All He Wants To Save Is The World
- Major Litigation
- Environmental Law
- The Environment Movement
- Environmental Law: Origins & Beginning
- Environmental Lawyers
- 1971: Experts consider the new Environmentalism
- The DDT War
- Suffolk County DDT litigation
- Madison DDT Litigation
- The Environment, The Establishment & The Law
- The Agent Orange Litigation
- Saving the West Australia Jarrah Forest
He is Vic Yannacone, fiery attorney for the Environmental Defense Fund, the nation’s most militant conservation group, and he hauls into court those who wantonly defile our habitat
by Gilbert Rogin
Originally Posted: February 3, 1969
Victor John Yannacone Jr. is nothing special to look at; he has to be heard. And there is, decidedly, nothing silent about Yannacone except the final “e” in his name. When he is outraged, as is frequently the case, his voice rises in pitch as it increases in volume until it resembles the terrible, putative wail of an Old Testament prophet. “Just look at this excrescence on the face of the earth!” Yannacone typically cried the other day as he drove past the Islip, N.Y. sanitary landfill project. “It is neither very sanitary nor very filling. They preincinerate garbage to warm it up for the rats!” That evening Yannacone showed color slides he had taken in Montana, which he had recently visited with his wife Carol and his 8-year-old son Victor John III. (“Victor’s absence,” Yannacone wrote his son’s school, “was occasioned by a trip to Missoula with his parents, who were studying air pollution at the time. Victor saw the Mission Mountains, Flathead Lake and the herd of mountain sheep on Wild Horse Island, as well as a particularly miasmic example of industrial air pollution—the Hoerner Waldorf paper-pulp mill…. please fell free to question him on his trip.”) Nearly all of Yannacone’s slides portrayed what he calls “the effluent of the affluent”—dismal columns of smoke or great layers of smog. “Pure crud!” he shouted as he flashed the slides on his living-room wall. “The rape of the West! You can’t see the purple mountain’s majesty, much less the fruited plain. Oh, what a putrescent excrescence on the face of the globe!”
Yannacone, an exclamatory, 32-year-old Patchogue, N.Y. lawyer and Sunday-school teacher who was once the state’s youngest Eagle Scout, is not, of course, alone in being infuriated by the rape of the West (and East), but he may be the only one who is wholly convinced he can do something about it. To perform this feat, Yannacone has become a trustee of the Environmental Defense Fund—or, as he dolefully refers to it, the Fund-less Environmental Defenders.
“Vic really thinks he can save the world,” says Dr. Charles F. Wurster Jr., assistant professor of biological sciences at the State University of New York at Stony Brook and chairman of EDF’s Scientists Advisory Committee. “He’s a brilliant guy. If you aim him in the right direction he’ll raise holy hell.”
The Environmental Defense Fund, Inc. of Brookhaven, N.Y., which was founded 16 months ago, is the most militant of the nation’s 150 conservation organizations. “We’re hawks,” says Wurster, not without relish, “but we operate entirely within the sociolegal structure. We don’t block traffic. We don’t sit in. We don’t riot.” In fact, EDF would rather not be counted among conservation groups. “Conservationists are a nice, placid, quiet, law-abiding group of citizens,” says Wurster, “some of the best we’ve got, but they have a way of talking to themselves in a closed ecosystem. They are legally weak, scientifically naive and politically impotent. They lack an offense. EDF isn’t content to do things in the usual, slow way with limited accomplishment. We want to do more faster, even if we have to crack a few skulls.”
It is EDF’s position that the traditional appeals of conservationists, largely based on esthetic and emotional grounds, to the legislative and administrative branches of government are too often ineffectual and that the last, and perhaps the only, hope lies in going to court armed with irrefutable scientific evidence. EDF’s motto: Sue the Bastards.
EDF believes that the people of the U.S. are constitutionally entitled to the full benefit, use and enjoyment of the environment, and that natural resources must be administered in trust by one generation for the next. “Unfortunately, the Constitution says nothing about biospheres,” Wurster admits. This omission has not, however, deterred EDF from bringing legal action against those who degrade the environment; Yannacone ingeniously rings in the “due process” and “equal protection” clauses of the Fifth and 14th Amendments, as well as the entire Ninth: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The commonplace that a lawsuit is a last resort runs counter to one of Yannacone’s Laws: “Litigation is like a club. It’s got to be used or it becomes a deadweight.” In a rousing address he delivered to the 1967 National Audubon Society convention, Yannacone promulgated what amounts to the EDF manifesto. “Sad experience,” he said, “has shown that at this time in American history, 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? Look to the 50-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 America a finer place to live have their basis in fundamental constitutional litigation. Somebody had to sue somebody before the legislature…took long-overdue action.”
In slightly less emotional moments, Yannacone argues that the conservation movement has rarely influenced Congress because legislators are often no longer responsible to the people but cater to special-interest groups whose concerns only occasionally coincide with those of the public. Appeals to administrative agencies are equally fruitless, he claims, since, to paraphrase his rhetoric, the original purpose of these agencies has been perverted and they act as judge, jury and executioner of their own actions without regard to the will of the electorate. “Yannacone’s Law,” says Yannacone. “Civilization declines in relation to the increase in bureaucracy.”
His greatest wrath, however, is reserved for another popular tactic of conservationists—the letter to the editor. “Don’t write letters!” he shrieks. “Do something! Yannacone’s Law: When someone shoves, shove back. Don’t write sterile prose. A letter to the editor! Bleahhh!”
Yannacone has an almost reverential regard for the law. “Litigation,” he says, “frames the issues as no other procedure short of physical combat can. I practice law with the philosophy that if there is something that morally must be done, there is a legal way to do it. Of course, you’ve also got to make the thing swing. If it doesn’t swing you’re going to get yawned out of court.”
In fact, Yannacone’s faith in the judicial process is seemingly boundless. In the course of a recent trial he told the judge, “When it comes to a determination of my sanity and my ability to face the world, I will take the lowest magistrate God ever made to the greatest psychiatrist in the world.”
EDF doesn’t bring personal-damage suits, such as the unsuccessful action which Dr. Robert Cushman Murphy initiated against the Department of Agriculture in 1957, alleging possible damage to a few private, organic gardens by the federal gypsy-moth control program on Long Island. EDF contends that such suits are futile and demeaning and enable the court to evade the central issue, which in this case should have been the inherent danger in the outdoor’ use of DDT, which would cause serious, permanent and irreparable damage to the environment. EDF brings class actions, or those on behalf of a class or group too numerous to be brought into court, and it doesn’t seek money damages but injunctive relief and a declaration of the public’s rights.
EDF’s lawsuits are based on the equitable rule of law, “so use your own property as not to injure another’s,” and the determination of the highest and best use of a resource, or that use which diminishes it the least and benefits man the most—what Regional Planner Ian McHarg calls the highest social value at the least social cost.
“Organized conservation has so far failed to make a scientific determination of values, costs and uses,” says Yannacone. “Everybody with a conventional conservation background recoils at the notion that esthetic value has no market value as far as the Army Engineers are concerned. To win in court today you must write off scenic beauty, write off all but dollars and cents. If, for example, you want to save the Everglades, you have to show not only that it’s a unique, national natural resource of enormous value and that, say, digging canals will cause serious, permanent and irreparable damage, but that the damage is measured by the ascertainable replacement cost. If the Everglades is drained and ecologically destroyed so that it is incapable of renewing itself and is replaced by sugar plantations and real estate, its new value is that of the real estate, rent and net sugar-crop yield. However, the cost to society is the difference between this figure and that of replacing the Everglades, which is astronomical but computable. This technique begins to show the real social cost of so-called public improvements.
“The conservation movement has been plagued with the assumption of a defensive position at the outset. Rather than asserting rights and demanding justice, organized conservation has been educating each generation to the position that the natural environment is absolutely subject to ruthless, unscientific, ecologically suicidal degradation in the quest for private gain. Conventional conservationists have been and still are saying that they must buy their national heritage at the price set by the exploiters. For instance, the National Audubon Society, whose efforts in conservation education are unequaled, has recently purchased the ecological integrity of Corkscrew Swamp Sanctuary on the north side of the Everglades National Park. To save the sanctuary from the ecological damage which would follow from wholesale development of the surrounding land by speculative subdivision builders, National Audubon mounted a campaign to buy the land from the developers at a cost in excess of $500,000 rather than take legal action to prevent any use of the land which would damage the fragile Corkscrew ecosystem—a demonstrable, national natural resource unique in the continental U.S. What would Audubon have risked if it sued? It would have commenced a quick, relatively inexpensive federal declaratory judgment action and have secured a determination of the rights of the people within a year, assuming the matter was appealed to the Supreme Court. The pendency of the action would have temporarily prevented damage to the area and would have furnished sufficient time to raise funds to purchase the property should the action have been lost.”
Yannacone would have used somewhat different tactics to save the redwoods. “The Sierra Club, whose magnificent publications have awakened the country to the imperiled beauty of the West,” he says, waxing grandiloquent, “has devoted its energies to educating Congress and the state of California to the value represented by the redwoods. The result: a national-park bill which, though welcome, is not wholly satisfactory from an ecological standpoint. We aver that there could have been a bigger, better park sooner. EDF suggested a year ago that legal action be taken to declare the redwoods a national natural resource and to establish the rights of the people to it. I contend there is a fundamental rule of law in the English and Civil law jurisdiction that no private citizen can cheat the sovereign nor can any private citizen hold the sovereign to a bad bargain. If you investigate title to the redwoods you will find that they were all originally acquired from some government at a relatively low price. There is no question that by the power of eminent domain government can reacquire the redwoods it gave away. The lumber companies claim they must be paid at today’s standing timber prices. I claim they are entitled to their cash investment, plus taxes, plus interest, plus the cost of removing their operations. Only a court can decide the issue. It’s worth a try. What does it cost? A lot less than a big ad campaign and wining and dining Congressmen. What’s the worst that can happen? You lose. At least you’d know where you stood.”
Vic Yannacone attributes his abundant public spirit to his father, with whom he is associated in the practice of law—mostly workmen’s compensation and personal-injury matters. He vividly recalls, when he was 5 or 6, walking with his father through Herald Square, which in those days was ornamented with a statue of William E. Dodge. Yannacone Sr. told Yannacone Jr. that a memorial to a robber baron was “a pretty poor example to youth.” After he persistently expressed much the same sentiment to Mayor La Guardia, the statue was removed.
When Yannacone graduated from high school he had 34 scholarship offers and the ambition to become a doctor—more precisely, a biophysicist specializing in electroneurophysiology. He recently lamented that his Nobel Prize had been wrested away from him. “I was going to set the world on fire by making sense out of electroencephalograms,” he moaned. “All of a sudden comes this book from Russia—Mathematical Analysis of The Electrical Activity of the Brain. I’ve been scooped!”
Yannacone attended Syracuse, New York University and Kalamazoo College without taking a required course or getting a degree. In fact, he only got one A—in Theory of Coaching Football. “When I was in eighth grade I decided I was going to be a football player,” he explains, “so I read every book about football in the New York Public Library.” Yannacone claims to have introduced the wing T to Kalamazoo, where he played second-string quarterback.
At the end of his junior year, Yannacone grew disenchanted with medicine and enrolled at Brooklyn Law School. But law school also failed to gratify him. “I couldn’t stand it,” he recalls. “It was an unbelievably dull, overcomplicated system. It so happened that Brooklyn Polytech was in the same building, so I cut classes to audit electronics courses. I flunked contracts and got a D in torts.” Nonetheless, he passed his bar exam and went on to do graduate work at New York Law School, which happened to be around the corner from the downtown campus of Fordham, where he concurrently took a number of philosophy courses.
As a result of his almost demonic eclecticism, Yannacone has made himself formidably learned. In his résumé he lists under the heading “Special Marketable Skills” optical design and fabrication, histological laboratory techniques, electronic laboratory techniques, offset lithography techniques and so forth on down to having a commercial radio-telephone license and playing the baritone sax. Yannacone is a member of Local 802 of the American Federation of Musicians and has performed with such jazzmen as Billy Mitchell, Uncle Budd Johnson and Johnny Mince. In addition, he is a member of the Brookhaven Symphony, for which he plays parts written for such obscure instruments as the ophicleide, a precursor of the tuba, and the serpent, an early bass horn.
The landmark lawsuit which led to the formation of EDF was Yannacone vs. Suffolk County Mosquito Control Commission, which was tried in the Supreme Court of New York at Riverhead during November 1966. It was the first action ever brought against environmental degradation that didn’t involve the allegation of personal damages, the plaintiff, Carol A. Yannacone, suing individually and on behalf of all the people of Suffolk County to prevent the commission from using DDT for mosquito control.
Roland C. Clement, staff biologist of the National Audubon Society and one of EDF’s most fervent supporters, has called DDT “the greatest technological panacea ever foisted on an unsuspecting public by the biologically illiterate and unscrupulous genius of American salesmanship.” The manufacturers of DDT and their supporters in government just as passionately defend it, asserting that DDT has fed the starving millions of the world, reduced malaria and is harmless to man. This is the kind of argument which exasperates Wurster, who is currently determining how the presence of DDT affects the accumulation of certain calcium deposits in pigeons, “We know all that,” he says, “but it’s irrelevant. DDT is much less effective than it once was because insects have become resistant to it, and we have learned many better ways of controlling them. Moreover, we now know that DDT is causing extremely serious damage to nontarget organisms, and may not be as harmless to man as was once thought.”
The advocates of DDT attribute any harmful side effects to improper or indiscriminate use. But, in fact, there is no safe application of DDT in the external environment. “Company propaganda makes DDT sound like baby powder,” says Wurster, “but you can’t have the controlled, discriminate use of a chemical that is inherently uncontrollable when released outdoors.”
George M. Woodwell, staff ecologist of the Brookhaven National Laboratory and a frequent EDF witness, has dealt most cogently with an equally grave fallacy. “Toxic materials released into the environment are widely assumed to be diluted into innocuousness,” he has written. “If there are local effects from the toxicity, they are transient; an abundant and vigorous nature repairing any damage within at most a few years—or they are accepted as small cost for technological progress…. So thoroughly ingrained is this philosophy that its corollary, the right to pollute, has become a second major philosophical and, for somewhat different reasons, legal assumption: we tend to require detailed scientific proof of direct, personal damage to man as a prerequisite for even considering restriction of any right to pollute.”
However, as was first proved with radioactive fallout, and more recently with DDT, pollutants are not diluted but merely dispersed. Rather than becoming less toxic, DDT accumulates in the higher members of food chains, disastrously reducing reproduction in carnivorous birds and fish (SI, Nov. 4). And when predator populations decline, populations of lower members of food chains may explode to become new pests.
Furthermore, in the past few years it has been discovered that chlorinated hydrocarbon insecticides, including DDT, dieldrin and chlordane, induce certain enzymes in the liver, which decompose steroid sex hormones, creating a hormonal imbalance. Levels of DDT now present in the human environment cause such a breakdown in several laboratory animals, including rats, whose sex hormones, estradiol and testosterone, are thought to be identical to man’s. These same levels, which are currently found in the human diet and stored in human fat, could result in a host of subtle changes. Alas, there is no way to be certain. It cannot be tested for, because everyone is now contaminated, and what is “normal” can no longer be determined.
“My contention in court,” says Yannacone, “has been that if the circumstantial evidence against DDT were presented against a criminal he would be convicted without the slightest hesitation. If a man’s liberty, and in some cases his life, can be taken upon the presentation of this kind of evidence, how can it be ignored for private profit and the benefit of limited-vision special interests? If the evidence against DDT were submitted to the Federal Drug Administration by a pharmaceutical house seeking to license a drug, that drug would never leave the lab. By what right do vested, limited-vision special interests compel every man, woman and child in this generation and those to come to absorb and carry these toxic materials in their tissues? Defending the continued use of DDT in the environment by an attorney borders on the unconscionable. I’d rather defend a known murderer so that his rights would be protected. In fact, a murderer should be entitled to greater protection than a corporation, which has no soul to save nor butt to kick.”
Yannacone vs. Suffolk County Mosquito Control Commission also marked the first great marshaling of responsible environmental scientists as witnesses in a courtroom, which has become the backbone of EDF actions. Many of these original witnesses later became EDF trustees. Besides Yannacone and Wurster, the unsalaried trustees who comprise EDF’s entire membership and staff are Carol Yannacone; Anthony Taormina, a regional director of fish and game of the New York State Conservation Department; Dennis Puleston, technical information officer, Brookhaven National Laboratory; Robert Smolker, professor of biological sciences, State University of New York at Stony Brook; H. Lewis Batts, professor of biology, Kalamazoo College; and Biologist Arthur P. Cooley.
Although in Yannacone vs. Suffolk County Mosquito Control Commission, Judge Jack Stanislaw ruled that the legislature rather than the court should determine whether the use of DDT should be regulated or eliminated, EDF did not regard the trial as a setback. The commission was enjoined from using DDT for two years, during which period it switched to less persistent chemicals and biological controls, and it has not used DDT since. Judge Stanislaw, who is a farmer as well as a jurist, vowed in court never to use DDT again and in his decision found that “the use of chlorinated hydrocarbon pesticides does adversely affect Suffolk’s natural resources…that DDT is a potentially harmful and inherently dangerous chemical…[that] DDT negatively reacts upon ‘good’ as well as ‘bad’ insects…[and that] other chemicals are perhaps at least equally available to control harmful insects.”
In fact, Yannacone was rather elated by the outcome of the trial. “The value of the ruling is not in its holding,” he says, “but in its decision: a court grappled with the most sophisticated problem of modern environmental science and rendered a decision which determined the real effect of DDT on the environment.”
The first EDF case, which was tried last October, was against the Michigan Department of Agriculture (MDA), which intended to aerially deposit 5,600 pounds of dieldrin (the biological equivalent of half a million pounds of DDT) along the lakeshore in Berrien County to eradicate an “infestation” of Japanese beetles. Although the 2,800 acres it proposed to treat are primarily nonagricultural, MDA alarmed farmers and public alike by implying that the spraying was necessary to prevent the spread of the beetle into farmland, which would result in millions of dollars of crop damage, a quarantine of agricultural products and economic ruin. What MDA failed to mention was that adult beetles can be controlled by less hazardous insecticides regularly used by farmers (Sevin, Malathion, methoxychlor), and that the beetles are also subject to natural biological control—namely, various predatory insects, parasites and diseases, especially milky-spore disease. MDA, however, insisted it wanted to eradicate the grub, an ecological impossibility since Berrien County is contiguous with an area of a greater beetle population, which would act as a reservoir. Says Wurster, “Eradication should not even be attempted under such circumstances, since natural control mechanisms are thereby also eliminated, creating a vacuum into which the pest population can explode. Control, not eradication, should be the goal.”
MDA further asserted that the dieldrin would not enter Lake Michigan, although the Federal Water Pollution Control Administration had informed it that two chlorinated hydrocarbon pesticides, DDT and dieldrin, had already been found in the lake, and that DDT had most probably caused the death of nearly one million coho salmon fry.
Yannacone filed suit against MDA in the U.S. District Court in Grand Rapids, but Judge Noel P. Fox dismissed the case on the grounds that the 11th Amendment prohibited suits in a Federal Court against a state by an out-of-stater. Undaunted, Yannacone turned to the Michigan Court of Appeals, also in Grand Rapids. Although this court had never heard a trial before, Yannacone convinced Judge John Fitzgerald to issue a temporary restraining order and grant EDF a hearing. However, Fitzgerald allowed Yannacone only six hours to present his entire case.
In the fourth hour Yannacone discovered that the infestation had been declared, because for a period of three months 435 traps in 100 square miles had captured 72 beetles. “There was pandemonium in the courtroom!” screams Yannacone. “Now we knew why the milky-spore disease couldn’t work. There were too few beetles! I asked Dean Lovitt of MDA how many beetles make an infestation. Answer, one beetle. If you squash the beetle, I said, will you end the infestation? Answer, yes. If there are two beetles and you squash them, will you end the infestation? Answer, yes. If you squash all 72 beetles will you end the infestation? Answer, yes. Although MDA presented no defense, the court decided that the department’s discretion is not reviewable. I consider that a very narrow view.”
The injunction was dissolved after the trial, but by then it was too late to apply the dieldrin. However, last September, MDA stated it was going to treat 5,600 acres with nearly 7,000 pounds of dieldrin. EDF went to the U.S. District Court in Milwaukee; Wisconsin shares the lake but is in a different federal circuit. “This time the Michigan Department of Agriculture said two beetles were an infestation,” says Yannacone. “But the judge ruled the case belonged in Michigan and sent it to Judge Fox, who indicated he would rule exactly as he had before.”
At this point Governor Romney stepped in. He issued a statement saying that the dieldrin treatment was “the only feasible course of action,” since if MDA didn’t spray, private interests would. This Yannacone says is simply untrue. Romney further stated that the treatment would determine “more exactly the effects of ‘hard’ pesticides in our environment.” Says Yannacone, “Just because Romney doesn’t know the effects, it doesn’t mean no one knows.”
However, as a result of this case, the Wisconsin Natural Resources Department agreed to hold a quasi-judicial hearing on the environmental effects of DDT. The petitioners’ plea at this momentous hearing, which began last December, is an EDF production featuring Yannacone and a dozen topflight scientists whom Wurster rounded up. It is the first time that the full case against DDT has been presented in a judicial-trial context, and if Wisconsin eventually bans DDT it is expected that other states may well follow its lead.
Another blessing arising from the dieldrin action was that a suit EDF had filed simultaneously to restrain nine Michigan cities from using DDT for Dutch elm disease resulted in an EDF victory, the cities agreeing to cease and desist from applying the chemical. Says Wurster, “The city that depends upon DDT will eventually lose its elms. The elm-bark beetle that spreads the fungus disease breeds under dead or dying elm bark, so sanitation, or the removal of this breeding material, effectively controls the bark-beetle population, and thereby the disease. Buffalo and New York City held elm losses to a few 10ths of 1% last year by sanitation alone.” EDF later added 47 more Michigan cities to the suit, and nearly all have agreed to stop using DDT.
EDF’s most recent action, which will be tried in March, is against the Hoerner Waldorf Corp., which Yannacone terms the major polluter of the Missoula Valley. “The people of the valley live at the bottom of a veritable sewer of bad air,” he says. “It affects human health, reduces ecological values and destroys the amenities of civilized life—the ability to breathe deeply and to appreciate the many delicate odors of nature. You can’t smell the flowers in Missoula, Montana!
“Every day the Hoerner Waldorf pulp mill releases thousands of pounds of hydrogen sulfide, mercaptans—the odoriferous constituent of skunk musk and rotten cabbage—and other noxious compounds. This is an ideal type of action because the defendant is singularly identifiable. One corporation is responsible for virtually the total degradation of the Missoula regional air shed. It is technologically capable of eliminating the pollution, and pollution control is also economically feasible. This presents an issue to the court it can’t avoid—whether the right to breathe clean air is a constitutionally protected right. This one goes to the U.S. Supreme Court if we have to go broke doing it.”
Indeed, EDF has only $1,000 in its bank account. Among the actions it would undertake if it had more money would be the protection of such endangered species as the alligator. This is one of Yannacone’s pet hypothetical projects. “Alligator poaching,” he says, “is subsidized by the purchase and sale of hides in the world of high fashion. Eliminate the market and you eliminate the basis of poaching. The people have a constitutional right to the widest diversity of speciation consistent with the principle of natural selection. I would challenge the premise that anyone can wipe out an animal species and infringe this right of all the people for corporate profit or vainglorious display.”
However, Yannacone is not too hopeful that EDF will survive to tackle this case or any others. He feels that the success of citizen recourse to the courts poses too severe a threat to the vast corporations and the great law firms who are their agents in exploiting the environment.
“Is it any wonder,” Yannacone said the other day, crescendo, “that when you look at the immoral advance of the corporate position against the public interest by the country’s best-paid and most-respected legal minds, that lesser legal talents fear to tread new paths or rediscover old principles? These are the men who write the laws behind which their corporate clients hide. These are the men who most fear opening the door to the courthouse to the plea of the people for natural justice. But if the door to the courthouse is closed—the door to the street may be opened.”