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Quote of the Day - A man with one watch knows what time it is. A man with two watches is never sure. - John Peer
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Mr. Spock Now Writes for the Ninth Circuit

Now that the Covington v. Jefferson County decision has had time to percolate, I've noticed some interesting aspects to the opinion.

Michael and Karla Covington live across from a landfill in Jefferson County, Idaho. Now that you've got that lovely sight (and smell) in your mind, let's go on.

The Covingtons sued the County over the underground contamination and the airborne contamination.

The dump was set ablaze at least twice, and was was replete with biological and hazardous waste, ranging from rotting cow carcasses to car batteries. I can't even begin to imagine. The Covingtons also presented evidence that household appliances, including refrigerators and dishwashers, were improperly dumped at the site and leaking chlorofluorocarbons into the atmosphere.

One question that comes immediately to mind is that if you have enough money to bring a lawsuit, why don't you move first?

In any event, onward and upward, as they say. The Covingtons lost their Clean Air Act claims in the lower court, but were allowed to pursue their underground contamination claims. Not satisfied with that decision, they appealed.

The Ninth Circuit heard the appeal, and decided that the Covingtons were right. The appellate judges reversed the lower court's finding that the Covingtons didn't have standing to bring the CAA claims. So, now the Covingtons get to go back to the lower court and try their case. We'll see what happens in about a year.

Apart from the facts and ruling of the case, though, that's not the whole story.

The most important aspect of the Ninth Circuit's decision was what was not said in the main opinion. In a bit of a rarity, Judge Ronald M. Gould (there's no "Justice" in the Ninth Circuit), who wrote the main opinion, also wrote the concurring opinion.

Given that foreshadowing, you're probably ready for what comes next.

The twist to this whole case comes in the concurring opinion, not the main opinion. The separate, concurring opinion, which does not have the force of a holding in the case, takes a few steps beyond the actual standing issue. He set the stage for expanding the law on who can bring suits for widespread damage, such as ozone depletion.

Judge Gould opined that "A theory that 'injury to all is injury to none' seems wrong in theory for it would deny standing to every citizen such that no matter how badly the whole may be hurt, none of the parts could ever have standing to go to court to cure a harmful violation."

What is he saying? Precedent generally holds that generalized, global maladies with no unique, concrete or particularized personal injury cannot alone constitute sufficient standing for an individual to bring suit. Gould's concurrence goes beyond the facts of the opinion (something he acknowledges), but he set forth his thoughts anyway.

In sum, Judge Gould argues that any one individual has the right to bring a lawsuit for injuries arising from ozone depletion, because the harm to all is harm to one.

Judge Gould probably learned his lesson from Mr. Spock. You know - the part where Spock's usual lack of understanding humans shows through in his comment that the "the needs of the many outweigh the needs of the few... or the one," from The Wrath of Kahn.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, February 08, 2004 at 11:37 Comments Closed (2) |
 
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