Mineral King Valley. (Photo: John Rasmussen)
Founded as the Sierra Club Legal Defense Fund in 1971, Earthjustice changed its name in 1997.
Earthjustice first used the courts as a conservation tool when it saved the pristine Mineral King Valley in California's scenic Sierra Nevada Mountains from becoming the world's largest ski resort.
Jim Moorman was the first executive director of the Sierra Club Legal Defense Fund, which would later be renamed Earthjustice. His work on the Mineral King Valley case solidified the right of the public to bring lawsuits in defense of the environment.
Moorman cut his teeth at the U.S. Department of Justice's Land and Natural Resources Division where his interest in the nascent field of environmental law grew, and eventually led him to the Center for Law and Social Policy, a public interest law firm. He became the head of the Sierra Club Legal Defense Fund when it was founded in 1971. We chatted recently with Moorman about the Mineral King Valley case, and about the early days of environmental law.
The Mineral King case was crucial. If you look at administrative law, if you look at the history, back around 1900 there was a lot of excitement about these new administrative agencies, which would combine the powers of all three branches of the federal government. After these agencies had been around for a while, people started to notice that these agencies were being captured by the people they were attempting to regulate. When EPA came along and we managed, through the Mineral King case, to expand citizen’s standing to sue, we were able as public interest organizations to get into the process. That made it impossible for the chemical industry and others to capture the EPA. Oh, they captured them for some things, but it was never a lock for industry. The EPA was truly an independent organization. And it was standing to sue that allowed this to happen; creating this situation which keeps the agencies honest. I think if we lost standing to sue we’d be back in a hopeless situation again—Mineral King opened the gate.
When I came to the Sierra Club Legal Defense Fund I was already involved with Mineral King. I filed an amicus brief in the Supreme Court with Bruce Terris on behalf of the Wilderness Society on the question of standing. The Sierra Club had a fine lawyer named Leland Selna. His view was, in a nutshell, that anybody who was interested in environmental protection should have the right to bring the suit. You know, this was an intellectual thing. We took a somewhat modified view, less aggressive, which was you had to have an interest that was greater than intellectual, but it didn’t have to be monetary. And basically, that’s where the court went. Now, there was a professor that Justice [William O.] Douglas bought into, in a concurring opinion, who said that trees themselves should have standing. The problem with that was, let’s say the tree has standing, how does the tree advance its case? It has to have a guardian ad litem in court and who is to say who that would be? Would the court appoint the person to speak for the trees and under what criteria? In other words, that position would have opened a whole can of worms which could have easily been self defeating. It could have been that Weyerhauser came in and said, “We’re the best people to speak for the trees, we’re the tree company.” And the court might have said, “Hey, that sounds OK to me.” So, I always thought that Douglas’ idea was legally unsound.
The Sierra Club had a co-plaintiff in the Mineral King case, the Mineral King District Association. The Association was made up of people with cabins in the Mineral King Valley and I learned that a number of the people had been coming there for years, and some people had met the person they married there and now had grown children that considered Mineral King their place in the world, more so than where they lived elsewhere. So, clearly those people had standing. We went back to the district court and told the judge that the Sierra Club, which held regular outings in the valley, and the Association could meet the Supreme Court’s test in the Mineral King case and the judge agreed. At that point, Disney threw in the towel. They just quit, they’d had it. They were getting beat up publicly and they just said, “To heck with it.”
When I got out of law school I went to work for a firm on Wall Street. And one day I was walking down Wall Street and there was a bookstore. In the window was one of the Sierra Club’s exhibit format books. I discovered that the Sierra Club was a national membership organization and that it had an Atlantic chapter in New York. So, I met the Atlantic chapter chairman, a lawyer named David Sive, and I became a member. Eventually I asked David Sive if there was somewhere that I could pursue my interest in the environment and be a lawyer. He told me he had a friend named Eddie Weisl Jr. who had taken the job of Assistant Attorney General for the Lands and Natural Resource Division at the Justice Department. So, I met with Weisl and he hired me to be a staff attorney in the Lands Division.
I did a lot of cases dealing with water law issues for the Justice Department for a while. Then, one day, I got a call from Bruce Terris. He said that he and some friends were putting together a public interest law firm [the Center for Law and Social Policy] and that I had been recommended to him by Eddie Weinberg, Solicitor of the Department of the Interior. I had never heard of a public interest law firm at the time. So I met with Bruce and his colleagues and they told me what they were going to do. They didn’t have very much money at that time, but we decided, let’s start anyway.
The work I was doing at the Center on DDT and an injunction I got against the Trans-Alaska pipeline caught the attention of people like Phil Berry, Fred Fisher and Don Harris. They had decided the Sierra Club was going to have its own legal defense fund. I met those people for the first time at the end of 1969 in Virginia. They later called me and asked me if I would be interested in working for the legal defense fund. It seemed too good to pass up so I said yes and packed my bags.
Before 1970 we didn’t really have a body of environmental law. When NEPA became law in 1970 it came as a thunderbolt. I didn’t even know it was being considered; a lot of people didn’t know. I thought it wouldn’t amount to much. Now at some point in 1969 David Brower had called me and asked if anything legal could be done about the impending Trans-Alaska pipeline project. I looked at it and the only thing I could find was that the law provided that they could have a right of way on public land that spanned the width of the pipe and 25 feet on each side. Well, they were going to need a lot more than the width of the pipe and 25 feet on each side. So, I had a conversation with David and I told him what I was able to find, but I also told him I didn’t think it was enough to convince a court to stop the pipeline on behalf of an environmental organization. Then NEPA was passed and I thought, “Wow, I bet they won’t have a decent environmental impact statement for the pipeline.” It turned out I was right. So, the Wilderness Society filed the case with the Environmental Defense Fund and the Friends of the Earth and we got an injunction. I think this was the first case filed under NEPA. We had a bit of luck with the judge, kind of a conservative fellow, but he had served as an Air Force officer north of the Brooks Range [in Alaska] and he knew about the tundra and he gave us an injunction. Well, at that point, you had to believe that environmental law was real and it was really exciting—I was really pumped! There was something in the air: we got some favorable DDT rulings, we got the pipeline injunction, et cetera. They were exciting times.