“Environmental” Law & “Environmental” Litigation

The Birth of Environmental Law: The DDT Wars

On June 6, 1966, in the Suffolk County Supreme Court of New York, the case Yannacone v. Dennison commenced. Learn more about the case here.

This litigation wasn’t built on statutes. It was built on scientific testimony, moral principle, and equity.

• Overview of DDT litigation
• Suffolk County trial documents
• The Madison hearings and national impact

Defining “Environment” — Scientifically and Legally

Before we can discuss environmental law, we must define what “Environment” means.

Environment is the general system composed of all elements and processes within the atmosphere, hydrosphere, lithosphere, biosphere, and econosphere — and the interactions among them.

Some environmental scientists also include the psychosphere and sociosphere. The term psychosphere, coined by environmental scientist and psychiatrist Robert Cancro, refers to environmental impacts that result from emotional — and not necessarily rational — human behavior. The sociosphere describes the complex interactions among human beings in societies, cultures, and civilizations — interactions that often ignore environmental consequences, even as they profoundly affect human systems.

This definition isn’t philosophical — it’s functional. It allows scientists, lawyers, courts, and the public to operate with a shared understanding of the system being protected.

The Conventional View — And Why It Falls Short

Law professors typically define environmental law as positive law — statutes and regulations designed to protect public health and preserve natural areas.

But positive law can’t move fast enough, nor is it equipped, to address damage to entire systems or even critical elements of those systems. Only equity litigation with courts issuing injunctive relief can act swiftly and effectively to prevent harm.

“A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.” — Aldo Leopold

Environmental Litigation: The Real Foundation

• Scientists identified a credible, imminent danger.
• A common law class action was filed, seeking a judgment declaring fundamental and constitutional rights.
• The case was grounded in two maxims of equity:
  • Use your own property so as not to injure others.
  • Equity suffers no wrong to be without a remedy.

“Piper Cub” Lawyers and the NEPA Era

After NEPA was enacted in 1970, many attorneys rushed into court — often unprepared for the complexity and scientific rigor required.

“The courtrooms of America too often have Piper Cub advocates trying to handle the controls of Boeing 747 litigation.” — Chief Justice Warren Burger

“The courtroom is the last arena where the citizen can meet big business or government and hope to survive. Don’t just sit there and bitch — Sue the Bastards!” — Victor Yannacone

The Rule of Law — Not Legal Positivism

Legal positivism claims law is whatever the state declares — regardless of justice. That same reasoning justified genocide in Nazi Germany.

“Injustice remains injustice, even when it is given in the form of a law.” — Gustav Radbruch

Environmental protection must be grounded in natural law and higher justice.

Equity: Where Environmental Law Belongs

In equity, every case is unique. Each must be evaluated on its facts, credible scientific evidence, and potential for serious, permanent, and irreparable damage.

“The law will protect a flower or a vine as well as an oak… These damages are irreparable, because the trees and vines cannot be replaced.” — NY Court of Appeals, 1876

When Litigation Is “Unprecedented”

• Present credible scientific evidence in the Complaint — not in later affidavits.
• Demonstrate logic and clarity in both narrative and legal strategy.

Litigation is not a law review article. It is a courtroom drama, built on data, persuasion, and credibility.

Where Positive Law Fits In

Statutes and regulations have a role — to protect against known harms and set behavioral standards. But they supplement environmental law. They do not define it.

Making Environmental Common Law

When facing risks like:

• PCBs and dioxins
• Systemic ecosystem collapse
• The destruction of irreplaceable natural resources

Only equity-based class actions can deliver meaningful protection.

• Identify the environmental system at risk
• Describe the damage with scientific specificity
• Justify why injunctive relief is necessary

Is Environmental Law “Mature”?

Not yet. And it should not ever be. Environmental law must evolve alongside science and be guided by it — especially in courts.

Distributive Justice vs. Equity

Environmental law isn’t about who gets what. It’s about ensuring a livable, salubrious environment for all:

• Air clean enough to breathe
• Water safe to drink
• Diverse populations of plants and animals to sustain civilization

Moving Forward

Equity jurisprudence predates even the Roman Republic. It still evolves today — case by case — informed by science and moral clarity.

• Protecting the resources we depend on
• Preventing ecological collapse
• Resolving conflicts through justice — not violence

Only through equity can we resolve disputes over limited resources — without war or bloody revolution.