August 30, 2011

Vituperation watch: Legal Planet

By Vituperation watch: Legal Planet

Author: Joshua Thompson

I really enjoyed this post from Legal Planet. In it, the blogger castigates PLF for supporting the plaintiffs in Save the Plastic Bag Coalition v. City of Manhattan Beach, because a win for the plaintiffs would result in an increase in “environmental bureaucratic red tape.” So why did PLF file an amicus brief in support of the plaintiffs in this case?

What Legal Planet got right. The blogger correctly recognizes that PLF did not file a brief supporting the plaintiffs on the merits. Instead PLF’s amicus brief (which you can read here) focused solely on the issue of citizen standing. “PLF focused on this aspect of the case, and argued that the form of a plaintiff — individual, unincorporated association, corporation, LLC, whatever — should not be the touchstone of whether a plaintiff has citizen suit standing (which under California law is much broader than Article III standing).” Absolutely! This is a fairly routine practice at PLF (and I imagine most public interest organizations). Many cases contain issues that interest PLF, but also issues that are of no interest to PLF.

What Legal Planet got wrong. The blogger argues that the California Supreme Court found PLF’s argument irrelevant. Not true. While it is true that the Supreme Court held that the Save the Plastic Bag Coalition would have had standing outside of the citizen suit context, that does not mean that the Supreme Court found the citizen suit issue irrelevant. First, a case from 2000, Waste Management of Alameda County, Inc. v. County of Alameda, had held that corporations lack standing to maintain citizen suits, thus creating a split between California courts of appeal. Second, the Supreme Court accepted review specifically on the citizen suit question – it was heavily briefed by both sides. Third, the California Supreme Court spent eight pages discussing the citizen suit issue, ultimately overruling Waste Management’s holding completely.

Legal Planet then argues that citizen suit standing is a position that PLF usually opposes, and that the only reason that PLF filed an amicus brief was to support “powerful corporations.” I enjoyed that bit for its sheer absurdity. Taxpayer and citizen standing are issues that are of great significance to PLF’s individual rights practice group. In numerous cases enforcing Proposition 209, PLF often relies on citizen standing. Two recent victories come to mind. In suits against both the State of California and the Los Angles Unified School District, PLF represented non-profit corporations in Proposition 209 actions. In both actions, PLF relied on citizen standing. Moreover, I am co-authoring a law review article that examines California standing in detail. Accordingly, I, primarily an attorney in PLF’s individual rights practice group, wrote the amicus brief in Save the Plastic Bag Coalition.

The reason PLF filed a brief in this case is self-evident: PLF has a strong interest in seeing that California’s citizen standing provisions are not narrowed. PLF’s amicus brief was also very powerful in this case. We were the only party to argue for a summary reversal of Waste Management, a case the severely curtailed the availability of citizen standing.Moreover, the Supreme Court’s analysis almost tracked our argument verbatim. As but one example, we wrote: “The lower court’s analysis is completely inapposite. As noted supra, the ‘citizen suit’ language is merely a (newly adopted) term of art that describes the right being asserted, not the status of the person or entity enforcing that right.”
The court wrote: “The term ‘citizen’ in this context is descriptive, not prescriptive. It reflects an understanding that the action is undertaken to further the public interest and is not limited to the plaintiff?s private concerns. Entities that are not technically ‘citizens’ regularly bring citizen suits.”

One final note regarding PLF’s involvement in the Save the Plastic Bag case. Counsel for the plaintiffs originally solicited PLF’s amicus participation in this case on the environmental issues. After some debate, the attorneys here felt that expansion of CEQA in the manner urged by the plaintiffs was not in PLF’s interest. However, I found the citizen suit issue, an issue the court explicitly granted review on, very interesting. Accordingly, I proposed filing a brief on that limited issue, and the staff and Board agreed. Had I not come forward there would not have been an amicus filing by PLF. Again, this is routine practice for public interest organizations. “[T]he fact that the plaintiffs were powerful corporations … had absolutely nothing to do with it.”

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