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“Environmental” law: the origin and beginning

The phrase “Environmental Law” entered the public lexicon by way of the daily newspapers Newsday and The New York Times as they reported the first legal argument about “environmental” law before a judge in a public courtroom on 6 June 1966. The title of that lawsuit told the story of the revolution to come on 22 April 1970, the first Earth Day celebration.

Carol A. Yannacone, individually and on behalf of all those entitled to the full benefit, use and enjoyment of the Suffolk Country Regional Ecosystem without degradation from the continued use of DDT for mosquito control by the Suffolk County Mosquito Control Commission
H. Lee Dennison, Suffolk County Executive, et al.

The call for an Environmental Defense Fund

On 30 September 1967, counsel for the Plaintiff in that case, Victor Yannacone, told the National Audubon Society 63rd Annual Meeting at Atlantic City,

“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 one 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 courthouse 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 Roman Law—a doctrine as old as civilization, yet a doctrine as topical as today and as advanced as tomorrow: so use your own property as not to injure the property of others—particularly that which is the common property of all mankind, the air we breathe, the water we drink and the diverse populations of plants and other animals upon which survival of the human species depends.
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 the 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…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.”

Out of that speech, which the media titled, Sue the Bastards!, the Environmental Defense Fund, EDF, was born.

Growing pains

Alas, however, by 15 September 1969, with the National Environmental Policy Act on its way to become the law of the land in January 1970 in time to launch the decade of NEPA, the EDF led by its co-founder Yannacone obtained its last injunction on the merits terminating work on the ill-conceived Cross-Florida Barge Canal. It was an action against the Army Corps of Engineers where the complaint spelled out and demonstrated by example the method of Environmental Impact Assessment and illustrated what a comprehensive Environmental Impact Statement should look like.

With Victor and Carol Yannacone driven out of EDF in December 1969, the co-opting of the Environmental Movement and the perversion of Environmental Law as a unique area of public interest law—a worthy addition to the great body of civil rights common law—were almost complete.

By 22 December 1969, EDF had chosen to begin crying wolf in the media with the “carcinogen of the week” and NEPA was about to spawn an entire generation of those “Piper Cub lawyers” that then Chief Justice Warren Burger lamented were “at the controls of 747 litigation.”

During the Spring of 1969, in Madison, Wisconsin, at the Gotterdammerung of DDT and the other persistent, broad-spectrum, chlorinated hydrocarbon pesticides the full political impact of the Environmental Movement burst forth and the United States Department of Agriculture lost control of pesticide registration. EPA was born the following year, and with it a cottage industry emerged as “Environmental Law Departments” sprang up at major law firms and boutique “environmental law” practices were quickly created by former EPA “regulatory attorneys.”

Environmental Law after NEPA

Environment Law at the large firms and in the major cities followed the pattern of all administrative law since Judge Landis, Harold Laski, and President Franklin D. Roosevelt created the alphabet agencies that are now the Fourth branch of government.

The Environmental Law departments and Environmental Law boutiques were no different than their cousins the FDA/FCC/ICC/… boutiques and large law firm departments.

As we entered the new Millenium in 2000, lawyers lamented the impact of the Big 8– 7– 6–… now down to only 4) Accounting firms were having on the practice of transactional law and traditional corporate law areas.

In the beginning Environmental Law was seen as a short-lived phenomena. It was never meant to become a profit center at major law firms. Its success was to be measured in the passage of ecologically sophisticated, environmentally responsible, socially relevant, economically rational and politically feasible legislation regulating land use and resource exploitation.

In the beginning, Environmental Law was meant to be the unifying legal rubric under which public health, safety and welfare would come together as the American people and eventually the entire world began to recognize that no human action is without consequences oft times far beyond the limited intellectual ken of the actors.

In the beginning, the real message of “Environmental” Law was that we are all canaries and the Earth is our mine.
In the beginning, that’s the way it really was. I know, I was there.

The culmination of environmental litigation as it was meant to be from the beginning is found in the vindication of the Viet Nam combat veterans as a result of the Agent Orange litigation.

The public trust doctrine

Many of those whose Environmental Law “credentials” begin well after NEPA was adopted ignore the Public Trust Doctrine which is the essence of the environmental ethic and the foundation of environmental common law. The Trust Doctrine embodies the fundamental principles of equity jurisprudence

  • so use your own property as not to injure that of another
  • suffer no wrong to be without a remedy
  • recognize that there are some unique national natural resource treasures whose value to society today and civilization in generations yet unborn makes them social property held in trust by the nominal title holder for the benefit, use and enjoyment of generations yet to come, subject only to wise use by the present “owner” de jure/trustee de facto.

The public trust doctrine Yannacone first presented to the Courts during the early 1960s and devoted the second chapter of Environmental Rights & Remedies to in 1972 first saved the Florissant fossil beds in Colorado;  stopped the strip-mining of the northern Great Plains in 1978; saved the Jarrah Forest and the fresh water supply of West Australia in 1979; and in 1987 prevented the Long Island Pine Barrens groundwater recharge area from becoming the Metropolitan Regional Incinerator Ashfill; in 1998 was recognized as “some sort of growing movement in the environmental law area.”

The Florissant Fossil Beds National Monument exists because during the summer of 1969 (before NEPA) the public trust doctrine was invoked in the US District Court for Colorado and endorsed by the US Circuit Court of Appeals for the Tenth Circuit.

Before Florissant the beaches on Long Island, some of the most valuable beaches on the East Coast of the United States, were opened to the people in 1960 by bringing the public trust doctrine to the New York State Courts and reconnecting those courts to their English common law heritage.
Public access to beaches along the Pacific Ocean is possible because the Public Trust Doctrine was asserted during that period.
With vigorous intelligent advocacy on the part of attorneys who understand the law, its origins, and its meaning to society, the sciences, and the political process, the public trust doctrine can bring us to the Millennium where the “farmer and the cowboy can be friends,” as Oscar Hammerstein once wished.