In order to challenge the constitutionality of any given law, one must first of all present facts in a court of law to qualify for a standing to initiate a suit. In this case, for example, the Citizens for a Clean Future (CCF), a group of environmental activists, want to challenge the proposed development of an aluminium smelting plant by RRE International. The group’s move is a result of the possible impacts the proposed plant would have on the environment around the plant. Based on the facts collected from similar plants elsewhere in the world, the group came up with hypotheses on how the company would carry out its duties. Based on these hypotheses, the group assessed the potential sources of harm on the environment. These sources include the building of a coal-fired power plant, and diversion of the Long Trout River to form a dam that would be used in hydropower generation. These actions, according to the group, can have serious environmental impacts (Liverman et al., 2009).
This is a report to ascertain whether or not the group has legal standing to challenge the proposed development of the aluminium smelting plant.
An analysis of the law basing on past cases
Sierra Club v. Morton, 405 US 727 (1972)
This case involved a suit presented by Sierra Club to protest against the development of Mineral King. The development was supposed to be carried out near Sequoia National Park. Sierra Club is an environmental group that opposed the development of Mineral King citing a potential harm to the environment. The group sought to get a standing to carry out a lawsuit with the aim of preventing harm that would have occurred if Mineral King’s development had been allowed to continue. In this case, the court made a ruling that favored the continued development of the Mineral King noting that Sierra Club lacked a standing especially when it acted in a corporate capacity. However, the court made a note that, specific members in the club who face the risk of harm would have a standing to sue the government for the development (US Supreme Court Center, 1972).
With reference to this case, Citizens for a Clean Future may not have a standing to file a lawsuit against RRE International if the group acts in a corporate capacity. The fact that the group does not have local members worsens their position. It would not be possible to support one of their members to be the plaintiff because the impact of the activities carried out by the company may not be felt within other states.
Lujan v. National Wildlife Federation, 497 US 871 (1990)
In this case, the federal Bureau of Land Management (BLM) made designations for land-use that totaled to about 1,250. This prompted the National Wildlife Federation (NWF) to challenge the move, terming it as capricious and arbitrary. NWF, basing on the fact that the land ‘in the vicinity’ was being used by some of its members, argued that it had a standing to challenge BLM’s actions in court. BLM took up the challenge by moving for a summary judgment. The court in this case ruled in favor of BLM by stating that the affidavits submitted by the two members were not sufficient enough to show a standing to sue BLM. The court further argued that even in the event that the two had a standing, it would be impossible to challenge all of the designations. It should be noted here that the court had dismissed four other affidavits claiming that they had been submitted late (US Supreme Court Center, 1990).
NSW appealed the case in the D.C. Circuit Court of Appeals which then reversed the initial ruling. This court held that the two affidavits were sufficient to enable the plaintiff to have a standing to sue BLM. This also meant that they could challenge all of the 1250 designations. The Court of Appeal made a ruling that it was an abuse of discretion for the previous court to dismiss the four other affidavits (US Supreme Court Center, 1990).
It is evident in this case that NSW presented an argument claiming that, since some of its members operated in the vicinity to the area that would be affected, they had a standing to sue the company. Citizens for a Clean Future can make use of the ruling made by the Court of Appeal to convince some of their members who work in proximity to the proposed site or the river to submit affidavits so that their cases could be backed by the CCF. The plaintiff should be aware of their right to appeal in case the first judgment does not work in their favor. The plaintiff may quote the potential intoxication by the pollutant gases emitted from the aluminium smelting process.
Lujan v. Defenders of Wildlife, 504 US 555 (1992)
According to the Endangered Species Act of 1973, the Secretary of the Interior and the Secretary of Commerce were responsible for the protection of endangered species. According to this act, all projects funded by a federal agency should take place only after appropriate consultation between the agency and the relevant secretary has been done. The two secretaries jointly came up with a rule to govern the scope of the legislation. According to the act, the areas covered are the US and the High Seas (Legal Information Institute, 1992).
In 1992, a group of environmental organizations and wildlife conservationists challenged the law at the District Court. They wanted the court to make a ruling that, the legislation was in error in as far as the scope was concerned. They also sought an injunction to prompt Lujan to promulgate a new rule to ensure that the rule covered more areas, including those abroad. This arose from the fact that the US-funded projects in Mahaweli and Aswan were believed to threaten the lives of endangered species. The court ruled in disfavor of the plaintiff, but when the case was appealed, the ruling was reversed. The plaintiff was therefore declared to have a standing to sue the government for the harm that would occur as a result of the projects (Legal Information Institute, 1992).
Based on this case, the CCF may not have the standing to file a lawsuit against RRE International because the company is independent and hence not funded by any government agency. This means that the argument about the areas covered does not apply here. However, if the group decides to challenge any specific law that governs the development of such companies (with potential risks), it may qualify for a standing.
Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 US 167 (2000)
In this case, a group called Friends of the Earth (FOE) working together with the residents of South Carolina sought a standing to sue Laidlaw Environment Services, Inc. following the pollution of the North Tiger River. The company had previously bought a wastewater treatment plant. It had gone further to acquire a permit that stipulated the maximum quantities of pollutants the company could release into the river. However, the company repeatedly exceeded the quantities of mercury set to be discharged into the river. FOE, based on the provisions in the Clean Water Act, moved to file a citizen suit. The group sought the award of civil penalties following the noncompliance. In addition, it sought an injunctive relief to block the company from continuing with the discharge of contaminants into the river. The defendant argued that FOE lacked standing, and also the case had become moot because it had stopped the pollution. The plaintiff, who included the area residents, claimed that they would have used the river for recreational purposes. The court held that the plaintiff had a ending and that the polluter still had a license to operate a similar factory hence the moot argument could not be applied (Legal Information Institute, 2000).
With reference to this case, CCF can employ the approach used by FOE to qualify for a standing. It may team up with the local residents to argue as the plaintiff. Some of the residents would claim that the construction of the factory in their neighborhood might result in the pollution of the air around the factory which may then cause respiratory complications.
Recommendations
Basing on the rulings made on the above cases, CCF has a standing to file a lawsuit against RRE International. However, it is important to note here that in order to show a standing, the group must implement certain strategies to ensure that it succeeds against any summary judgment that may be opted for by RRE International. First of all, CCF should seek to understand the provision in Clean Air Act of 1990. This can help in appreciating what the law says in as far as the emission of toxic gases into the atmosphere is concerned (Jacobson, 2002). Armed with this information, CCF can then carry out a hypothetical process audit basing on the proposed plant design to ascertain whether or not the emitted gases would rise above the maximum limit provided in the law (William, 2006).
The group may also focus on the provision in the Clean Water Act of 1977 especially the amendment that focuses on toxic contaminants. The group can then work out a hypothetical contamination rate the company would have on the river water. The group should also carry out studies on how the ‘allowable’ quantities may affect people who depend on the river downstream for activities such as recreation. The company can then use the projected impacts to show that it has a standing to challenge the legislation that allows for certain maximum quantities of pollutants in the water (Tchobanoglous & Kreith, 2007).
In order to get the cooperation from the local residents, CCF may need to increase awareness for the people around the proposed site of development. The group may make available, all the facts in as far as the positive and negative impacts of the plants are concerned. The residents should be informed of the possible short-term and long-term changes the factory can have on those who live around the proposed site. Through this approach, it may be easier to have the local residents submit affidavits that would be crucial in showing that the group has a standing to file a lawsuit challenging the development of the aluminium smelting plant.
References
Jacobson, M. Z. (2002). Atmospheric Pollution: History, Science, and Regulation. Cambridge: Cambridge University Press.
Legal Information Institute. (1992).Lujan v. Defenders of Wildlife, 504 US 555 (1992). Web.
Legal Information Institute (2000). Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 US 167 (2000). Web.
Liverman, D., Varady, G. R., Chavez, O. & Sanchez, R. (2009). Environmental Issues along the United States-Mexico Border: Drivers of Change and Responses of Citizens and Institutions. Annual Review of Energy and the Environment, (24), 612-633.
Tchobanoglous, G. & Kreith, F. (2007). Handbook of Solid Waste Management, NY: McGraw Hill.
US Supreme Court Center. (1972). Sierra Club v. Morton, 405 US 727 (1972).Web.
US Supreme Court Center. (1990). Lujan v. Nat’l Wildlife Fed’n – 497 U.S. 871 (1990).Web.
William D. R. (2006). The Solid Waste Handbook: A Practical Guide, John Wiley and Sons.