Sierra Club v. Morton is a seminal 1972 U.S. Supreme Court case on standing, the essential procedural question of who has a legal right to initiate a lawsuit based on a plaintiff’s alleged injury traceable to a defendant’s unlawful conduct. Daniel Selmi’s new book provides a deep dive into the history and context of this famous case, showing that it was about much more than the majority decision’s denial of the Sierra Club’s standing. And it was not, as some have claimed, launched as a test case to establish standing for environmental groups or the entities themselves, the possibility William O. Douglas went into in his famous dissent dear to the hearts of those interested in the Rights of Nature.
The story begins in the mid-1960s with a decision by the Forest Service to allow the Disney Company to develop a ski resort in the Mineral King area of California’s Sierra Nevada mountains. The Sierra Club was initially supportive of the project. However, they turned against it, as younger members of the Board came to believe they should be protecting wilderness rather than facilitating its use and development, even for skiing, an important out-of-doors activity for Club members. Selmi emphasizes that the Club changed tack at a time when their odds of winning were slim to nil. They (surprisingly) won at trial before a judge who barely registered the standing question (P. 135) and then lost at the Supreme Court. Yet, the war was ultimately won when longstanding transportation issues (for example, expanding an existing road versus building a cog railway) could not be resolved, and political support for the project fell apart. Then, in 1978, Congress decided to make Mineral King part of Sequoia National Park.
Among the surprising things I learned in the book was the military context of support for skiing in the United States. “Old guard” members of the club, most notably its Executive Director David Brower, had, along with Wilfred “Slim” Davis of the Forestry Department, been members of the something called the 10th Mountain Division during World War II. (Pp. 15, 21.) This division of the United States Army trained men for mountain warfare and included expert skiers. (Pp. 8-9.) These men carried their wartime experience over into civilian enthusiasm for the sport and its post-war development, effectively establishing the ski industry. Selmi writes that members scattered after the war but kept in touch. (P. 9.)
The coziness created by such connections became important because one of the major issues in the proposed Mineral King project was the trust the Forest Service placed in its partner in the project, the Disney corporation, and its failure to place any limits on Disney’s development plans. (P. 89.) Selmi draws on a brochure put out by the Disney Company in 1966, signed by the man himself, who died in December of that year, promising that the area’s natural beauty would be preserved but which also stated, “I guess you might say that it won’t ever be finished.” (P. 62.) This idea was that the resort would keep growing and growing, Disney would never say what the limit was, and the Forest Service was just fine with that. (P. 181.) This blank check created a fundamental problem for the credibility of Disney’s promise to be able to protect the area (land, trees, animals). As Selmi puts it, “[a] large development would inevitably change Mineral King[…]Disney and the Forest Service never directly confronted that reality.” (P. 265.)
The unfettered and unstructured nature of Disney’s proposal and the discretion used to approve it also explains why the defendant in the case was Rogers C.B. Morton, the newly appointed Secretary of the Interior in 1971. (P. 168.) The lawsuit was against public agencies in charge of public lands making important decisions about those lands without public input or regulatory requirements. Hence Selmi’s decision to frame the case as a product of distrust about deferring to government expertise, “a development stemming in part from dissatisfaction with management of the Vietnam War.” (P. 260.)
Disney, for its part, kept its distance from the lawsuit because it wanted to create the impression that “if a legal problem existed, it originated with the Forest Service. Disney was a bystander, not an instigator of a legal violation.” (P. 140.) There were also concerns about actively opposing the Sierra Club, a conservation group with a lineage that went back to John Muir. (P. 130.) Disney himself was an honorary lifetime member of the Club, legendary for his many ground-breaking nature films. (P. 151.)
For the Sierra Club’s part, it left Disney out of the lawsuit, given the high regard in which Walt Disney and the company were held. As one Sierra Club member put it, “‘[t]o sue Disney…would be like suing motherhood, the Flag, and the Boy Scouts all at once’” (P. 121.) Also, as a large successful company, they had a lot of resources, which could be used to hire many lawyers who would make it more difficult (and expensive) to fight the case and win. (P. 122.)
Despite the fact that Selmi seeks to de-center standing in his history of the case, or at least destabilize the understanding that standing was what Sierra Club v. Morton was always meant to be about, he presents an excellent and thorough discussion of the issue. Selmi explains that the Sierra Club insisted on its general interest in a case that would impact the environment of concern to its members rather than Club members’ actual use of the area, which the Supreme Court indicated it would have accepted. As Justice White reportedly put it: “Why didn’t the Sierra Club have one goddamn member walk through the park and then there would have been standing to sue.” (P. 204.)
However, the Club’s “loss” did nonetheless help establish that an aesthetic non-economic interest (specifically an environmental harm) could ground a lawsuit. (P. 199.) In subsequent lawsuits, relatively few environmental plaintiffs were denied standing. (P. 258.) Sierra Club v. Morton provided clear instruction: establish use and an individual harm, and the courtroom door would be open. Sierra Club’s lawyer Lee Selna’s resistance to “the use theory” comes across as stubborn and slightly irrational. However, Selmi points out that there was also a logic to it, given the fact that users, for example, fishers, campers, guides, would be likely to support development. (P. 206.) Users then, like the Forest Service itself, could not be trusted to keep the ecological interests of the area at the forefront. Hence the dissent’s suggestion that the case should be framed as Mineral King v. Morton, even if the Sierra Club was appointed or otherwise empowered to speak for Mineral King.
In trying to answer the question, who really speaks for Mineral King Valley, the Sierra Club asked: “Is there anybody who really believes that if Mineral King could answer, it would say: “Walt Disney Productions, Inc.’” (P. 226.) The answer to this question, which might have been yes from a trusting public in 1955 or 1965, became a hard no by the 1970s. In this way, Selmi’s book situates the rise of U.S. environmental law in the problem of public agency discretion run amuck in the face of effective lobbying by private interests. While establishing that the non-economic or aesthetic interest of the Sierra Club was one that could be legally vindicated, it was still the interest (general or use-based) of humans; not the non or other-than-human interests of plants, trees, nonhuman animals themselves. This dogged anthropocentrism must be one of the most important legacies of the case to the field of environmental law, which it helped to establish.
