Everything there is to say about the subject, which could obviously be an entire course in its own right, but rather today im going to focus on a few recurring big picture problems that Environmental Issues pose for the subject matter of this class, namely law and society. If you remember when we went back to day one, day two of this class and we talked about what law and society is, we talked about how law and society is often the study of law and legal issues outside of the box of legal doctrine or sort of outside the box of legal logic, all right . Well be looking at environmental law and litigation, not simply through questions and american legal doctrine but more broadly as kind of social, philosophical issues to grapple with, all right . We also talked in the beginning of the semester how law and society deals, at times, in aggregates, right . Its sort of the big picture or sort of the effects of large numbers of kind of individual personal disputes on the big picture, all right . Well be dealing and thinking in aggregates a little bit today as well, all right . Its a class that will lead to a couple of big questions, all right . Big question number one, how much can we regulate private property in the interest of protecting the environment, all right . Big question number two, who actually gets to advocate on behalf of the environment or Environmental Issues in our courts. Okay . Those are the two things were going to be focusing on. All right . Im going to begin today by offering you a brief background in environmental change in u. S. History, including what was and what was not kind of distinctive about the consciousness we refer to as environmentalism when it came on the scene in the mid20th century. Then im going to introduce you to these two sorts of problems. All right . So here we go, to kind of prolog about the environment. All right . It is changes in the land. All right . In many ways, environmental change has been a constant in american life. All right . Early european settlers to say they the part of north america, now known as new england was wr amazed by the absolute diversity of plant life and abundance of animals they found there. One observer describes the herring, quote, in such multitudes as almost incredible, pressing shallow waters as will scarce permit them to swim. Another columnist speculated they might be able to walk across streams on the backs of these fish without even getting their feet wet. The same went for water fowlf i shall tell you, one man wrote, how 150 geese in a week in one shot it might be counted as impossible. Indigenous villages teaming with fresh vegetables and Indigenous Peoples as muscular, healthy and well fed. All right . They were the product of when natures abundance was made possible. All right . The jamestown project early, early depiction of what we now know as native americans, right. Roasting the abundant fish here speared with their kind of muscular bodies and frames exposed. All right . Now, in recent years, historians and others have questioned whether some of these reports of abundance, this kind of image of an american eden filled with bountiful plant and animal life were themselves kinds of products of history, products of more recent changes in the land. Right . We now know in ways that american early colonists didnt that native american populations had been in many cases decimated by disease that had been introduced to north introduced to the americas via the caribbean, mexico or south america many years before european colonists reached upper north america, all right . Thats their theory that this vast abundance that early colonists saw was a kind of product of natural rapid natural restocking after the normal predators, right, the Indigenous Peoples had been decimated by other causes, right . For that matter theres a whole series of historical work going on right now about the vast historical changes that human beings had caused going back basically to the sort of dawn of humanity as a species. All right . But the thing is, right, you have to start somewhere, right . One of the things about starting around new contact is that you can begin to start telling a story about how the land changed, right . How the environment changed in a particular region as you start Going Forward. Right . We know quite a bit about how colonization came to radically reshape the very environment of, say, new england or the future United States of america more generally. And i could run through a few of the major changes right now. All right . First off, you can imagine this kind of abstractly as it went along. Forests got cleared for farms, right . Trees got cut down, rocks plowed out. Wildlife, native wildlife got replaced with domestic animals. Many of them imported, right, mostly imported from europe. European pigs and cows replacing the native deer or elk, right . You begin to see changes in the land that way, all right . In much of the northern United States, beaver were hunted nearly to local extinction in the early years of american colon during the u. S. Colonial period, right. This not only took one element of native wildlife out of the picture, it meant that beavers stopped building beaver dams and stopped flooding the landscape with water, as they periodically set up ways to set up ponds to hunt for fish. All right . So you have a drying out of the land, right, as well as its being turned from forest into agriculture. You have water that had once flowed very slowly from rainfall down into the Atlantic Ocean increasingly rushing through rapidly moving streams and rivers toward that final destination as the land around it gradually dried out. All right . Many of the fish i mentioned a few minutes ago gradually die out, either through habitat destruction, manmade dams, blocking spawning paths or through overfishing destroying the ability of fish to, you know, reproduce and to come back. All right . So we start seeing, right, number of areas, broad changes to the local environment. All right . Look, again, these changes to the land, right, as they were famously called, were not without their contributions to humanity. Right . Its also in new england among some of these same fastmoving rivers and streams that the United States began its Industrial Revolution, by figuring out, for example, how to turn cotton into fabric at high speed. All right . This was one step toward the United States emerging as a Global Economic power as well as a revolution in the way that we eventually make and eventually come to buy and enjoy various different things. And, of course, that Industrial Revolution caused many more changes to the land, right, as we search for coal and oil eventually to fire our factories and power our trucks, pushed agriculture into new and sometimes marginal climates, crisscrossed the landscape first with train tracks and then with highways. All right . Now, at various points in that history, right, at various points in that history from, again, perhaps semi mythical american eden to an industrial present. Some americans came to question the ecological havoc that ensued. In the late 19th and early 20th centuries, number of prominent citizens with support from president Theodore Roosevelt came seriously worried that the United States was using its nonrenewable resources far too quickly. Conservationists, as these people became known, worked to set aside forests, mountains full of minerals for use by future generations as well as to preserve some especially beautiful locations for parks. During the new deal, response to the Great Depression in the 1930s, Franklin Roosevelt and people working for him tried to boost employment and restore the planet by hiring the unemployed for various conservation programs, planting trees to bring back ground cover, trying to mitigate the horrible dust bowls that plagued the great plains during that era. All right . But a crucial change, a crucial moment came in the mid1960s, which saw the rise of industrialism in the United States, okay . Over the course of that decade, americans found themselves galvannized on economical and Environmental Issues on a number of different fronts. Some of those were intellectual. Rachel carsons book silent spring made an account of how chemical pesticides had worked their way up the food chain and could potentially fatally poison birds and fish, became a kind of National Sensation and inspiration that made americans question both the quantity and the types of pesticides they had been pumping into their environment. Certain public events, Massive Oil Spill in california, Santa Barbara channel that ended up washing up on californias, you know, previously prestige beaches. The ignition of a part of a decently sized body of water, the Cuyahoga River in cleveland, decades of accumulated pollution also got peoples attention, right . We generally tend to think of water something used to put out fires, not something that seemingly will spontaneously combust, okay . We think about what people have been putting there, right, and what other damage it was potentially doing. All right . And the evidence that americans were destroying nature or the Natural World was becoming an overflowing sawyer was not limited to those. Many rapidly expanding suburbs began to see how an overtaxed Natural World allowed personal ways to come bubbling back into their personal lives. All right . Overtaxed septic systems, right, these big sort of tavengs that many suburban houses place in the backyard in which one flushed ones where everything that came down the toilet, right, sat and percolated for a moment before ideally percolating in the groundwater, regularly started percolated back up through the grass in communities where too many septic tanks were placed too close together without adequate space for water to dissipate. Suburban homeowners started turning on the tap of their sink and pouring glasses of what became sometimes known as white beer. Pictured over here. That is tap water that has been sufficiently polluted with detergents that have leeched their way back into wells and the water supply. Then you get this frothy detergent head on a glass of water. All right . These combined experience, right . Some of them public, some of them personal, some of them intellectual arguments made in books. Some coming out of every day life. You know, it helped to begin to develop a different kind of consciousness about ones place in the world and ones place on the earth. All right . Far more than the conservists had a few generations earlier, environmentalists started asking people to think about the facts of their actions on the health of the planet in general. All right . What was thrown away could no longer completely be forgotten. The earth no longer had a limitless capacity to swallow up and take care of what we no longer needed or no longer wanted, all right . Environmentalists also began asking americans to see the world in ecological terms. That is, to see how many different plants and animals sustained one another, you know, produced this sort of complicated web of life. All right . That is, they asked people to see the earth ecologically and to see their own actions as something that could potentially impact the ecosystem and ultimately disrupt a habitat. All right . The Natural Beauty and wild things were worth protecting for their own sake, all right . Not simply to not simply for their future harvest on behalf of humanity. While conservationists tried to scientifically manage forests in order to make sure that we could spread the timber harvest over multiple generations, environmentalists sort of talking about setting aside wilderness areas permanently, all right, to keep old forests wild, right . To keep them safe from any future development, all right . Keep them safe from future generations, not save them for them. Okay . By the late 1960s and early 1970s, you have the kind of bipartisan era where this new consciousness begins to show itself in major legislation, legislation passed by democratic congresses but often and mostly signed by republican president s, all right . You have the National Environmental policy act of 1969, the first earth day that appears, big celebration of the environment in 1970. You see the endangered species act in 1973. Other bills, clean air acts, clean water acts designed to clean up rivers, reduce air pollution, the Environmental Protection agency comes into existence during this period. Again, environmentalism gets embraced by certain members of congress in both Political Parties like Gaylord Nelson on the democratic side, john sailor and senator john heintz on the republican side. This consciousness makes its way into legislation. And yet for all of its early bipartisan appeal, environmental consciousness could be and in some ways was uneasy fit for certain elements of the u. S. Political system and especially for certain elements of the u. S. Legal system. Again, the u. S. Legal system, as weve talked about previously in this case, perhaps ad nauseum, is based on an angloamerican system where the basic rights of society tend to be rightsbearing individuals. That is, most of what we do in our everyday life is supposed to be of political interest to the state so long as what were doing doesnt harm anyone else in the process of our doing it. All right . Sorry. Jumped ahead here. Right back. And yet one of the most fundamental realizations of the fundamental movement, right, was the idea that so many of the movements in our everyday life, right, how many times we run the dishwasher, whether or not we walk to the Grocery Store or take a car has some potential harm around us. That might be pretty close to microscopic, right . But an aggregate, right, the cumulative effect of millions of dishwasher runs or daytoday, or car trips conducted day after day by millions of different people ultimately might not. Right . And so as the environmentalism became a Mass Movement throughout the 20th century, u. S. Courts had to think precisely how to square it with existing u. S. Legal traditions and inherited legal doctrines and inherited precedence. I want to talk for much of the rest of the class today about two of the big conflicts from my perspective that ensued as a result of this. Okay. Now to the right slide. All right. One place where environmentalism plays an almost immediate challenge was the question of Property Rights, especially in the context of land and real estate, all right . Again, now, the notion that governments exist, at least in part, to protect private property is something that goes deep into the kind of deep into the American Experience and deep into the philosophical tradition that helped inspire americas founding fathers, all right . Its an idea associated with english philosopher john lock, to protect life, liberty and property and while Thomas Jefferson may have replaced the word property with pursuit of happiness and own declaration of independence, he didnt necessarily mean to change the entire underlying theory behind there, okay . That is, one of the things that is supposed to separate a society with a purposefully limited government from a society with authoritarian or totalitarian sort of government is the idea that a limited government cant just willy nilly take your stuff. Willy nilly is a very serious, academic, formal term for this stuff, right . This idea was included explicitly in our bill of rights, included in the end of the fifth amendment, which concludes nor shall private property nor shall private property be taken for public use without just compensation. In other words, the government may some day need to knock down your home to build a highway or flood your farm to build a reservoir, right . But if and when that happens, it has to pay you for the property it took and or destroyed. And that payment itself is meant to be, ought to be at least one significant check on the kind of overuse or misuse of this power, technically known as Eminent Domain, since the government would have to convince other taxpayers to foot the bill for any sort of acquisition. All right . Now, controversies over Property Rights in america existed long before environmentalism emerged as a social movement of the mid20th century. One thing i didnt mention early in the lecture is havoc by european pigs on colonial north america, all right . Told you guys i would get back to the pig obsession later on in the semester, right . According to english tradition, right, you could own a pig and brand a pig, but you could let it loose in the woods to forage on acorns or other food it could come up with, but when you introduced european pigs into north america, especially when you set pigs loose to forage in the lands controlled by your native american neighbors, right, all sorts of conflicts tended to ensue. The pigs trampled or devoured gardens of native americans who didnt have the tradition of fencing off property to keep neighboring swine out, right . Provided an important source of forage protein for many indigenous tribes, all right . In essence, these were these disputes sometimes led to war, all right, over actual fighting between neighbors, right . But they can also be imagined in some ways as a property right dispute. Who has the right to let this pig go where . How do you enforce, right how do you declare something is yours and not part of a kind of common trust, right . These are not new or original kind of issues. Theyre issues that go back to the very beginning, right . Deprived downstream users from the water to which they become accustomed, all right what happens when you start thinking like an environmentalist . Thinking ecologially seemingly hold a habitat and hold nature together, right . Or how flattening the land to make could disrupt natural runoff patterns that bring rain water into the water table or into streams or into creeks and make Neighboring Properties how some large birds of prey and many square miles of forest to hunt for food, all right . And how to eliminate even a small part of that area might turn out to be disastrous for them, all right . How filling in a swamp could rob an entire region of its most natural means of filtering water and restoring its quality. All right . Much more than people had done a generation before about how the things you do have effects that go far beyond the property line, right . May have profound effects on you and your world or the Natural World youre hoping to sustain. What degree you might want to have a say in it. People in communities of having an opinion about what other much more than people had done a generation before about how the things you do have effects that go far beyond the property line, right . May have profound effects on you and your world or the Natural World youre hoping to sustain. What degree you might want to have a say in it. People in communities of having an opinion about what other people do with their private property, all right . The u. S. Supreme court basically okayed the basic forms of what we now know as zoning, telling people they can, right, constructing that they need to have a certain use or cant put commercial use too close to places where people live. For the most part, environmental is sort of began to hope to expand on that kind of principle, right . To justify more intervention, better protecting ecosystems, better protecting natural values, all right . In essence they wondered if the concept of private property was ultimately flexible enough for that sort of task. As early as 1971, one of the leading minds of the movement as well as a kind of theorist of law and politics more generally suggested in a law review article that american understanding of property had become tilted toward the rights of property owners, that it would ultimately inhibit any real chance to save the planet, all right . Needed a new language of what he called public rights, which could justify the more extensive regulation of private property needed to protect the environment with the same power that sort of private Property Rights had long protected the prerogatives of the individual property owners, individual people. All right . One of the battlegrounds for these concepts, right, battlegrounds over the concept of environmentalism and Property Rights ended up being the state of california. In the 1970s, the state passed the kind of landmark coastal act, designed to protect one of the states best known and mostloved assets, right, that beautiful string of beaches and cliffs up and down the coast from the top of the state down to the mexican border, from overdevelopment, environmental damage and public exclusion. The coastal act created a new agency, California Coastal commission, which became charged with protecting the Environmental Quality of and Public Access to the states beaches. That agency took a hardball approach with the staff of hardcharging environmentalists, young, naive and proud, it began using its power for building permits, to block potentially damaging construction or demand that homeowners give something up, public easement, path from their property on the road to the ocean in exchange for a building permit. In private correspondence, Commission Members admitted working through regulation this way. That is, regulating private property rather than using Eminent Domain to take it and compensate owners for it was in a way a chance to do it on the cheap. A number of advantages on relying commissions chief planner explained in 1975. Doesnt require immediate large sums of money as do acquisition techniques. The idea was to get as many concessions as possible without taking property outright and having to pay just compensation, all right . Going back to property is not a unitarian thing, right . You can make conditions on the use of private property, right . The Coastal Mission was trying to say lets try to figure out how many conditions we can put off put on private property in the interest of saving the environment and protecting the publics interest to beach access, to Natural Beauty, to the pacific ocean. All right . Needless to say, the Coastal Commission was not always particularly popular with land owners. They werent particularly popular with a number of conservative lawyers or legal scholars, all right . Conservative legal scholar named bernard segan began to write articles and newspaper columns arguing that these sorts of new land use regulations were undermining the foundational basis of a marketbased economy. The institution of private property, right . You could never if we never could know what we could do, right . If were never quite sure what we could do with our property, if you could never quite sure whether we could build on a plot of land we bought, segan pointed out, people would never invest money to acquire it in the first place. They wouldnt know, right, what their own stuff is worth, all right . Land in america is increasingly valued as a priceless resource, a onetime lawyer for Ronald Reagan, who made his name as a Property Rights defender in the 1980s, no longer bought and sold freely but a resource to be conserved and managed in the Public Interest. By the way, that was all considered negative, right . Negative connotation there. Something that should be bought and sold was being transformed into this public trust in which the government, not individual homeowners and contractors and real estate speculators, would be in charge of californias future development. He eventually formed a nonprofit legal group called Pacific Legal foundation in the 70s and 80s brought case after case against the California Coastal commission, eventually winning a big one, nolan v. California Coastal Commission. It came close to overturning it entirely but that certain acts were inconsistent with the private property language in the constitution. Legal justifications for coastal land use regulation. Well see over the next couple of terms in the Supreme Court where that ends up going, all right . But my larger point in this is not about is less about winners and losers and trying to predict the future, so much as about raising the question that winners and losers and trying to predict the future, so much as about raising the question that these issues arent ultimately necessarily easy. Most of us probably think that the government has a legitimate right, legitimate right to do something to make sure that private economic decisions dont unnecessarily destroy ecologically sensitive or uniquely beautiful parts of our planet. Most of us probably want to protect ourselves in some ways, right, from the disruptive actions of some of our neighbors. At the same time, many of us probably like our stuff, right . And more to the point, would be frustrated and anxious if we invested big money in something with the expectation of being able to develop it and then found the rug getting pulled out from under us later on, all right . My point is that by teaching us in essence to see and think ecologically, environmentalism made us much more attuned to the kinds of public harms that we ought to look out for and potentially try to stop, right . But in doing so, then it created a kind of whole new set of political and legal conflicts, right . Over the degree to which the government ought to be in the business of regulating private property and to what ultimate ends, all right . And that, again, happens in part because there is a kind of uneasy way for a legal system thats based on notions of rightsbased individualism set up in ways by design to protect private property from being able to figure out just how the government can or should or should not be allowed to regulate it. Okay . Second, all right, second big issue, our final big issue. Activism in the courts, all right . Another big question that comes out of the environmental awakenings in the 1960s is who actually gets to practice environmental law and how, all right . In the ideal world, you probably got from a high school civic textbook, the legislative branch passes laws and the executive branch enforces them. Its all pretty simple, right . But in the real world sometimes things are more complicated than that. Sometimes the legislature writes a law but the executive branch issues an executive order that is arguably in violation of statute or the constitution, all right . Sometimes the executive branch fails for some reason out of choice or sometimes incompetence to enforce the law thats supposed to be on the books. And in all of these cases parties with an interest in the case might go to the courts to try to rescind an unlawful regulation or executive order or to demand that the executive branch enforce the law in what it deems to be the right and proper way, all right . Now, american legal system or american legal doctrine has a concept known as standing to sue that helps to explain who can and cannot go to the courts to resolve a dispute. The basic principle of standing, right, is that only people who have suffered some kind of clear injury or damage are allowed to file a lawsuit, all right . That is, if harman beats up mitchell, right, only mitchell, or in the case of a fatal beating perhaps his heirs, right, can go to the courts to get damages back from harman, all right . Natalia or some other kind of third party who just who doesnt have an injury or doesnt have a harm in the case cant file a lawsuit and try to reclaim try to you know, a lawsuit herself. You need to have some kind of issue at stake. You cant just file a lawsuit in court hoping to resolve some kind of legal or constitutional question you would love to get settled, right . You know, there is you know, there are legal and constitutional questions that get asked all the time, that sometimes takes a long time for somebody to figure out a kind of case, figure out a client with standing who will allow lawyers to litigate the case and ultimately settle them, all right . Now, theres a problem in all this, at least a problem, again, if youre thinking environmentally, right . The primary victims of environmental damage are not people, but plants and animals. Theyre not clients who can sign on with a lawyer and hire them to represent them, all right . Which leaves environmental values at times at a disadvantage in our legal system, all right . That is, if you want to argue that a proposed environmental regulation is going to hurt the timber industry, there will be no shortage of parties with a clear legal standing to sue in court, all right . But if you want to argue that a Forest Service policy is illegally destroying miles of forest, right, you have to figure out who has standing to sue, right . Who is legally authorized to speak for those trees. All right . And so lawyers who want to be environmental litigators sort of have to figure out this question, right . How do i speak for these trees, right . How do i represent their interests in court, all right . Getting there, all right . Hold off til the end, well have questions. Again, back at the beginning, earlier on in this class, i mentioned a famous quote by the regulators, an early Vigilante Group who attacked lawyers as hungry caterpillars, eating out the bowels of the commonwealth. And in that particular class, i represented the curse of hungry caterpillars with a famous childrens book. We have a parallel for environmental law in childrens literature as well, right . But its less the hungry caterpillar as this guy, dr. Seusss the lorax. The lorax was a book published in 1971 that is just after the National Environmental policy act and just after the very first earth day, two years before the endangered species act. And it told a story that is probably familiar to many of you from your childhood and or more recent babysitting gigs with younger kids, right . It tells a story about a character who starts who visits a kind of lovely happy valley and begins to cut down lots of colorful native trees that dominate the region in order to make a commercial product, a garment, which to be fair, in the universe of the lorax, quote, everyone needs, right . In the process of in the beginning of his entrepreneurial activities in the forest, he eventually meets a woodland creature who doesnt care for this wanton destruction of the local habitat. The creature confronts the entrepreneur. Mister, he said, i am the lorax, i speak for the trees. Again, sadly, in dr. Seuss story, he doesnt listen and eventually the trees and the business and the lorax end up disappearing. There are still some trees around at the end of the book and the hope that if we all learn from this, well do better next time, all right . Now, again, this goes back to this question, right . Who gives the lorax the right to speak for the trees . The trees do not hire him, never put him on retainer. He asserts he has their interest at heart, but does he really . Look, im stretching here a little bit, the lorax doesnt describe a genuine lawsuit. But if you represented the plaintiff in a case in court, you would probably have to ask and it would be legal malpractice if you didnt, why do you get to speak for the trees, they didnt hire you, whats your claim in court, are you just rabble rousing third party who doesnt deserve standing in this litigation, okay . And if you want to need evidence, right, or want further evidence that its possible to imagine the lorax not as the friend of the trees but ultimately some kind of problematic character, there was actual somebody published a book of counterprogramming against the lorax, a woman who was involved in the construction industry, manufacturing wood flooring, right, who created an entire kind of alternative parody kind of story starring a treelike thing that didnt understand that civilization depended upon the wise use of resources and ultimately threatens disaster through protree, antilogging activism. All right . And there was parallel kind of programming and counterprogramming in real life, all right . In the 1960s and 1970s as environmentalism took off, a variety of National Organizations and local attorneys, the sierra club, the Natural Resources defense council, the Environmental Defense fund were some of the best known. Notice the strategic advantage that nature seemed to have in court and took a shot at defending trees and wildlife and Natural Beauty. They went to court to force governmental agencies to enforce their own environmental laws or when a wellplaced even when a wellplaced Interest Group wanted the government to look the other way. They tried to block large scale developments they believed would be bad for ecological values. By the mid1970s, the sierra club and the like were joined by explicitly antienvironmentalist organizations which claimed the environmentalists represented not the real interests of trees or nature, the general public, but a sort of narrow interest of their allegedly leftwing or even radical lawyers and members, all right . The Pacific Legal foundation founded by the aforementioned Ronald Zumbrun was one of those groups. Mountain states Legal Foundation founded by a colorado magnate named joseph coors and a lawyer named james watt was another. Mountain states in the 1970s, watt made a name for himself by suing the Environmental Protection agency to try to block new fuel emission standards by defending Mining Companies that wanted to travel across federally protected wilderness study areas and even suing the federal government for the Property Damage caused by herds of governmentprotected wild horses. It seemed similarly appropriate, watt explained to his board of directors, that the public should pay fees to private landowners as they can only watch hopelessly as their property is used and destroyed by wild horses who are protected as National Treasures in the same way that cows in india are protected as people starve. One of watts innovations was to use legal tactics pioneered by environmentalists against them, and to try to make his own claim that he represented the greater right, he represented a Public Interest that wasnt being represented adequately in court, the interests of the average taxpayer, the interests of the average american in a wellfunctioning capitalist economy. Watt, by the way, would go on to become a household name and lightning rod for further controversy when president Ronald Reagan selected him as his first secretary of the interior, a move that in certain ways ended the kind of bipartisan era of action on Environmental Issues and started to turn environmentalism and antienvironmentalism into far more partisan issues. As well as a certain kind of boon to political cartoonists and found james watts bald head and kind of thick glasses unbelievably tempting to parody. Cartoonists portrayed watt as a serpent in the garden of edens, never mind the apples, lets open this place to oil and gas drilling, right . They depicted watt alongside reagans Environmental Protection agency administrator, ann gorsuch, another product of the Rocky Mountain conservative politics that had produced watt, as frankenstein and the bride of frankenstein, also as the bonnie and clyde of the american environment. By the way, if the last name gorsuch is familiar to you, ann gorsuch had children, one of whom is on the Supreme Court. Thats an artists depiction of Justice Gorsuchs mother, a significant political figure in the 70s and 80s in her own right, although my favorite from the philadelphia inquirer, just imagine Ronald ReaganNational Forest now that james watt has become secretary of the interior. Getting us back from politics to standing for a second here, american courts did eventually come up with a kind of solution to the standing problem, all right . Over a series of cases, not going to go into its a law and Society Class so i wont go into doctrine in an excruciating detail. The courts generally did not allow environmental organizations to sue on behalf of trees or even on behalf of themselves as membership groups. But they did start allowing membership organizations to sue on behalf of kind of a specific member who liked to hike or swim in the area under contention. So that member, right, the Group Representing that member, right, who suffers some damage by having his favorite hiking paths demolished for a ski resort, or clearcut for timber, right, all of a sudden could be a person, right, who could be represented in the court, according to, again, the logic of rightsbearing individuals that governs the u. S. Legal system, all right . In some cases Congress Went further than the courts were willing to go on their own and began to write citizens suit provisions into laws. The endangered species act of 1973 received one such provision which made it, for a period, an extraordinarily powerful and even surprisingly powerful piece surprisingly powerful piece of legislation. The endangered species act was originally written to allow any citizen of the United States to sue in federal court to block actions that would endanger the habitat of any species on that endangered place on the endangered species list. The idea originally, the act originally was to protect charismatic sort of megafauna like the american bald eagle or the bison. Environmentalists figured out how to use this provision to shut down dam projects they opposed for other reasons, ostensibly for the protection of fresh water perch. There is a moment in this lecture where i gather people are looking at me like, professor decker is deeply obsessed with standing, maybe he should go write a book. I did, its called the other rights revolution conservative lawyers and the remaking of american government, right . And again, it raises a which is not entirely right, not entirely about these issues, but deals with a number of them in a variety of different ways, right . But what i want to emphasize for this class is not these kind of weeds or the details of the particular kind of doctrines but this kind of ultimate problem, right . If you have a set of legal institutions that weve been examining all semester that are based in some essential kind of way on rightsbearing individuals duking it out with one another in court, with a judge sitting there as a kind of impartial, you know, impartial judge of rules, right, you have a potential kind of problem to leave environmental and natural kind of issues at a strategic disadvantage, right . Part of bringing environmentalism to the courts was figuring out ways to sort of humanize and personalize these issues in ways that may or may not ultimately, you know, feel satisfactory to all of us, all right . One final point, right . Theres a different theres another way theres another potential way around this, right . One other option, right, for holding say, for holding polluters responsible after the fact, to create deterrences against bad behavior, that might help us keep the environment clean in the future, was to figure out ways to track down the people who despoiled the environment in the first place and sue them under tort law for damages, all right . One of the things that lawyers, legal thinkers, and environmentalists are thinking in the 1960s and 70s is how do we make the polluters pay for everything theyve done for generations to us, how do we make them pay for the damage theyve done both to the earth but then ultimately perhaps to other human beings, all right . A tort lawsuit might seem at first like an unbelievably something with unbelievable potential, right . The possibility to win restitution for people who have been hurt, to punish bad behavior, right, and possibly to even make some lawyers rich along the way, right . Well return to that on thursday, all right . Any questions . I lost jordan before he had a chance there. Okay. And if you have one, raise your hand. You may not have any. This is i usually let them intersperse them throughout the class a little bit more than we were able to today. Natalia, wonderful. Okay. I have a comment, not really a question, the book we are reading is super interesting. Good. Im really liking it. Well be reading and discussing it in significantly more detail starting on thursday. Okay. So im not foreclosing that. But without breaking the frame here, there were certain things i was im permitted to do here that are slightly different than we normally do in class. Jeb . How do you measure the monetary damage in these cases . It just seems like its very hard to do. Were sort of getting ahead of ourselves in some ways. Again, one of the things the sierra club was trying to do is to prevent damage report from actually happening. The sierra club was saying, look, there are forests that based on our environmental laws we shouldnt be timbering in, right . Or we need to the law says that before you do some kind of big project, you have to produce something called an Environmental Impact statement, okay, which is a bring on some scientists and some engineers and figure out what the broader Environmental Impact of a project might be, all right . And then the public and government can weigh the tradeoffs involved before its too late, right, before youve already destroyed before youve destroyed the natural thing that we didnt even know was there, all right . There is the conservatives, critics, sometimes tried to, right, use the same stuff against you. There was this funny case i discovered that the Pacific Legal foundation brought back in the 1970s where they tried to shut down the construction of a new Sewage Treatment plant on the grounds that the a couple of species of endangered california wildlife were feasibility happily on the raw sewage being pumped into the pacific ocean, i think it was the gray whale and brown pelican, right . And that you would be endangering their habitat by diverting the waste, all right . But the real work of environmentalists was to try to forestall environmental damage before it happens. If you Start Talking about toxic tort stuff which well be do in a few weeks Going Forward here, well be looking at private sector lawyers rather than nonprofits and political people, who are trying to set a precedent that will help the environment and prove lucrative in one way or another, and there is a very different set of incentives there. Well have to tease out what those different incentives make possible and where they may possibly lead people astray. Does that help . Okay. Anyone else . Sam over there. Going back to like the lorax metaphor, is there a case to be made there for not talking to the trees, but another aspect of the plot, the habitat of the fish and the birds cant live there anymore and these bear things, and the food source thats in the trees, so is there like class action for other creatures . In dr. Seuss land you can have talking animals that can probably hire look, its a stretch, its a kind of what i mean, its a plot experiment but also as a piece of culture that comes out at a moment when people are actually grappling with these issues more generally. And again, the lorax is fine, right, if he can come up with some again, some rightsbearing individual that can claim it has an interest in this, right . And who can say, look, i signed a contract with the lorax to represent my interests, he is my advocate in court here, okay . Which prevents some other, right, dr. Seuss character, a pair of pale green pants with nobody inside them, for example, from coming along and saying, i represent the trees, i know their best interests here, i should be their advocate. And the way the courts end up resolving this is in part saying coming up with standards by which in many cases, natural environmental values can get a hearing in court, in part by going through some person, some human who has some interest, right, interest thats being harmed in that kind of natural stuff without really figuring out who can actually represent nature in a more straightforward way. But that allows that opens a, that kind of those kind of standings are open to being revised both by legislatures that right, or repeal citizen suit language in statutory law and by Supreme Courts that can scale back as well as expand the law of environmental standing which the Supreme Court has considerably since the 1970s. It also, and again, this was one of you know, one of my one of my peculiar obsessions, in part because i wrote a book not only about sort of conservative lawyers and legal activism, but on the ways that their activism shaped what the regulatory state could or could not do Going Forward, right, is that you end up opening the courts you end up inevitably opening the courts to a bunch of different people with different kinds of interests, right, who then can compete in certain ways over who really who really speaks for the public, who really speaks for whom, right, that can make certain kinds of litigation seem complicated, convoluted and confusing. You open up the courts to people who want to muck up the issue sometimes as much as settle it. Does that make sense . Anyone else . All right. Thank you very much. Were featuring American History tv programs this week as a preview of whats available every weekend on cspan3. Tonight from our lectures in history series, travel virtually to our Nations Capital for a night of history classes from universities in the washington, d. C. Region. They begin with a lecture on white house myths. The White House Historical association historian and american youre the lecturer matthew costello, tonight at 8 00 eastern on cspan3. American history tv products are now available at the new cspan online store. Go to cspanstore. Org to see whats new for American History tv and check out all the cspan products. Television has changed since cspan began 41 years ago. But our mission continues, to provide an unfiltered view of government. Already this year weve brought you primary election coverage, the president ial impeachment process, and now the federal response to the coronavirus. You can watch all of cspans Public Affairs programming on television, online, or listen on our free radio app and be part of the National Conversation through cspans daily Washington Journal Program or through our social media feeds. Cspan, created by private industry, americas Cable Television companies as a Public Service and brought to you today by your television provider. Next, on lectures in history, a university of michigan professor teaching a class about Southeast Asian migration to the United States and postvietnam war refugees. She examines how laws and Public Opinion have changed over the past five decades and emphasizes the difference between immigrants and refugees. Her class is about an hour. Today were going to talk about topic 18 which is Southeast Asian refugee migrations