A River Runs to Court: Environmental Activists Circumvent Democracy to Impose Agenda

colorado river gorgeThis is a frustrating time for environmental special-interest activists. Their cause is not one the public rates as a national priority. Their allies are no longer in leadership positions in federal agencies. And though they still have friends at the state and local levels, shrinking budgets prevent those regulators and elected officials from pursuing the activists’ agenda. With waning influence in other branches, many environmental organizations now increasingly look to a long-standing and reliable tool of advocacy—the lawsuit—to achieve their ends.

Some groups have gone well beyond such traditional environmental litigation as citizen suits under state or federal laws, and are instead seeking judicial injunctions that would force government regulators to implement activists’ preferred policies. These lawsuits suffer from a number of infirmities, not the least of which is they turn the entire democratic process on its head.

One especially troubling example of these new-wave environmental suits is playing out in Colorado. There, an environmental group called Deep Green Resistance has filed suit in federal court attempting to force the Colorado state government to protect and defend the Colorado River ecosystem. But apart from trying to co-opt the state government through the courts, the case is curious for another reason: Deep Green Resistance is not the named plaintiff.

Instead, the group holds itself out as the river’s guardian and is suing to defend the river’s personhood and its “legally enforceable rights.” The lawsuit asks the court to uphold that personhood and vindicate the rights that necessarily flow (no pun intended) from it—“to exist, flourish, regenerate, be restored, and naturally evolve”—by granting an injunction that forces the Colorado state government to take certain actions.

The complaint generally gripes that federal regulators have failed to protect the river and that state residents take too much water out of its watershed. It more specifically cites recent local environmental disasters as evidence of the inadequacies of the current environmental regulatory regime.

Among their many policy goals, the plaintiffs want the state to limit the number of permits and “other regulatory approvals” it makes in order to protect the river’s ecosystem, including but not limited to the amount of water taken out of the watershed and the industrial activities permitted within it. Further, the Colorado River System plaintiffs object to the frequent use of dams in Colorado, explaining that they harm downstream ecosystems.

The suit suffers from specific procedural and constitutional flaws, in addition to being an affront to democracy.

First, neither the Colorado River ecosystem nor the Deep Green Resistance has standing to sue in federal court. To establish standing, the plaintiffs must plead that (1) they have suffered an invasion of their legally protected interest, (2) a causal connection between that harm and the actions of the defendant, and (3) that injury must be redressable by the court. The plaintiffs cannot meet any one of those criteria.

No court has ever held that an ecosystem has a legally protected “right to exist” or “flourish.” Further, even if a court was to create those legally protectable interests, the complaint presents insufficient evidence to support its contention that the Colorado River ecosystem’s existence is threatened. Even if it were, the plaintiffs have not demonstrated that the ecosystem is in such sad shape because of the state government. And finally, even if they could, what the plaintiffs ask of the court—to become a new environmental czar, directing environmental policy for the entire Colorado River watershed—cannot be redressed by a court. In sum, the plaintiffs fail every aspect of test for constitutional standing.

Second, the plaintiffs’ complaint runs squarely into the Eleventh Amendment, which bars federal court lawsuits against non-consenting states. The plaintiffs have not alleged that Colorado consented to the suit—in fact the state government is currently opposing it—and cite no statutes that would abrogate the state’s immunity.

Finally, the lawsuit asks a federal court to solve a sweeping, general problem by ordering the executive and legislative branches of the Colorado government to act in a manner chosen by a litigant. This flies in the face of the checks and balances reflected in the U.S. Constitution, which withhold such law-making authority from the judiciary, and limit that branch’s role to resolving specific disputes.

Colorado River System reflects why the Framers chose such a framework. The U.S. District Court for the District of Colorado does not possess the competence to craft the types of regulations sought by the plaintiffs or oversee their implementation by state government officials.

Once the presiding judge reviews the defendant’s response and motion to dismiss, which are currently being drafted, he should run the Colorado River out of court. We trust he will send a very strong message to the river, its guardian, Deep Green Resistance, and other environmental organizations that follow their undemocratic litigation playbook—devote your resources to the political process and convince your fellow citizens and their elected officials of your goals, and don’t ask the judicial branch to swim beyond its constitutional shores.

Also published by Forbes.com on WLF’s contributor page.

2 thoughts on “A River Runs to Court: Environmental Activists Circumvent Democracy to Impose Agenda

  1. Pingback: Environment roundup - Overlawyered

  2. Pingback: The Jackson Press – Legal News Update, December 11, 2017

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