Sierra Club v. Morton

I am Bill Douglas, I speak for the trees. I speak for the trees, for the trees have no tongues. And I'm asking you, sir, at the top of my lungs - who does have standing? Unless … πŸ‘‰πŸ‘ˆ

A podcast where we dissect and analyze the Supreme Court cases that are sinking our civil rights, like orcas are sinking boats off the coast of Gibraltar

0:00:00.0 S?: Mr. Chief Justice Burger and may it please the Court. The Sierra Club brought this proceeding against the Secretaries of Agriculture and Interior to establish that their plans to authorize a huge private recreational development at Mineral King were illegal.

0:00:21.4 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Sierra Club v. Morton. In this case, the Sierra Club brought a lawsuit to prevent development in a federally-owned wilderness area called Mineral King.

0:00:39.4 S?: Mineral King was a beautiful... Is a beautiful high basin in the Sierra Nevadas, and it was an area that the Walt Disney Corporation was interested in exploiting as a ski area.

0:00:52.3 Leon: The Sierra Club sued to block permits allowing the project to go forward, but their claim was rejected. Not because the Court determined that there was no injury in the case, because the Court believed the Sierra Club did not have the right to bring the case at all. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:16.7 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that are sinking our civil rights, like orcas are sinking boats off the coast of Gibraltar.

0:01:26.7 Rhiannon: Yes, yes, yes, yes.


0:01:27.7 Peter: I'm Peter, and I'm here with Michael.

0:01:29.4 Michael: Hey, everybody.

0:01:30.2 Peter: And Rhiannon.

0:01:31.0 Rhiannon: You can call me White Gladis, actually.


0:01:36.5 Peter: Yeah, this is sort of old news at this point, but it's very on-theme today for us. But in case you haven't heard, there is a group of orcas out there in Europe, led by a single orca nicknamed White Gladis, sinking boats, like attacking boats in coordinated fashion. There's a theory that perhaps White Gladys experienced some trauma at the hand of a boat and is seeking revenge to the tune of hundreds of attacks and several vessels sunk.

0:02:16.0 Michael: Yeah.

0:02:16.8 Rhiannon: That's right.

0:02:16.9 Michael: That's awesome.

0:02:17.5 Rhiannon: She's teaching her comrades how to do it. This is mother behavior, this is icon behavior.

0:02:22.5 Michael: That's right.

0:02:23.2 Rhiannon: Real 5-4-heads will know that I fucking love orcas. Favorite animal by far. I'm obsessed with them, and now the world is recognizing.


0:02:36.5 Peter: Yeah, I mean, no matter what, you gotta respect it. I have been a little off put by how many people are throwing in on the side of the orcas. Now, obviously, it's the morally correct side. But I sort of believe that after a lifetime of enjoying the spoils of humanity, living a life of largesse predicated off of our exploitation of the environment, to think that you can just switch sides when the tide starts to turn? No.

0:03:11.3 Rhiannon: That's right. No, no, no.

0:03:11.4 Peter: No, no, no.

0:03:12.8 Rhiannon: White Gladis is putting you up against the wall, bitch.

0:03:16.1 Peter: Absolutely. White Gladis is going to kill you, and you need to accept that.


0:03:20.0 Michael: I'm ready. I'm ready for it.


0:03:25.0 Peter: I will be staring White Gladis in the eye and accepting my fate.

0:03:30.3 Michael: They're speculating that maybe White Gladis had some trauma or something. But we can't rule out that she's just listening to very radical leftist podcasts and has been radicalized that way. I only hope our listenership will be similarly radicalized.


0:03:46.2 Peter: Now, we've all heard of that lonely whale that can only hear one frequency.

0:03:50.7 Rhiannon: Don't remind me.

0:03:52.4 Peter: But what you didn't know is that that frequency transmits 5-4.


0:04:00.3 Peter: Alright. Let's get it going. Today's case. Sierra Club v. Morton. This is a case about environmentalism. It is a case about how trees cannot speak and the question of who will therefore speak for them.

0:04:20.5 Rhiannon: Wow.

0:04:22.0 Michael: Nobody.

0:04:22.6 Rhiannon: Getting philosophical, getting poetic.

0:04:26.0 Peter: Well, Rhi, you mentioned something the other day that made me think I don't want to fall into a rut with this show. We've been utilizing death threats less than we used to.

0:04:36.9 Rhiannon: That's right.

0:04:37.5 Leon: It made me think, have we lost the juice? You know?

0:04:41.1 Rhiannon: Yeah.

0:04:41.1 Michael: You may have noticed I subtly encouraged our listeners to commit violence just minutes ago. [laughter]

0:04:46.2 Peter: So I thought, I'm going to put a little more flair into the intros. I'm not going to phone it in. I think part of the reason this happened is because we got a little more popular and then it started to become a thing where it's like, well, I guess we probably should be avoiding making actionable threats against Supreme Court justices, etcetera, right? Just so that Leon was at ease. But I've been thinking about what the edges of the law are. The majority in this case was written by Justice Potter Stewart. So I'm going to say it. If I ever see Justice Potter Stewart, I will kill him.


0:05:26.2 Michael: Wow.

0:05:27.4 Peter: Now, this is legal to say because Justice Potter Stewart died in December of 1985.


0:05:32.8 Michael: Yeah, but when you see that bitch in hell, he is fucked.

0:05:38.0 Peter: Absolutely. If someone figures out the science of how to reanimate Justice Potter Stewart, it's going to be a short-lived experiment, because I'm going to fucking put him back in the ground, okay? Again, all of this is legal, because Justice Potter Stewart died in December of 1985, which by the way, was like a couple months after I was born, 'cause he knew I was coming.


0:06:04.0 Peter: Alright, moving on. Mineral King Valley is a valley in the Sierra Nevada mountains located on public land in a national forest. The federal government in the 1960s solicited bids for development on the land and accepted a bid from Disney, the woke corporation trying to corrupt our youth, who wanted to build a large commercial ski resort, the Sierra Club. An environmentalist organization of course sued to halt the development on account of it would be shitty for the environment, right?

0:06:42.9 Peter: And this case is about whether the Sierra Club had the right to sue over this. You need standing to sue, meaning that you need some claim that you've been injured. And the Sierra Club is not arguing that they would be directly harmed by the development, or that their members would be directly harmed by the development, they're arguing that the development would hurt the public generally. But the Supreme Court says, no dice, holding that they have no right to sue, and tossing their hippie asses out of court.

0:07:13.4 Rhiannon: That's right. Yep.

0:07:14.6 Peter: Rhi, I'll hand it over to you.

0:07:16.4 Rhiannon: So this is a case where, yes, definitely the majority is stupid and wrong, and we will talk about that. But there are like some really genuinely interesting ideas and legal imagination in the dissents. So I think a lot of our story is actually there. And so one of the dissents, probably the more famous one, is written by Justice William Douglas, definitely one of the most famous opinions he ever wrote on the Court in more than 40 years of tenure. Just a little bit about him for purposes of this episode. He was a lifelong environmentalist and conservationist. He was born and raised in Yakima, Washington.

0:07:53.6 Rhiannon: And as a child, he had a form of paralysis, after which like a big part of his recovery was building back strength in his legs by hiking in the woods and exploring mountain wilderness around his home. He wrote a lot about wilderness and the outdoors, his spiritual connection with nature. He wrote a sort of semi-autobiographical book called Of Men and Mountains in the late '40s. In the '50s, he spearheaded a protest hike on the Chesapeake and Ohio Canal to save the canal from a proposed construction project. That protest was successful, and in 1970, Congress approved a protected park for that site.

0:08:33.9 Rhiannon: He later protested a proposed highway down the Olympic Coast in his home, Washington state. He went on an expedition with conservation advocates to the Brooks Range in Alaska to tell the story of the Arctic landscape and its fragility. This was all, by the way, while he was on the Supreme Court.

0:08:53.0 Michael: What a fucking guy. What a guy.


0:08:55.6 Peter: The dude rules. By comparison, Sam Alito is on Twitter right now. Just scrolling and getting mad.


0:09:03.3 Rhiannon: Yeah. Exactly. I was reading an article about the history of this case, of the Sierra Club case, and it was talking about Justice Douglas's love for the environment. It had a picture of Justice Douglas on that Chesapeake protest hike, and one of his clerks, his Supreme Court clerks, was on the hike with him. You just wonder if he made him come or was that an option?

0:09:29.4 Michael: He just offered it up to all his clerks like, "Yeah, we're going to go protest. Do you want to come?"

0:09:34.0 Rhiannon: Right. You want to come with? In addition to doing all of this stuff, while he was a Supreme Court justice, he used his position as a justice on the Court to literally badger and annoy other federal government officials, the Secretary of the Interior, Forest Service and National Park Service officials, senators, members of Congress, in favor of supporting causes to preserve wilderness and the environment.

0:10:01.4 Rhiannon: In 1965, again on the Court, he published a wilderness Bill of Rights, which he said was needed "to protect those whose spiritual values extend to rivers and lakes, to valleys and the ridges, and who find life in a mechanized society worth living only because those splendid resources are not despoiled." So that's William Douglas. That is one of the dissenters in this case. So, let's talk about the Sierra Club and the land that is at issue in this case. The Mineral King Valley is a 12-mile glacial valley in the Sierra Nevada mountains in California. We're talking verdant meadows. We're talking ancient conifers, bro. We're talking towering peaks, bro. The flora is unbelievable. The fauna, get the fuck out, bro.

0:10:51.9 Rhiannon: There's black bears. There's mule deer. There's yellow bellied marmots. There's freshwater fish, bro. This is pristine wilderness, okay? But in 1969, like Peter said, a little company, don't know if you've heard of it, it's called Walt Disney Productions, decided that they wanted to put their grubby mouse hands on these unspoiled vistas of Mineral King. So the US Forest Service had approved a plan by Disney to develop a $35 million ski resort in the Mineral King Valley. That plan included 14 ski lifts, a chapel, an ice skating rink, convenience shops, restaurants, two big-ass hotels, a big-ass parking facility, as well as a 60,000 square foot underground facility where all the resort services would be housed.

0:11:41.3 Rhiannon: Disney estimated that in the first year the resort would have 2.5 million visitors. This is more than Big Bend National Park gets in visitors every year today. That's more than Bryce Canyon National Park gets in visitors today. I mean, like Yosemite gets 3.5 million visitors a year. This is tiny in comparison to Yosemite. This is the 1960s and they're saying it's 2.5 million.

0:12:04.9 Peter: Yep. But Yosemite does not have the mouse.

0:12:07.1 Rhiannon: That's right. [laughter] So very clearly, this massive corporate development project was going to contribute to ecological destruction in the Mineral King Valley. Conservationists and environmental and community activists, they registered a ton of opposition. There were bumper stickers all around that said "keep Mineral King natural." There were hike-ins, again, like protest hikes, to protest the development. There was a march on Disneyland. So enter the Sierra Club. The Sierra Club, if you don't know, it's an environmental organization founded in the 1890s. It's both operated as a social and recreational society with local chapters across the country, but as well as like an environmental advocacy and political sort of lobbying organization over the course of its history.

0:12:55.1 Rhiannon: The Sierra Club was involved in the creation of some of the country's first national parks. It's historically been known as playing a large part in the development of mountaineering and rock climbing as pastimes in the US, and the Sierra Club has also led conservation and environmental campaigns to protect areas of wilderness from development and construction. This is far from a perfect leftist or progressive organization. There have been very like highly problematic, let's say, consequences of actions that Sierra Club has taken. Just want to say that. But the Sierra Club is a prominent entity at this time of the Disney Mineral King development proposal, and they are looking to oppose Disney's plans through litigation.

0:13:38.8 Rhiannon: So the Sierra Club sues over this proposed development by Disney. They're saying that Disney's proposal would violate federal laws governing the preservation of national parks and wildlife. What Sierra Club wanted was injunctions from the court. Basically, a court order saying that the federal government could not approve the proposed development. But in order for the lawsuit to get to the merits, meaning like in order for a court to decide whether or not Sierra Club should get those injunctions, Sierra Club had to show that they had standing to sue. So that's what's at issue here and what gets appealed up to the Supreme Court, whether Sierra Club has standing and can sue to ask for those injunctions in the first place.

0:14:22.6 Peter: Right. So we've talked about standing before, but again, yeah, it just means your right to sue, and what that generally means under the law is that you have to have suffered an injury of some kind. The case the Sierra Club is bringing is novel because they aren't claiming that their members would be directly injured by the development. Instead, they're saying that they are essentially bringing this case on behalf of the public, in the public interest.

0:14:50.1 Rhiannon: And we should say that it's not like a physical injury, right? It's an injury in the legal sense. Meaning you have suffered a legal harm, you've lost money. Something that belongs to you was destroyed or taken, you know, all of the ways that you can be legally injured.

0:15:06.0 Peter: And you know, they're sort of making this basic claim that they're an environmental organization. This is an environmental issue, they should have standing, right. But the Court does not accept that rationale. In a 4-3 decision, there are a couple of recusals here, I believe, the Court says the Sierra Club does not have standing because they did not allege that they incurred a specific and individualized injury. Now, before we discuss the rationale a little bit more, I think it's important to understand why standing exists as a concept, why do you need to be directly injured in order to sue. And there are a few reasons, but the main one is simple logistics. If everyone could sue for every injustice, there would simply be more litigation than our system could handle.

0:15:57.0 Rhiannon: Sure.

0:15:57.4 Peter: The flip side of that, I think, is that in an ideal world where litigation was totally frictionless and did not have a cost, standing probably would not exist. There's no moral reason to prevent people from suing on behalf of others. It's just a way of limiting what gets brought into court.

0:16:17.8 Michael: By the way, to that point, Peter, I was looking through my Fed Courts outline in preparation for this episode, and I had a little thing here. The four values behind standing: Promote separation of powers by restricting judicial review; it improves judicial decision-making by making sure there's a specific controversy; serves the overall fairness; and last, serves judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome. That is a professed and like one of the driving purposes of standing is to close the doors of the courts.

0:17:01.3 Peter: Right. Also, all of those other reasons are very abstract. [laughter]

0:17:05.0 Michael: Oh, for sure.

0:17:05.8 Rhiannon: Yeah. And also note that the problem of too much litigation pointed out in that reason, this is what you fucking learned in law school, is that there's a problem with people bringing lawsuits for ideological reasons, when there's no recognition that like the very act of adjudication in this country is fucking ideological, right?

0:17:28.2 Peter: Yes. Of course. Of course.

0:17:29.7 Michael: You might be wondering where this comes from, why this exists in a sort of theoretic sense. And so if you actually go to the Constitution, Article III, which was about the courts says, the judicial power shall extend to all cases arising under the Constitution, the laws of the United States, blah, blah, blah, to all cases affecting ambassadors to controversies between two or more states, etcetera, etcetera. This is what's sort of colloquially in law called the cases and controversies requirement, which is the idea that courts can't just do whatever they want. They have to be brought specific cases or specific controversies that they can decide.

0:18:14.2 Michael: And so the question is, what is a case or controversy? And that is inherent to what standing is. Standing is demonstrating as a plaintiff that you have a case or controversy. And the elements of that, the big one is showing that you individually are injured in a legal sense, that the action you're complaining about caused your injury and that the court can redress your injury, that there's something the court can order that will make you whole. That is the idea. That is where this comes from.

0:18:49.4 Michael: There's also prudential reasons for standing that the courts engage in beyond that. And there are statutory aspects to standing, because a lot of times you're suing under laws created by Congress. And Congress gets to shape the jurisdictions of the courts as well, so Congress often gets to decide who does and does not get to sue and for what reasons. So we're swimming in sort of murky waters when we're talking about standing. It's always, well, are we talking about a statutory, constitutional, prudential? And it's a lot of bullshit.

0:19:21.4 Peter: And when you're talking about the constitutional standard, it's just so abstract. What's a case? What's a controversy? These things can mean all sorts of shit, obviously, which basically means that the court gets to define it however they want.

0:19:34.3 Rhiannon: That's right.

0:19:35.0 Peter: So what makes the standing analysis here sort of interesting, is that the Sierra Club is saying, Hey, we aren't just any old person bringing a lawsuit that we're not really involved in. We are, again, an environmental organization. This is an environmental concern. We are a special interest organization, and so this is a matter of particular concern to us. And the Court basically says, well, if we allow special interest organizations to sue on behalf of their interest, it's a slippery slope, because it would be hard to prevent anyone from forming an organization just to sue for whatever cause they wanted, which doesn't seem correct, right? Like, I mean, the Sierra Club is an established organization with a large membership. Surely you can distinguish between that and an organization someone cobbled together just to file a lawsuit, or someone who's not an organization, who's just a person bringing a lawsuit.

0:20:31.1 Peter: And even if you're concerned about someone doing that, why worry about it now, right? We know that the Sierra Club is a legit organization with a legitimate interest here. Why are we trying to solve a problem that doesn't exist yet? Why are we trying to create a rule for all of these unforeseen situations that have not yet occurred?

0:20:50.7 Rhiannon: Yeah. And this wasn't such a problem in the '70s, but the Supreme Court, the federal judiciary is not concerned with that problem today, right.

0:21:00.5 Peter: And just to make this distinction clear, the reason that Citizens United, for example, can bring a lawsuit, but Sierra Club can't, is because Citizens United was claiming that they were individually and specifically harmed by campaign finance laws, which basically gets them through on a technicality, because everyone knows that the actual reason that that lawsuit was brought, for example, was that they believe, and their backers believe in a political project that involves removing restrictions in campaign finance laws. So we're just dealing with technicalities that don't actually fucking matter.

0:21:42.2 Rhiannon: Students for Fair Admissions, the Alliance Defending Freedom. These are organizations created to bring litigation for ideological purposes, right.

0:21:52.6 Peter: Every fucking major Supreme Court case now is just brought by some organization with a vague ass name.

0:22:00.4 Rhiannon: Yeah. Funded by the Koch brothers.

0:22:01.1 Peter: Right. Now, maybe more importantly, one thing about standing is that it's often meant to ensure that the best person to bring the case brings it, right? If Michael gets injured, he's the best person to represent his own interests, so it makes sense that the court might require that he be the one to do it. But here, the environment cannot speak for itself. It needs a third party to step in and represent its interests. So it makes sense to be flexible. Now, Justice Blackmun files a dissent here, and he brings this all up. He asks: "Must our law be so rigid and our procedural concepts so inflexible that we render ourselves helpless when the existing methods and the traditional concepts do not quite fit and do not prove to be entirely adequate for new issues? Are we to be rendered helpless to consider and evaluate allegations and challenges of this kind because of procedural limitations rooted in traditional concepts of standing?"

0:23:00.7 Rhiannon: Go off.

0:23:01.5 Michael: Yeah.

0:23:01.8 Peter: Right. Just to the point. He's just sort of like, What's this fucking technical bullshit?

0:23:06.2 Rhiannon: Right. We don't have to do this.

0:23:07.5 Peter: There's no particular reason to be this technical about it. And to really highlight how technical this is, what the Court is saying is that if the Sierra Club had just said, Hey, some of our members like to camp on this land. That's a legitimate lawsuit. Then you have standing, right. And if that's all you need to allege, then what the fuck is even the point of it? Just let them bring the case.

0:23:33.4 Michael: Yeah. Like, what are we even doing here? But the majority is kind of engaged in some bullshit, right? Like obviously what we're talking about with the legal stuff, clear bullshit. But there's something else that jumped out at me, which is like they open their decision by talking about how Mineral King is basically not a well-attended park, right. Like sort of hinting at this land isn't really being used, so like development might actually improve it by bringing people to it and letting them see the beautiful countryside or whatever.

0:24:04.5 Michael: And setting aside whether or not that's correct, they're sort of like offhand. Yeah. And in order to do this, they'd have to build a 20-mile highway through Sequoia National Park, which is a massively well-attended national park. Like a really well-attended park, like over a million visitors a year now. And what a special one, like trees that you can't see anywhere else in the world. And they're like, "Yeah, we'll just put a fucking highway through it. Yeah, why not?" And the majority's just like, "Well, but it's just a 20-mile highway, so who cares."

0:24:39.0 Peter: It's very weird when someone is like, "Hey, this nature is beautiful, let's not destroy it," for a court to be like, "Well, no one's using it, though." That's sort of what nature is. I don't know... I don't know if you're grasping the argument.

0:24:56.4 Michael: It's the absence of humans that make it special. The more there's human presence there, the less people want to be there. Like for real.

0:25:06.3 Peter: Like a justice of the Supreme Court is just looking at like these beautiful environments and being like, "There's no Disney here, though."

0:25:13.2 Michael: "I wish there was a fucking ski lodge with some hot tubs."

0:25:18.0 Rhiannon: Right. Exactly.

0:25:19.2 Peter: "Where are the motels?"

0:25:22.9 Michael: So let's talk about Douglas's dissent. As Rhi mentioned, it is one of his most famous opinions where he sort of throws out like maybe trees should have standing. Like why shouldn't the trees have standing?

0:25:35.7 Rhiannon: Yes.

0:25:36.2 Michael: And this was played for laughs in law school. And I think especially if you read it like 1L, it seems so silly, but I think it's kind of right. I think it's almost certainly right. He makes the point that like lots of inanimate objects actually get treated like as persons in our law, and get to sue, and get to have beliefs. Hobby Lobby is a corporation. It's just a legal entity, it's a legal fiction. It's a piece of paper that has a bunch of properties associated with it, but those properties are just buildings.

0:26:11.2 Peter: It's considerably less real than a beautiful meadow, for example.

0:26:14.4 Rhiannon: That's right. Yeah.

0:26:16.2 Michael: Yeah, but nonetheless, not only does it get to sue and be sued, it gets to have sincerely held religious beliefs, right?

0:26:24.9 Peter: Yeah. It gets to do discrimination against gay people, for some reason.

0:26:29.2 Rhiannon: That's right.

0:26:29.4 Michael: Because of its religious beliefs. He has this very funny passage where he drops in a footnote, he talks about the way ships get treated in the law, and quotes a Supreme Court opinion describing ships, and I'm just going to read it. "A ship is born when she is launched and it lives so long as her identity is preserved. Prior to her launching, she is a mere congeries of wood and iron. In the baptism of launching, she receives her name, and from the moment her keel touches the water, she is transformed. She acquires a personality of her own."

0:27:07.2 Peter: Good Lord.

0:27:07.4 Rhiannon: Jesus Christ.


0:27:08.4 Rhiannon: And you're telling me White Gladis can't sue? She can't walk into court and sue some fucking boats?

0:27:15.4 Michael: But so he makes the point, like this is kind of dumb. So someone who hikes in Mineral King can sue, someone who cares a lot about the environment and doesn't live near Mineral King, but is concerned about like conservation, can't sue. And he's like, This doesn't clarify issues. This doesn't bring a case or controversy into focus. This doesn't make it more real, and what would make it more real is taking seriously the consideration of the entire ecosystem, the trees, the land, the animals that live there, and just making sure that people who are bringing suit are well situated to speak to those things, right?

0:28:03.2 Rhiannon: Exactly.

0:28:03.7 Michael: And that's what's at issue here, right? Whether it's somebody who hikes in Mineral King or not, or someone who just cares about the environment, the real question is, are they well situated to advocate for an entire living ecosystem? And that's the injury for real that we're talking about here. We're not talking about someone's lessened pleasure in their ability to go hiking because they have to see power lines. That's bullshit. That's a legal fiction we're throwing on this to allow for the consideration of these real things that we actually care about. So we should just say we care about them, and that's the case and controversy, and we should have someone sue on behalf of the trees. And you know what? Fucking damn right. Like, I think Mineral King has a better claim to standing than Hobby Lobby.

0:28:55.7 Rhiannon: That's right.

0:28:56.2 Peter: Yeah. Absolutely.

0:28:56.9 Rhiannon: Exactly.

0:28:57.9 Michael: Fuck corporations, right? Like, fuck that, or ships for that matter.

0:29:02.7 Rhiannon: Exactly. Exactly, and this isn't like unheard of in the law in other countries, right? Many countries confer rights of nature onto environmental entities, right? There are legal protections for land that should be preserved. There are legal protections for certain species in the environment, right? That they have legal rights that can't be infringed and are cognizable in the law, right? You mentioned, Michael, that this dissent is sort of laughed off in law school as being like this crazy Douglas on standing doctrine, you know? But these concepts are not unheard of.

0:29:41.4 Rhiannon: And I also wanted to mention there's the Douglas dissent in conjunction with Blackmun's dissent here. Brennan also dissents. It's very, very short. He just says he agrees with the dissenters, basically, but these are liberals putting in real work in dissent, right? This is very fucking different from Kagan using textualism and precedent to come to a different result than the conservatives, or whatever the fuck she's doing, which everyone like fawns over as the liberals lose on issue after issue after issue, over and over and over again.

0:30:16.5 Rhiannon: And I don't know, maybe it doesn't matter, because they're in dissent here too. Like it's not like they win, but it's just like a look into a much different approach on the law, a much different approach to what it means to dissent, to take a position that is in opposition to what conservatives are doing, right? Douglas and Blackmun are not using the conservatives' tools here and saying, "But wait, when I use your tools, I can make something different. I come to a different answer." This is progressive legal thinking, saying, "Fuck your tools. We don't have to do it this way. We don't have to think about it like this."

0:30:53.7 Peter: Putting forward their own vision of the law.

0:30:56.2 Rhiannon: Exactly.

0:30:56.7 Peter: That like meaningfully differs from the conservatives. And Kagan is sort of the output of liberals spending decades being cowed by conservative arguments about what the law should be, what principles we should be operating from, and so yeah, someone like her will often end up just trying to do textualism and do originalism better than the conservatives, rather than reject the premise and think creatively about what the law should look like.

0:31:26.5 Rhiannon: Exactly.

0:31:27.2 Michael: Yeah. Peter, you wrote an article for Balls and Strikes where you talk about hypocrisy and misunderstanding what hypocrisy is.

0:31:34.2 Rhiannon: Okay. Go off.

0:31:34.8 Michael: And I've been thinking about that. Where is it something like, look, a mugger might ask you what time it is just to get you to stop and orient to you before like demanding your cash. You don't wonder later on like, "Oh, man, why'd he lose interest in knowing what time it is?" And it's not really that sharp a rejoinder to be like, "Oh, I thought you wanted to know what the time is, bro," as you're handing over your cash. Like what are we doing here? Why are we playing along with this charade? You're not doing anything real with that.

0:32:10.4 Rhiannon: I do want to say too, like some of the language, like Douglas says, "I do not know Mineral King. I've never seen it nor traveled it, though I have seen articles describing its proposed development," etcetera, etcetera. And like I think stuff like that can be easy to mock if you don't spend time outdoors. But like when I was in college in New England, there was like a lot of national parks, but there was one I went to a lot, Franconia Notch, I went to it all the time. I hiked a bunch of different trails, some of the trails I hiked repeatedly. And I would say I knew it and it meant a lot to me at the time. And if something happened to it, it would've meant a lot to me. I would've been very sad. It was important for me, and I miss it, and I have emotional attachment to it. I think it's so easy to be cynical and shitty about this stuff, but it's true, people have connections to the land. That's good. People should.

0:33:04.9 Rhiannon: Yeah. What if we thought about ecological destruction as a loss, an emotional loss. A real fucking loss. Absolutely. This case, the dissents, especially, maybe, like have me thinking about the role of the adjudicator, the role of judge in our system in substantive versus procedural adjudication. So there are cases about procedure, this is one of them, particularly those procedures that keep people out of court. For example here, standing doctrine, there's standards about what you have to plead, and heightened pleading standards. That's like Iqbal v. Ashcroft. Abstention doctrine, those doctrines that are procedural question about like what question can a federal court even answer. But those kinds of cases, those kinds of questions really show us that judges have kind of two separate categories of things that they actually have to judge.

0:34:03.7 Rhiannon: There are substantive questions that they're judging, and there are procedural questions that they're judging. And we should be thinking in both categories about what incentives are in play, what biases, what political and ideological inputs are being fed into the adjudication process. So yeah, when the Supreme Court is ruling on a substantive legal matter, like for example, saying the Fourteenth Amendment doesn't protect the right to an abortion, we definitely, at least on this podcast, we analyze of course, like these judges are Trump appointees or they're interpreting the Constitution through a conservative ideology. But the procedure questions, even though the opinions about procedure can be like maybe the most formalistic and act like they are purely about rules, those are also answered by a human being operating in an ideological and political space, in these cases the law. Not politics like Democrat versus Republican. I'm talking politics like assumptions and principles brought to a thing.

0:35:06.5 Rhiannon: We know Dobbs is a contribution to American politics of gender. Adjudicating procedural questions is a political contribution too. This case is a contribution to the politics of the environment in this country. Even though it is "just about standing," just about a legal process, it is an expression of political values. And I think it's just important to recognize that you can conceive of the role of the adjudicator as one that expands justice, and fashion procedural rules so that important substantive questions are reached and answered, or you can conceive of the role of the adjudicator as deciding who gets kept out of court.

0:35:52.5 Peter: So standing was in the news most recently with the challenges to the Biden student loan forgiveness program. Conservatives were struggling to find a party that had standing to bring the challenge, and it remains the biggest issue in the case, or at least it seems to be the biggest issue in the case. But for a while it wasn't clear that anyone could challenge the rule. And I have to say like yes, there's a difference between using this for good and using it for evil. But in general, if there is a federal law or regulation that is functionally unchallengeable, I think that is probably bullshit, and I will say that across the board. If there is a situation where Joe Biden, the President, can pass a reg and literally no one can challenge it, that is stupid.

0:36:45.6 Peter: But conservatives have been narrowing the concept of standing since its inception. And it's funny to just turn that against them and use it to prevent them from challenging this like hot button issue. And I don't think you need to have an analysis beyond that. I include this to say that I'm a man of deep principle when it comes to standing. I think that if you look at existing law, that case should get tossed on standing. And I also think that the existing law is stupid as hell.

0:37:28.8 Rhiannon: Yeah. Yeah. Yeah, I think that's really fair.

0:37:29.2 Peter: And that was unrelated to anything substantive we've been discussing. It's just a quick aside.

0:37:35.9 Rhiannon: Thank you, Peter. Important. Love your thoughts, as always. Another thing that Sierra Club, this case, kind of represents, just putting it in sort of a historical context in terms of like conservative legal movement, right? This case and others about standing from the mid 1970s through the early '80s, certainly. You know, I'm thinking about LA v. Lyons, a case we did an episode about early on. It said that a man who had been nearly killed by a police chokehold did not have standing to sue for an injunction saying that LAPD had to stop using chokeholds because he couldn't show that LAPD would use chokeholds in every interaction with people in the future. That's why he didn't have standing, like absolutely ridiculous.

0:38:20.4 Rhiannon: In conjunction with this case, Sierra Club and others, these cases represent what scholars started to call at the time the death of public law litigation. So here you see conservatives on the Court who are just done with lawsuits on behalf of a public right or a public good, right? And they're using procedural rules to say, you person, you organization, you cannot sue over this. You don't even get in the door, right? Again, it's not reaching the actual substance. Does the public or does the environment or do residents of Los Angeles who live under LAPD control actually have this right? If so, what does the right mean? Right? It's not even getting to that.

0:39:00.0 Rhiannon: It's a procedural tactic that nonetheless completely halts this kind of litigation from moving forward. There is another huge case about standing and the environment that comes, I think it's the early 1990s, for sure, might be 1990. This one is authored by Scalia. It's called Lujan v. Defenders of Wildlife. In that case an environmental organization was suing after an amendment to the Endangered Species Act was passed. That amendment limited some of the requirements of the Endangered Species Act based on where the environmental threat was happening.

0:39:36.7 Rhiannon: And Scalia's majority opinion just heightens the standing requirement, especially in environmental cases, even more than Sierra Club. He says that public rights that have been legislatively pronounced do not belong to each individual who forms part of the public. Like in this situation, you know, on behalf of the environment. So who do they belong to, then? Public rights, which have been created by the legislature in these cases about the environment, Scalia says in this opinion, they don't belong to each individual who forms part of the public. Okay, so who do they belong to, then? You were just saying there is no lawsuit here, right?

0:40:16.6 Peter: It's so emblematic of what conservatism is that they would dismiss of the concept of the public interest in and of itself. Because their view of the world is so atomized that we can just require that for a lawsuit to be legitimate you need to have personally suffered some direct injury. To them the idea that the Sierra Club, an environmentalist organization, could bring lawsuits related to the environment doesn't really compute, because the idea that the Sierra Club actually has the public interest in mind is incomprehensible to them because they've never really thought about the public interest in their life, right? They've thought about the narrow sets of interests that they want to represent, that they believe are important.

0:41:04.5 Michael: Yeah. And so that has me thinking about sort of like the state of things now. So it's worth talking a little bit about like the fallout of this case and the movements that Rhi and Peter are describing. And going back to what I was saying before about where standing comes from, thinking about it again, cases and controversies, there's nothing in that that inherently says that's only people. And in fact, as we noted, corporations can sue, ships can sue, trusts can sue, infants can sue, juveniles who are otherwise not competent can sue, estates can sue on behalf of someone who's dead. The general lay of the land is, yeah, trees could sue, but courts have decided they're not going to say who can stand for trees, who can speak for trees or for porpoises or for whoever.

0:42:00.2 Rhiannon: White Gladis.

0:42:01.3 Michael: That's right. Maybe if Europe had been a little more proactive about this, Gladis would just be taking these ships to court.

0:42:08.0 Rhiannon: That's right. That's right.

0:42:09.8 Michael: Rather than capsizing these boats. They've kicked the ball to Congress. We've seen this several times. There are a couple of interesting cases in the Ninth Circuit that are kind of fun in last 20 years, one called the Cetacean Community v. Bush, where the Cetacean Community is the name chosen by the cetaceans' self-appointed attorney for all the world's whales, porpoises, and dolphins, which is dope. Which is absolutely dope.

0:42:36.9 Rhiannon: That person was there ahead of the ball. Like why didn't I self-appoint as the world's foremost cetacean legal representative, you know?

0:42:47.2 Michael: That's right. To stop like the Navy's use of sonar and stuff like that because it disturbs cetaceans. Then there was an intellectual property dispute a few years ago, sort of affirming this after a photographer left his camera facility with some macaque monkeys and a monkey took some selfies, and then the photographer published the selfies and made some money and then PETA sued on behalf of the macaque for violating the monkey's copyright, which is so dope. But again, as with the cetaceans, the courts were like, sorry, Congress has to authorize this. Congress has to tell us who is right for this. I think you can make an argument that that's fair in a functioning government. I don't think we've had a functioning government for a very long time. So kicking things to Congress is just saying goodbye, it's not going to happen, you know?

0:43:43.2 Rhiannon: I think there's a lot to be said after this case too, about where the movement to protect the environment to fight climate change, like where legally does that go, right? I think indigenous groups...

0:43:54.7 Peter: Are you personally feeling hotter?

0:43:57.2 Rhiannon: Right. Exactly. Yes. Yes. Like, are you forced to litigate just based on, you know, what climate change is doing to you personally? Is there nothing that a movement can do in terms of legally holding environmental destroyers accountable in terms of proactively creating a healthier and safer environment for everybody? Other countries give legal rights to certain species or certain areas of land, right? Indigenous groups in the US and around the world have proposed really interesting theories of legal standing and legal personhood with regards to nature.

0:44:36.4 Rhiannon: In 2017, the government of New Zealand entered into a record of understanding with Maori tribes that granted Mount Taranaki a legal personality. This effectively gave the mountain many of the same legal protections as a person in New Zealand. This was the third geographic feature, in fact, that had been granted a legal personality in New Zealand. In 2008, Ecuador passed constitutional rights of nature that actually just in 2021 were cited by a constitutional court in Ecuador when they blocked a mining project in the Los Cedros cloud forest. The court said in that case that the mining project would violate the rights of nature.

0:45:21.4 Rhiannon: And in the US, many examples, especially on more local levels. In 2010, Pittsburgh became the first large US city to enact a local law recognizing the rights of nature. In 2018, the White Earth Band of Chippewa Nation adopted a rights of Manoomin law, Manoomin, M-A-N-O-O-M-I-N. It's a kind of wild rice. And that law secured legal rights of manoomin. And that effort encompassed the idea that manoomin itself could sue. Manoomin was a legal plaintiff. In a case called Manoomin v. Minnesota, manoomin itself, again, the wild rice, brought suit against the state for a proposed water permit the state was going to exercise.

0:46:08.9 Rhiannon: And so the legal argument was that this would have violated manoomin's right to water. And the case was also brought to enforce Chippewa Nation's treaty rights because tribal members have the right to gather wild rice. And in 2019, the Menominee Indian tribe of Wisconsin asserted that the Menominee River has the right to exist naturally, the right to flourish, evolve, and remain unpolluted.

0:46:37.7 Rhiannon: So again, in Douglas's dissent in this case in Sierra Club, he's not just making up this crank idea. This is just thinking creatively beyond existing frameworks, it's thinking creatively about what values are expressed through the law. And if we value the environment, if we want to work to protect it, if it's something worth protecting and fighting for, then there should be legal avenues to do so.

0:47:02.5 Peter: Preach. And yeah, I think before we wrap, I'll say it again. Justice Potter Stewart, if you ever come back to Earth, I will return you to hell immediately, violently. Not illegal.

0:47:19.9 Michael: Also, I want this on the record.

0:47:21.5 Rhiannon: Oh, boy. Oh, boy.

0:47:23.3 Michael: Next week, I'm not going to be joining you guys for an episode because I'm going to be in Alaska, unless there's an emergency episode necessary. And hopefully I'll be seeing some orcas.

0:47:34.4 Rhiannon: Amazing.

0:47:34.6 Michael: And if an orca happens to attack my boat, sink my dinghy, whatever, and I die, I'm giving you not only permission, I'm telling you you must politicize my death to demand, demand we give trees and animals standing. That's what I want done if the orcas kill me.

0:47:55.5 Rhiannon: It's a good way to go.

0:47:56.4 Michael: If the orcas kill me, let them sue.

0:48:00.4 Rhiannon: Hell, yes.

0:48:00.4 Peter: We will politicize your death. We will also monetize it.

0:48:01.6 Michael: Good.


0:48:02.6 Michael: Get rich, kings and queens.


0:48:06.3 Michael: If the orcas came for me, I imagine it'd be like when the Fremen in Dune get eaten by the sandworm, they're just like, yes.


0:48:14.5 Rhiannon: Right, exactly.

0:48:14.6 Peter: Returning to nature.

0:48:15.8 Rhiannon: It's a good way to go. Exactly.

0:48:17.4 Peter: Remember when the woman in Annihilation just turns into grass?

0:48:22.0 Michael: Yeah. She just like walks off and becomes a tree. Exactly. I'm ready. [laughter] Yeah.

0:48:26.4 Rhiannon: Yeah. If Michael dies, we bring White Gladis on the podcast. New permanent co-host.

0:48:31.1 Michael: That's right. Our third host.


0:48:41.8 Peter: Now, one thing we want to do before we go is say goodbye to Percia Verlin, our good friend and now former production manager, who has been a great asset to us.

0:48:55.8 Rhiannon: Yes.

0:48:55.8 Michael: That's right.

0:48:56.2 Peter: And is now on to bigger and better things. Thank you, Percia, for all your help. We love you very much.

0:49:03.0 Rhiannon: Thank you for everything, Percia. We're going to miss you so much.

0:49:05.7 Peter: Should I have said we're in love with you?


0:49:10.5 Peter: Alright. Next week, barring an emergency episode, American Ship Building, the NLRB case from the '60s about unions, talking labor, baby. Subscribe to our Patreon at for premium and ad-free episodes, access to our Slack at the $10 tier, all sorts of shit. You can also subscribe if you just want the premium episodes on Apple Podcasts,, all spelled out. We'll see you next week.

0:49:48.4 Michael: Bye, everybody. Five to Four is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin, and our researcher is Jonathan DeBruin. Peter Murphy designed our website, Our artwork is by Teddy Blanks at Chips NY, and our theme song is by spacial relations.

0:50:22.4 Speaker 5: I mean, it's whatever The Rock says for me, but...

0:50:26.4 Peter: Well, you would know, Fast X.

0:50:28.3 Michael: Fast X. [laughter]

0:50:29.9 Speaker 5: Guys, it's actually fucking incredible. Like, if you love bad movies...

0:50:33.7 Peter: So here's a little fun Peter fact. I have never once seen any of the Fast and Furious movies.

0:50:38.9 Rhiannon: Oh, really?

0:50:40.5 Peter: Yeah.

0:50:40.9 Michael: I've seen one. I've seen the very first one, and that's it.

0:50:43.4 Rhiannon: I think I've seen two.

0:50:45.2 Speaker 5: Yeah. And you guys, we need another pandemic, so you could just sit down and go to school.

0:50:48.4 Michael: I don't know about that. [laughter]

0:50:49.7 Peter: I don't know if that's what I would do with 24 hours of free time if I had it, but...