Note: I wrote this as my final for FS 102, Courts and Social Change, at Allegheny College. It applies court-and-social-change theory to the Sierra Club's environmental litigation. Lightly formatted for the web, otherwise as submitted. I am proud of this one.
About
The Sierra Club, founded in 1892, is an environmental organization with millions of members that works all over the United States of America in an effort to promote the restoration and preservation of the environment (Sierra Club 2022 A). The Sierra Club’s goals include the protection of green spaces, the promotion of the responsible use of natural resources, and fight against the exploitation of fossil fuels (Sierra Club 2019). Another aspect of the Sierra Club is that they work to promote anti-racist policies and want to ensure that all people are given an equal opportunity to enjoy nature.
The Sierra Club's strategy is to “educate and enlist” as many people into the movement as possible (Sierra Club 2022 A). The Sierra Club is very politically active in the legislature, often lobbying and producing representatives to run for elected offices (Sierra Club 2022 A). The Sierra Club has also had some experience within the court system. This essay will review some of the relevant literature, take a dive into the Sierra Club’s past cases, use the literature to make a formal analysis of the Sierra Club’s actions, and finally give some recommendations for the group.
From the information gathered the Sierra Club appears to be operating under a constrained court because it has so much difficulty establishing any standing when it comes to environmental issues. The Sierra Club seems to be able to achieve much more through legislature than in the court system because of the constraints that stop judges from ruling in favor of the minority group. Overall, despite the Sierra Club’s difficulties in court, there is still some yet to be determined issues that face this environmental advocacy group to this day.
Literature Review
Ely and the Myth of Rights
When investigating whether or not the judicial branch is an effective avenue for social change one viewpoint is that the courts are a crucial way to protect democracy. John Hart Ely in “Discovering Fundamental Values” considers this claim and analyses the importance of the court system in conversation with the justifiability of judicial review and the Myth-of-rights and comes to the conclusion that the courts are meant to protect the rights of disadvantaged interest groups.
Ely, from a limited non-interpretivist viewpoint, tackles how the courts should be handling cases with his central focus on how the fundamental purpose of the courts is to be in constant pursuit of the protection of democracy (Ely 1980). According to Ely the most integral part of our law is that everyone ought to be treated as equal, hence the natural law the Constitution was built upon (Ely 1980, 48-50). Additionally, Ely finds that genuine democracy is established when everyone has a voice, a vote, and representation (Ely 1980, 68-69). These three values are the core of an effective and equal democracy.
When it comes to judicial decision-making and review judges ought not be inserting their own values into the Constitution (Ely 1980, 44). However, according to Ely, judicial review is justifiable when it is in pursuit of protecting democracy. If a group is facing challenges getting a voice, vote, and/or representation, the judiciary can act to rectify any democratic discrepancy (Ely 1980, 72).
The Myth-of-rights focuses on the idea that the courts are responsible to solve the issues of minorities being denied any of the three democratic values and capable of rectifying the issue (Kessler 1990, 122). From Ely’s perspective, the courts are in the best position to aid those who are disadvantaged because they are removed from any political influence (Ely 1980, 50; Kessler 1990, 122). Ely views the Brown v. Board of Education case as an instance where democracy was in jeopardy so it was the duty of the Supreme Court to fix it (Ely 1980).
This position that relies heavily on the Myth-of-rights also tends to also come with a lack of faith in a fair legislature (Albiston 2011, 63). From this perspective, litigation is ineffective because any change can be easily undone and is usually done in small steps rather than fixing the problems all at once (Albiston 2011, 63). Additionally, the legislative branch is inherently political. From Ely’s viewpoint, elected positions should be protecting the views and rights of all in their section (Ely 1990, 68). Admittedly, this is unlikely to happen because it is instinctive for politicians to follow their own political ideologies or reward those who supported them while disregarding minority groups.
Overall, Ely’s viewpoint is that minority groups can go to the courts for support when facing challenges with not receiving fair service from the democracy. The court's distance from politics enables it to be able to take a position protecting the rights of smaller groups without fear of backlash (Kessler 1990,123). Courts should use judicial review when it benefits the democracy and not when it benefits their personal interests. Finally, Ely is an advocate for the Myth of Rights approach that outlines that the courts are a legitimate way for minority groups to pursue their goals.
Rosenberg, The Constrained Court and A Critic to Courts Creating Social Change
In Gerald N. Rosenberg’s The Hollow Hope: Can Courts Generate Social Change', he presents a skeptical viewpoint on the Myth of Rights that finds that the courts are almost incapable of creating social change which is in great contrast to Ely’s vision. One concept that Rosenberg tackles is the actual impact that the court’s rulings have on society or lack thereof. From his perspective, society should be cautious about putting so much emphasis on the abilities of the court to establish change and help minority groups (Rosenberg 2006, 728). The courts are constrained when it comes to bringing about social change and it takes other actors to act as the major proprietors for change (Rosenberg 2006, 729).
One of Rosenberg’s main arguments against the dynamic court view originates from the concept that the courts are a completely independent institution (2006). The courts are constrained by multiple factors including the law itself (Rosenburg 2006). Even Ely would agree, reaching too far outside of the written law is considered judicial tyranny. The limitations of the court in and of itself are constraining because they act within the precedent. Groups should not expect drastic change because of the number of constraints existing laws create on the courts.
Additionally, Congress can prove to be a constraint on the courts (Devins 2004, 43). Even if the courts get to the point were they reverse a decision, it will not necessarily stay in place because Congress holds the ability to create laws and amendments (Devins 2004, 43). The courts have to take into consideration Congress’s feelings towards a topic or else they run the risk of congress reversing it or even taking it a step further in a direction away from the courts initial target for the decision. Finally, congress holds the power to impeach so this completely stops a court acting completely outside the lines of the constitiution (Devins 2004, 43).
As for the final branch of government, the executive branch, it also limits the power of the courts to create change because this branch acts as the main enforcement of the Constitution as well as rule in on litigation (Devins 2004, 43-46). Without the executive enforcement of laws and rulings decisions would have no tangible impact. Additionally, the president also holds the right to veto, which can put pressure on legislative acts and ripple back into court’s decisions.
Rosenberg argues that cases such as Brown v. Board of Education were not how society ended segregation in schools rather it was legislative and executive action that proved to be the most beneficial to changing society(2006, 730-734). He argues even after the final decision was declared the courts did not create any pressure for change and therefore where not an effective route to creating change (Rosenberg 2006, 730). On the legislative front they created the Title VI of the 1964 Civil Rights Act which cut funding to segregated schools. And this action gave the executive branch fuel to enforce desegregation (Rosenburg 2006, 734-735). The physical changes did not occur simply because of the court ruling, instead it was multiple branches working in tandem.
Most importantly, the courts are limited by public opinion. Since the majority of the branches are elected by the public at large, they can use those branches to put pressure on the courts (Devins 2004, 31). The public pushes the government’s direction and so the courts rulings have to fit reasonably within the public eye or else there is likely to be outcry (Devins 2004, 31). In terms of minority groups, if the changes they want are too radical in comparison to the whole of public opinion, a court will not be able to completely ignore the public opinion and therefore the odds are stacked against the minority in court as well.
Rosenberg’s view contrasts that of Ely’s because he has less faith in the judicial system and instead places emphasis on the elected branches of government (Albiston 2011, 63). From Rosenburg’s perspective, the Myth of Rights is not accurate because there is no way for the court system to enforce its rulings (Kessler 1990, 124). Instead, the courts are dependent on other institutions to act to create measurable change (Kessler 1990,124; Rosenberg 2006, 729).
Overall, Rosenberg’s recommendation for minority groups is to not invest the entirety of their efforts in the courts (2006, 728-729). The courts do not provide enough of a guarantee for social change that it is worth exerting all of the groups energy on a case that might not even result in social change. Even worse, it is possible for cases to result in a worse outcome such as Plessy v. Ferguson leading to the Jim Crow era. If a group wants to create social change, getting representation in the House of Representatives or the Senate is a more effective approach.
McCann Courts have Impact
Although the courts are restrained in some regards, McCann sees the courts as more of a dynamic part of the system at large (McCann 1992, 743). McCann’s response to Rosenberg highlights that there is more to the conversation than the courts having no impact on social change at all. Instead of hyper-fixating on how the courts can not enforce their own rulings, McCann opens the door to other ways the courts can indirectly push for social change (McCann 1992, 747).
From Rosenburg’s viewpoint the courts are extremely limited in their capabilities for creating change and are seen as dependent on other branches (2006, 731). Albeit this may be true, McCann argues that no branch of government is completely independent of one another (1992, 746).
The courts can indirectly impact social change by altering the “strategic landscape” in which social change will occur (McCann 1992, 748). The courts' very existence changes the way people tackle and strategize their agendas (McCann 1992, 748). Just by giving minorities the opportunity to have an appearance in court versus being completely steamrolled by the majority in the legislature is enough to completely change the way they tackle the social change. It is no longer just a numbers game on who can bring in the most people, rather it is about having an equal opportunity for just results. Alan Wertheimer’s viewpoint in The Equalization of Legal Resources would also prove to be extremely useful in creating a fair landscape where minority groups would have the same opportunities as larger groups. In this situation, the equalization of legal resources would take the ability of minorities to defend themselves in court to the next level because of the even playing field when it comes to legal resources in the court system (Wertheimer 1988). From this perspective, courts work to correct the problems and inequities within the political arena (Kessler 1990, 123).
Case Studies
Sierra Club v. Glickman 1998
Part of the Sierra Club’s goal of ending the extinction crisis is going into court on behalf of an endangered species or to correct issues with climate change. Such was the case with Sierra Club v. Glickman 1998 which became an instrumental case for the Sierra Clubs' strategy towards the fight for environmental protection.
In the case Sierra Club v. Glickman 1998, the Sierra Club initially faced issues with standing but was able to seek support from the Endangered Species Act (Kristen 2000, 701). The issue first started over the overuse of the Edwards Aquifer, located in Texas. Local farmers were taking out too much water and drastically altering the environment (Sierra Club v. Glickman 1998). The case went to court multiple times. Both the first and second count got overturned because the Sierra Club failed to get standing (Kristen 2000, 701-702). In order to establish standing in court, the Sierra Club would have to qualify in three different categories (Kristen 2000, 701). First, the Sierra Club would have to have a personal stake in the outcome (Kristen 2000, 701-702). Secondly, they would have to prove that they have redressability, there was an actual injury that can be rectified in court (Kristen 2000, 703). Lastly, the Sierra Club would have to be able to directly trace back the actions to the opposing party (Kristen 2000, 702). At the third count, the Sierra Club was able to establish standing because the farmers were putting five endangered species at risk (Kristen 2000, 709). These species include the fountain darter, the San Marcos gambusia, the San Marcos salamander, and Texas wild rice (Kristen 2000, 709). This meant that this case fell under section 7(A)(1) of the Endangered Species Act (Kristen 2000, 705). This section of the act states that the government holds the duty to “conserve” or bring the species to a point where they are no longer endangered (Kristen 2000, 705). The Sierra Club won this case, and an even greater successful outcome was that this meant that section 7(A)(1) Endangered Species Act along with other sections could now be used in a variety of ways which helped towards the development of a legal strategy for the Sierra Club.
Winning Sierra Club v. Glickman 1998 meant The Endangered Species Act could now be used as an offensive tool for environmental advocacy groups to protect the endangered animals and their habitats themselves. Additionally, this new breakthrough would prevent people from acting out because now the Sierra Club was able to enforce the Endangered Species Act, “duty to conserve”(Kristen 2000, 700). Finally, this case encouraged people to take action elsewhere such as altering existing practices fall more in line with the Endangered Species Act. Overall, Sierra Club v. Glickman 1998 acts as an example of the Sierra Club’s perseverance in court paying off by now of being able to better protect endangered species and their habitats.
Sierra Club v. U.S. Defense Energy Support Center 2011
Another priority of the Sierra Club is to prevent pollution and stop the use of fossil fuels. In the Sierra Club v. U.S. Defense Energy Support Center 2011 standing once again became the point of contention for the Sierra Club. In this case, the Sierra Club’s challenge was overcoming proving that climate change qualified as an injury, that it had redressability, and retraceability.
The case was over the fact that the U.S. Defense Energy Support Center purchased oil sand from a Canadian industry. The Sierra Club claimed that this purchase would create pollution equal or more than the conventional purchasable fuels which is in direct violation of section 526 of the Energy Independence Security Act.
There is little to no doubt that the U.S. Defense Energy Support Center violated the Energy Independence Security Act however, the difficulty, in this case, was that the Sierra Club had to prove they had standing in a case dealing almost entirely with climate change (Daniel 2012, 619 ). Once again this meant the Sierra Club had to show that they had a personal stake in the outcome, that there was an injury that could be redressed, and that the cause of the injury could be traced back (Daniels 2012, 621). However, proving that you were harmed directly by climate change and that someone was the direct cause of it is not an issue the courts are willing to tackle (Daniels 2012, 619). Despite trying to establish standing using specific examples of citizens whose air quality was reduced by the use of the oil sand, the Sierra Club was unsuccessful and the case was overturned (Daniel 2012). This case is an instance of the Sierra Club’s strategy not being effective in courts as well as acting as an example of the courts being unwilling to tackle cases dealing with the impacts of climate change (Daniel 2012).
Analysis
In terms of the Sierra Club, Rosenberg would not be surprised by the amount of difficulty the Sierra Club is having creating social change via the court system. The number of issues that the Sierra Club has faced just trying to establish standing in court is just another symptom of minorities unable to get their voices heard. The court is constrained in its willingness to participate in cases pertaining to climate change as seen in the Sierra Club v. U.S. Defense Energy Support Center 2011. Reasons the court feels too constrained to act on the side of the minority maybe because of fear of public opinion, legislature, or precedent (Devins 2004). Ely would argue that it is not the place for the courts to deal with substantive issues and going into issues of change may be too close to the line between substantive and procedural (Ely 1980, 55).
Rosenburg would also find that their resources could be best spent elsewhere such as pushing for change within the legislative branch (Rosenburg 2006, 741). In fact, the Sierra Club does work quite frequently within the legislature and does lobby. Rosenberg would commend these in legislature efforts and say pursue this avenue for change even further. From a strategic standpoint the Sierra Club’s greatest strength comes from the number of members it has. It is still considered a minority group, however their voice is very loud. Part of the Sierra Club’s strategy is mobilizing protests, which seems to be a very successful strategy for inviting legislative action. In general, their efforts appear to have more impact in legislature anywhere else such as with the Green New Deal and the amount of attention it received. It is logical that the Sierra Club has more impact in the legislature because the impact of public opinion is best seen in the elected positions of government (Sierra Club 2020). The Sierra Club can also use this public opinion to indirectly influence the courts (Devins 2004, 34). Maybe public opinion in this instance will not be looked upon as a constraint but as an asset for the Sierra Club.
Taking a look at McCann’s viewpoint, he would look at the way the Sierra Club has benefited from these cases, even though not all were successful he would see how the court is dynamic and able to produce the right outcome if pressed hard enough. The Sierra Club v. Glickman 1998 opened the doors for the Sierra Club to fight for environmental conservation using a variety of strategies. This case may have focused on the Endangered Species Act but also led to change in other aspects. Now the Sierra Club is able to use the Endangered Species Act for enforcement, prevention against violations, and as encouragement for creating change. McCann would see this as an instance of the courts enabling and working to support social change. Although this strategy is not foolproof, because of The Sierra Club v. Glickman 1998 if the Sierra Club ever sees another instance of a habitat in danger they can find an endangered species in the area that needs conservation. Both Ely and McCann would commend these efforts and would advocate for the Sierra Club to continue working in the court system because this is a clear example of change from the courts giving the minority power in court.
However, overall, it appears that the Sierra Club is working under Rosenburg’s constrained court view. The current courts seem unwilling to help environmental advocacy groups in the fight against climate change. However, this may soon change. Currently, within the Supreme Court they are deciding the West Virginia v. the Environmental Protection Agency 2022. This case will determine the Environmental Protection Agency’s ability to take action to be able to enforce the Clean Air Act (Sierra Club 2022 B). The Sierra Club is showing support for the Environmental Protection Agency and filed a brief stating their claims (Sierra Club 2022 B). Interestingly, the Sierra Club argues that the opposing side has no standing in this case (Sierra Club 2022 B). Maybe the Sierra Club has learned from its past issues with standing and now are willing to use it as a potentially useful tool in this case. This case has the potential to go either way in either the direction of McCann’s dynamic court or Rosenburg’s constrained court. A more dynamic court would be able to defend the rights of the Environmental Protection Agency. Whereas a more constrained court will have limited power to help the Environmental Protection Agency and any other environmental advocacy groups to retain their ability to enforce laws meant to prevent climate change. The outcome for this case will set the tone for any future cases dealing with environmental protection so it will be interesting to see the result.
Recommendations
Recommendation 1: More Research
Part of the reason the Sierra Club is considered an extremely successful environmental organization is the fact it is a grassroots organization made up of a large number of ordinary civilians (Sierra Club 2022 C). To keep people joining and for the organization to continue growing, I recommend putting out more information on climate change, disenfranchisement, the fossil fuel industry, and any other helpful supporting evidence. The Sierra Club could partner with colleges and universities to research the local species and how they are affected by a variety of factors. The goal would be to get more people involved but another use for this research could be to back up arguments in court. Maybe one day there will be enough research about the impacts of climate change that it will no longer be so difficult to establish standing in the courts and judges will be more willing to tackle such a pressing issue.
Recommendation 2: Make More Use of the Problem Surfing Strategy
One idea to work around the issue of standing is problem surfing (Boscarino 2009). Problem surfing is when advocacy groups go out in search of issues with a high level of attention and draw connections to their issues of interest (Boscarino 2009). Part of the strategy is drawing attention to the problem through methods such as social media. Often times economic arguments are key to generating enough attention for this strategy to be successful (Boscarino 2009, 416). In this case, the public which was typically seen as a constraint on the court may actually prove to be a guiding force for the courts. A way the Sierra Club could use this strategy would be to link the sustainable forestry issue to other factors such as water quality and habitat conservation. While in the courts, the Sierra Club could use one case as an opportunity to fight multiple fronts (Boscarino 415). This concept could be carried into the Endangered Species Act in The Sierra Club v. Glickman 1998. Find an endangered species at risk and in need of conservation and use that as means of achieving other similar goals.
Recommendation 3: Ally With Human Rights Groups And Other Advocacy Groups
Another possible avenue for the Sierra Club to receive standing in court could be through teaming up with other groups with a strong footing in select issues and tackling them in court together. Recently, the Sierra Club has been broadening its reach into more human rights-related issues doing this was not only admirable but also strategic. With the recent rise in interest in the fight against the disenfranchisement of people of color, it was a perfect opportunity for the Sierra Club to join in on. Popular policies like the Green New Deal work to combat climate change and solve the inequities in this country (Sierra Club 2020). Including both parts in the platform essentially created that link between multiple advocacy groups where they all benefited from a stronger voice. The Sierra Club making efforts to work with other organizations will pay off because the social change that achieves together will benefit everyone.
Conclusion
All things considered, the Sierra Club is fairly successful because of the large amount tof time they spend working with the public and gathering strength in the people. The Sierra Club does have an easier time working with the legislative branch because of the amount of public opinion they control. On the other hand, in the courts the Sierra Club still struggles with standing because of how hesitant courts are when it comes to tackling issues pertaining to climate change. In the future, the Sierra Club is likely to be even more involved in more human rights campaigns because of the movement towards fixing both climate problems and disenfranchisement simultaneously. I see this as an advantageous opportunity for the Sierra Club to gain even greater numbers and more public support. Although the Sierra Club is working within the confines of a constrained court, eventually their work in the public and legislature will spill over into the court system. The systematic change that the Sierra Club aims to achieve is ambitious but not impossible as long as they continue to focus on a legal strategy that works while considering the constraints of the court and potentially using them to their advantage.
References
- Boscarino, Jessica E. 2009. “Surfing for Problems: Advocacy Group Strategy in U.S. Forestry Policy.” Policy Studies Journal 37(3): 415–34. doi: 10.1111/j.1541-0072.2009.00321.x.
- Brown v. Board of Education of Topeka, KS, 347 U.S. 483 (1954)
- Daniel, Shepard. 2012. "Sierra Club v. U.S. Defense Energy Support Center": Standing in the Way." Ecology Law Quarterly 39 (2): 619-626.
- Devins, Neal, and Louis Fosher. 2004. The Democratic Constitution. Oxford University Press.
- Ely, John. 1980. Democracy and Distrust. Harvard University Press.
- Kessler, Mark. 1990. “Legal Mobilization for Social Reform: Power and the Politics of Agenda Setting.” Law & Society Review. 24:121-144
- Kristen, Elizabeth. 2000. "Sierra Club v. Glickman." Ecology Law Quarterly 27 (3): 699-726.
- Michael, McCann, C. Herman Pritchett, and Walter F. Murphy. 2006. “Reform Litigation On Trial: Review of the Hollow Hope.” In Courts, Judges, and Politics: an Introduction to the Judicial Process, New York, NY: McGraw-Hill. essay, 743–51.
- Rosenberg, Gerald N., C. Herman Pritchett, and Walter F. Murphy. 2006. “The Hollow Hope: Can Courts Bring about Social Change'” In Courts, Judges, and Politics: an Introduction to the Judicial Process, New York, NY: McGraw-Hill. essay, 727–42.
- Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998)
- Sierra Club v. U.S. Defense Energy Support Center, No. C 10-02673 JSW (N.D. Cal. Jan. 11, 2011)
- Sierra Club. 2019. “Building Power to Win: A Toolkit for Changemakers.” Sierra Club - Building Power to Win. Available at https://powerful.sierraclub.org/toolkit/#movement. Accessed on May 1, 2022.
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- Sierra Club. 2022. “2030 Strategic Framework.” Sierra Club. Available at https://www.sierraclub.org/2030-strategic-framework. Accessed on May 1, 2022.
- Sierra Club. 2022. “Sierra Club and Partners File Brief in High Stakes West VA v. Epa Case.” Available at https://www.sierraclub.org/articles/2022/01/sierra-club-and-partners-file-brief-high-stakes-west-va-v-epa-case. Accessed on May 2, 2022.
- Sierra Club. 2022. “About the Sierra Club.” Sierra Club. Available at https://www.sierraclub.org/about-sierra-club. Accessed on May 18, 2022.
- The United States Environmental Protection Agency. 2007. “Summary of the Energy Independence and Security Act.” EPA. Available at https://www.epa.gov/laws-regulations/summary-energy-independence-and-security-act. Accessed on May 2, 2022.
- Wertheimer, Alan. 1988. “The Equalization of Legal Resources.” Philosophy and Public Affairs. 17:303-322.
- "West Virginia v. Environmental Protection Agency." Oyez, www.oyez.org/cases/2021/20-1530. Accessed 16 May. 2022.