In Print: Volume 88: Number 2
By Amber R. Woodward
88 Wash. U. L. Rev. 507 (2010)
Deep sea adventurer and advocate Jacques Cousteau once stated: “The happiness of the bee and the dolphin is to exist. For man it is to know that and to wonder at it.” An environmental enthusiast might consider this statement a testimonial for wildlife’s “right to exist.” Those less keen on a broad reading of animal rights might argue that it buttresses the claim that animals’ right to exist depends upon humans’ desire to enjoy that existence. As the dominant earth species, Homo sapiens have power over the fate of weaker beings—power that is harnessed by environmental legislation. While animal rights laws have existed in rudimentary form since the third century BC, major wildlife protection legislation first appeared in the United States in the early 1970s. With thousands of species facing extinction, Congress enacted legislation protecting the plant and animal life of our ecosystem. Laws such as the Endangered Species Act of 1973 (ESA) and the National Environmental Protection Act of 1969 (NEPA) have made great strides in shielding vulnerable wildlife. Judicial restrictions on civil environmental litigation, however, confine the focus of lawsuits to the aesthetic, recreational, and scientific needs of humans, rather than the common underlying motivation for such litigation—the desire to curtail wildlife harm and destruction.
In 2008, in Winter v. Natural Resources Defense Council, the Supreme Court vacated a preliminary injunction that had prevented the Navy’s use of active sonar emission in breeding grounds and migratory routes of thousands of bottlenose dolphins, beaked whales, and other marine mammals. The Winter decision made several significant changes to legal standards, most of which have been addressed by scholars and subsequent lower court rulings. An aspect of the Winter opinion thus far neglected by scholars, however, lies in what the majority failed to address. The Winter Court bypassed an opportunity to establish a clear standard for whether animal harm should be considered within the scope of “plaintiffs’ harm” under the test for preliminary injunctions in civil environmental litigation. Indeed, the majority opinion may have confused courts further by tacitly adopting the restrictive minority definition of the scope of “plaintiffs’ harm” in dicta.
This Note begins by exploring the reasons that human advocates initiate litigation on behalf of animals and by describing the wildlife protection statutes and citizen suit provisions that help them do so. Part II discusses judicial ambiguity as to whether the scope of “plaintiffs’ harm” in preliminary injunction analysis for civil environmental disputes includes only the harm to the human plaintiff with standing, the harm to the animal whose injury is often the underlying motivation for litigation, or the harm to both. Part III analyzes the recent Supreme Court decision in Winter and the majority’s implicit exclusion of injury to marine mammals from the scope of “plaintiffs’ harm.” Finally, Part IV offers three approaches to clarify the definition of “plaintiffs’ harm” within the standing doctrine and the test for preliminary injunctions: Courts could maintain the current standing doctrine and, in preliminary relief analysis, define “plaintiffs’ harm” only as the harm to the human with standing; they could maintain the current standing doctrine but consider both the human harm and harm to animals in preliminary relief analysis; or (more radically) they could give animals standing to sue in their own right, dispose of the pretense of human injury, and consider only the animals’ harm in determining the appropriateness of a preliminary injunction. This Note suggests that the second approach is most realistic and appropriate, as it offers a parallel between constitutional standing and preliminary injunction analysis and also aligns with public policy supporting wildlife protection.
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