It’s almost that time of year when TV channel-flippers (like me) invariably stumble across “It’s A Wonderful Life.” This classic film follows, as every reader here knows, the life of local hero George Bailey in the quaint town of Bedford Falls, eventually asking the viewer to ponder a powerful question: would life have been different in Bedford Falls without him? At the National Lawyers Convention on November 9th, a debate sponsored by the Environmental Law & Property Rights Practice Group will ask a similar question: what would modern environmental law be like without the powerful influence – from the left and right – of public interest groups?
Moderated by U.S. District Court Judge Kathryn Kimball Mizelle (M.D. Fla.) and titled, “Defend the Constitution, Save the Planet: The Role of Public Interest Groups in Shaping Environmental Law,” this event features distinguished speakers from a wide range of perspectives, including:
David Doniger, lead counsel in Chevron v. NRDC, 467 U.S. 837 (1984), where the Supreme Court established the current (at least for now) doctrine on agency deference;
Damien Schiff, lead counsel in Sackett v. EPA, 598 U.S. 651 (2023), where the Supreme Court clarified (finally) the jurisdictional scope of the Clean Water Act;
Professor Robert Percival, a leading environmental law scholar; and
Stephanie Maloney, Chief of Staff & Associate Chief Counsel of the U.S. Chamber Litigation Center.
For at least the last 50 years, public interest groups have played a central role in litigating the cases that have come to define the contours of modern environmental law. Among other innovations, Congress incorporated citizen suit provisions into the Clean Air Act, Clean Water Act, and Endangered Species Act, which created causes of action allowing private citizens (often via public interest groups) to sue companies to penalize environmental violations and to sue federal agencies to force changes in environmental regulations. While it is fair to say that public interest groups seeking more environmental regulation dominated the headlines for decades and seized many of the most significant court victories, a new trend has emerged with other public interest groups seeking less government regulation and greater protection of private property rights achieving big wins in courts across the country, especially in the Supreme Court.
This panel will examine the impact that public interest litigation has had—and will continue to have—on environmental, natural resources, and property rights jurisprudence. These thought leaders will debate the place of public interest groups in our legal system, including perspectives on how these groups have contributed to an adherence to the rule of law and constitutional governance.
Notable accomplishments by public interest organizations in the past several years will surely provide a healthy menu of options for robust discussion, as will hopes and fears surrounding upcoming environmental and other administrative law cases now being pursued by public interest groups that may significantly impact environmental and administrative law in the years ahead. For example, the panel will address some of the more significant wins for private property owners in recent years including the Sackett decision, Tyler v Hennepin County, and Cedar Point Nursery, among others.
As was the case with George Bailey in Bedford Falls, it’s hard to imagine what this corner of the law—particularly environmental protection jurisprudence and federal takings doctrine—would be like today without the active involvement of public interest groups like Pacific Legal Foundation and others. Likewise, the panel will debate whether the Supreme Court was right or wrong in Sackett, and whether that decision will do “more environmental harm than constitutional good.” Regarding these recent wins for conservative public interest groups, a key question may be whether these recent decisions are likely to stand the test of time, and whether Congress will decide to reassert its legislative authority to change the legal landscape again.
The panel may also tackle crucial questions surrounding Article III. Are the courts too accommodating on standing for public interest groups in environmental cases? Are courts too willing to hear environmental claims without seriously grappling with Article III limitations? Has the standing doctrine gone too far, such that persons and businesses who consider themselves so concretely-aggrieved by regulatory policy that they are willing to spend their own money to challenge regulations are sometimes being shut out of court themselves? Do modern environmental statutes, which empower citizens as “private attorneys general” and allow them to exercise enforcement powers, raise constitutional concerns?
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at email@example.com.