William O. Douglas's Dissent in Sierra Club v. Morton (1972)
The 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 the inanimate object about to be despoiled,
defaced, or invaded by roads and bulldozers and where injury is the subject
of public outrage. Contemporary public concern for protecting nature's
ecological equilibrium should lead to the conferral of standing upon
environmental objects to sue for their own preservation. This suit would
therefore be more properly labeled as Mineral King v. Morton.
Inanimate objects are sometimes parties
in litigation. A ship has a legal personality, a fiction found useful for
maritime purposes. The corporation sole - a creature of ecclesiastical law -
is an acceptable adversary and x-large fortunes ride on its cases. The
ordinary corporation is a "person" for purposes of the adjudicatory
processes, whether it represents proprietary, spiritual, aesthetic, or
charitable causes.
So it should be as respects valleys,
alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees,
swampland, or even air that feels the destructive pressures of modern
technology and modern life. The river, for example, is the
living
symbol of all the life it sustains or nourishes - fish, aquatic insects,
water ouzels, otter, fisher, deer, elk, bear, and all other animals,
including man, who are dependent on it or who enjoy it for its sight, its
sound, or its life. The river as plaintiff speaks for the ecological unit of
life that is part of it. Those people who have a meaningful relation to that
body of water - whether it be a fisherman, a canoeist, a zoologist, or a
logger - must be able to speak for the values which the river represents and
which are threatened with destruction.....
The voice of the inanimate object,
therefore, should not be stilled. That
does not mean that the judiciary takes over the managerial functions from
the federal agency. It merely means that before these priceless bits of
Americana (such as a valley, an alpine meadow, a river, or a lake) are
forever lost or are so transformed as to be reduced to the eventual rubble
of our urban environment, the voice of the existing beneficiaries of these
environmental wonders should be heard.
Perhaps they will not win. Perhaps the
bulldozers of "progress" will plow under all the aesthetic wonders of this
beautiful land. That is not the present question. The sole question is, who
has standing to be heard? |