Topic: Environmental Protection
Senator: Leahy
Date: SEPTEMBER 13, 2005
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LEAHY: Let me switch gears a bit. In the area of environmental protection, I feel that you've narrowly construed laws in the Constitution in a way to close the courthouse doors to millions of parents who want to protect their children from dangerous air pollution or unsafe drinking water, fish contaminated with mercury, foods covered with pesticides.
We all know that often the president, no matter who is president -- local governments don't do enough to protect people from environmental dangers. And we've given them protection, the Congress has.
I thought your Duke Law Journal, which many commented about in the press and otherwise, was somewhat dismissive regarding these citizen suits to protect the environment. You wrote that Congress may not ask the courts, in effect, to exercise oversight responsibility at the behest of any John Q. Public who happens to be interested in the issue.
You discount the interest that many citizens and Congress have in preserving our environment.
A few years ago you sounded very much like Justice Scalia. I know a few years ago the Supreme Court, over the dissent of Justice Scalia, ruled that a citizen living near a stream that had been polluted by many illegal discharges of mercury from an upstream company did have the right to go to court over these illegal mercury discharges. The government was not enforcing the laws.
So I ask you this: If their president or their governor fails to enforce these laws, why shouldn't individuals have access to courts where polluting companies could be made to pay for their wrongdoing?
LEAHY: What can you tell us to assure us parents of children who are worried about this, from birth defects and all of us -- what can you do to assure us that they as individuals won't, under a Chief Justice Roberts, find the courthouse door slammed shut in their face?
ROBERTS: Well, one thing I would tell them to do is read the rest of the Duke Law Journal article. Because one point it makes is that environmental interests, it goes on to say, aesthetic interests, those are all protected under the law. And that one reason courts should insist that those who bring suit have standing -- that's the issue, that are actually injured -- is because standing can encompass, certainly, environmental harms.
The issue that was being addressed in the Duke Law Journal article was whether anyone could bring a lawsuit just because they're interested in the issue, or whether the plaintiffs had to show that they had been injured.
In other words, in your hypothetical, the people who are downstream from the mercury pollution, they will be able to show that they're injured and can bring suit.
The question is whether somebody halfway across the country who's not injured by that act should be able to bring suit. That was the issue in the law journal.
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