Earth in the Judicial Balance
Recently the Court reversed its holdings on environmental standing in midstride. In Friends of the Earth v. Laidlaw Environmental Services (2000), the Court breathed life into citizen suits, holding that plaintiffs do not have to show an actual physical injury to the environment. Eliminating the need for precise tracing of cause and physical effect, the Court stated that the plaintiff's reasonable concern about the effects of toxic pollutants released by the Laidlaw company on recreational, aesthetic or economic interests was sufficient for standing. This makes it much easier for a plaintiff to demonstrate injury. Justices Scalia and Thomas, it should be noted, strongly dissented.
The second major fault line--protection of private property rights--runs through what are called "takings" cases. The Fifth Amendment to the Constitution provides that private property cannot be taken for public use without just compensation. Housing construction along the coastline, for example, can adversely affect the environment by increasing beach erosion. Such use of private property may be restricted for the public benefit of coastal conservation. Yet if the government had to compensate every landowner whose property value diminished as a result of such zoning, the cost of enforcing such restrictions would be prohibitive. The problem for the courts lies in determining when restrictions are so complete and unfair that they constitute a "taking" for which the property owner must be compensated.
The Rehnquist Court has applied the takings clause aggressively and shifted the balance toward greater compensation for property owners. In the important decision Lucas v. South Carolina Coastal Council (written by Justice Scalia in 1992), for example, the Court required compensation for regulations that deprive the property owner of all economically valuable use of the land unless the government can prove the restriction is necessary to prevent what has traditionally been recognized as a common law nuisance. This not only switched the burden of proof onto the government but, in another part of the opinion, left the door open for lower courts to require compensation for less than total diminution (and some have done so). The net result has been expanded protections for private property owners and cost constraints on legislatures seeking to protect public resources. The case had a slim majority, so new appointments will surely be important in determining the trajectory of takings jurisprudence.
If Governor Bush appoints Justices who share the views of Scalia and Thomas on rigid separation of powers and strong protection of private property rights, the remarkable gains of environmental law over the past three decades will very likely be slowed or even reversed.