agency itself has repeatedly referred to the 'South Pass-Green Mountain area' in describing the region newly opened to mining").
70. Id. at 888.
71. Bennett v. Spear, 520 U.S. 154, 166-71 (1997). Justice Scalia has identified APA and non-APA standing discussions as having been rendered identical by Data Processing. See Scalia, The Doctrine of Standing, supra note 23, at 889 (stating that "[f]or those agency actions covered by the APA, [Data Processing] effectively eliminated the difference in liberality of standing between so-called 'statutory review'.,. and so-called 'non-statutory review'").
72. Bennett, 520 U.S. at 167 (stating that "[petitioners allege . . . that they currently receive irrigation water from Clear Lake, that the Bureau 'will abide by the restrictions imposed by the Biological Opinion,' and that '[t]he restrictions on lake levels imposed in the Biological Opinion adversely affect [petitioners] by substantially reducing the quantity of available irrigation water'") (alterations in original) (citations omitted).
73. Id. (stating that "[t]he Government contends, first, that these allegations fail to satisfy the 'injury in fact' element of Article III standing because they demonstrate only a diminution in the aggregate amount of available water, and do not necessarily establish . . . that the petitioners will receive less water").
74. Id. at 168. The Bennett Court wrote that: "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, . . . ." Given petitioners' allegation that the amount of available water will be reduced and that they will be adversely affected thereby, it is easy to presume specific facts under which petitioners will be injured - for example, the Bureau's distribution of the reduction pro rata among its customers. Id. (citations omitted).
75. Id.
76. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 889 (1990) (arguing that specificity of plaintiff-environmentalists' injuries could not be presumed).
77. Id.
78. Id. at 901 n.2 (Blackmun, J., dissenting).
79. Id. (Blackmun, J., dissenting). Justice Blackmun wrote that: [i]n the Green Mountain Management Unit . . . significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years. . . . In the South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant long-term impacts on moose and elk. . . . If gold mining activities continued to erode these high-value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects. Id. (Blackmun, J., dissenting).
80. In other words, Justice Scalia appears to view the environment solely as property. More than this, some have identified his arduous defense of private property as synonymous with his beliefs in economic freedoms and civil rights. See SCHULTZ & SMITH, supra note 9, at 6-7. In short, Justice Scalia considers the environment to be property and property to be an economic unit, and economic freedom an essential civil right. Id. To Justice Scalia, then, environmentalism is not merely unaddressed in the Constitution; it is unconstitutional, and antithetical to American liberty.
81. National Wildlife Fed'n, 497 U.S. at 890.
82. Id. at 891-94 (finding that "ordinarily" judicial review under APA requires controversy to be "reduced to more manageable proportions" by "some concrete action," and further finding that even where a concrete action harming a plaintiff occurs, "the flaws in the entire 'program'. . . cannot be laid before the courts for wholesale correction under the APA, simply because one [action taken under the program] that is ripe for review adversely affects one of respondent's members").
83. Id. at 890. In a footnote, Justice Scalia admitted that a land withdrawal review program does exist, maintaining only that it does not exist for APA purposes. Id. at 890 n.2.
84. Bennett v. Spear, 520 U.S. 154, 168-70, 177-78 (1997) (noting that while agency opinion served only "advisory function" the civil and criminal penalties for taking endangered species had powerful coercive effect). In fact, the history of the relationship between the Bureau and the FWS in Bennett belies this conclusion. See, e.g., Brief for Respondent at 7-8, Bennett v. Spear, 520 U.S. 154 (1997) (No. 95-813) (relating that Bureau, after concluding that FWS minimum reservoir levels were not logistically feasible, reinitiated consultation with FWS and suggested lower minimum water levels, a proposal to which the FWS conformed its view in a supplemental biological opinion).
85. Bennettt, 520 U.S. at 166.
86. 504 U.S. 555 (1992).
87. See id. at 560-61 (discussing elements required for standing).
88. Id. at 563-64.
89. Id. at 564.
90. Id. at 557-59. The conduct that formed the primary focus of the plaintiffs' claims was the Department of the Interior ("DOI") 1986 promulgation of a rule interpreting the scope of the ESA's mandate that federal agents ensure that their actions are unlikely to jeopardize endangered or threat-ened species or their habitats as encompassing only actions taken outside of foreign countries. Id. at 558. The plaintiffs sought declaratory and injunctive relief in hopes of restoring the pre-1986 DOI view that the ESA's scope encompasses U.S. actions taken overseas. Id. at 559. Although the opinion noted that the DOI began to examine the issue in 1979 and published a proposed regulation in 1983, it stated nothing about the plaintiffs accusing U.S. agents of having breached the pre-1986 DOI regulation. Id. Thus, it appears unlikely that they claimed that illegal activity injured them during their 1981 and 1986 trips.
91. Id. at 564.
92. Id. (dismissing "some day" intentions as inadequate to constitute "actual or imminent" injury). Juxtaposed with this blanket dismissal, one might sum up the Bennett decision's standing analysis as a finding that where a landowner sues to limit implementation of an environmental statute, any speculative allegation under any citizen suit provision is "simply enough."
93. Id. at 565-67.
94. Id. at 566-67.
95. Id. at 566 (differentiating between Act's goal and rights of action it creates).
96. Id. at 566.
97. Id. at 566-67.
98. Bennett v. Spear, 520 U.S. 154, 170-71 (1997) (stating that "the Bureau will not impose such water level restrictions-if the Biological Opinion [produced by the FWS] is set aside").
99. Defenders of Wildlife, 504 U.S. at 568.
100. Id. at 571.
101. Id. Justice Scalia's language is blunt if not imperial: Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. . . . [I]t is entirely conjectural whether the non-agency activity that affects respondents will be altered or affected by the agency activity they seek to achieve. There is no standing. Id.
102. Justice Blackmun granted no such concessions. See Defenders of Wildlife, 504 U.S. at 589, 595-601 (Blackmun, J., dissenting) (arguing that agencies acting overseas could indeed be bound by DOI rule that they adhere to ESA, and presenting facts supporting conclusion that United States actors play significant roles in both overseas projects cited by affiants).
103. Defenders of Wildlife, 504 U.S. at 571-73.
104. Id. at 573.
105. Justice Blackmun, reaching a similar conclusion about what appeared to be a blind spot in the Court's logic, declared himself "mystified by the Court's unsupported conclusion that '[t]his is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs.'" Id. at 603-04.
106. Bennett v. Spear, 520 U.S. 154, 168-70 (1997).
107. Id. at 177. At least one study has noted that Justice Scalia "employs an inconsistently applied interpretive method that adopts an inconsistent approach towards legislative power and the political process. This inconsistent attitude towards statutory interpretation and using legislative intent results from Scalia's often-distrustful view of legislative power, and that distrust is often a consequence of his political preferences." SCHULTZ & SMITH, supra note 9, at 59-60 (citations omitted).
108. See Frank I. Michelman, Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy, 53 IND. L.J. 145, 148-49 (1977) (suggesting that in the public choice model "[t]he legislature is conceived as a market-like arena in which votes instead of money are the medium of exchange. . . . There is no public or general or social interest, there are only concatenations of particular interests or private preferences.").
109. One commentator has observed that Defenders of Wildlife "is difficult to square with the language and history of Article III, with the injury requirement itself, with more modest visions of judicial power, and with time-honored notions of public law litigation." Nichol, supra note 23, at 1142-43 (emphasis added). See also Sunstein, supra note 29, at 177 (questioning whether history supports Scalia's insistence that Article III requires a claim of personal injury).
110. See Stone, supra note 2, at 475-76 (arguing that legal system creates "monetary worth" when it creates property rights, but environmental losses, such as "the death of eagles and inedible crabs, the suffering of sea lions, the loss from the face of the earth of species of commercially valueless birds, the disappearance of wilderness area . . . . are not, at present, economically measurable losses" and thus are not legally cognizable.)
111. Babbitt v. Sweet Home Chapter of Communities for áGreat Oregon is another opinion by Scalia supporting this conclusion. 515 U.S. 687, 735 (1995) (Scalia, J., dissenting) (perceiving habitat modification as resulting in a taking "only if it results in the killing or harming of individual animals, and only if that consequence is the direct result of the modification"). After making note of the derisive tone of Justice Scalia's dissent, Justice O'Connor commented on his view of the ESA: I do not find it as easy as Justice Scalia does to dismiss the notion that significant impairment of breeding injures living creatures. To raze the last remaining ground on which the piping plover currently breeds, thereby making it impossible for any piping plovers to reproduce, would obviously injure the population . . . . [and] also injure the individual living bird, in the same way that sterilizing the creature injures the individual living bird. . . . [T]o make it impossible for an animal to reproduce is to impair its most essential physical functions and to render that animal, and its genetic material, biologically obsolete. This, in my view, is actual injury. Id. at 709-10 (O'Connor, J., concurring).
112. Related to this observation, see Nichol, supra note 23, at 1165 (positing that "[m]oney is the 'personal stake' that we understand best in the United States[;]" therefore, if ESA were amended to allow small monetary "bounty" for plaintiffs successfully enforcing it against government actors, "[t]his easy (and cheap) move would bring the suit . . . safely under the umbrella of the case or controversy requirement").
113. Lujan v. Defenders of Wildlife, 504 U.S. 555, 595 (1992) (Blackmun, J., dissenting).
114. See SCHULTZ & SMITH, supra note 9, at 61 (stating that "[many] authors agree that the [sic] Scalia's willingness to limit standing and deny access to the federal courts are attempts to preserve the federal judiciary-especially the Supreme Court-as an elite institution in American politics."). See also Romer v. Evans, 517 U.S. 620, 641 (1996) (Scalia, J., dissenting) (observing, during discussion on party candor, that parties "unlike the Court, cannot afford the luxury of ignoring inconvenient precedent"). But see SCHULTZ & SMITH, supra note 9, at xii (characterizing Justice Scalia as a Court visionary, then noting that "[a] visionary's coherence does not imply absolute consistency").
115. See, e.g., SCHULTZ & SMITH, supra note 9, at 90-91 (discussing Justice Scalia's vision of Supreme Court and his belief that federal courts have lost their stature because there are so many routine cases). For a discussion disputing the historical presumption of a pre-Warren Court public perception of a Court enjoying "mythic stature," see William D. Popkin, An "Internal" Critique of Justice Scalia's Theory of Statutory Interpretation, 76 MINN. L. REV. 1133, 1173-86 (1992).
116. See SCHULTZ & SMITH, supra note 9, at xvii (stating that Justice Scalia is noted for favoring strict vision of separation of powers, limitations on judicial access, and deference to other branches of government); id. at 82 (observing that Justice Scalia has "reputation as the Court's 'Prophet of Doom'" in separation-of-powers jurisprudence).
117. Justice Scalia announced himself as an advocate of plain meaning prior to his elavation to the Court. See ABNER J. MIKVA & ERIC LANE, AN INTRODUCTION TO STATUTORY INTERPRETATION AND THE LEGISLATIVE PROCESS 3 (1997) (referring to then Judge Scalia's comment during confirmation hearing that courts rarely confront clear legislative language). In keeping with this perspective, Justice Scalia has interpreted the test in Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), as a directive for courts to read statutes in a simple, direct manner, avoiding invoking their own interpretation of arguably ambiguous language where possible. See, e.g., Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 511-21 (examining Chevron and its steps, starting with whether unambiguous intent of Congress exists).
118. Justice Scalia announced himself as an advocate of plain meaning prior to his elavation to the Court. See ABNER J. MIKVA & ERIC LANE, AN INTRODUCTION TO STATUTORY INTERPRETATION AND THE LEGISLATIVE PROCESS 3 (1997) (referring to then Judge Scalia's comment during confirmation hearing that courts rarely confront clear legislative language). In keeping with this perspective, Justice Scalia has interpreted the test in Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), as a directive for courts to read statutes in a simple, direct manner, avoiding invoking their own interpretation of arguably ambiguous language where possible. See, e.g., Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 511-21 (examining Chevron and its steps, starting with whether unambiguous intent of Congress exists).
119. Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 37-47 (Amy Gutmann et al., ed., 1997) [hereinafter Scalia, Interpretation] (promoting originalist theorty of constitutional interpretation); See also Scalia, The Doctrine of Standing, supra note 23, at 897-99 (identifying return to original understanding of standing); Antonin Scalia, Originalism; The Lesser Evil, 57 U. CIN. L. REV. 849, 862 (1989) [hereinafter Scalia, Originalism] (arguing that originalism is superior because it recognizes that constitutional provisions do not require judiciary to guarantee social validity of laws); SCHULTZ & SMITH, supra note 9, at 36 (discussing Justice Scalia's advocacy of originalism and crucial role it plays in political theory).
120. Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 37-47 (Amy Gutmann et al., ed., 1997) [hereinafter Scalia, Interpretation] (promoting originalist theorty of constitutional interpretation); See also Scalia, The Doctrine of Standing, supra note 23, at 897-99 (identifying return to original understanding of standing); Antonin Scalia, Originalism; The Lesser Evil, 57 U. CIN. L. REV. 849, 862 (1989) [hereinafter Scalia, Originalism] (arguing that originalism is superior because it recognizes that constitutional provisions do not require judiciary to guarantee social validity of laws); SCHULTZ & SMITH, supra note 9, at 36 (discussing Justice Scalia's advocacy of originalism and crucial role it plays in political theory).
121. Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 37-47 (Amy Gutmann et al., ed., 1997) [hereinafter Scalia, Interpretation] (promoting originalist theorty of constitutional interpretation); See also Scalia, The Doctrine of Standing, supra note 23, at 897-99 (identifying return to original understanding of standing); Antonin Scalia, Originalism; The Lesser Evil, 57 U. CIN. L. REV. 849, 862 (1989) [hereinafter Scalia, Originalism] (arguing that originalism is superior because it recognizes that constitutional provisions do not require judiciary to guarantee social validity of laws); SCHULTZ & SMITH, supra note 9, at 36 (discussing Justice Scalia's advocacy of originalism and crucial role it plays in political theory).
122. 497 U.S. 261 (1990).
123. Id. at 300-01 (1990) (Scalia, J., concurring). See also Morrison v. Olson, 487 U.S. 654, 710-11 (1988) (Scalia, J., dissenting) (stating that "[w]hile the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.").
124. See infra note 130-31 and accompanying text for Justice Scalia's view of property rights.
125. See Bennett v. Spear, 520 U.S. 154, 163-66 (1997) (determining that plain meaning of ESA provision expanded zone of interests to include plaintiffs seeking to prevent enforcement of the ESA to preserve their property rights).
126. That Justice Scalia links his favored jurisprudential approaches to consistency and predictability in judicial decision-making is evidenced in his article on originalism. Scalia, Originalism, supra note 117, at 855 (criticizing non-originalists for failing to develop consistent and predictable theory as opposed to attacking originalism).
127. Edelman, supra note 32, at 1801.
128. See, e.g., Scalia, Originalism, supra note 116, at 856-62 (criticizing originalism because historians might be better than lawyers at discerning historical intent and because changes in societal views over matters such as suitability of flogging as punishment make originalism appear undesirable). In his essay on interpretation Scalia called this "follow[ing] the trajectory of the [original meaning of the Constitution], so to speak, to determine what it requires." Scalia, Interpretation, supra note 116, at 45.
129. See, e.g., Scalia, Originalism, supra note 116, at 856-62 (criticizing originalism because historians might be better than lawyers at discerning historical intent and because changes in societal views over matters such as suitability of flogging as punishment make originalism appear undesirable). In his essay on interpretation Scalia called this "follow[ing] the trajectory of the [original meaning of the Constitution], so to speak, to determine what it requires." Scalia, Interpretation, supra note 116, at 45.
130. See SCHULTZ & SMITH, supra note 9, at 101 (maintaining that Justice Scalia's sharp opinions have contributed to image of 'snarling justices') (quoting Stuart Taylor, Season of Snarling Justices, AKRON BEACON J., Apr. 5, 1990, at A11).
131. See id. at 71 (identifying dangers of dictionary usage such as multiplicity of definitions); Scalia, Interpretation, supra note 116, at 23-29 (discussing various rules and perspectives of textualism, a concept similar to the plain meaning rule).
132. Stone, supra note 2, at 488.
133. See, e.g., Edelman, supra note 32, at 1800 (noting "noticeable tendency of the Justice to depart from his method when he feels he needs to for one reason or another"); SCHULTZ & SMITH, supra note 9, at 57 (disagreeing with premise that Justice Scalia's jurisprudence is "primarily methodologically driven, and that his methodology is consistently applied").
134. See SCHULTZ & SMITH, supra note 9, at xix-xx (reviewing studies on Justice Scalia).
135. 304 U.S. 144, 152 (1938) (subjecting regulatory legislation concerning commercial transactions to review for rational basis). The Court added a famous footnote indicating that a higher standard of scrutiny may be called for when laws restrict political process or target certain minorities. Id. at 152 n.4.
136. See, e.g., Bennett v. Spear, 520 U.S. 154, 166 (1997) (favoring standing for property owners to challenge regulators); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027 (1992) (finding regulation of coastal ecosystem a taking when it prohibited development and thereby deprived owner of all economically beneficial use of property).
137. See California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 607-08 (1986) (Scalia, J., dissenting) (refusing to consider dispute in which state attempted to assert authority over mining claims on federal land as case about federal environmental preemption, casting it instead as a question of whether state may exert land use controls over federal property).
138. See supra notes 36-47, 56-68, 86-88, 101-05 and accompanying text for examples of confusing, faulty, and missing logic.
139. SCHULTZ & SMITH, supra note 9, at 1. The authors noted that: [between 1986 and 1994, Justice Scalia] participated in nine cases directly addressing land use and property rights questions, voting in favor of the property owner in eight of the nine cases or eighty-nine percent of the time. This voting record affirming property owner's [sic] claims is by far the most supportive and consistent among all justices sitting on the Supreme Court since 1986, locating Scalia among the leaders on the Court in its effort to limit land use regulation and affirm property claims. Id.
140. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) (refusing to reach question of merit before determining jurisdiction on grounds
141. See Block v. Meese, 793 F.2d 1303, 1312 (D.C Cir. 1986) (rejecting First Amendment claim brought by film distributor against government officials who labeled certain documentaries political propaganda). The films in question in Block were critical of then President Reagan's environmental policies. Id. at 1306-08. Applying his plain meaning rule, Justice Scalia relied on Webster's Ninth New Collegiate Dictionary to conclude that a United States State Department classification of two Canadian films that criticized the Reagan administration's environmental policies as "political propaganda" did not violate the film distributor's First Amendment rights. Id. at 1311. The propaganda label, Scalia decided, was not an expression of government disapproval, but "merely identif[ied] an objective category of speech." Id. It is worth noting that Webster's contains plenty of language indicating that the label "propaganda" can be subjective and derogatory. See WEBSTER'S NINTH NEW INTERNATIONAL DICTIONARY 942 (1987) (defining "propaganda" to include "spreading of ideas . . . for the purpose of... injuring an institution, a cause, or a person.... [and] allegations spread deliberately to further one's cause or to damage an opposing cause").
142. See Block v. Meese, 793 F.2d 1303, 1312 (D.C Cir. 1986) (rejecting First Amendment claim brought by film distributor against government officials who labeled certain documentaries political propaganda). The films in question in Block were critical of then President Reagan's environmental policies. Id. at 1306-08. Applying his plain meaning rule, Justice Scalia relied on Webster's Ninth New Collegiate Dictionary to conclude that a United States State Department classification of two Canadian films that criticized the Reagan administration's environmental policies as "political propaganda" did not violate the film distributor's First Amendment rights. Id. at 1311. The propaganda label, Scalia decided, was not an expression of government disapproval, but "merely identif[ied] an objective category of speech." Id. It is worth noting that Webster's contains plenty of language indicating that the label "propaganda" can be subjective and derogatory. See WEBSTER'S NINTH NEW INTERNATIONAL DICTIONARY 942 (1987) (defining "propaganda" to include "spreading of ideas . . . for the purpose of... injuring an institution, a cause, or a person.... [and] allegations spread deliberately to further one's cause or to damage an opposing cause").
143. See Block v. Meese, 793 F.2d 1303, 1312 (D.C Cir. 1986) (rejecting First Amendment claim brought by film distributor against government officials who labeled certain documentaries political propaganda). The films in question in Block were critical of then President Reagan's environmental policies. Id. at 1306-08. Applying his plain meaning rule, Justice Scalia relied on Webster's Ninth New Collegiate Dictionary to conclude that a United States State Department classification of two Canadian films that criticized the Reagan administration's environmental policies as "political propaganda" did not violate the film distributor's First Amendment rights. Id. at 1311. The propaganda label, Scalia decided, was not an expression of government disapproval, but "merely identif[ied] an objective category of speech." Id. It is worth noting that Webster's contains plenty of language indicating that the label "propaganda" can be subjective and derogatory. See WEBSTER'S NINTH NEW INTERNATIONAL DICTIONARY 942 (1987) (defining "propaganda" to include "spreading of ideas . . . for the purpose of... injuring an institution, a cause, or a person.... [and] allegations spread deliberately to further one's cause or to damage an opposing cause").
144. 449 F.2d 1109 (D.C. Cir. 1971).
145. Scalia, The Doctrine of Standing, supra note 23, at 885.
146. Scalia criticized Scenic Hudson Preservation Conference v. Federal Power Comm'n, 354 F.2d 608 (2d Cir. 1965), and United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) ("SCRAP"). Scalia, The Doctrine of Standing, supra note 23, at 886 (finding the standing analysis in Scenic Hudson "unthinkable" when Act in question was passed); id. at 898 (anticipating that "the Court's SCRAP-era willingness to discern breathlessly broad congressional grants of standing will not endure"). He cited California v. Sierra Club, 451 U.S. 287 (1981), with approval, and cited Glacier Park Found, v. Walt, 663 F.2d 882 (9th Or. 1981), with disapproval. Scalia, The Doctrine of Standing, supra note 23, at 898-99 (gleaning hope from opinions like California that read statutory standing provisions narrowly); id. at 899 n.78 (citing Glacier Park Foundation as contrary to the positive new trend against citizen standing).
147. Scalia criticized Scenic Hudson Preservation Conference v. Federal Power Comm'n, 354 F.2d 608 (2d Cir. 1965), and United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) ("SCRAP"). Scalia, The Doctrine of Standing, supra note 23, at 886 (finding the standing analysis in Scenic Hudson "unthinkable" when Act in question was passed); id. at 898 (anticipating that "the Court's SCRAP-era willingness to discern breathlessly broad congressional grants of standing will not endure"). He cited California v. Sierra Club, 451 U.S. 287 (1981), with approval, and cited Glacier Park Found, v. Walt, 663 F.2d 882 (9th Or. 1981), with disapproval. Scalia, The Doctrine of Standing, supra note 23, at 898-99 (gleaning hope from opinions like California that read statutory standing provisions narrowly); id. at 899 n.78 (citing Glacier Park Foundation as contrary to the positive new trend against citizen standing).
148. 118 S. Ct. 1665 (1998).
149. Id. at 1668.
150. Id.
151. Id. at 1670.
152. Id.
153. 118 S. Ct. 1003 (1998).
154. Id. at 1023 (Stevens, J., concurring); id. at 1032 (Ginsburg, J., concurring). The faults, with Scalia's opinion, identified in the various concurrences, however, tend to focus on the more legalistic issues of his having expounded on issues of jurisdiction and separation of powers both unnecessarily and from an aggressively conservative viewpoint. See infra notes 156-65 and accompanying text for a discussion of the various concurrences.
155. EPCRA, 42 U.S.C §§ 11001-11050 (1994).
156. Steel Co., 118 S. Ct. at 1009.
157. Id. at 1018 (stating that "[t]here being no controversy over whether petitioner failed to file reports, or over whether such a failure constitutes a violation, the declaratory judgment is not only worthless to respondent, it is seemingly worthless to all the world").
158. See id. at 1009. Justice Scalia wrote that: [p]etitioner... has raised the issue of respondent's standing to maintain the suit, and hence this Court's jurisdiction to entertain it.... [T]his would normally be considered a threshold question that must be resolved in respondent's favor before proceeding to the merits. Justice Stevens' opinion concurring in the judgment, however, claims that the question whether § 11046(a) [the EPCRA citizen-suit provision] permits this cause of action is also "jurisdictional," and so has equivalent claim to being resolved first. Whether that is so has significant implications for this case and for many others, and so the point warrants extended discussion. Id. (emphasis in original).
159. Id. at 1012 (stating that "[w]e decline to endorse such an approach because it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers").
160. Id. at 1016.
161. Id. at 1016-18.
162. Id. at 1017 & n.6 (admitting that EPCRA's citizen suit provision allows "any person" to commence suit, and that EPCRA defines "person" to include association, but nevertheless concluding that interests of individual members of the respondent organization would have been the basis of the suit, had the Court needed to address the issue).
163. Id. at 1018 (stating that "the 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."). Belying this conclusion are the affiants' statements about the need for the company to have disclosed the information in a timely, regularized manner. Id.
164. Id. at 1020-31.
165. Id. at 1020-21 (Breyer, J., concurring).
166. Id. at 1020 (O'Connor, J., concurring).
167. Id. at 1032 (Ginsburg, J., concurring).
168. Id. at 1021-31 (Stevens, J., concurring).
169. Id. at 1021-23 (Stevens, J., concurring). Justice Stevens cited Bennett to establish that in that case Scalia himself considered the ESA citizen-suit provision prior to discussing constitutional standing, thus undercutting Scalia's newfound insistence that separation of powers requires a particular ordering to constitutional and statutory jurisdictional issues. Id. at 1023.
170. Id. at 1025-26.
171. Id. at 1028-30 (Stevens, J., concurring).
172. Id. at 1029 (Stevens, J., concurring) (using Justice Scalia's favored originalist approach Justice Stevens relied on English common law and early U.S. law concluding that "[g]iven this history, the Framers of Article III surely would have considered such proceedings to be 'Cases' that would 'redress' an injury even though the party bringing suit did not receive any monetary compensation").
173. See, e.g., Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 662 (1989) (Blackmun, J., dissenting) (stating that "[o]ne wonders whether the majority still believes that race discrimination - or, more accurately, race discrimination against nonwhites - is a problem in our society, or even remembers that it ever was"); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 528-30 (1989) (Marshall, J., dissenting) (questioning Court's holding declaring state legislative process unconstitutional where it discriminated against nonminority racial population, which was also the minority political and racial population).
174. See SCHULTZ & SMITH, supra note 9, at 208 (observing that "Scalia's legal philosophy... is the product not simply of political or jurisprudential values, but a combination of substantive political, methodological, and interpretive values.... [S]everal values are important to Scalia's political vision, and these values compete with one another to produce his jurisprudence").
175. William O. Douglas, The Conservation of Man 7 (unpublished, undated essay, on file with Library of Congress, Manuscript Division).
176. See, e.g., John G. Sprankling, The Antiwilderness Bias in American Property Law, 63 U. CHI. L. REV. 519, 523-24 (1996) (arguing that unacknowledged antiwilderness bias pervades U.S. property law and proposing its prowilderness reform); see also WILLIAM O. DOUGLAS, A WILDERNESS BILL OF RIGHTS 30 (1965) (describing frontier wilderness as both "an apparently inexhaustible woodlot to be harvested and converted into dollars" and a part of the American heritage); DURAM, supra note 14, at 66 (noting that "[w]ilderness also reinforced the individuality that [Justice] Douglas valued so highly").
177. See, e.g., William O. Douglas, America's Vanishing Wilderness, LADIES HOME J. 1-2 (July 1964) (on file with Library of Congress, Manuscript Division). Justice Douglas wrote that: I envy those who first ventured into the vast wildness of this wonderful land of ours.... The sacking of the woodlands by predatory man was still decades away. At every height of land wilderness extended to the horizon, beckoning man onward, transforming meadow after meadow into homesites. The abundance of game and fish, the surplus of water, the supply of raw materials, the beauty and serenity of the scene made America from the Appalachia on West the land that man would rather possess than any in the world. Id. Thus, [Justice] Douglas appeared to admire the early "possessors]" of the American west in spite of their desire to "transform meadow after meadow into homesites." Id.
178. DOUGLAS, supra note 167, at 85.
179. See, e.g., id. at 26-27 (stating that "[w]ilderness people are at the opposite end of the spectrum from any standardized product of this machine age; yet they represent basic values when they protest against automation for the wilderness and for their grandchildren").
180. See WILLIAM O. DOUGLAS, THE THREE HUNDRED YEAR WAR 5-8 (1972); DURAM, supra note 14, at 1 (stating that "[Justice Douglas's] rise to prominence in American society was largely the result of his own perseverance, ability, ambition, and hard work. His life experiences contain many of the classic elements of the American success epic."). Justice Douglas perceived the American wilderness as part of the country's persona: "Running fast water rivers or exploring chains of lakes by canoes - hiking ridges - scaling cliffs - traversing a glacier with the aid of ice axes - foraging for food in alpine basins - ... [activities like these] are vital in the American saga." DOUGLAS, supra note 167, at 5.
181. Note from William H. Alsup, Law Clerk for Justice Douglas, to Justice Douglas (Feb. 21, 1972) (on file with Library of Congress, Ms. Division, Sierra v. Morton Files, Law Clerk File of William H. Alsup).
182. See THE DOUGLAS LETTERS xxi (Melvin I. Urofsky ed., 1987) (stating that "[h]e believed that as a citizen he had a right to speak out on any issue which might affect him, and he saw his judicial responsibilities as limited only in that he should not make public pronouncements on a matter which might come before the Court"). Justice Douglas, however, can be criticized for being overly attentive to politics. See, e.g., JAMES F. SIMON, INDEPENDENT JOURNEY 9 (1980) (stating that "[Justice] Frankfurter... had written in his diaries that [Justice] 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").
183. See THE DOUGLAS LETTERS xxi (Melvin I. Urofsky ed., 1987) (stating that "[h]e believed that as a citizen he had a right to speak out on any issue which might affect him, and he saw his judicial responsibilities as limited only in that he should not make public pronouncements on a matter which might come before the Court"). Justice Douglas, however, can be criticized for being overly attentive to politics. See, e.g., JAMES F. SIMON, INDEPENDENT JOURNEY 9 (1980) (stating that "[Justice] Frankfurter... had written in his diaries that [Justice] 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").
184. See THE DOUGLAS LETTERS, supra note 174, at x (stating that "[Justice 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").
185. See Stone, supra note 13, at 231 (noting that Justice Douglas's dissent in Sierra Club arguing for standing of nature principally rested on functional, not legal, grounds). Even fellow environmentalist Justice Blackmun, who was "moved by the poetic force" of the Sierra Club dissent, "did not feel he could join [Justice] Douglas's dissent. It was too personal." BOB WOODWARD & SCOTT ARMSTRONG, THEBRETHREN 163-64 (1979).
186. Sierra Club v. Morton, 405 U.S. 727, 745-46 (1972) (Douglas, J., dissenting). Justice Douglas wrote that: [t]he Solicitor General.... considers the problem [of whether to grant standing to those who would use the courts to protect the environment] 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. It is, of course, true that most of them are under the control of a federal or state agency.... The federal agencies of which I speak.... are notoriously under the control of powerful interests 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 the regulated. Id.
187. See infra notes 208-34 and accompanying text for a discussion of the vagaries of the envi-ronmental guardianship.
188. See infra notes 186-97 and accompanying text for contradictions in Justice Douglas's thesis.
189. See infra notes 202-07, 210-12 and accompanying text for a discussion of Justice Douglas's comparison of environmental standing to corporate law and guardianship.
190. Sierra Club v. Morton, 405 U.S. 727, 728-30 (1972). The Forest Service approved a "$35 million complex of motels, restaurants, swimming pools, parking lots, and other structures [including ski lifts, a railway, and utility installations] designed to accommodate 14,000 visitors daily," to be constructed on eighty acres of the valley floor and mountain slopes of a valley "preserved" through its inaccessibility "as a quasi-wildemess area largely uncluttered by the products of civilization." To access the resort, the State of California proposed a twenty mile highway through Sequoia National Park. Claims also encompassed actions of the Secretary of Agriculture for his alleged failure to properly administer the Sequoia National Forest and Game Refuge, and actions of the Secretary of the Department of Interior for his agreeing to issue the permit necessary for California to construct the access freeway through federally protected land. See Brief for Petitioner at 23, 45-65, 65-78, Sierra Club v. Morton, 405 U.S. 727 (1972) (No. 70-34); Brief for Respondents at 7, 11, 16-17, Sierra Club, (No. 70-34).
191. Sierra Club, 405 U.S. at 730; Brief for Petitioner at 19, Sierra Club (No. 70-34) The Court stated that: [t]he 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 interest 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. In oral argument before the Court, the Sierra Club did bring to the Court's attention that, although there was no direct testimony of the fact in the record, individual members of the Sierra Club, including a member of its Board of Directors, made recreational use of Mineral King. Transcript of Oral Arguments at 6-7, Sierra Club (No. 70-34) (on file with author).
192. Sierra Club, 405 U.S. at 731-41.
193. Id. at 734-35.
194. Id. at 740 n.15 (stating that "[t]he 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"). "[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." Id. at 737.
195. Id. at 739. As is often noted, the Court did identify injuries to "[a]esthetic and environmental well-being, like economic well-being" as bases for standing, and further observed that "the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process." Id. at 734.
196. Id. at 741 (Douglas, J., dissenting).
197. Id. at 743 (Douglas, J., dissenting).
198. Id. at 741-42 (Douglas, J., dissenting).
199. Id. at 743 (Douglas, J., dissenting).
200. Id. at 744-45 (Douglas, J., dissenting).
201. Id. at 745 (Douglas, J., dissenting).
202. Id. at 752 (Douglas, J., dissenting).
203. The likelihood that Justice Douglas's failure to directly respond to the majority opinion was purposeful is supported by a note from his clerk in which he suggested language to directly address the majority decision: The rules of standing are supposedly aimed at improving the quality of litigation. Yet it is difficult to understand in this case how merely adding the pro forma allegation that some of the Sierra Club's members use Mineral King Valley would have enhanced the quality of this litigation. On the other hand, by permitting environmental issues to be litigated in the name of the inanimate object threatened with injury, the quality of judicial decisionmaking might be advanced. Note from William H. Alsup, Law Clerk for Justice Douglas, to Justice Douglas (Feb. 21, 1972) (on file with the Library of Congress, Ms. Division, Sierra v. Morton Files, Law Clerk File of William H. Alsup) (Justice Douglas declined to include this or similar language).
204. Sierra Club, 405 U.S. at 743-45 (Douglas, J., dissenting). To those suitable guardians, Justice Douglas added that: [t]hose who hike the Appalachian Trail into Sunfish Pond, New Jersey, and camp or sleep there, or run the Allagash in Maine, or climb the Guadalupes in West Texas, or who canoe and portage in Quetico Superior in Minnesota, certainly should have standing to defend those natural wonders before courts or agencies, though they live 3,000 miles away. Id. at 751 (Douglas, J., dissenting).
205. Id. at 744 (Douglas, J., dissenting).
206. Id. at 741-42 (Douglas, J., dissenting).
207. Id. at 757-58 (Blackmun, J., dissenting) (stating that "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."); Stone, supra note 2, at 464-73 (advocating that the law recognize redressable injury in persons who would advocate on behalf of natural objects in trustee-like relationship). Professor Stone asserted that the statutory scheme he proposed would allow potential legal claimants of "friends" to assert standing on behalf of natural objects. Id. These potential legal claimants included the Sierra Club, the Environmental Defense Fund, the Friends of the Earth, the Natural Resources Defense Counsel, and the Izaak Walton League). Id.
208. See infra notes 286-337, 349-56 and accompanying text for discussions of agency capture.
209. Sierra Club, 405 U.S. at 745-47 (Douglas, J., dissenting) (discussing pressures on federal agencies that "are not venal or corrupt," but which nevertheless become "'unduly oriented toward the interests of the industry [they are] designed to regulate, rather than the public interest [they are] designed to protect'" (quoting Moss v. Civil Aeronautics Bd., 430 F.2d 891, 893 (D.C Cir. 1970))). Justice Douglas then devoted a full page to a profile on the Forest Service, which he observed as "notorious for its alignment with lumber companies." Id. at 748 (Douglas, J., dissenting). See a parallel discussion in Stone, supra note 2, at 472, addressing the need for private policing of agencies whether or not they have improperly allied their interests with certain members of the private sector, stating, "I have no reason to doubt, for example, that the Social Security System is being managed 'for me'; but I would not want to abdicate my right to challenge its actions as they affect me, should the need arise."
210. Arthur L. Corbin, Jurai Relations and Their Classification, 30 YALE L.J. 226, 227 n.2 (1920).
211. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, passim (1913) [hereinafter Hohfeld, Legal Conceptions Part I] (Hohfeldian model); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 passim (1917) [hereinafter Hohfeld, Legal Conceptions Part II] (Hohfeldian model continued). Reference to Hohfeld is pertinent here, as the Sierra Club plurality brings the language of Hohfeld into the discussion of judicial review of public actions at the behest of a particular plaintiff. See Sierra Club, 405 U.S. at 732 n3 (citing Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968)).
212. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, passim (1913) [hereinafter Hohfeld, Legal Conceptions Part I] (Hohfeldian model); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 passim (1917) [hereinafter Hohfeld, Legal Conceptions Part II] (Hohfeldian model continued). Reference to Hohfeld is pertinent here, as the Sierra Club plurality brings the language of Hohfeld into the discussion of judicial review of public actions at the behest of a particular plaintiff. See Sierra Club, 405 U.S. at 732 n3 (citing Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968)).
213. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, passim (1913) [hereinafter Hohfeld, Legal Conceptions Part I] (Hohfeldian model); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 passim (1917) [hereinafter Hohfeld, Legal Conceptions Part II] (Hohfeldian model continued). Reference to Hohfeld is pertinent here, as the Sierra Club plurality brings the language of Hohfeld into the discussion of judicial review of public actions at the behest of a particular plaintiff. See Sierra Club, 405 U.S. at 732 n3 (citing Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968)).
214. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, passim (1913) [hereinafter Hohfeld, Legal Conceptions Part I] (Hohfeldian model); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 passim (1917) [hereinafter Hohfeld, Legal Conceptions Part II] (Hohfeldian model continued). Reference to Hohfeld is pertinent here, as the Sierra Club plurality brings the language of Hohfeld into the discussion of judicial review of public actions at the behest of a particular plaintiff. See Sierra Club, 405 U.S. at 732 n3 (citing Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968)).
215. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, passim (1913) [hereinafter Hohfeld, Legal Conceptions Part I] (Hohfeldian model); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 passim (1917) [hereinafter Hohfeld, Legal Conceptions Part II] (Hohfeldian model continued). Reference to Hohfeld is pertinent here, as the Sierra Club plurality brings the language of Hohfeld into the discussion of judicial review of public actions at the behest of a particular plaintiff. See Sierra Club, 405 U.S. at 732 n3 (citing Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968)).
216. Sierra Club, 405 U.S. at 742-43 (Douglas, J., dissenting).
217. Id. (Douglas, J., dissenting) (discussing the corporate sole as having emerged in ecclesiastical law and early English and United States cases that stressed that the corporation exists only as a creature of law). In Should Trees Have Standing?, upon which Justice Douglas relied in developing his Sierra Club thesis, Stone also discussed the ever-broadening scope of legally recognized groups and other entities, listing children, prisoners, aliens, women, the insane, non-white racial groups, fetuses, trusts, corporations, joint ventures, municipalities, partnerships, nation-states, and ships. Id. Stone hearkened back to early Greek and Roman law, as well as the deodand from Edward I's time. See Stone, supra note 2, at 450-52, 481 n.98.
218. Sierra Club, 405 U.S. at 743 n.4 (Douglas, J., dissenting) (characterizing corporation as a "device ... 'existing only in contemplation of law.'" (quoting Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat) 518, 636 (1819))).
219. Id.
220. See Hohfeld, Legal Conceptions Part I, supra note 202, at 32-44 (describing a right as claim against another person who has breached duty owed the holder of right).
221. Id. at 32 (describing privilege as "the mere negation of a duty," meaning that holder of a privilege, although possessing of legal status to engage in particular behavior-such as appreciating the environment - has no right (no legal claim) against anyone who inhibits his ability to appreciate nature because a right must take aim against correlative duty, and law presumptively does not burden indi-viduals with duties against destroying unowned elements of the natural environment) (emphasis in original); Manus, supra note 25, at 573-79; Stone, supra note 2, at 482 (discussing narrow concept of rights and damnum absque injuria).
222. See supra notes 189-91 and accompanying text for a discussion of the potential "guardians" for environmental litigation.
223. Sierra Club, 405 U.S. at 743 (Douglas, J., dissenting).
224. Id. at 750 n.8 (Douglas, J., dissenting) (reflecting similar passage in Stone, supra note 2, at 464-65).
225. See Stone, supra note 2, at 464 n.49. Professor Stone stated that: [t]his is a situation in which the ontological problems ... become acute. 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.
226. Professor Stone's article, in Justice Douglas's possession at the time he authored his Sierra Club dissent, provides evidence (if any is needed) that Justice Douglas was aware of the issue: [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. at 456 n.26.
227. See, e.g., JOHN MUIR, MY FIRST SUMMER IN THE SIERRA (1911), reprinted in JOHN MUIR, THE EIGHT WILDERNESS DISCOVERY BOOKS 185, 248 (1992) (arguing that "[w]hen we try to pick out anything by itself, we find it hitched to everything else in the universe").
228. See, e.g., JOHN MUIR, MY FIRST SUMMER IN THE SIERRA (1911), reprinted in JOHN MUIR, THE EIGHT WILDERNESS DISCOVERY BOOKS 185, 248 (1992) (arguing that "[w]hen we try to pick out anything by itself, we find it hitched to everything else in the universe").
229. Justice Douglas himself includes as a beneficiary of such guardianship "air that feels the destructive pressures of modern technology and modern life." Sierra Club, 405 U.S. at 743.
230. See, e.g., Trans-Alaska Pipeline Authorization Act of 1973, 43 U.S.C. § 1653(a)(1) (1994) (creating liability to Native Americans for environmental damage via the pipeline); Deepwater Port Act of 1974, 33 U.S.C. § 1517(i)(3) (1994) (making Attorney General trustee to sue for damages to waterway); Clean Water Act Amendments of 1977, 33 U.S.C. § 1321(f)(4) (1994) (making President trustee for environmental damage of water resources); CERCLA, 42 U.S.C. § 9607(a)(4)(C) (1994) (making President or authorized representative of a state the trustee for environmental damages); Oil Pollution Act, 33 U.S.C. § 2701 (1994) (assigning as trustee the United States government, a state, or Indian tribe).
231. See, e.g., 33 U.S.C. § 1321(f)(5) (1994) (making President or authorized representative of a state trustee); 42 U.S.C. § 9607(f)(1) (1994) (declaring that President or authorized representative of a state shall act as trustee).
232. See generally Manus, supra note 57, at 423-31 (providing overview of NRD law and what it seeks to accomplish).
233. See id. at 421-54 (examining complexities of NRD law in detail). Professor Stone acknowledged the difficulties of arriving at legal damages on the basis of remediating environmental injuries. See Stone, supra note 2, at 477.
234. Professor Stone, however, did not so limit his discussion. Stone, supra note 2, at 464 (describing instances where courts assign guardians or trustees to "oversee [the beneficiary's] affairs and speak for it in court when that becomes necessary"). Professor Stone also noted that: [a]s guardian, [an organization like the Environmental Defense Fund] 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. Procedures exits, 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. Id. at 466-67 (footnotes ommitted); see also id. at 471 (pointing out advantages of "continuous supervision").
235. Sierra Club V. Morton, 405 U.S. 727, 741 (1972) (Douglas, J., dissenting) (stating that "[t]he critical question of 'standing' would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of [an element of nature].") (footnotes ommitted).
236. See supra notes 190, 194 and accompanying text for a discussion of Justice Douglas's approach in identifying appropriate plaintiffs.
237. Compare Sierra Club, 405 U.S. at 743-45 (Douglas, J., dissenting) (listing familiar catagories of interested parties) with Sierra Club, 405 U.S. at 734 (Stewart, J.) (listing similar categories of inter-ested individuals).
238. Id. at 743, 751 (listing loggers and various outdoor sportspersons).
239. Lumber companies, apparently, were different than loggers themselves. See id. at 748 (describing clearcutting practices of logging companies).
240. Stone, supra note 2, at 466 (listing the Sierra Club, Environmental Defense Fund, Friends of the Earth, Natural Resource Defense Counsel, and the Izaak Walton League); see also, Sierra Club, 405 U.S. at 757 (Blackmun, J., dissenting) (urging "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 per-tinent, bona fide, and well-recognized attributes and purposes in the area of environment, to litigate environmental issues"). In its brief, the Sierra Club, too, posited the question of "why should not the court have power to appoint the Sierra Club guardian ad Iitem for the beneficiaries of that trust?" Brief for Petitioners at 33, Sierra Club v. Morton, 405 U.S. 727 (1972) (No. 70-34).
241. Sierra Club, 405 U.S. at 757-58 (Blackmun, J., dissenting); see also supra note 197 and accompanying text (discussing Justice Blackmun's views). Justice Blackmun was likely to have been responding to a line of questioning by Justice Stewart during the oral argument: I'm reminded of those so-called clubs that get chartered airplane flights across the Atlantic Ocean, these ad hoc organizations. Could I form a club, Friends of Walt Disney Productions, and come in on the other side as a party?... Even if the club were brand-new, if it were a club or association of people interested in-say, Friends of Bigger Highways. That was all in favor of these new highway coming into Mineral King, and they were all friends of great big, broad, paved highways, and they were bona fide, couldn't they associate and become a party and bring a lawsuit... ? Transcript of Oral Argument at 10-13, Sierra Club v. Morton, 405 U.S. 727 (1972) (No. 70-34) (on file with author).
242. Stone, supra note 2, at 471.
243. It is worth noting that during oral argument, the Sierra Club explicitly denied a distinction between standing in regards to an organization and standing in regards to an individual, such as John Muir, who could establish a genuine interest in an environmental interest. Thus, the Sierra Club's argument was in no way limited to the idea of organizational standing in the environmental setting, and, therefore, Justice Douglas's argument did, in fact, encompass the position of the Sierra Club. Transcript of Oral Argument at 12-13, Sierra Club v. Morton 405 U.S. 727 (1972) (No. 70-34) (on file with author).
244. Sierra Club, 405 U.S. at 752. Earlier in the paragraph, Justice Douglas listed activities requiring actual visitation to an ecological unit, ending the passage by pointing out that regular physical contact was not necessary: "[Persons with recreational experience in the environment] should have standing to defend those natural wonders before courts or agencies, though they live 3,000 miles away." Id. at 751-52.
245. Id. at 752.
246. Id. at 743.
247. Id. at 744 n.5 (quoting MICHAEL FROME, THE FOREST SERVICE 69 (1971)).
248. See supra notes 192-95 and accompanying text for a discussion of Justice Douglas's distinction between sincere and insincere ecological concern.
249. For support of this between-the-lines reading, see, e.g., DOUGLAS, supra note 168, at 85 (stating that "[m]ost people have an interest in the preservation of wilderness even though they may be too old to backpack or have wholly different interests.... [or] are too frail to visit it").
250. See WOODWARD & ARMSTRONG, supra note 175, at 163-64. The authors write that: [Justice] Blackmun admired [Justice] Douglas for the passion in his opinions. He was particularly moved by the poetic force of a [Justice] Douglas dissent in an environmental case (Sierra Club v. Morton) that was argued in November.... [Justice] Blackmun did not feel that he could join [Justice] Douglas's dissent. It was too personal. But he would vote with him, and he would provide the mathematical equivalent of [Justice] Douglas's imagery. Id. A note from Justice Douglas's Law Clerk also commented on Justice Blackmun and the Sierra Club dissent. See Note from William H. Alsup, Law Clerk to Justice William O. Douglas, to Justice William O. Douglas (Apr. 7, 1972) (on file with the Library of Congress, Ms. Division, Sierra Club v. Morton case files). The note stated in part that: I talked with Justice Blackmun's clerk about the possibility that he might join your opinion. For sure, Justice Blackmun will circulate his own draft, saying that he would reverse the CA, and making statements agreeing with parts of your analysis.... [Blackmun] further stated that he would join your opinion if the reference to the Solicitor General... and the Appendix were deleted.... Even if he meant the remark to be a commitment, you might be inclined not to make the deletions. Those references presently provide a contrast with your own analysis and therefore are helpful in putting the opinion in perspective. Id.
251. Warth v. Seldin, 422 U.S. 490, 519 (1975) (Douglas, J., dissenting) (arguing that plurality opinion which rejected standing arguments of parties seeking relief from allegedly discriminatory zoning practices was too technical).
252. Compare Scalia, The Doctrine of Standing, supra note 23, at 894 (describing the role of the judiciary as the "role of protecting individuals and minorities against imposition of the majority") with DOUGLAS, supra note 167, at 25 (arguing that "[o]ur Constitution.... protects minorities [including environmentalists], placing their rights beyond the reach of the majority").
253. Scalia, The Doctrine of Standing, supra note 23, at 894-95. Justice Scalia writes that: [T]he law of standing roughly restricts courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority, and excludes them from the even more undemocratic role of prescribing how the other two branches should function in order to serve the interest of the majority itself... If I am correct that the doctrine of standing, as applied to challenges to governmental action, is an essential means of restricting the courts to their assigned role of protecting minority rather than majority interests,.... it would follow that not all "concrete injury" indirectly following from governmen-tal action or inaction would be capable of supporting a congressional conferral of standing. Id. (emphasis in original),
254. See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 185-86 (1974) (Douglas, J., concurring). Justice Douglas wrote that: I think in our society that is growing in complexity there are bound to be innumerable people in common disasters, calamities, or ventures who would go begging for justice with the class action but who could with all regard to due process be protected by it.... Some may be environmentalists who have no photographic development plant about to be ruined because of air pollution by radiation but who suffer perceptibly by smoke, noxious gases, or radiation. Id.
255. See, e.g., Ohio v. Wyandotte Chem. Corp., 401 U.S. 493, 510 (1971) (Douglas, J., dissenting) (stating that "[t]here is much complaint that in spite of the arsenal of federal power little is being done [on behalf of the environment but that] of course, is not our problem" (citing Polikoff, The Interlake Affair, WASH. MONTHLY, Mar. 1971, at 7)). Justice Douglas urged citizens to political action, specifically to question agency actions that impact the environment, and linked the effectiveness of this action to a citizen's ability to attain standing. See DOUGLAS, supra note 171, at 182 (warning that "[r]esort to courts is not the ready answer, though it is the impulsive thing to do [because] [c]ourts ... have no great experience on the environmental front.... [and] [I]egal precedents ... usually were established in days of laissez-faire when equity normally acted to protect business, not the consumer").
256. See WILLIAM O. DOUGLAS, THE COURT YEARS 55 (1980) (describing "the so-called hands-off policy"). Justice Douglas wrote that such "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." Id.
257. See id. at 55. Justice Douglas wrote that [m]y view always has been that anyone whose life, liberty or property was threatened or im-paired by any branch of government - whether the President or one of his agencies, or Congress, or the courts ... had a justiciable controversy and could properly repair to a judicial tribunal for vindication of his rights.... [I] think ... that treating [such a] question as a "political" one [is] an abdication of duty and a self-inflicted wound on the Court. Id. See also Flast v. Cohen, 392 U.S. 83, 112 (1968) (Douglas, J., concurring) (stating that "[w]hen 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") (footnotes omitted).
258. DOUGLAS, supra note 241, at 55-56.
259. THE DOUGLAS LETTERS, supra note 173, at xviii. See also SIMON, supra note 173, at 218 (stating that "Professor [Alexander] Bickel... [of] Yale [Law School and] a former Frankfurter clerk and close friend, rarely missed an opportunity to criticize [Justice] Douglas's opinions for sloppiness and logical incoherence").
260. See THE DOUGLAS LETTERS, supra note 173, at xix (stating that "[Justice] Douglas never tried to be a 'judge's judge,' one whose opinions influenced and shaped decisions not only by col-leagues on the high court, but also more importantly, by lower federal and state court judges"); SIMON, supra note 174, at 223 (stating that "[Justice] Douglas ... [wrote] innovative opinions, but sometimes his creativity seemed to jump ahead of constitutional justification").
261. In Warth v. Seldin, 422 U.S. 490, 519 (1975) (Douglas, J., dissenting), Justice Douglas not only identified standing as a mechanism courts were using to manage caseloads, but he characterized such "technical barriers" as useful to reduce judicial access "if an emergency arises." In Schlesinger v. Reservist Committee to Stop the War, Justice Douglas described standing as: a judicially created instrument serving [to]... protect[ ] the status quo by reducing the challenges that may be made to it and to its institutions. It greatly restricts the classes of persons who may challenge administrative action. Its application in this case serves to make the bureaucracy ... more and more immune from the protests of citizens. 418 U.S. 208, 229 (1974) (Douglas, J., dissenting).
262. See SIMON, supra note 173, at 254 (stating that "[w]hen [Justice] Douglas paid close attention to formal legal rules, critics charged that he did so merely to achieve a desired result"); see also THE DOUGLAS LETTERS, supra note 173, at xviii (stating that "[a]s for precedent, [Justice] Douglas could pull them out with a law professor's facility when it suited his purpose; but as he said on more than one occasion, he would rather create a precedent than cite one"); id. at xix (stating that, "[as] result-oriented jurist, he cared more for the final decision than the process and reasoning by which one arrived at the result"). Justice Douglas was also capable of reading a standing provision narrowly. See Scripps-Howard Radio, Inc. v. Federal Communications Comm'n, 316 U.S. 4, 18-20 (1942) (Douglas, J., dissenting) (disputing finding of jurisdiction where statute granted court of appeals jurisdiction of appeal by "person aggrieved" or by one "whose interests are adversely affected" by agency decision). According to Justice Douglas, "[u]nless he can show that his individual interest has been unlawfully invaded, there is merely damnum absque injuria and no cause of action on the merits." Id. at 21.
263. Justice Douglas did, in fact, issue opinions that seem inconsistent with his well-known defenses of standing for environmental activists. See, e.g., Washington v. General Motors Corp., 406 U.S. 109, 112, 114 (1972) (writing that the Court refused to invoke original jurisdiction in spite of finding that plaintiffs, eighteen States, "plainly present[ed] important questions of vital national importance," regarding "[a]ir pollution ..., one of the most notorious types of public nuisance in modern experience").
264. See, e.g., Flast v. Cohen, 392 U.S. 83, 110 (1968) (Douglas, J., concurring) (stating that "'we are entitled to reproach the majoritarian justices of the Supreme Court... with straining to be reasonable when they ought to be adamant'" (quoting Edmond Cahn, Can the Supreme Court Defend Civil Liberties? in TOWARD A BETTER AMERICA 132, 144 (Samuelson ed., 1968))); see also THE DOUGLAS LETTERS, supra note 174, at xviii (stating that "[Justice] Douglas's record ... is far from consistent").
265. See, e.g., Flast v. Cohen, 392 U.S. 83, 110 (1968) (Douglas, J., concurring) (stating that "'we are entitled to reproach the majoritarian justices of the Supreme Court... with straining to be reasonable when they ought to be adamant'" (quoting Edmond Cahn, Can the Supreme Court Defend Civil Liberties? in TOWARD A BETTER AMERICA 132, 144 (Samuelson ed., 1968))); see also THE DOUGLAS LETTERS, supra note 174, at xviii (stating that "[Justice] Douglas's record ... is far from consistent").
266. See, e.g., THE DOUGLAS LETTERS, supra note 173, at xvii (stating that "[Justice] Douglas... read petitions rapidly, rarely agonized over decisions, could get to the heart of an issue instantly, and wrote his opinions quickly"); see also First Draft of Justice Douglas's Sierra Club Opinion (Nov. 23, 1971) (on file with Library of Congress, Ms. Division, Sierra Club v. Morton Case Files) (evidencing that Justice Douglas's final opinion in Sierra Club was almost identical to his first draft).
267. See, e.g., THE DOUGLAS LETTERS, supra note 173, at xvii (stating that "[Justice] Douglas... read petitions rapidly, rarely agonized over decisions, could get to the heart of an issue instantly, and wrote his opinions quickly"); see also First Draft of Justice Douglas's Sierra Club Opinion (Nov. 23, 1971) (on file with Library of Congress, Ms. Division, Sierra Club v. Morton Case Files) (evidencing that Justice Douglas's final opinion in Sierra Club was almost identical to his first draft).
268. See THE DOUGLAS LETTERS, supra note 173, at xviii-xix (stating that "[Justice] Douglas biographer James Simon suggests that after his first decade on the Court, [Justice] Douglas stopped writing for lawyers and law school teachers and began aiming his opinions and dissents at the general public."); SLMON, supra note 173, at 267 (stating that "[i]n 1946, [Justice] Douglas... had already served on the Court for seven years-and he was slightly bored"). Justice Douglas himself admitted as much. WILLIAM O. DOUGLAS, OF MEN AND MOUNTAINS 1 (1950).
269. See THE DOUGLAS LETTERS, supra note 173, at xviii-xix (stating that "[Justice] Douglas biographer James Simon suggests that after his first decade on the Court, [Justice] Douglas stopped writing for lawyers and law school teachers and began aiming his opinions and dissents at the general public."); SLMON, supra note 173, at 267 (stating that "[i]n 1946, [Justice] Douglas... had already served on the Court for seven years-and he was slightly bored"). Justice Douglas himself admitted as much. WILLIAM O. DOUGLAS, OF MEN AND MOUNTAINS 1 (1950).
270. 319 U.S. 266 (1943).
271. Id. at 268.
272. Id. at 274-75.
273. Id. at 280.
274. It may be noted that Justice Douglas was not completely opposed to dams, and reclamation in general, as are some environmentalists. WILLIAM O. DOUGLAS, GO EAST, YOUNG MAN 23-24 (1974).
275. 332 U.S. 19 (1947) (determining that federal government controls submerged lands beyond low water mark, leaving only submerged lands above low water mark to state control).
276. Id. at 40-41.
277. United States v. Twin City Power Co., 350 U.S. 222, 228 (1956); Federal Power Comm'n v. Niagara Mohawk Power Co., 347 U.S. 239, 258 (1954) (dissenting opinion); United States v. Kansas City Life Ins. Co., 339 U.S. 799, 813 (1950) (dissenting opinion); United States v. Gerlach Live Stock Co., 339 U.S. 725, 756 (1950) (concurring opinion); Grand River Dam Auth. v. Grand Hydro, 335 U.S. 359, 376 (1948) (dissenting opinion).
278. 348 U.S. 26 (1954).
279. Id. at 32. In Berman, Justice Douglas maintained that [w]e deal... with what traditionally has been known as the police power.... Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.... The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one. Id.
280. 328 U.S. 256 (1946).
281. Id. at 265-66.
282. 344 U.S. 149 (1952).
283. Id. at 156.
284. See, e.g., DOUGLAS, supra note 173, at 95-99.
285. See, e.g., Stone, supra note 13 at 229. Professor Stone writes that: [William H.] Rodgers, [Jr.], for example, tries to squeeze out of Justice Douglas's opinion in United States v. Causby, the takings by overflight case, a suggestion that Justice Douglas "had a more sympathetic view of the biological requirements of chickens than the dissenters".... A rereading of the case shows that Rodgers's token of [Justice] Douglas's environmentalism is based entirely upon a footnote in [Justice] Black's dissent quoting with approval the trial judge's remark that chickens learned to get along with tractor noise, so they could therefore learn to live with airplanes; because Black was dissenting, we are asked to infer that [Justice] Douglas felt otherwise! The truth is that there is not a scintilla of credible evidence that [Justice] Douglas viewed the farmer's chickens any different that he did the farmer's corn: as property, the value of which the government was diminishing. Id.
286. Murphy v. Benson, 151 F. Supp. 786 (E.D.N.Y. 1957), vacated as moot in part, aff'd in part, 270 F.2d 419 (2d Cir. 1959), cert. denied, 362 U.S. 929 (1960).
287. See RACHEL CARSON, SILENT SPRING 157 (1962).
288. Murphy, 151 F. Supp. at 789.
289. Id. at 792.
290. Id. at 789.
291. Id. at 792.
292. Murphy v. Benson, 270 F.2d 419, 420-21 (2d Cir. 1959).
293. Murphy v. Benson, 362 U.S. 929, 930-31 (1960) (Douglas, J., dissenting to denial of certiorari). Justice Douglas wrote that: There was evidence that one of the petitioners who sells milk from her dairy had measurable contamination in the milk as late as five months after the spraying, which made its sale illegal under both federal and state regulations. There was evidence that the vegetables grown by one of the petitioners for family use were rendered inedible.... Another petitioner, who spent $13,000 developing her land for chemical-free food production, testified that after the planes came over her plants were damaged and the fruit was withered, making it inedible..... Fish owned by two of the petitioners were said to have been killed by the spray; and dead birds were also reported.... ... Yet the District Court made only one finding on the subject. It found: "The spraying program, which is the subject of this action... is not injurious to human health." No more specific findings were made on the matter and the court refused to make any findings on the spray's effect on milk, fruits, vegetables or other crops or products. Its only other finding on the issue of injury was that the spray "does not cause any considerable loss of birds, fish, bees or beneficial insects." Id.
294. Id. at 931-32 (noting that respondents had not given positive assurances that they would not resume spraying, thus "[t]he program clearly was not abandoned.").
295. Id. at 932-34.
296. Id.
297. Id. at 935 (stating that "I express no views of the merits of this particularly controversy. Nor do I take a position on the issue of mootness").
298. Id. at 929 (stating that "[i]n my view the issues involved in this case are of such great public importance that I record my dissent to the denial of certiorari"); id. at 935 (stating that "I... believe that the questions tendered are extremely significant and justify review by this Court").
299. For evidence of Justice Douglas's conscious drive to urge the Court into greater activism, see Flast v. Cohen, 392 U.S. 83, 107 (1968) (Douglas, J., concurring). In his opinion, Justice Douglas stated, "[t]here has long been a school of thought here that the less the judiciary does, the better.... Edmond Cahn, who opposed that view, stated my philosophy. He emphasized the importance of the role that the federal judiciary was designed to play in guarding basic rights against majoritarian control." Id. at 110.
300. 371 U.S. 334 (1963).
301. Id. at 335, 339-40. In this case, the federal government had sued in the district court to condemn the land subject to the mining claims for the purpose of constructing a dam. Id. at 334-35. Douglas stated, somewhat simply, that "Congress has entrusted the Department of the Interior with the management of the public domain." Id. at 339.
302. Id. at 339.
303. Id.
304. 387 U.S. 428 (1967).
305. Id. at 430-32.
306. Id.
307. Id. at 434.
308. Id. at 434-50. Despite his extensive analysis, Justice Douglas framed his discussion by twice denying that the Court was offering any indication of the proper decision on the merits. Id. at 434, 450.
309. Id. at 437, 440.
310. Id.
311. Id. at 450 (citing the Federal Power Act § 4(e), 16 U.S.C. § 797(e) (1994)).
312. 397 U.S. 150 (1970).
313. Id. at 153 (stating that "[t]he question of standing.... concerns, apart from the 'case' or 'controversy' test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question"). For a discussion of the legal interests test, see, e.g., Association of Data Processing Service Organizations v. Camp, 406 F.2d 837, 843 (8th Cir. 1969) (applying narrow "legal interest" test or requiring an explicit provision in relevant statute allowing suit by persons "adversely affected or aggrieved.").
314. Id. at 154. Justice Douglas also made sure to note that "aesthetic, conservational, and recreational" values might fall within the zone of interests protected by a statute or constitutional guarantee. Id.
315. Id. at 155-56. In his analysis, Justice Douglas cited Arnold Tours, Inc. v. Camp, 408 F.2d 1147, 1153 (1st Cir. 1969), for the propositions that the statute in question had a broad purpose of restraining banks from performing non-banking activities for public policy reasons, and because that case had found that "Congress ha[d] provided sufficient statutory aid to standing even though the competition may not be the precise kind Congress legislated against." Id. Justice Douglas ended his consideration without addressing the inconsistency between the statutory purpose and the First Circuit decision that the statute provided standing to a bank's competitor, concluding that "[w]e do not put the issue in those words, for they implicate the merits. We do think, however, that [the statute limiting bank activities for public policy purposes] arguably brings a competitor within the zone of interests protected by it." Id. at 156.
316. A reasonable limitation on the use of the zone of interests test, suggested by its context, is that its applicability is limited to situations where standing is derived through the APA standing provision, which specifically requires that a plaintiffs grievance be "within the meaning of a relevant statute." Administative Procedures Act § 10(e), 5 U.S.C. § 702 (1994). Where a plaintiff raises a claim under a standing provision contained in the same statute as that the plaintiff claims the defendant breached to cause the plaintiffs injury, it may be presumed that Congress predicted the types of claims that would be brought well enough to obviate judicial consideration of the zone of interests of the statute in which the standing provision appears. See, e.g., Clarke v. Secretary of Indus. Ass'n, 479 U.S. 388, 399-400 (1987) (finding that zone of interests test under APA was intended to exclude only the most marginally related claims). See also June, supra note 34, at 773-94 (analyzing application of zone of interests test).
317. See supra notes 33-35, 46-47 and accompanying text for a discussion of Bennett and the zone of interests test. Justice Douglas did, in fact, preface his standing analysis in Data Processing by warning that "generalizations about standing... are largely worthless." Camp, 397 U.S. at 151. The zone of interests discussion is, however, prominent in the opinion, and Justice Douglas himself references it in a way that makes it sound like a standard in Data Processing's companion case, Barlow v. Collins, 397 U.S. 159, 164 (1970) (noting that, in addition to meeting Article III standards, plaintiffs are within zone of interests protected by the applicable statute). Justice Brennan severely criticized the test in Barlow, stating "I submit that in making such examination of statutory materials [as required under zone of interests test] an element in the determination of standing, the Court not only performs a useless and unnecessary exercise but also encourages badly reasoned decisions, which may well deny justice in this complex field." Id. at 170 (Brennan, J., concurring in the result and dissenting).
318. 392 U.S. 83 (1968).
319. Id. at 111-12 (Douglas, J., concurring).
320. Id. at 111 (Douglas, J., concurring). Justice Douglas stated that: [t]he judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained.... ....The individual is almost certain to be plowed under [by the growing bureaucracy in the legislative and executive branches], unless he has a well-organized active political group to speak for him. The church is one. The press is another. The union is a third. But if a powerful sponsor is lacking, individual liberty withers - in spite of glowing opinions and resounding constitutional phrases. Id.
321. 402 U.S. 916 (1971).
322. Id. at 919 (stating that "there have been congressional inquiries into the Corps' actions in taking more land than necessary for projects which it is building"). See also Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 1303 (1974) (implying that Corps was attempting to bury safety concerns in interest of completing expensive project).
323. 407 U.S. 926 (1972).
324. Id. at 932-33 (Douglas, J., dissenting) In his dissent Justice Douglas wrote that: [t]he Commission's final opinion suggests that its consideration of environmental issues is required only when private citizens bring such problems to the agency's attention.... This approach - symptomatic of the phenomenon of bureaucratic "industry-mindedness" - wrongly assumed that a presumption of validity supported the Con Ed proposal and that environmental groups had a burden of proof to overcome. Similarly, the Commission limited its inquiry primarily to those program alternatives which had been submitted by the conservationists opposing the Con Ed project.... In short, the Act requires that bureaucrats not only listen to protests, but also avoid projects that have imprudent environmental impacts. There is no burden of proof for the objector to overcome. Id.
325. Id. at 933 (Douglas, J., dissenting) (finding that "[w]hether or not courts may review the Commission's ultimate balance of these competing considerations, the fact remains that Congress and the public are entitled to know those judgments"). See also Watson v. Kenlick Coal Co., Inc., 422 U.S. 1012, 1017-18 (1975) (Douglas, J., dissenting). Justice Douglas wrote that: [i]t is said that respondents are simply private parties engaged in the exercise of private contractual rights ... but the very claim raised by petitioners is that those private contractual rights have been arbitrarily and irrationally broadened by the state courts to a degree never contemplated by the grantors. The State's role in this process can hardly be termed that of an innocent and disinterested bystander .... Id.
326. Life of the Land v. Brinegar, 414 U.S. 1052, 1053-54 (1973) (Douglas, J., dissenting from a decision granting a motion to vacate a stay and injunction entered earlier by Justice Douglas). Justice Douglas also provided that: NEPA embodies the belated national recognition that we have been "brought to the brink" by myopic pursuit of technological progress and by a decisionmaking mechanism resting largely on the advice of vested-interest groups. A long standing policy of listening only to those with enough money to be heard has left our country scarred with a continuum of environmental abscesses.... Our congested land and fouled air bear grim testimony to the success of Detroit in making fortunes out of the destruction of elemental parts of our biosphere. Id. at 1054-55 (Douglas, J., dissenting) (footnotes omitted).
327. 401 U.S. 493 (1971).
328. Id. at 511-12 (Douglas, J., dissenting).
329. Id. at 494.
330. Id. at 504. The majority stated "[w]hile we consider that Ohio's complaint does state a cause of action that falls within the compass of our original jurisdiction, we have concluded that this Court should nevertheless decline to exercise that jurisdiction." Id. at 495. The majority cited the frequency of suits between states and nonresidents, the awkwardness of its structure for tasks such as factfinding, and the particular complexities of the dispute before it as reasons to reject the case. Id. at 497-98, 502-03.
331. Id. at 507 (Douglas, J., dissenting).
332. 206 U.S. 230 (1907).
333. Wyandotte Chemicals, 401 U.S. at 505-05 (Douglas, J., dissenting).
334. Id. at 510-511 (Douglas, J., dissenting). Justice Douglas stated that: Much is made of the burdens and perplexities of these original actions.... .... If in these original actions we sat with a jury, as the Court once did, there would be powerful arguments for abstention in many cases. But the practice has been to appoint a Special Master which we certainly would do in this case. We could also appoint - or authorize the Special Master to retain - a panel of scientific advisers. Id.
335. Id. at 512 (Douglas, J., dissenting).
336. 412 U.S. 669 (1973).
337. Id. at 699-700 (Douglas, J., dissenting). Justice Douglas wrote that: Paper, glass, and metals are the main items in today's garbage.... America's method for disposing of garbage is either to use it for landfill or to put it first through incinerators and then to bury the residue. Sorting and recycling have several environmental impacts: (1) reduction in the use of incinerators lessens air pollution; (2) establishing or encouraging removal of litter from the landscape; (3) recycling saves both renewable and nonrenewable resources. As respects the last, the tons of paper that are recycled, rather than burned, can be translated into the number of standing trees that need not be cut for pulp the next year; the metals recycled protect our remaining nonrenewable supplies of ore, and so on. Id. (footnote omitted). Justice Douglas went on to discuss recycling policy - peppered with some pertinent legal discussion - for over twenty published pages. His dissent included an Appendix presenting excerpts from a Bureau of Mines report on its resource recovery project, including charts depicting that project's refuse disposal and refuse recovery records. Id. at 718-19 (Douglas, J., dissenting).
338. Id at 694-96 (Douglas, J., dissenting). Justice Douglas stated that: nowhere, either in the legislative history or the statutory language [of NEPA], is there any indication that Congress intended to restore to the federal courts the power temporarily to suspend railroad rates, a power that had been clearly taken away by § 15 (7) of the Interstate Commerce Act.... ....Our conclusion that the District Court lacked the power to grant the present injunction is confirmed by the fact that each of the policies that we identified in Arrow [Transportation Co. v. Southern Railroad Co., 372 U.S. 658 (1963)]... would be substantially undermined if the courts were found to have suspension powers simply because noncompliance with NEPA was alleged. Id.
339. See Scenic Hudson Preservation Conference v. Federal Power Comm'n, 407 U.S. 926, 933 (1972) (Douglas, J., dissenting); see also Aberdeen & Rockfish R.R. Co. v. SCRAP, 422 U.S. 289, 331 (1975) (Douglas, J., dissenting in part) (finding that "NEPA is more than a technical statute of administrative procedure. It is a commitment to the preservation of our natural environment. The statute's language conveys the urgency of that task"); Life of the Land v. Brinegar, 414 U.S. 1052, 1054 (1973) (Douglas, J., dissenting) (finding that NEPA "embodies the related natural recognition that we have been brought to the brink by myopic pursuit or technological progress"); Committee for Nuclear Responsibility v. Schlesinger, 404 U.S. 917, 918 (1971) (Douglas, J., dissenting) (finding that Court must reverse where no decision under NEPA was reached).
340. SCRAP, 412 U.S. at 698-99 (stating that "because the District Court granted a preliminary injunction suspending railroad rates when it lacked the power to do so, its judgment must be reversed and the cases remanded to that court for further proceedings consistent with this opinion") (footnote omitted).
341. Id. at 700-01 (Douglas, J., dissenting) (stating that "[r]ates fixed so as to encourage vast shipments of litter are, therefore, perhaps the most immediate and dramatic illustration of a policy which will encourage protection of the environment against several erosive conditions").
342. Id. at 701 (Douglas, J., dissenting).
343. Id. (Douglas, J., dissenting) (quoting 42 U.S.C. § 432 (1994)).
344. Id. (Douglas, J., dissenting).
345. Id. at 702-04 (Douglas, J., dissenting) (discussing the Court's recognition of aesthetic and environmental injury, the trend toward broadening standing to challenge administrative actions, and waste statistics developed by the federal government).
346. Id. at 704-05 (Douglas, J., dissenting) (quoting Letter from Russell Train, Chairman, Council of Environmental Quality, to Interstate Commerce Commission (Oct. 9, 1970)); id. at 706-07 (Douglas, J., dissenting) (quoting Letter from Russell Train, Chairman, Council on Environmental Quality, to Interstate Commerce Commission (Oct. 30, 1972)); id. at 707-08, 710 (Douglas, J., dissenting) (quoting from several Congressional reports on NEPA's purpose).
347. Id. (Douglas, J., dissenting).
348. 410 U.S. 743, 744-45 (1973) (Douglas, J., dissenting) (rejecting an equal protection challenge to Toltec Watershed Improvement District, established after referendum held pursuant to Wyoming's Watershed Improvement District Act, which entitled only landowners to vote in the referendum).
349. Id. at 745-46 (Douglas, J., dissenting).
350. Id. (Douglas, J., dissenting).
351. Id. at 746 (Douglas, J., dissenting).
352. Id. at 749 (Douglas, J., dissenting).
353. Flast v. Cohen, 392 U.S. 83, 111-12 (1970) (Douglas, J., concurring).
354. SIMON, supra note 173, at 340-41.
355. Douglas, supra note 168, at 18.
356. William O. Douglas, A Task Force for Ecology 49 (Dec. 17, 1970) (transcript on file with Library of Congress, Ms. Division, W.O.D. Collection, Speeches and Writing File, Box 888).
357. See, e.g., Douglas, supra note 166, at 15. Justice Douglas stated that: though there is legal power to despoil [Mt. Vernon by surrounding it with industrial development], there is a moral precept against it. Our values are not exclusively commercial; they are spiritual and aesthetic as well. So the Potomac community was shocked when the allpowerful Maryland agency, the Washington Suburban Sanitary Commission, decided to locate a sewage disposal plant opposite Mr. Vernon. An aroused public got that decision reversed - by persuasion. But threats of that kind will constantly recur since our private and public agencies usually have "commercial" standards, not aesthetic ones. Id.
358. See supra notes 23-24 and accompanying text for a discussion of Justice Scalia's views.
359. See SIMON, supra note 173, at 275 (stating that "[t]he Court became [Justice] Douglas's power center.... [T]hrough the fifties, sixties and into the seventies, then, [Justice] Douglas would ... speak out on every public issue that he considered vital to the national interest").
360. Sierra Club v. Morton, 405 U.S. 727, 748-50 & n.7 (1972) (calling Forest Service "notorious" in its alignment with lumber companies, accusing it of paying "only lip service to its multiple-use mandate," and serving as "nursemaid... to the lumber industry," as well as allowing a "huge backlog of delayed reforestation projects").
361. See, e.g., Interview with Eric Sevareid 8 (Sept. 6, 1972) (on file with Library of Congress, Ms. Division, W.O.D. Collection, CBS Interview File, Box 851) [hereinafter CBS Interview] (stating that "the 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.").
362. Another sign that the opinion might have been less thoughtfully planned than it could have been is Justice Douglas's attachment of the Solicitor General's argument in an appendix. In essence, this argument is an eloquent and persuasive view that is completely opposed to the view Justice Douglas advocated. Although Justice Douglas may have intended its inclusion to emphasize the fact that he not only disagreed with the Solicitor General but viewed the case from a completely different perspective, that point may be lost on many readers. Justice Blackmun, for one, considered its inclusion a mistake. See Note from William H. Alsup, Law Clerk of Justice Douglas, to Justice Douglas (Apr. 7, 1972) (on file with the Library of Congress, Ms. Division, Sierra Club v. Morton Case File) (discussing Justice Blackmun's consideration of whether he would join Justice Douglas's opinion).
363. DOUGLAS, supra note 256, at 206.
364. Id. According to Justice Douglas, Disney "had a wolverine fight a bear to the death. Animals, other than men, do not follow that course. They have conflicts but soon withdraw. Disney got the wolverine to fight the bear by starving both animals for weeks in a Los Angeles zoo. The battle actually took place in a movie set in that city." Id.
365. Id. at 207 (stating that "Disney had lemmings commit suicide by leaping off cliffs into the ctic Ocean - which they never do. The pictures were fakes. What seemed in the deepening dusk to be lemmings were pieces of cotton batting shot from concealed airguns").
366. Id. at 206-07. Justice Douglas wrote that: Disney showed rams of the mountain-sheep family charging each other, their foreheads clashing to the tune of the "Anvil Chorus." Rams never do such silly things. They charge, of course, but in between charges they rest, walk around, paw the earth, and the like. They do not follow the pattern of a Hollywood dancing troupe. Id.
367. Id. at 213 (stating that "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 at times an industry. More often than not it was a municipality or other branch of local government. Even more frequently it was a federal agency....").
368. See id. ("[O]ver the years," Justice Douglas wrote, "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."); see also DOUGLAS, supra note 167, at 135-37 (questioning economic as well as environmental effect of Army Corps dam projects); id. at 169 (stating that "[t]he Corps of Engineers is obsessed with building dams across most of our navigable and non-navigable rivers").
369. CBS Interview, supra note 343, at 5 (stating that "the Corps of Engineers is a very highly efficient, honorable - efficient group of men. There's nothing ignoble about them").
370. See, e.g., Letter Written by Justice Douglas (Oct. 15, 1970) (on file with Library of Congress, Ms. Division, W.O.D. Collection, General Correspondence File) (stating that "I think the Park Service is proceeding on the correct, general principle that the historic condition of the Canal should be restored insofar as practical.... [T]he Park Service and... Congressman Gude [have exerted] valiant efforts [to bring] this project to fruition").
371. See CBS Interview, supra note 343, at 4-5 (discussing Justice Douglas's success in raising public consciousness and saving C & O Canal from developers, Justice Douglas responded to statement by his interviewer that no one could touch the canal now: "[w]ell, only the Park Service. We saved it from the highway builders. Now we've got to save it from the Park Service.").
372. See DOUGLAS, supra note 167, at 95-96 (praising Forest Service, which "stood firm for wilderness and deserves the blessing for future generations").
373. Id.; see also WILLIAM O. DOUGLAS, MY WILDERNESS: EAST TO KATAHDM 45-46 (1961) (stating that "[t]here have been and still are great conservationists in the Forest Service.... But they are not conspicuous in Wyoming").
374. DOUGLAS, supra note 354.
375. See SLMON, supra note 173, at 328 (stating that "[t]he outdoors provided [Justice] Douglas with countless causes.... He organized or joined scores of 'crusades,' as he called them, to save a river or a lake or a patch of woods from private industry or government bureaucracy."). In connection with his efforts to save the C & O Canal from development, Justice Douglas displayed his savvy by publicly challenging the writer of a Washington Post editorial approving the development to hike the canal with him and a group of other enthusiasts. THE DOUGLAS LETTERS, supra note 173, at 236-38. The hike received tremendous publicity and pressured the Park Service to seek other uses for the Canal area. Id.
376. See DOUGLAS, supra note 256, at 210 (discussing Justice Douglas's frustration).
377. See, e.g., Letter From Justice Douglas to Chief Forester of the Forest Service (Oct. 1, 1970) (on file with Library of Congress, Ms. Division, W.O.D. Collection, General Correspondence File, Box 297) (regarding planned real estate development in Goat Rocks Wilderness Area near Justice Douglas's home town of Yakima, Washington, which Justice Douglas apparently learned about from a friend at the Yakima Federal Savings and Loan Association, stating, "I do not know what can be done. I had only one thought and that was to try to get Nature Conservancy interested.... Perhaps ... you and I and [the head of the Nature Conservancy] could have lunch someday [sic] or get together at the shag-end of a work day for a drink.").
378. See, e.g., Letter From Justice Douglas to Chief Forester of the Forest Service (Dec. 21, 1971) (on file with Library of Congress, Ms. Division, W.O.D. Collection, General Correspondence File) (attempting to bring together the Americans Backing Better Park Development and the Director of the National Park Service); see also DURAM, supra note 14, at 35 (observing that Justice Douglas "saw administrative government as a process that could, if properly developed, be attuned to needs of both the American people and the business community. More specifically, it was necessitated by the technical intricacies of the business-government relationship."); see generally THE DOUGLAS LETTERS, supra note 173, at 231-55 (discussing Justice Douglas's impressions of natural landmarks he encountered).
379. DOUGLAS, supra note 167, at 170.
380. William O. Douglas, 44 HARV. L. REV. 1164, 1165 (1931) (reviewing MAX RADIN, THE LAWFUL PURSUIT OF GAIN (1931)).
381. William O. Douglas, 44 HARV. L. REV. 1164, 1165 (1931) (reviewing MAX RADIN, THE LAWFUL PURSUIT OF GAIN (1931)).
382. See, e.g., DOUGLAS, supra note 167, at 171 (stating that "[a] powerful voice is needed to turn any federal agency from an objective it has chosen").
383. See, e.g., Houck, supra note 5, at 498-99. Houck writes that: [t]he real impact of [Sierra Club] is found in the range of federal and state environmental programs that are spurred forward against considerable - indeed, almost paralyzing - opposition by the fact, often just the possibility, of citizen lawsuits.... Without the threat of litigation, federal compliance with NEPA would be unimaginable; the same could be said of the [ESA], which has no mechanism for federal agency compliance except citizen suits. The same could also be said of legal actions that have brought the nation's water resources program, public lands management, forest practices, irrigation, energy, wetlands, endangered species, and other programs into compliance with federal commands. Id. (citations omitted).
384. See DOUGLAS, supra note 241, at 8 (reflecting upon his arrival at the Supreme Court Justice Douglas perceived the law "in terms of Moses - principles chiseled in granite.... I had never been willing to admit to myself that the 'gut' reaction of a judge ... was the main ingredient of his decision"); DURAM, supra note 14, at 22 (discussing Justice Douglas's functional approach to law as a product of both his personality and his intellectual development at Columbia and then Yale); id. at 63 (noting that "[d]estruction of the wilderness was something [Justice] Douglas took personally.... He saw no middle ground when it came to preservation. His persistent condemnations of road-building into or near wilderness areas must be understood from this perspective."); id. at 127 (labeling Justice Douglas a "romantic realist").
385. DOUGLAS, supra note 256, at 39; DOUGLAS, supra note 251, at 49.
386. See SLMON, supra note 173, at 99. Simon writes that: [h]is exaggerated account [of one incident] suggest[s] a strong desire on [Justice] Douglas's part to link his early professional career with his later progressive record at the SEC and the U.S. Supreme Court. Because he played a major role in so many important struggles for reform in his later life, Justice Douglas seems to have reasoned backward that this was always so. It was not. Id.; see also DURAM, supra note 14, at 20-21 (commenting on Justice Douglas's hardships); THE DOUGLAS LETTERS, supra note 173, at xvi (observing how Justice Douglas was surprised by his Supreme Court nomination even though he had friends lobbying for his candidacy).
387. See generally DOUGLAS, supra note 256 (discussing his life's accomplishments); DOUGLAS, supra note 241 (observing personal glory as theme of Justice Douglas's authobiography). At times, Justice Douglas's self-absorption can make him come across as an ugly person. See, e.g., SIMON, supra note 173, at 312-13 (recognizing that Justice Justice Douglas was self-absorbed at times). Discussing the Rosenberg case, Simon observed: What is troubling about the [Justice] Douglas record, however, is that his earlier negative votes seemed so inconsistent with his whole judicial approach and philosophy. His reputation as a result-oriented libertarian justice was well documented. He had rarely based his judicial decisions on technical procedural grounds - when such grounds cut against the interest of individual defendants. And yet in the Rosenberg case, in vote after vote, [Justice] Douglas seemed content to let the Rosenbergs go to their execution without even hearing a variety of legal arguments put to the Court by the Rosenberg attorneys. This was the same Justice Douglas who wrote in his opinion to stay the Rosenbergs' execution that "before we allow human lives to be snuffed out, we be sure - emphatically sure - that we act within the law." .... In his first volume of autobiography, [Justice] Douglas did not mention his five negative votes in the Rosenberg case. He did, however, write with pride of his stay of the Rosenbergs' execution on June 17, 1953. That is the Justice Douglas, the libertarian symbol, that he wanted the public to remember. Id.
388. See, e.g., DOUGLAS, supra note 251, at 86-87. Justice Douglas wrote that: I have seen on those slopes larger fields of lupine than anywhere else - acres and acres of lupine, some of it mixed color of blue and white, but most of it blue - a brilliant mantle covering an entire hillside. Mixed in with the lupine but less conspicuous are a great variety of pentstemon, small and large, dwarfed and tall, blue, purple, and even rose colored. At varis elevations bloom the scarlet gilia or wild honeysuckle, delicate as a hothouse orchard . . . . The one I found that I liked best was the Oregon mallow of Sidalcea. It flourishes there in the bunchgrass. It's a wild hollyhock from one to two feet tall, with miniature petals of pink. The petals have a fragile, translucent look. . . . Id. See also DOUGLAS, supra note 256, at 3940. Justice Douglas stated: It was April and the valley below was in bloom, lush and content with fruit blossoms. Then came a sudden storm, splattering rain in the lower valley and shooting tongues of lightning along the ridges across from me. As the weather cleared, Adams and Rainier stood forth in power and beauty, monarchs to every peak of their range. Away from town, in the opposite direction from its comforts, the backbone of the Cascades was clear against the western sky, the slopes and ravines dark blue in the afternoon sun. The distant ridges and canyons seemed soft and friendly. Id. Unfortunately, the passage is surrounded by Justice Douglas's observations about how the moment marked a turning point in his life, with nature beckoning to him to come and explore. Id.; see also SIMON, supra note 173, at 331. Simon notes: [When] writing about . . . natural wonders . . . , [Justice] Douglas refused to let his reader sit back and simply enjoy his guided tour. [Justice] Douglas's books, all his books, taught his view of the world and the need to preserve the basic values he deemed crucial. . . . . . . . But his readers could pardon the Justice his hyperbole because his heart was pure and his message urgent. Id. But see First Draft of Douglas's Sierra Club Opinion (Nov. 23, 1971) (on file with Library of Congress, Ms. Division, W.O.D. Collection, Sierra Club v. Morton File) (comparing drafts reveals that every segment of his dissent dealing with his views on nature was written spontaneously and published as originally written).
389. See generally DOUGLAS, supra note 251 (presenting series of philosophers whom Justice Douglas meets in various wilderness settings and who voice views on nature); see also SLMON, supra note 174, at 329 (recognizing the different styles and subjects Justice Douglas used in his writings). Simon noted that "[i]n his nature books, [Justice] Douglas could be lyrical or didactic, his personal adventures dramatic or humorous, as his mood, and the surroundings, inspired." Id.
390. See, e.g., Douglas, supra note 168, at 5. Justice Douglas wrote that: [a] boy or girl should have the opportunity to grow up in the Daniel Boone, Thoreau, or 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 . . . . these are ways for building character. Id.
391. See, e.g., DOUGLAS, supra note 251, at x-xi (stating that "[b]oys, perhaps more deeply than men, know this experience [of discovering nature] . . . . The boy makes a deep imprint on the man . . . . That is why th[is] book, though about a boy, is in total effect an adult version."); DURAM, supra note 14, at 17 (discussing how Justice Douglas's early years were influential).
392. See, e.g., DOUGLAS, supra note 256, at 50-53 (relating with apparent pride and seemingly no cognizance of its irony a story about how he forced himself and his brother to hike twenty-five miles at a fast clip merely to prove his strength); DOUGLAS, supra note 251, at 19-50 (recounting stories about Justice Douglas's early childhood hikes).
393. See CBS Interview, supra note 343, at 1-3 (discussing with Eric Sevareid how Justice Douglas carried a pack on foot thirty miles a day at age eleven for purpose of regaining his health after polio); see also, DOUGLAS, supra note 251, at 30-35 (discussing Justice Douglas's 'infantile paralysis').
394. See, e.g., DOUGLAS, supra note 256, at 13 (discussing the impact that Mount Adams had on Justice Douglas).
395. See, e.g., id. at 31-35. Justice Douglas wrote that: It was infantile paralysis that drove me to the outdoors. . . . [His mother's resulting] solicitude set up a severe reaction. It seemed to me I was being publicly recognized as a puny person - a weakling. . . . The severest crisis, however, came when my own generation started snickering. . . . The physical world still loomed large in my mind, reinforced by what I had read in school about the Spartans of ancient Greece. They were rugged and hardy people, the kind that I aspired to be. As I searched out the literature that described their toughness, I found in Plato's Republic a passage that shattered my morale. Plato talked of the dangers to the race through propagation of the "inferior" type of person, those who were physically weaklings, or deformed; he recommended simply doing away with them. . . . . . . . So I decided to start hiking the sagebrush hills that rim Yakima. Id.
396. See, e.g., DOUGLAS, supra note 256, at 36 (describing how he learned about geology, botany, Indian culture, man's insignificance, and religion in the hills near Mount Adams and Mount Rainier); see also DOUGLAS, supra note 251, at 18. Justice Douglas wrote that: [w]hen man ventures into the wilderness, climbs the ridges, and sleeps in the forest, he comes in close communion with his Creator. When man pits himself against the mountain, he taps inner springs of his strength. He comes to know himself. He becomes meek and humble before the Lord that made heaven and earth. For he realizes how small a part of the universe he actually is, how great are the forces that oppose him. Id.
397. See, e.g., Douglas, supra note 168, at 7-8. Justice Douglas wrote that: [t]he Corps of Engineers . . . propose [sic] a huge dam at Seneca, Maryland that will make a muddy, ugly water hole out of many miles of the river, for the impoundment will fluctuate some thirty feet. And the chief purpose of the dam is supplying a head of water for flushing the river of sewage. The installation of a coal-fired distillation plant for sewage effluent would be less than the cost of the dam, while the operating costs for water purification would probably be greater. Yet what price a pure, free-flowing Potomac? What price a stream with fast canoe waters, hundreds of swimming holes, picnic grounds washed by clean water? What price a river toward which the people turn their faces, not their backs? Id.
398. See, e.g, Letter from Justice Douglas to Federal Forest Supervisor (June 12, 1954) (on file with Library of Congress, Ms. Division, W.O.D. Collection, Conservation File) (stating that "[m]an needs a bit of wilderness - a place to go not only to discover it but also to rediscover himself. These areas have a profound psychological and spiritual significance").
399. See THE DOUGLAS LETTERS, supra note 173, at ix-x (noting that although Justice Douglas portrayed himself as a country boy, he was not).
400. See id. at xii (noting impact Justice Douglas's challenges had on shaping his character). In the Introduction the editor noted that: [i]n his autobiography, [Justice] Douglas paints the struggle [between reformists and traditionalists at Columbia] in far more dramatic terms than it deserves; . . . it hardly amounted to an apocalyptic struggle between the forces of light and darkness. [Justice] Douglas resigned, supposedly in protest against [the president of Columbia's] high-handedness; what he fails to mention is that he already had an offer from the Yale Law School. Moreover, the departure of a junior faculty member, even one as promising as [Justice] Douglas, attracted little attention at the time. Id.; see also SIMON, supra note 173, at 97-99 (discussing Justice Douglas's version of various "battles" that Douglas fought and won in his life). Simon further wrote that: [b]ecause strength was so important to [Justice] Douglas, he rarely discussed his weaknesses, except after he overcame them. He could write of his dramatic battles with polio and poverty and migraine headaches, for once he had presented the obstacle, he could happily report his final victories. There was always a moral: keep fighting and you will conquer. Id. at 123.
401. See SIMON, supra note 173, at 276 (recognizing that "[e]ven his choice of companions . . . corroborated [Justice] Douglas's virile image"); see also id. at 366 (stating that "his few intimates knew his emotional fragility. He craved adulation and respect, and when it was not given, he sufred.").
402. See THE DOUGLAS LETTERS, supra note 173, at xxi (observing that Justice Douglas's third and fourth wives were "young enough to be his granddaughters"); id. at x (stating that "[h]e idolized and idealized his mother, a fact that at least two of his wives believed undermined his ability to de-velop an intimate adult relationship with other women"); see also SIMON, supra note 173, at 123 (recognizing that "[h]e wanted their love but also required their adulation"); id. at 384 (describing Justice Douglas's fourth wife as forty-four years his junior).
403. See, e.g., DOUGLAS, supra note 167, at 27. Justice Douglas wrote that: [t]he preservation of wilderness values requires a Wilderness Bill of Rights, and its preamble . . . would read as follows: We believe in the right of children to an understanding of their place in nature's community, of which they are a part. We believe in their right to acquire skills for living in the out-of-doors . . . . We believe in their right . . . to pit their strength against the elements . . . . We believe that all these are pathways for them, and for us, to God, and that their language is universal. Id. (attribution omitted).
404. See, e.g., THE DOUGLAS LETTERS, supra note 173, at xx (recognizing too many people polluted the environment so it did not bother Justice Douglas if people would not go to the wilderness because there were no roads or accommodations). See also SIMON, supra note 173, at 330. Simon stated that: [n]ature's pleasures should be shared only by the hearty, the deserving, the true believers. But to [Justice] Douglas's dismay, [roads into wilderness areas allowed] any TV-watching, beer-guzzling suburbanite . . . [to] behold the vistas that [Justice] Douglas had sometimes trekked for days to discover. These mountains, his mountains, were captured as cheaply as a drive-in movie. It was, in his view, sacrilegious. Id.
405. See, e.g., WILLIAM O. DOUGLAS, MY WILDERNESS: THE PACIFIC WEST passim (1960) (cataloging [Justice] Douglas's anecdotes about the Pacific West); WILLIAM O. DOUGLAS, MY WILDERNESS: EAST TO KATAHDIN (1961). Apparently, Justice Douglas meant these titles literally. See also, Stone, supra note 13, at 230 (summing up Justice Douglas's views on accessing nature as having "a distinctly elitist cast").
406. See, e.g., WILLIAM O. DOUGLAS, MY WILDERNESS: THE PACIFIC WEST passim (1960) (cataloging [Justice] Douglas's anecdotes about the Pacific West); WILLIAM O. DOUGLAS, MY WILDERNESS: EAST TO KATAHDIN (1961). Apparently, Justice Douglas meant these titles literally. See also, Stone, supra note 13, at 230 (summing up Justice Douglas's views on accessing nature as having "a distinctly elitist cast").
407. See SIMON, supra note 173, at 222 (stating that "[f]or [Justice] Douglas, to be poor was bad enough; to be poor and not be given an opportunity to change that condition was intolerable"). 388. See id. at 221 (stating that "[Justice] Douglas was usually presented in the press as an intrepid protector of civil liberties."); but see id. at 298-313 (discussing Justice Douglas's "enigmatic behavior" in connection with the Rosenberg case).
408. See id. at 224-25 (stating that "[Justice] Douglas, the expansive libertarian in public, was the driven introvert in his chambers, at times ordering around his clerks and staff like servants. [Justice] Douglas's early clerks discovered that their boss was intellectually self-contained, personally shy and often insensitive to those around him").
409. See id. at 350 (relating story in which Justice Douglas was unabashed about not knowing the name of elevator operator who ran the justices' private elevator, then observing generally, "[k]nown to the world . . . as a generous humanitarian, [Justice] Douglas did not transfer that public good will to those whom he worked with on a daily basis. Many colleagues and staff thought of him as a lover of the masses who had very little use for individuals.").
410. Stone discussed the difficulty of overriding the inherent egocentricity of humans and their legal rights. See Stone, supra note 2, at 491-92. Stone wrote that: how odd the question [of why humans would ever compromise their interests in favor of those of the environment] is. It asks me to justify my position in the very anthropocentric hedonist terms that I am proposing we modify. . . . .[P]erhaps the truth is that in any argument which aims at persuading a human being to action (on ethical or any other bases), "logic" is only an instrument for illuminating positions, at best, and in the last analysis it is psycho-logical appeals to the listener's self-interest that hold sway, however "principled" the rhetoric may be. Id.
411. In one passage, however, Justice Douglas did identify Pinchot among politicians as "the most enduring influence in my life." DOUGLAS, supra note 256, at 68.
412. Id. at 207.
413. Id.
414. Id.
415. Id.
416. See generally Manus, supra note 25, at 588-600 (discussing Muir's philosophy towards envi-ronment).
417. See Douglas, supra note 168, at 17. Justice Douglas stated that: [a]s John Muir once wrote of our coast redwoods: "Any fool can destroy trees. They cannot run away; and if they could they would still be destroyed - chased and hunted down as long as fun or a dollar could be got out of their bark hides, branching horns, or magnificent bole backbones. . . ." Commercial interest unrestrained by biologists, botanists, ornithologists, artists and others who see the spiritual values in the outdoors can in time convert every acre of America into a money-making scheme. Id. For an example of Justice Douglas's own expressions of biocentrism, see DOUGLAS, supra note 168, at 97 (stating that "[a] granite cliff is not exclusively for men to climb; in the Northern Cascades its lichens and moss also furnish food for goats").
418. See WILLIAM O. DOUGLAS, MUIR OF THE MOUNTAINS (1961) (providing a biography of John Muir). For an example of Justice Douglas striving to bring a biocentric world view to his presumed anthropocentric reader, see, e.g., WILLIAM O. DOUGLAS, MY WILDERNESS: EAST TO KATAHDIN 46-49 (1961). Justice Douglas stated that: ]e are perhaps closer constitutionally to the life around us than we have imagined. The life of which we are a part may be unitary in a sense that only poets have divined. If we took that view only speculatively, it would have a profound effect on our attitude toward conservation. We would have a new reverence for life. Our drive would be to preserve it; to stand against all forces of destruction. Id.
419. See WILLIAM O. DOUGLAS, MUIR OF THE MOUNTAINS (1961) (providing a biography of John Muir). For an example of Justice Douglas striving to bring a biocentric world view to his presumed anthropocentric reader, see, e.g., WILLIAM O. DOUGLAS, MY WILDERNESS: EAST TO KATAHDIN 46-49 (1961). Justice Douglas stated that: ]e are perhaps closer constitutionally to the life around us than we have imagined. The life of which we are a part may be unitary in a sense that only poets have divined. If we took that view only speculatively, it would have a profound effect on our attitude toward conservation. We would have a new reverence for life. Our drive would be to preserve it; to stand against all forces of destruction. Id.
420. JOHN MUIR, OUR NATIONAL PARKS (1901), reprinted in JOHN MUIR, THE EIGHT WILDERNESS DISCOVERY BOOKS 591 (1992). Muir wrote that: the value of these forests in storing and dispensing the bounty of the mountain clouds is infinitely greater than lumber or sheep. To the dwellers of the plain, dependent on irrigation, the big tree, leaving all its higher uses out of the count, is a tree of life, a never-failing spring, sending living water to the lowlands all through the hot, rainless summer. For every grove cut down a stream is dried up. Id. Justice Douglas claimed to have had several experiences very similar to those depicted by Muir in his writing. Compare DOUGLAS, supra note 256, at 77 (discussing encounter with rattlesnake in someone's sleeping bag that Justice Douglas perceived as snake simply trying to get warm) with MUIR, supra note 400, at 541-42 (discussing an encounter with a rattler during which Muir perceived a snake caught in his cabin as harmless); compare DOUGLAS, supra note 256, at 88 (describing shepherd as "gnarled and tough as the alpine fir") with MUIR, supra note 400, at 470 (describing loggers as "furrowed like bark").
421. JOHN MUIR, OUR NATIONAL PARKS (1901), reprinted in JOHN MUIR, THE EIGHT WILDERNESS DISCOVERY BOOKS 591 (1992). Muir wrote that: the value of these forests in storing and dispensing the bounty of the mountain clouds is infinitely greater than lumber or sheep. To the dwellers of the plain, dependent on irrigation, the big tree, leaving all its higher uses out of the count, is a tree of life, a never-failing spring, sending living water to the lowlands all through the hot, rainless summer. For every grove cut down a stream is dried up. Id. Justice Douglas claimed to have had several experiences very similar to those depicted by Muir in his writing. Compare DOUGLAS, supra note 256, at 77 (discussing encounter with rattlesnake in someone's sleeping bag that Justice Douglas perceived as snake simply trying to get warm) with MUIR, supra note 400, at 541-42 (discussing an encounter with a rattler during which Muir perceived a snake caught in his cabin as harmless); compare DOUGLAS, supra note 256, at 88 (describing shepherd as "gnarled and tough as the alpine fir") with MUIR, supra note 400, at 470 (describing loggers as "furrowed like bark").
422. See Stone, supra note 13, at 230. Stone wrote that: [Justice] Douglas's environmentalism, while it drew from several roots, was predominantly homocentric. In more familiar terms, [Justice] Douglas was basically a conservationist of the persuasion that Nature should be conserved for human benefit, not for any rights of its own. It is easy to be misled into supposing he envisioned something more. . . . The rights [Justice] Douglas supports are not rights for the environment, but for environmentalists. This is not so surprising. For example, [Justice] Douglas, as avid sportsman, appears never to have felt any tension between loving nature and gunning down its denizens for trophies. Id (footnote omitted).
423. See DOUGLAS, supra note 256, at 206 (claiming that A Sand County Almanac taught him "man's responsibility to the earth").
424. Id.
425. See DOUGLAS, supra note 171, at 18 (describing book as "a plea to all men to enlarge 'the boundaries of the community to include soils, waters, plants, and animals, or collectively, the land," as Aldo Leopold put it, in his book A Sand County Almanac").
426. Interestingly, both Justice Scalia and Justice Douglas believed that an important role of the federal courts was to take on the big, tough cases. See SCHULTZ & SMITH, supra note 9, at 90 (stating that "[Justice] Scalia described his aspirations as a law student to become a federal judge because the federal courts were the 'forums for the big case'").
427. Hardin, supra note 3, at ix.
428. See supra note 193 and accompanying text for a discussion of Justice Douglas's omission of the public/private issue from his dissent in Sierra Club.
429. There is early evidence of the fact that Justice Douglas focused attention on the public/private issue. See, e.g., Karle F. Milde, Soil Conservation and the Common Law 3, 4, 8 (undated essay, accompanied by letter dated Oct. 15, 1954, on file with Library of Congress, Ms. Division, W.O.D. Collection, Conservation Files 1951-59, Box 552). The essay reads as follows: [W]hy are the restraints which our American law imposes in the interest of erosion control based entirely on public regulation? From its beginnings, . . . soil conservation in America has seemed a battle of the public interest against the rapacious individual. . . . . What is significant, however, is the fact that public regulation was the only legal device we could think of. [The law] took no account of the fact that an action injurious to the public would be first of all injurious to some of its individual members. The job of casting a bridge between soil conservation and the common law has been long over-due. Id.
430. That Justice Douglas had a propensity for such "between-the-lines" subtlety is supported by a remark by Justice Frankfurter accusing Justice Douglas of an approach to law analogous to playing ker "[D]isclose what you are really doing. As you [Justice Douglas] know, I [Justice Frankfurter] am no poker player and naturally, therefore, I do not believe in poker playing in the disposition of a case." SIMON, supra note 173, at 204 (quoting Justice Frankfurter).
431. See First Draft of Douglas's Sierra Club Opinion (Nov. 23, 1971) (on file with Library of Congress, Ms. Division, W.O.D. Papers, Sierra Club v. Morton File). The last sentence of Justice Douglas's published version of the dissent, stating,"[t]hat, as I see it, is the issue of 'standing' in the present case or controversy," Sierra Club v. Morton, 405 U.S. 727, 752 (1972) (Douglas, J., dissenting), was penned in as an edit on the first draft, indicating that Justice Douglas had changed his view as to the issue and his conclusion while he wrote the draft. This further supports the view that the thrust of Justice Douglas's dissent was to categorize environmental disputes as a unique, nonconventional body of law.
432. Sierra Club v. Morton, 405 U.S. 727, 745 (1972) (Douglas, J., dissenting).
433. See also William O. Douglas, A Wilderness Bill of Rights (undated essay, on file with the Library of Congress, Ms. Division, W.O.D. Collection, Speeches and Writings File, Box 864) (stating that "[w]e need a renaissance in wilderness values. We need in effect a Bill of Rights to preserve, protect, and extend the rights of humans and the rights of wildlife in wilderness areas.").
434. See Note from William H. Alsup, Law Clerk for Justice Douglas, to Justice Douglas (Feb. 21, 1972) (on file with Library of Congress, Sierra Club v. Morton Case File, Law Clerk File for William H. Alsup). The note reads in part: A court, on its own motion or on petition from an interested citizen or group, could appoint a guardian to represent the Valley. Such an appointment would not be significantly different from customary judicial appointments of guardians ad Iitem, executors, conservators, receivers, or counsel for indigents. Yet the court would have a wide range of talent from which to draw and could select counsel who would be best able to contribute to efficacious judicial solution of a particular dispute. Id. Justice Douglas did not take his clerk's advice. See Sierra Club V. Morton, 405 U.S. 727, 750 n.8 (1972) (matching language in only one sentence of Mr. Alsup's rider).
435. See Stone, supra note 2, at 466-67. Stone writes: As guardian, [an organization like the Environmental Defense Fund] 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. Procedures exits, 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. Id.; see also id. at 471 (pointing out advantages of "continuous supervision").
436. See supra notes 310-18 and accompanying text for a discussion of Ohio v. Wyandotte Chems. Corp., 401 U.S. 493 (1971).
437. See Warth v. Seldin, 422 U.S. 490, 519 (1975) (Douglas, J., dissenting) (taking Court to task for carrying caseload that was lighter than necessary). Justice Douglas noted that "in all frankness, no Justice of this Court need work more than four days a week to carry his burden. I have found it a comfortable burden carried even in my months of hospitalization." Id. This quotation indicates that Justice Douglas still applied energy to his judicial duties (at least from his own perspective), but it also serves as an example of the odd level of comfort Justice Douglas had begun to enjoy concerning the personal nature of statements he was willing to publish from the bench. See also THE DOUGLAS LETTERS, supra note 174, at xvii (stating that "[Justice] Douglas always claimed that the work of the Court never took more than three or four days a week").
438. See Hardin, supra note 3, at xiv-xv (observing that Justice Douglas's Sierra Club dissent "resound[ed] in newspapers and editorials across the country").
439. CBS Interview, supra note 343, at 8. Justice Douglas stated in the interview that: I think the people of the country that have the ultimate say if they realize the danger won't t it happen. But the 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. So we've got . . . a setup of laws and regulations where - for example, they're going to cut a virgin forest. Nobody is allowed to be heard. You can't be heard; no group can be heard; just the Forest Service decision. And the Forest Service must act ac-cording to what is in the statute of public interest. That's a big vessel that can be filled with almost anybody's subjective notion of what is good. And what we need is public participation in these vital decisions as to what's happening to the earth. Id.
440. See generally William O. Douglas, A Wilderness Bill of Rights (undated essay, on file with Library of Congress, Ms. Division, W.O.D. Collection, Speeches and Writings File, Box 835) (stating that "[w]e are in an acute ecological crisis so dangerous that at the present rate of destruction the experts do not give us more than a few decades for survival"); DOUGLAS, supra note 171, at 168 (stating that "[t]echnology and the profit motive have carried us far down the road to disaster. It is indeed a desperate race to institute preventative controls that will save the ecosystem.").
441. See, e.g., THE DOUGLAS LETTERS, supra note 173, at xx (stating that "[h]e recognized that [refraining from constructing recreational accommodations] would keep many people from going in to wilderness areas, and that suited him just fine. Too many people polluted the environment and infringed upon the true outdoors type, a person like himself willing to take nature on its own terms."); see also CBS Interview, supra note 343, at 9 (responding to Eric Sevareid's suggestion that wilderness areas could be safeguarded from destruction caused by tourists by maintaining difficult access so that only the robust could reach certain areas, Justice Douglas observed that certain nature areas should be wheelchair accessible for nature lovers like Franklin Roosevelt, but that "you can't organize the outdoors on the basis of everybody's in a wheelchair, and that everything therefore should be accessible, otherwise you ruin it").
442. A note from Justice Douglas's law clerk supports the conclusion that Justice Douglas re-jected lending explicit approval to Justice Blackmun and Stone's representative. See Note from William H. Alsup, Law Clerk for Justice Douglas, to Justice Douglas (Feb. 21, 1972) (on file with Library of Congress, Sierra Club v. Morton Case File, Law Clerk File for William H. Alsup). The note states that: [t]he litigation process could be actuated on the court's own motion or by a petition from a movant, such as the Sierra Club, requesting that the District Court appoint a guardian to represent the Valley. (You presently allude to such appointments in footnote 8.) The District Court would have a wide range of lawyers from which to select in deciding which couni's talents would best enhance the ultimate outcome. I have prepared a rider directed to this comparison. If you think it is appropriate to use it, I would suggest consideration of using it as a substitute for the first sentence in footnote 8. Id. See also supra note 413 for a discussion of the suggested rider.
443. Stone, supra note 2, at 458.
444. Id. at 490.
445. Id. at 489.
446. Despite the promulgation of numerous federal environmental statutes, Justice Douglas continues to be cited in the environmental field. See, e.g., United States v. Lindsay, 357 F. Supp. 784, 794 (E.D.N.Y. 1973) (citing Illinois v. Milwaukee, 406 U.S. 91 (1972) (Douglas, J.), as common law precedent). Justice Douglas also managed to breathe modern social meaning into old law through his nonstrict constructionalist approach. In United States v. Standard Oil Co., 384 U.S. 224 (1966) and United States v. Republican Steel Corp., 362 U.S. 482 (1960), Justice Douglas effectively injected environmental values into an older Act, managing to carry the majority of the Court with him. See United States v. City of Asbury Park, 340 F. Supp. 555, 562 (D.N.J. 1972) (relying on Standard Oil as precedent); see also Lindsay, 357 F. Supp. at 789 (indicating that Justice Douglas had successfully transformed Refuse Act into "a tool to protect the environment").
447. A number of cases relied on Justice Douglas's Sierra Club dissent. See, e.g., Porter County Chapter of the Izaak Walton League of America v. Atomic Energy Comm'n, 515 F.2d 513, 522 n.11 (7th Cir. 1975) (asserting that regulatory agencies may become "unduly oriented toward the interests of the industry it is designed to regulate, rather than the public interest it is designed to protect" (citing Sierra Club v. Morton, 405 U.S. 727, 747 (1972) (Douglas, J., dissenting))); Allison v. Froehlke, 470 F.2d 1123, 1127 (5th Cir. 1972) (recognizing ecological unit of a river, but determining that those interests must be balanced against interests in favor of flood control dams (citing Sierra Club v. Morton, 405 U.S. 727, 743 (1972) (Douglas, J. dissenting))); Na Iwi O Na Kupuna O Mokapu v. Dalton, 894 F. Supp. 1397, 1407 (D. Haw. 1995) (supporting idea that "inanimate entities should be granted legal status for standing when they act as surrogates for the interests of living things" (citing Sierra Club v. Morton, 405 U.S. 727, 743 (1972) (Douglas, J., dissenting))); Natural Resources Defense Council v. Grant, 355 F. Supp. 280, 283 (E.D.N.C. 1973) (finding that the Natural Resources Defense Council can bring an action to enjoin the discharge of sediments into navigable rivers) (quoting Sierra Club v. Morton, 405 U.S. 727, 743 (1972) (Douglas, J., dissenting)); Moser v. Thorp Sales Corp., 312 N.W.2d 881, 907 (Iowa 1981) (Reynoldson, C.J., concurring in part and dissenting in part) (proposing that common law "devise procedures by which an abused farm through a next friend will be accorded standing to enjoin [abusive] practices . . . and to enforce remedial measures" (citing Sierra Club v. Morton, 405 U.S. 727, passim (1972) (Douglas, J., dissenting))).
448. 822 F. Supp. 1479 (D. Or. 1993), aff'd, 38 F.3d 1058 (9th Cir. 1994).
449. Id. at 1506.
450. Id. at 1507 (citing Lujan v. National Wildlife Fed'n, 497 U.S. 871, 899 (1990)).
451. Pacific Northwest Generating Coop., 822 F. Supp. at 1492-93 (contending that agencies failed to consider "the impact of proposed actions on the entire life cycle of the listed species 'as well as [on] hydropower operations'," that they "evaluat[ed] harvests in a 'piecemeal' fashion," and that they "have authorized grazing, logging, road building and recreational activities in areas which may affect salmon spawning grounds, without first making biological assessments and consulting with the NMFS").
452. Id. at 1503-04. The court stated: [P]laintiffs' claimed injury to a "legally protected interest" relates to the water resource, not the fish. . . . . . . . . [In contrast, t]he Tribes', non-tribal commercial fishers', and sports fishers' central interest is the fish, and their interests in the water resource related solely to their interests in ultimately protecting and improving the harvest of genetically superior listed wild stocks. Id.
453. Id.
454. Pacific Northwest Generating Coop., 822 F. Supp. at 1492 (contending that "the NMFS's decision to augment flows and spills was motivated by a desire to rebuild a commercial salmon harvest and went far beyond the ESA's goal of ensuring 'survival' of the listed species") (emphasis in original); see also id. at 1493 n.28 (discussing stipulated facts).
455. Id. at 1483.
456. Id. at 1506.
457. 852 F.2d 1106 (9th Cir. 1988).
458. Id. at 1107.
459. 986 F.2d 1568 (9th Cir. 1993).
460. 758 F. Supp. 621 (W.D. Wash. 1991).
461. Mount Graham Red Squirrel, 986 F.2d at 1570, 1581 (finding that "coalition of environmental groups led by the Sierra Club," sought protection of the "scientific, recreational, and aesthetic" interests of their members, instead of recognizing APA standing in the squirrel); Northern Spotted Owl, 758 F. Supp. at 625 (revealing sensitivity to importance of habitat in species survival, while not addressing fact that owl was named plaintiff).
462. 836 F. Supp. 45 (D. Mass. 1993).
463. Id. at 49 (characterizing idea that Congress or President might authorize animals to sue as "extraordinary," finding that citizens who satisfy standing requirements can seek the relief that the animal's claim requested, and determining that the plaintiffs had failed to establish citizen standing, rendering it a hollow victory); see also id. (noting that "the only reported case in which the naming of an animal as a party was challenged, the court found that the animal did not have standing to bring suit" (citing Hawaiian Crow ('Alala) v. Lujan, No. 91-00191-DAE (D. Haw. Sept. 13, 1991))).
464. See Murray D. Feldman & Michael J. Brennan, Judicial Application of the Endangered Species Act and the Implications for Takings of Protected Species and Private Property, 32 LAND & WATER L. REV. 509, 514-17 (1997) (discussing judicial decisions that have shifted focus of ESA).
465. 958 F.2d 290 (9th Cir. 1992).
466. Id. at 295 (affirming in part district court order banning future BLM sales of timber harvesting rights and remanding in part with instructions that district court enter an injunction barring BLM from conducting any new sales pending completion of consultation process).
467. Id. at 291-94 (finding that the "Jamison Strategy," the BLM guideline for designating logging tracts in the BLM-administered forest land in Washington, Oregon, and California, constituted agency action triggering ESA consultation requirement).
468. Pacific Rivers Council v. Thomas, 873 F. Supp. 365 (D. Idaho 1995); Pacific Rivers Council v. Robertson, 854 F. Supp. 713 (D. Or. 1993), aff'd in part, rev'd in part sub nom., Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994).
469. Pacific Rivers Council v. Thomas, 30 F.3d at 1056 (discussing Land Resource Management Plan); Pacific Rivers Council v. Robertson, 854 F. Supp. at 722 (same).
470. Pacific Rivers Council v. Robertson, 854 F. Supp. at 722-23.
471. Feldman & Brennan, supra note 443, at 517.
472. 871 F. Supp. 1291, 1311 (W.D. Wash. 1994), aff'd on other grounds sub nom., Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401 (9th Cir. 1996).
473. 871 F. Supp. at 1307 (quoting Resources Ltd. v. Robertson, 8 F.3d 1394, 1397 (9th Cir. 1993)).
474. The plan included designation of reserve areas in which ground-disturbing activities are generally prohibited; unreserved areas in which timber harvesting may occur subject to environmental requirements; an aquatic conservation strategy overlaying the reserved and unreserved areas with adtional restrictions in key watersheds; and a monitoring and evaluation program, plus allocation of land for development of new ecologically-compatible economic strategies near communities impacted by the reduction in timber sales. Id. at 1304-05.
475. See id. at 1310 (citing Seattle Audubon Soc'y v. Moseley, 798 F. Supp. 1473, 1483 (W.D. Wash. 1992), aff'd sub nom., Seattle Audubon Soc'y v. Espy, 998 F.2d 699 (9th Qr. 1993)).
476. See supra notes 215-18 and accompanying text for a discussion of the trustee model as incorporated into NRD statutes.
477. See, e.g., CERCLA, 42 U.S.C. § 9607(a)(4)(C) (1994) (declaring that liability under CERCLA includes liability for "damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release"); id. at § 9607(f) (addressing the scope of NRD liability and the role of the NRD trustee); see also Clean Water Act, 33 U.S.C. § 1321(f)(4) (1994) (declaring that "[t]he costs of removal of oil or a hazardous substance . . . shall include any costs or expenses incurred by the Federal Government of any State government in the restoration or replacement of natural resources damaged or destroyed as a result of a discharge of oil or a hazardous substance"); id. at § 1321(f)(5) (stating that "[t]he President, or the authorized representative of any State, shall act on behalf of the public as trustee of the natural resources to recover for the costs of replacing or restoring such resources. Sums recovered shall be used to restore, rehabilitate, or acquire the equivalent of such natural resources."). Oil Pollution Act of 1990, 33 U.S.C. §§ 2701-61 (1994) (establishing liability for discharge of oil from vessel or facility resulting in injury to natural resources in navigable waters, adjoining shorelines, or exclusive economic zone).
478. See CERCLA, 42 U.S.C. § 9607(f)(2) (1994) (reviewing regulations promulgated by United States Department of the Interior pursuant to CERCLA) (emphasis added).
479. See supra notes 218 and accompanying text.
480. See, e.g., Ohio v. United States Dept. of Interior, 880 F.2d 432, 438 (D.C. Cir. 1989) (reviewing regulations promulgated by the United States Dep't of the Interior pursuant to CERCLA); Colorado v. United States Dep't of Interior, 880 F.2d 481, 482 (D.C. Cir. 1989) (same). As of 1998, the DOI rules are still undergoing judicial challenge. See National Ass'n of Mfrs. v. United States Dep't of Interior, 134, F.3d 1095, 1099 (D.C. Cir. 1998) (denying petition to set aside DOI rule addressing NRD Assessments for "Type A" procedures, the standard procedures for "simplified assessments of damages to natural resources").
481. An injury to natural resources, under the DOI regulations implementing the NRD provisions of CERCLA and the Clean Water Act, is defined as a: measurable adverse change, either long- or short-term, in the chemical or physical quality or the viability of a natural resource resulting either directly or indirectly from exposure to a discharge of oil or release of a hazardous substance, or exposure to a product of reactions resulting from the discharge of oil or release of a hazardous substance. 43 C.F.R. § 11.14(v) (1997). To assist trustees in detecting the occurrence of such a "measurable adverse change," the DOI regulations provide standards for measuring diminished viability of a biologi-cal resource, as well as for tracing such diminished viability to a source. See 43 C.F.R. § 11.62(f)(2) (explaining the method for determining injury to biological resource). Dubbed the biological "acceptance criteria," these regulations utilize a screening mechanism to evaluate scientific and other generally accepted knowledge about particular adverse biological responses to releases of pollution. Id.
482. See Manus, Natural Resource Damages, supra note 57, at 442-43. Manus noted that one commentator stated: Unfortunately for trustees, living organisms constantly respond to many presences and events in their natural habitat, with or without an event of pollution[,] [i]nclud[ing] nonhuman changes, such as weather changes, changes in heat or light, seasonal changes, changes in food supplies, changed caused by predators, and even changes caused by the presence of other members of the same species. Organisms may also respond to effects humans visit on them or their habitats unrelated to a particular event of pollution, such as overfishing and habitat alteration. Id.
483. Type A procedures, or those devised for most locations, utilize a computer model to reach injury determinations, quantifications, and damage determinations, while Type B procedures for unique environments necessitate laboratory and field studies. See NRD Assessments - Type A Procedures, 61 Fed. Reg. 20, 560, 20, 562 (1996) (codified at 43 C.F.R. §§ 11.60-.84 (1997)). The NRD battle over "best" procedures is reminiscent of the dispute over the "best" science and commercial data in Bennett. In the NRD setting, the battle has focused on whether a bottom threshold exists for "best" science, rather than Justice Scalia's focus in Bennett on whether that term indicates a legislative intent to invite outsiders to police regulators for the economic viability of their decisions. See, e.g., 51 Fed. Reg. 27, 674, 27, 710 (1986) (explaining that DOI acknowledges that some biological responses are not well understood by the scientific community, and indicating that in such instances best science may be inadequate to meet causation standard for NRD liability).
484. See CERCLA, 42 U.S.C. § 9607(a)(4)(C) (1994) (directing that NRD liability includes damages for "loss of natural resources," or loss suffered when natural resources have been injured beyond remediation).
485. The NRD regulations provide a number of valuation methods that trustees may use separately or in combination with other methods. See 43 C.F.R. § 11.83 (1997) (explaining methodologies used in damage determination stage). Contingency valuation methodology ("CVM") is a survey method for deriving a dollar figure reflecting the sense of loss humans suffer when a species is rendered extinct or threatened, or when human access to nature is otherwise destroyed by pollution. See, e.g., Jeffrey C. Dobbins, The Pain and Suffering of Environmental Loss: Using Contingent Valuation to Estimate Nonuse Damages, 43 DUKE L.J. 879, 908 (1994) (citing sources that indicate CVM surveys result in positive nonuse value).
486. See, e.g., Alaska Sports Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 770 (9th Cir. 1994) (barring claims of fishermen in negligence and nuisance for lost use and enjoyment of natural resources due to Exxon Valdez oil spill under doctrine of res judicata because lost use was not addressed in government trustees' consent decree with Exxon).
487. See, e.g., Ohio v. United States Dep't of the Interior, 880 F.2d 432, 438 (D.C. Cir. 1989) (rejecting DOI regulations that assessed NRD liability as lesser of diminished use value or cost of environmental restoration). The court in Ohio v. United States Dep't of the Interior gave the following hypothetical example: [I]magine a hazardous substance spill that kills a rookery of fur seals and destroys a habitat for seabirds at a sealife reserve. The lost use value of the seals and seabird habitat would be measured by the market value of the fur seals' pelts (which would be approximately $15 each) plus the selling price per acre of land comparable in value to that on which the spoiled bird habitat was located. Even if, as likely, that use value turns out to be far less than the cost of restoring the rookery and seabird habitat, it would nonetheless be the only measure of damages eligible for the presumption of recovery under the Interior rule. Id. at 442 (footnotes omitted).
488. 880 F.2d 432 (D.C. Cir. 1989).
489. Compare id. with Stone, supra note 2, at 462. Professor Stone wrote: The costs of making a forest whole . . . would include the costs of reseeding, repairing watersheds, restocking wildlife. . . . Making a polluted stream whole would include the costs of restocking with fish, water-fowl, and other animal and vegetable life, dredging, washing out impurities, establishing nature and/or artificial aerating agents, and so forth. Stone, supra note 2, at 462.
490. See supra notes 309-17 and accompanying text for a discussion of Justice Douglas's response to the majority's claims of the Court being ill-equipped to handle environmental injury cases.
491. Hardin, supra note 3, at xvi-xvii.
492. Percy Bysshe Shelley, A DEFENSE OF POETRY 80 (John E. Jordan ed., 1965).
493. See Stone, supra note 13, at 231. Professor Stone noted that [Justice] Douglas did not leave American law a legacy of well-thought-out environmentalist principles. In part, that is because [Justice] Douglas as a justice did not concentrate on a reasoned elaboration of principles in any field. It is a shame, because the law still lacks a theoretical foundation solid enough to guide us into today's environmental dilemmas. Id.
494. See, e.g., IN HONOR OF JUSTICE DOUGLAS 15 (Robert H. Keller, Jr. ed., 1977) (celebrating Justice Douglas as a rare human being, in part due to his courage, compassion, and intelligence in taking on issues such as insecticides, wilderness exploitation, and coastal spoilage); Stone, supra note 13, at 231 (stating that "Justice Douglas, if it were only for [his Sierra Club dissent] alone, would have instated himself as the leading judicial champion of the environment").
495. See THE DOUGLAS LETTERS, supra note 174, at xviii-xix. The editor notes: [Justice Douglas] enjoyed his role as the great dissenter, but he often made it hard for others to join him because he would insist on taking the most extreme stance. . . . . . . . Every court needs a libertarian conscience such as [Justice] Douglas; but it also needs the craftsman who can forge a coherent and persuasive legal as well as moral argument as to why a certain result is necessary. [Justice] William Douglas never saw this as his role; he preferred to be the loner on the bench, the dissident voice of conscience. It no doubt proved personally satisfying, but one can lament that a person so intellectually gifted chose not to exercise his talents in a more effective and lasting manner. Id.
496. See SLMON, supra note 173, at 433. Simon writes that: [i]n his last years, [Justice Douglas] was much more interested in putting the finishing touches on his libertarian judicial portrait. He attempted to do with the law what an artist might accomplish with brush, oils and canvas: bring harmony from natural chaos. . . . [Justice] Douglas worked quickly, seemingly without great effort, but his broad strokes and vivid hues (there were few grays) distinguished his legal compositions from those of any man who had ever sat on the U.S. Supreme Court. Id. A footnote points out that Justice Douglas's critics characterize his approach as "sloppy technique and the absence of subtle gradations of color." Id. at 433.
497. See American Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1124-25 (9th Cir. 1997) (demonstrating how environmental fishing organizations utilized Bennett to bring claim under ESA).
498. Id.
499. Id.
500. Id. at 1120-22.
501. 967 F. Supp. 581 (D. Mass. 1997).
502. Id. at 592; see also Davis v. Philadelphia Housing Auth., 121 F.3d 92, 97 (3d Cir. 1997) (utilizing Bennett to apply broad zone of interests test in lead poisoning case); but see Building Indus. Ass'n of Superior Cal. v. Babbitt, 979 F. Supp. 893, 899 (D.D.C. 1997) (following Bennett to find standing for construction companies challenging the FWS listing of three species of shrimp as endangered).
503. See, e.g., Scott Allen, Whale Defender Asks Judge to Halt Fishing, BOSTON GLOBE, June 16, 1995, at 4 available in 1995 WL 5942629 (stating that "Strahan, national campaign director of a group called Green World, has long been an outcast in the environmental movement. He chides seeming allies as 'legal leeches' who don't take strong enough action to protect whales.").
504. See SIMON, supra note 173, at 333. Simon writes that: [Justice] Douglas did not enjoy much . . . tangible success in implementing his environmental ideas . . . . No wilderness Bill of Rights has been adopted, and trees and rivers still lack standing in the U.S. Supreme Court. But [Justice] Douglas had an impact . . . . Since he began fighting for ecological causes, the American public has become more aware of and willing to fight for those same causes. . . . [Justice] Douglas, of course, could not claim sole responsibility for the movement. But he was there early and he was committed and visible. He offered the movement a hero. Id.
505. Interestingly, Justice Douglas himself failed to mention Sierra Club - and barely mentions the environment at all - in his autobiography covering his years on the Court.