Using Courts of Equity to Protect Our Environment

The real defendant in Yannacone v. Suffolk County Mosquito Control Commission was not the Suffolk County Mosquito Control Commission. The real defendant was 1,1,1,-trichloro-2,2-bis(parachlorophenyl) ethane — DDT.

Suffolk County did not defend the action against DDT. DDT was really defended by the New York State Department of Agriculture & Markets, the New York State Department of Health and the New York State College of Agriculture at Cornell. These were the institutions which furnished the self-styled experts to continue the established policy of the DDT lobby. A policy based on the harassment and ridicule of serious environmental scientists.

These were the same institutions that had interfered with the orderly presentation of the scientific evidence against DDT by responsible scientists at legislative, administrative and other policy making hearings for more than twenty years.

Just as the English Chancellors for 900 years have kept the conscience of the King, Courts of Equity throughout the United States represent the collective social conscience of the community. Only in the New York State Supreme Court, sitting as a Court of Equity in Suffolk County on Long Island, has the full weight of the scientific evidence against DDT been presented in a forum isolated from political, economic and bureaucratic pressures. Only in that Court of Equity could the cumulative weight of scientific evidence against DDT be laid before the conscience of the community.

Those very same institutions that for 20 years had buried the scientific evidence against DDT under tons of bureaucratic hogwash were at last forced to test their opinions in the crucible of cross-examination. Cross-examination they could not withstand and still support the continued outdoor use of DDT.

On two separate occasions, Justices of the New York State Supreme Court, sitting as Courts of Equity, banned the continued use of DDT by Suffolk County. At the request of a concerned citizen, a Court of Equity finally issued the ban after years of ineffective resort to legislative action at the local, State and Federal level by conservation organizations throughout the Country.

There on a witness stand in the New York State Supreme Court, the DDT establishment was forced to defend its Position before an impartial judge representing no special interest other than the conscience of the community. Almost as soon as those representatives of the pseudo-scientific DDT establishment stepped upon the witness stand and swore to tell the truth, what vestiges of professional integrity remained in them guaranteed that, at long last, the truth about DDT would enter the public record.

After ten years, a recommendation by Dr. James E. Dewey, the man responsible for coordinating the chemical pesticide programs at the New York State College of Agriculture, Cornell, was finally made public. A recommendation made in 1957 recommending the discontinuance of DDT in gypsy moth control programs. A recommendation that did not leave the privileged sanctuary of a Cornell file cabinet until that day in December 1966, when Dr. Dewey reluctantly told the truth—under oath—from the witness stand.
The truth came too late, however, to show Federal Judge Bruchausen the naive lack of scientific basis for his unreserved characterization of DDT as the savior of mankind, or the injustice of his heavy-handed ridicule of the well-meaning, though ineffective efforts of Dr. Robert Cushman Murphy.

The cause of action advanced by Mrs. Yannacone in the Suffolk County DDT suit was, and apparently still is, unique. The issues were stripped to their basic essentials. The complaint alleged that DDT was an environmental contaminant; that it caused in the past, and would cause in the future, serious, permanent and irreparable damage to the natural resources of the County of Suffolk in particular and the entire biosphere in general.

Mrs. Yannacone asserted the right of any individual to enter a court of equity and protect the rights derived from the Magna Carta and guaranteed to all by the Constitution. She sought the only available means of redress for this toxic insult to the Community ecosystem.

Yannacone v. Suffolk County Mosquito Control Commission is an object lesson in citizen action. After years of legislative and educational furor following the publication of Silent Spring by the late Rachel Carson, and in spite of the accumulation of more than 20 years of scientific documentation of the threat of DDT to the biosphere, nothing was done until a citizen sought the help of a Court of Equity. In April 1966, Mrs. Yannacone went to Court; the use of DDT by Suffolk County was banned on August 15, 1966.

DDT has not been used by Suffolk County for more than a year now. Already some natural repair is taking place in the Suffolk County ecosystem. Since the major estuarine resourees of the State of New York are concentrated in Suffolk County, this in large measure led to the choice of Suffolk County as the site for this test case. Yannacone v. Suffolk County Mosquito Control Commission represents the only legally enforced ban against the use of DDT in the United States, and barring a major change in the political ecosystem, it represents the only way to secure an immediate ban on the use of any environmental contaminant such as DDT.

It is now possible to furnish sufficient evidence to establish in a Court of Equity that continued application of DDT will cause serious, permanent and irreparable damage to the biosphere. Immediate injunctive relief is possible.

Any citizen may enter a Court of Equity and establish a basic constitutional right to maintain local ecosystems free of damage from the continued use of inherently dangerous, highly toxic, broad-spectrum, chemical biocides such as DDT, provided a proper cause of action is presented and supported with well-organized carefully prepared, thoroughly documented scientific evidence. A court of equity is the only forum in which a full and complete inquiry into questions of environmental significance can be had at this time. Only in a court of equity can the evidcnce be fully and fairly presented, tested in the crucible of cross-examination and submitted for judgment to the conscience of the community.

Perhaps the most important lesson contained in the success of Yannacone v. Suffolk County Mosquito Control Commission is that only in a courtroom can a scientist present his opinions during fair inquiry before an impartial arbiter, a judge of general jurisdiction clothed with the power of the community to effect justice and redress wrong.

Only on the witness stand, in a court of equity, protected by the rules of evidence, though subject to cross-examination, can a scientist be free of harassment by legislators seeking re-election or higher political office; free from the glare of controversy seeking news media; free from the unsubstantiated attacks of self-styled experts representing economically vested interests and not subject to cross-examination.

Only in a Court of Equity, protected by a skilled advocate, and the collective social conscience of the community evolved through more than 600 years of judicial history, can a scientist maintain the dignity of his profession and satisfy the duty of his calling—to make his knowledge known to the community for community action.

You have heard today of other approaches to the use of law for protection of the environment.

Our elected Legislators can protect our environment

In the event the legislative approach is ultimately successful, there will be no need for other than occasional interpretive litigation, as regularly occurs with the Bill of Rights.

The ways of the legislature, however, are slow and ponderous, and many of our vital natural resources are in immediate danger of serious, permanent and irreparable harm from continuation of much short-sighted public action.

Administrative agency bureaucrats may do it for us

The Scenic Hudson Preservation case best exemplifies the administrative approach. Here a Federal Appellate Court finally held that the Federal Power Commission, an administrative body, should hear evidence on natural values in addition to evidence relating to the economics of electric power generation.

Unfortunately, such an administrative approach carries within it the seed of its own abuse. An administrative agency, no matter how well intentioned, is not a Court. lt is, in fact, its own judge, jury and executioncr — all in the public interest of course; and, perhaps most disastrous for the public interest, its findings of fact, though sometimes based on untested opinion, bind those few courts which have a limited power of review over its decisions.

Any administrative agency is so burdened by its narrowly defined statutorily regulated point of view as to be inherently incapable of, and juridically incompetent to consider ecological issues.
The Scenic Hudson Preservation case marks a fork in the road ahead for those concerned with the preservation of the basic natural values of our biosphere.

To continue before the Federal Power Commission is to clothe that agency with an aura of ecological comprtence it does not possess and cannot attain. lt yields to that administrative body the ultimate power to make ecological judgments binding on the community for generations yet to come. Judgments they are constitutionally incompetcnt to make.

Let a judge do it in a Court of Equity

At this time the ecological interests of society can be protected only by directly attacking those actions which can cause serious, permanent and irreparable damage to an ecosystem in a Court of Equity on basic constitutional grounds. Only in such a forum can all the weight of scientific evidence be brought to bear on the issue.

Since the development of a formal method for evaluating the real cost to society inherent in conventional highway route selection by Professor Ian McHarg, it is now possible to secure injunctive relief on basic constitutional grounds in a Court of Equity in those highway route cases where scientific testimony can be assembled to indicate that the route was not selected in accordance with the principle of least social cost.

In the struggle to protect natural resources against the predations of such short-sighted, limited-vision, governmental agencies as the U.S. Army Corps of Engineers, any attack upon the determinations of such agencies must NOT be based on damage to specific economic interests.

The Everglades cannot be saved from the Army Engineers and their co-conspirators, the Central & Southern Florida Flood Control Agency by showing a loss of income to shrimp fishermen or hot-dog vendors, as the National Audubon Society attempted to do in the C–111 case. Nor can the Everglades be saved by any unscientific appeal to mere aesthetic sensibilities. The only way to save the Everglades from the Army Engineers and the subdivision land speculators is to establish by competent scientific evidence that the Everglades represent a unique and essential natural resource belonging to all the citizens of the United States, and that the continued activities of the Army Engineers, and their supporting agencies at the State and local level will cause serious, permanent and irreparable damage to this unique and irreplaceable national natural resource—our Everglades.

Upon such a showing by competent scientific evidence, injunctive relief can be obtained in the appropriate court of equity. Conventional conservation education will not save the Everglades. Only imaginative legal action supported by classic equitable principles on behalf of all the people of die United States will get the story told and save our Everglades.

Although we trial lawyers consider it the major part of our professional obligation to avoid litigation, encouraging settlement and compromise whenever possible, there is a time not to settle; a time not to compromise; a time to try the case.

In those cases where the issue involves a basic principle, trial is generally inevitable, because only during a trial, before an impartial Court, with skillful advocates presenting the evidence fairly and fully on both sides of the issue, can the conscience of the community, in the person of the trial judge sitting as a Court of Equity, render a fair and complete decision and determine the matter on the merits.

The time has come for you who are committed to the preservation of our environment to establish an ENVIRONMENTAL DEFENSE FUND and enter the courtroom to protect our natural resources. Not for ourselves, who have vivid memories of what once was, and some remaining examples of our natural heritage, but for our children, who may only hear about what once was, and for our grandchildren yet to come who may never even hear about it.

lt is time to assert your basic rights as citizens guaranteed by the Constitution and derived from the Magna Carta. lt is time to establish once and for all the value of natural resources as a community asset held in trust by each generation for the benefit, use and enjoyment of the next generation.

Sad experience has shown that at this time in American history, litigation seems to be the only civilized way to secure immediate consideration of basic principles of human rights. Litigation seems to be the only way to focus the attention of our legislators on the basic problems of human existence, short of bloody revolution. Conservationists cannot riot in the Everglades, for who would notice but the few remaining great denizens of the swamp. What would be hurt, other than the very values sought to be preserved.

Conservationists! You who would make wise use of our natural resources. Look to the fifty-year history of the human rights struggle in the American Courts. Look to the success of the American Labor Movement and the surprising survival of General Motors in spite of the Court’s recognition of the rights of the United Auto Workers. All of the major social changes which have made die United States of America a finer place to live have their basis in fundamental constitutional litigation. Somebody had to sue somebody before the legislature—in enlightened self-interest (for the benefit of the public, of course) took long overdue action.
Establish an Environmental Defense Fund, separate and apart from any existing tax-exempt organization, and assert your basic constitutional rights
Let the imminent specter of properly presented and adequately financed litigation support your legislative demands as they have supported the demands of others through the years since the Fourteenth Century.

Our adversary system of litigation as the means to present facts for the scrutiny of the community conscience has been the touchstone of Anglo-American Jurisprudence since 1300. lt was adopted by the Colonial Courts in America and survives today as the last hope of the citizen seeking redress of a public wrong. The Courtroom is the last arena where the individual citizen can meet mighty government and hope to survive.

If you do not forsake your Courts, they will not forsake you—the citizen—in your hour of need. Thomas Becket and Thomas More are only two of the many men who have given their lives that you the citizen may have your day in court.