Thanks to a reader for this one from Greenwire.
Here’s a link:
Here’s an excerpt.
Writing for the majority on 2008 amendments to the Foreign Intelligence Surveillance Act, Justice Samuel Alito rejected the groups’ arguments that there was an “objectively reasonable likelihood” that their communications would be intercepted. Further, he noted that the law requires the government to take several administrative steps before issuing the wiretaps.
Consequently, he wrote, the groups’ arguments rest “on a speculative chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable” to the law.
Legal experts said the words “certainly impending” are new to standing precedent and are especially problematic for environmental groups bringing lawsuits.
The ruling “underlies a shift to a stricter standing doctrine with links to the causal chain viewed with skepticism,” said Amanda Leiter of American University’s Washington College of Law.
Simply put, it is hard for environmentalists to prove what is “certainly impending” after an agency action.
Moreover, Alito’s focus on the “speculative chain of possibilities” could also pose new hurdles, said Justin Pidot of the Sturm College of Law at the University of Denver.
Pidot, a former litigator in the Justice Department’s Environment and Natural Resources Division, proposed a hypothetical in which an oil company applies for and receives a lease and permit to operate on federal land from the Bureau of Land Management. Environmentalists sue BLM, alleging that the drilling will harm them in a variety of ways, ranging from the destruction of hiking trails to negative impacts on waterways.
The rub under Alito’s reasoning, Pidot said, is that the environmentalists are actually injured by what the mining company may do in the future and not by BLM issuing the permits.
“All of those injuries flow from the drilling activity itself, not from the granting of the permit,” Pidot said. “But if you’re seeking the permit, you are actually going to engage in the permitted activities.
“That hasn’t been something that has troubled courts in the past,” he continued. “But the language of ‘certainly impending’ injury is the kind that a lower court judge hostile to environmental plaintiffs could seize on to kick it out of court.”
I like how folks in the legal world use these colorful terms like “hostile” “kick it out” when the judges could legitimately think that a precedent was set by the Supreme Court decision. It makes me think it might not be about the law so much as the courts being a venue for promoting agendas with “hostile” and, possibly, “friendly” judges. Maybe that’s what leads to the observed “crapshoot” nature of cases..
We (and district courts) may get some clarification soon enough if this is brought up in the Supreme Court in the pending Pacific Rivers Council case on standing for forest plan decisions. Without reading the article (subscription) or this case (not provided) I see some possible distinctions. One is the way procedural harm has always been treated; certainty of harm has specifically been rejected as a requirement. Others include the nature of the subsequent ‘administrative steps’ required for wiretapping, and the degree to which the ‘speculative chain of possibilities’ includes third parties outside of government.
Nobody denies since Bush v. Gore that personal/political bias is a factor in some cases. For the system as a whole, though, ‘crapshoot’ is an overstatement.