Environmental Law & Environmental Litigation: A Brief History

Environmental Law and Environmental Litigation became recognized elements of our legal system in the Spring of 1966 when a New York woman brought an action seeking equitable relief from a toxic insult to the community ecosystem on behalf of all the citizens of Suffolk County, New York, not only of this generation, but of those generations yet unborn. The real defendant in that action was not the local mosquito control commission still routinely using DDT in an attempt to control a mosquito population that had long since become resistant to the chemical but the broad-spectrum, persistent chemical biocide, 1,1,1-trichloro–2,2-bis(p-chlorophenyl) ethane— DDT itself.

As the plaintiff in the first successful legal challenge to public use of a broad spectrum persistent chemical biocide, DDT, Carol Yannacone completed the mission that the late Rachel Carson began with Silent Spring. She was a co-founder of the Environmental Defense Fund in 1967 and led other scientists to the Courtroom as the ultimate test of scientific fact as a basis for public policy decisions.
What has come to be known as the Environmental Movement is the result of her efforts to raise the consciousness of the world to the threat of environmental degradation through equity litigation in the public interest.

The New York State Supreme Court issued a temporary injunction restraining the County of Suffolk from using DDT for mosquito control on August 15, 1966 and continued this “temporary” injunction until December 6, 1967, finally holding that:
DDT has, by its inherent chemical stability, become a continuing factor in some ecological life cycles so as to profoundly alter them and the environmental equilibrium. Thus, it is reasonably apparent that DDT is capable of and actually has to some extent caused extraordinary damage to the resources of this county. If in no other way, the chemical by its very stability has introduced an element of instability in the general ecosystem. For instance by reducing a food source of some of the larger wildlife and so reducing the over-all larger wildlife population, lesser elements multiply more quickly. These lower forms are presumably more of a nuisance, assuming they in turn survive. Furthermore, DDT affects wildlife directly. Its ingestion, from whatever source, has the capability, it seems, to disrupt reproductive processes or even more simply act as a poison. It is fairly apparent then that the application of DDT in Suffolk County has and is continuing to have a demonstrable effect on local wildlife, reducing it slowly but surely, either directly across the board or indirectly from the top down, but reducing it nevertheless….We have a situation where plaintiff has at least minimally sustained a massive effort to validate the allegation that DDT does in fact do biological harm. <>

Until Carol Yannacone challenged the use of DDT in Suffolk County Supreme Court, no lawsuit had ever alleged en¬vironmental degradation as the result of the use of a toxic substance, and the concept of an ecological system had never been the subject of judicial consideration.

Arousing Public Awareness

The public interest in the environment in large measure the direct result of one attorney’s answer to a series of rhetorical questions posed on September 30, 1967 at the National Audubon Society Annual Convention.
“…What can you do when a municipality decides that the highest and best use of a mighty river is the city sewer? What can you do when timber and paper companies cut down entire forests of Redwoods and other exotic species in order to “reforest” the area with faster growing pulpwood trees?
What can you do when real estate speculators insist on dredging estuaries in order to fill marshes or strip the topsoil from irreplaceable prime agricultural land in order to plant houses?
Just what can you do?
The attorney went on to say,
The time has come for you who are committed to the preservation of our environment to…enter the courtroom to protect our natural resources ….
It is time to assert your basic rights as citizens. Rights guaranteed by the Constitution and derived from Magna Carta. It is time to establish once and for all time that our natural resources are held in trust by each generation for the benefit, use and enjoyment of the next. Today, while there is still time, you must knock on the door of courthouses throughout this nation and seek equitable protection for the environment. You must assert the fundamental doctrine of equity jurisprudence—a doctrine as old as the Talmud or the New Testament or the Roman Law—a doctrine as old as civilization. Yet a doctrine as topical as today and as advanced as tomorrow: sic utere tuo ut alienam non laedas&mdash so use your own property as not to injure the property of another&mdash in particular that which is the common property of all mankind, the air we breathe and the water we drink ….
Experience has shown that litigation seems to be the only civilized way to secure immediate consideration of such basic human rights. Litigation seems to be the only way to focus the attention of our legislators on these basic problems of human existence
The major social changes which have made the United States of America a finer place in which to live have all had their roots in fundamental constitutional litigation ….
Our adversary system of litigation as the means of presenting evidence to the conscience of the community has been the touchstone of Anglo-American jurisprudence since Magna Carta. That adversary system of litigation survives today as the hope of citizens seeking redress of a public wrong.
If you the citizen do not forsake your Courts, they will not forsake you 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.
Law is the framework of civilization and the ordering program for society. Our adversary system of litigation is the civilized alternative to bloody revolution; and so long as the door to the courthouse remains open, the door to the streets can remain closed.”