Wiretap ruling could haunt environmental lawsuits

Posted: May 24, 2013

Written by

Jeremy P. Jacobs, Greenwire
Blair Mtn

A Supreme Court ruling on the government's international wiretapping operations could impinge on efforts by advocacy groups to file lawsuits under environmental laws, according to some experts in environmental law.

In a 5-4 decision in February, the court held in Clapper v. Amnesty International that groups of journalists, labor officials and human rights advocates could not challenge 2008 laws that allowed government surveillance of communications by those suspected of engaging in terrorist activities.

Conservative justices reversed a lower court ruling and said the challengers lacked standing -- meaning they failed to show they were harmed by the law -- because they couldn't prove their communications had in fact been tapped.

That reasoning could create problems for environmentalists, for whom standing can be a problem since they typically argue that a government or industry action -- the issuance of federal permits for a mining project, for example -- will result in future air and water pollution.

Richard Lazarus of Harvard Law School said the ruling could bolster those who want to repel such challenges.

"There is language here that will embolden the government to argue against standing," Lazarus said. "It will embolden industry and it will embolden some judges."

Writing for the majority on 2008 amendments to the Foreign Intelligence Surveillance Act, Justice Samuel Alito rejected the groups' arguments that there was an "objectively reasonable likelihood" that their communications would be intercepted. Further, he noted that the law requires the government to take several administrative steps before issuing the wiretaps.

Consequently, he wrote, the groups' arguments rest "on a speculative chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable" to the law.

Legal experts said the words "certainly impending" are new to standing precedent and are especially problematic for environmental groups bringing lawsuits.

The ruling "underlies a shift to a stricter standing doctrine with links to the causal chain viewed with skepticism," said Amanda Leiter of American University's Washington College of Law.

Simply put, it is hard for environmentalists to prove what is "certainly impending" after an agency action.

Moreover, Alito's focus on the "speculative chain of possibilities" could also pose new hurdles, said Justin Pidot of the Sturm College of Law at the University of Denver.

Pidot, a former litigator in the Justice Department's Environment and Natural Resources Division, proposed a hypothetical in which an oil company applies for and receives a lease and permit to operate on federal land from the Bureau of Land Management. Environmentalists sue BLM, alleging that the drilling will harm them in a variety of ways, ranging from the destruction of hiking trails to negative impacts on waterways.

The rub under Alito's reasoning, Pidot said, is that the environmentalists are actually injured by what the mining company may do in the future and not by BLM issuing the permits.

"All of those injuries flow from the drilling activity itself, not from the granting of the permit," Pidot said. "But if you're seeking the permit, you are actually going to engage in the permitted activities.

"That hasn't been something that has troubled courts in the past," he continued. "But the language of 'certainly impending' injury is the kind that a lower court judge hostile to environmental plaintiffs could seize on to kick it out of court."

That aspect of the ruling could have an immediate impact on a case now at the U.S. Court of Appeals for the District of Columbia Circuit. The Sierra Club is appealing a district court's finding that the group lacks standing to challenge the National Park Service's removal of West Virginia's Blair Mountain Battlefield from the agency's National Register of Historic Places.

The historic designation would have prevented mining at Blair Mountain, the site of a bloody fight in 1921 between striking coal miners and a militia, but when coal companies voiced objections, NPS delisted the battlefield without going through a public comment period.

A district court judge dismissed the case on a similar rationale as the Supreme Court used in Clapper, concluding it was speculative that coal mining would actually occur at Blair Mountain.

Pidot had thought Sierra Club might win on appeal since it appears likely that mining will eventually take place on the battlefield. But the Clapper decision, he said, would give the D.C. Circuit an easy way to uphold the lower court ruling.

Alito's mistake

But legal experts also noted the Clapper ruling isn't all bad news for environmentalists.

Perhaps most important, they say, Alito took time to differentiate the standing principles in the opinion from precedent set in the 2000 Friends of the Earth v. Laidlaw Environmental Services.

That landmark case established that an environmental group had standing to sue a wastewater treatment plant in South Carolina for polluting the North Tyger River. The court held in a 7-2 vote that the advocates could bring the suit because they would use the river for recreational purposes if not for the pollution. Thus, that ruling went, the groups were injured by the pollution.

Alito explicitly said the circumstances of Clapper are different from Laidlaw. In Laidlaw, he wrote, both sides agreed that the pollution was occurring. In Clapper, "it is not 'concede[d]' that respondent would be subject to unlawful surveillance but for their decision to take preventive measures," Alito wrote, quoting the Laidlaw opinion.

Those lines may help environmentalists in the future, said John Echeverria of Vermont Law School.

"The court goes out of its way to reaffirm the Laidlaw decision and doesn't explicitly suggest that it intends to undermine those established environmental standing precedents," Echeverria said.

Further, environmental groups may have also caught a break in what appears to be a clerical mistake in the opinion, Harvard Law's Lazarus said.

In footnote 5, Alito sets out how the standing precedent in Clapper differs from those in previous rulings, seemingly in an attempt to make sure the ruling is viewed narrowly.

"Our cases do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about," Alito wrote. "In some instances, we have found standing based on a 'substantial risk' that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm."

But, unexpectedly, Alito goes on to say that the "substantial risk" standard is "distinct" from a "clearly impending" requirement -- not the "certainly impending" requirement set forth in the rest of the opinion.

Lazarus said the use of "clearly" is a mistake and an important one, since "clearly" would seem to indicate a lower burden than "certainly."

Leiter, of American University, speculated that the footnote was added in order to persuade Justice Anthony Kennedy, the court's swing vote, to join the conservative wing. Kennedy is the only member of the majority in Clapper who was also a member of the majority in Laidlaw, so he may have been particularly concerned about stepping on precedent.

Whatever the reason, Lazarus noted that the slip up may prove consequential for environmentalists.

"This is the key sentence," Lazarus said, "where they are trying to square" the Clapper standing requirements and previous environmental decisions.

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