Suit over emission threat hovers in legal gray zone

Environment - It's unclear whether three groups have a right to sue to try to block an Owens Corning plant

Wednesday, October 05, 2005

CATHERINE TREVISON

GRESHAM -- Last winter, as Owens Corning worked on a new Gresham insulation plant that would emit an ozone-depleting greenhouse gas, three environmental groups rushed to the federal courthouse to try to block it.

But a few months after the case was filed, it hit the same roadblock that has stalled numerous lawsuits dealing with global environmental problems. The issue is whether judges can accept lawsuits by people whose concerns -- of skin cancer or melting glaciers or rising oceans -- could be shared by millions or billions of others. Or must plaintiffs prove unique individual injuries to make their case?

In the Gresham lawsuit, the question is whether members of three groups -- the Northwest Environmental Defense Center, the Oregon Center for Environmental Health and the Oregon Chapter of the Sierra Club -- can win access to the courts to fight Owens Corning's proposed Gresham plant.

In similar cases, some judges have said no. Some have said they don't know. A federal court in Northern California recently said yes. At some point, a case involving the controversy probably will wind up before the U.S. Supreme Court, said Bradford Mank, an environmental law professor at the University of Cincinnati who researched the topic.

"This is one of the very big emerging issues in environmental law," said Tom Lindley, one of the lawyers representing insulation-maker Owens Corning in the Gresham case.

"It's a very hot, very current topic."

What's an injury?

The issue is called standing -- a shorthand way of asking whether a plaintiff meets certain requirements that judges set as a threshold.

"Most lay people have no idea what standing means in the legal realm," said Craig Johnston, who teaches environmental law at Lewis & Clark Law School. "Justice Scalia . . . once said that to him, the question of standing was the plain old question, 'What's it to you?' The idea being obviously that you have to show that you're not just some do-gooder, that you have some real interest."

Standing is rooted in the idea that judges must not trespass on the power held by the political branches of government to enact and enforce laws. The limit is described in the U.S. Constitution, which says federal judges can hear only "actual" cases and controversies, ruling out advisory opinions on hypothetical problems.

Suit over emission threat hovers in legal gray zone

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The U.S. Supreme Court has enforced standing with a three-part test meant to keep abstract controversies out of court. People filing a lawsuit must complain about an injury that affects them in "a personal and individual way." They must say the defendant helped cause the injury. And they must show that a court decision could help fix the problem.

Owens Corning deployed the test this summer when it asked a federal magistrate to dismiss the lawsuit.

Lawyers for the environmental groups say they are not arguing that all people have standing to sue; their members do fear personal injuries, said attorney Melissa Powers, who represented the three environmental groups at a recent hearing before U.S. Magistrate John Jelderks.

Some live near the plant and worry about the effect of its construction, Powers said; others enjoy Oregon's natural resources and are familiar with predictions of how global warming and ozone depletion will affect them. Still others -- including people with asthma and lupus -- fear small particles from the plant or a depleted ozone layer could worsen their diseases, she said.

Company argues case

Lawyers for Owens Corning said those concerns don't create standing.

"There's no reason to distinguish between these plaintiffs and people in India and Mongolia and anyplace else in the world," argued lawyer Jeffrey Dobbins, saying that the dispute was better suited to the political branches of government. If the lawsuit were allowed to go forward, "it would allow anybody here, everybody in the whole world, to file a lawsuit against a defendant that would increase the burden of greenhouse gases."

Jelderks asked Dobbins whether the court was powerless to intervene when an injury was shared across the globe.

"What if it was going to kill everybody on Earth, and the political authorities were not addressing the issue?" Jelderks asked. Would the courts say, "Sorry, Charlie . . . You don't have standing because everybody else is going to die with you"?

Other standing issues, Johnston said, include whether widespread environmental problems could be fixed by a decision in a single case.

"If the court doesn't have power to effect change, the court shouldn't get involved at all," Johnston said.

A growing issue

Jelderks' decision, expected this month, could be decided on other facts or issues in the case, experts said. And either side could appeal his findings to a district court judge.

But the underlying question is not going away. During the Owens Corning hearing, Jelderks and lawyers for both sides referred to an unusual opinion issued in 2004 by a judge of the 9th U.S. Circuit Court of Appeals. The case dealt with an Idaho couple who lived next to a landfill; among other problems, they feared that appliances in the landfill were leaking an ozone-depleting gas.

Judge Ronald Gould wrote a majority opinion that let the case move forward on a traditional argument for standing. He also wrote an unusual separate opinion that doesn't have the force of law. In it, he advanced a theory of standing for "injury based on a globally shared harm with no unique personal injury." The opinion appeared to invite other judges and lawyers to tackle the issue by bringing new cases that could help the U.S. Supreme Court shape a decision.

"A theory that 'injury to all is injury to none' seems wrong," he said. "Environmental harms such as acid rain, contaminated water and bad air, if they occur, do not target individuals. They affect us all."

Catherine Trevison: 503-294-5971; ctrevison@news.oregonian.com