During the turbulent years of 1969 and 1970, Victor Yannacone spoke at a number of law schools delivering the message, “Litigation is the civilized alternative to war and bloody revolution.”
The original message focused on the environment, but today, decades later, the message is again topical as lawyers throughout the nation turn away from their fundamental mission of advocacy for individuals and asserting natural, human, and civil rights whenever, wherever, and by whomever they are threatened.

Lawyers are Advocates

Just so that we understand each other from the very beginning, let me state that I believe the lawyer is an advocate.
Some lawyers advocate in the Courtroom.
Some lawyers advocate in the Classroom.
Some lawyers advocate in the halls of government.
Some lawyers advocate in the smoke-filled rooms behind the halls of government.
Some lawyers advocate in the field of public information.

But any lawyer who does not advocate is not a lawyer, learned as he might be in knowledge of what the law was.
Law is the framework of civilization and litigation is the alternative to trial by combat. The Courtroom is the arena. The lawyers are the champions and the Rules of Evidence are the Rules of Engagement.

Litigation is not a game and the courtroom is not the playground of dandy gentlemen. Litigation is mortal combat and the Courtroom is the arena.
Lawyers are not dispassionate distant entertainers exercising their wit and erudition before a disinterested judge. Lawyers are champions and their client’s interests, in many cases their very lives, are at stake. In every lawsuit someone must win and someone must lose.
Although on any given set of facts the winner and loser, might be different at different times in history or in the context of different civilizations, nevertheless, rest assured, a winner and a loser there will be.

Great industries will never lack for advocates! Government will never lack for advocates!
Political organizations will never lack for advocates, and the established institutions of the Political-Industrial-Military-Power-Structure, in their rape of our human and natural resources and their prostitution of the legal profession, need no more advocates.
PEOPLE need advocates!
PEOPLE need champions!
Our human and natural resources need protection,

The Yale alumni weekend invasion

During the spring of 1968, the alumni of Yale Law School, who claim among their numbers half of the Justices of the United States Supreme Court, 10% of the nation’s law teachers and any number of distinguished attorneys, held a reunion. The theme for that reunion weekend was Law and the Urban Crisis.
Five prominent legal educators, deans at their respective laws schools and distinguished urban legal scholars were invited to address the alumni on this urgent question, but just as the proceedings were to begin, a group of black law students, together with members of New Haven’s Black Coalition, entered the auditorium and began to address themselves to the all-white speakers platform and the all-white alumni audience.
“You don’t understand the problem at all,” they said, “The problem is not Law and the Urban crisis; Law is the urban crisis—Whitey’s law.”

De Tocqueville wrote “if a democracy is to cohere, society’s social problems are necessarily its legal problems; and they are legal problems precisely because they are social problems to which legal processes are both relevant and necessary.”
The time has come to treat society itself as if it were the client of every lawyer.

As Che Guevara so astutely observed, violent revolution is possible only when people have lost all hope. As long as procedural due process remains, or at least the belief that procedural due process exists, violent revolution must fail. It now appears that when we look to the law for answers to our social problems, we find that the law itself is the cause of many of the problems.
It is “the law” which zones the housing patterns which lead to building too many highways for too many autos.
It is “the law” that expropriates public property for private promoters.
It is “the law” which permits environmental degradation.
It is “the law” which asserts equal protection of “the law” for the corporate person&emdash;that fictional bastard child of “the law” with all the God-given rights of a human being, but without soul to save or butt to kick.
It is “the law” which asserts that equal protection of “the law” for the corporation and denies it to the poor, the black, the inarticulate, the politically weak or ineffective.
It is “the law” that denies women the freedom to determine the use to which their wombs will be put.
It is “the law” which creates and sustains a tax system that encourages overpopulation and penalizes those who would remain single or with few children.

Always it is, “The Law”!

Our environmental problems

Many of our environmental problems stem from the misguided attempts of short-sighted, ecological Neanderthals to control the uncontrollable.
Pesticide abuse is a classic example. The indiscriminate use of broad-spectrum, long persistent pesticides such as DDT, dieldrin, endrin, aldrin, toxaphene and heptachlor so altered the ecology of agricultural ecosystems that attempted pest control only created new pest species.
Throughout the history of modern agrichemical methods, industry has ignored the potential value of integrated control techniques, where specific chemical“bullets” are used to augment the armory of natural and biological weapons.

Utilizing water resources for waste disposal is still another example of the utter futility of environmental “control.” Oceans, rivers and lakes are just like any other sink; they have a finite capacity for waste, after which they back up. Moreover, they fight back. Algae blooms quickly decay into sulfurous miasmas.

The attempt to “control” the air may have even more disastrous repercussions than the attempt to “control” the waters. The air is not a limitless empty space into which we can pour countless tons of noxious gases and poisonous particulates. The atmosphere, too, has a finite capacity, and not only are we reaching the limit today, but high speed air transportation system as begun to alter our weather patterns and climatological cycles.

Again “control” really appears to be a license from nature with the penalty yet to be paid.
We should have learned from the disastrous effect of radionuclide fallout that what we sow we must also reap, yet the fallout of lead, other heavy metals, chlorinated hydrocarbons and other toxicants continues at an increasing level.

Man has ears, yet he does not hear the warnings shouted at him from the environment all around him. Noise is tolerated and we have a new unit for its measure, and of course its “control.” The new standard-makers took the existing level of environmental noise as the maximum sound level which the human being can tolerate and now any noise of less intensity is considered tolerable.

Our human species has been given a rare choice as a result of our attempt to “control” the environment rather than manage our limited natural resources. We can either drown in our own sewage, be buried under our own garbage, or choke to death on our bad air.

Evaluation of environmental hazards

Pollution hazards are best evaluated in terms of the conventional equitable criteria: Is the damage serious, permanent, and irreparable? Perhaps the contaminants most dangerous to the community are those insidious toxicants like radionuclides and certain chlorinated hydrocarbon pesticides constantly cycling throughout the world’s ecosystems in sub-lethal concentrations. The latent effects of these toxicants are only beginning to be noticed while the magnitude of the vested interests economically committed to ignoring the hazards appears presently to be insurmountable.

However, the worst offenders in this process of environmental degradation are not the ruthless entrepreneurs dedicated to wanton exploitation of our natural resources, the profiteers and abusers of the public’s air and water, but short-sighted, allegedly public-interest agencies such as the many state and regional development agencies. Their mission-oriented determinations preclude any consideration of long-term ecological consequences. The most one hope to do is to manage the environment for the highest and best use of all natural resources for the greatest good of the greatest number of people.

Aesthetics v. Technology

The conflict today between aesthetics and technology revolves around the conservationists’ tendency to measure aesthetic values in terms of mod ern technology, rather than replacement cost. How much does it cost to move a billion cubic yards of earth to make a valley? How much does it cost to replace a 400-year-old forest? These are all prices that can be determined, yet too often the conservationist underestimates the cheap, nonunion labor of Nature.

It seems obvious that it is our technological growth that is the cause of environmental contamination and the justification for a war on pollution. Of course pollution control technology must be at least one step ahead of pollution so that if we achieve pollution control we will have advanced technology.
The real issue is: What will be the stimulus for pollution control at the industrial and municipal sources? There is not enough money today in the entire federal budget just to restore our air and water to a basically healthful state.

The cost should not be borne by some massive federal or state or even municipal crash program but as a part of the cost of doing business of the industry or individual who might degrade the environment to the detriment of the general public.
There is no excuse for attempting to foist upon the taxpaying public an enormous bureaucratic structure to clean up the effluent of the affluent. The time has come to “housebreak” industry, before the house is unfit for all pf us to live in.
The amount of capital investment in pollution control equipment is miniscule in view of the total benefit to industry from the years of rampant pollution. To attempt to take credit for a 2-3% capital investment based on today’s capital worth of an industry and ignore the past year’s history of free use of the public’s air and water is a travesty on economics and an affront to the taxpayers. It has become a fact of life that our survival as a species demands the most sophisticated environmental engineering of which we are capable.

What can you do?

The nation just hasn’t time to wait to correct environmental insults.
Insults to our environment by modern technology are a new category of “corporate crime” which utterly dwarfs into insignificance crime on the streets in terms of people injured and killed because of dangerous machinery, pollution, and unsafe products. And a major group of corporate criminals are those responsible for environmental degradation.

We must knock at the door of courthouses throughout the nation and seek the protection of equity for our environment.
“Let every person, especially those who control the means of production, so use their own property as not to injure that of another, particularly so as not to injure that which is common property of all the people, the air we breathe, the water we drink, and the diverse populations of plans and animals upon which human society depends. Let no wrong be without a remedy.”

Appeals to “The Law”

There are four conventional appeals to law for protection of environment.

Plead with the Legislature

The first, and deceptively the simplest approach, is through the legislatures of the several states and the Congress of the United States. If this approach is successful, there will be, of course, no need for other than occasional interpretive litigation. The ways of the legislature, however, are slow and ponderous, and many of our national natural resource treasures are in immediate danger of serious, permanent and irreparable damage. Witness the story of saving the Florissant Fossil Beds National Monument.

Create an agency

Many legislatures, recognizing the delay inherent in the legislative process attempted to meet the needs of our modern technological society by creating administrative agencies, attempting to cede some of the powers of the Legislative, Executive and Judici31 branches of government in order to give speedy effect to the will of the people as manifest by Act of Congress.
Unfortunately, the administrative approach carried within itself the seeds of its own abuse. Any administrative agency, no matter how well intentioned, is not a court, but is, in fact, its own judge, jury and executioner—all in the public interest, of course. Its narrow jurisdiction and mission-oriented viewpoint make it inherently incapable of considering environmental matters with the requisite degree of ecological sophistication.

The Scenic Hudson Preservation case [354 F.2d 608 (2 Cir., 1965)) marked the fork in the road for those concerned with the protection of our environment and the legal defense of the Biosphere. The Second Circuit Court of Appeals held that the Federal Power Commission should hear evidence on natural values in addition to the economics of electric power generation and distribution.
The tragedy of the Scenic Hudson Preservation case occurred when the Scenic Hudson Preservation Committee yielded to the Federal Power Commission jurisdiction of the natural resource aspects of the Consolidated Edison application, cloaking the F.P.C. with a mantle of ecological competence it does not possess and cannot attain within the limits of its statutory mission.
The conservationists in their all-consuming desire to avoid to litigation on the merits ceded to the Federal Power Commission the power to make judgments it was constitutionally incapable of making.

Sue for damages

Conventional tort litigation represents another avenue of appeal to the law on behalf of the environment, yet this avenue also leads inevitably to questions without answers.
Just what is a natural resource? Is it something that can be taken from the earth, then wasted, squandered or used as the source of private fortune, or is it something that belongs to each of us as trustees for future generations, to be used wisely by whomever might hold nominal title at any particular time?
What do you do about a toxicant like 1,1,1-trichloro-2,2-bis(p-chlorophenyl) ethane&emdash;DDT, which is ubiquitous, distributed throughout the lipid tissues of every living element of the Biosphere?
What do you do about a toxicant whose toxic effects cannot be demonstrated as the proximate cause of any particular personal injury or disease?
How do you balance the need for advancement of aviation, represented by the development of supersonic commercial transports, against the needs of the general population for privacy and freedom from the shock effects of sonic-boom?
What do you do when a municipality decides that the highest and best use of the mighty Missouri River is an open sewer?
What do you do when the Army Corps of Engineers decides to drown the Grand Canyon or most of central Alaska, or insists upon destroying the delicate ecological balance of northern and central Florida with a canal that is no longer needed?
I know of only one answer!
Sue the Bastards!

We must knock at the door of courthouses throughout the nation and seek equitable protection for our environment. Let each man and every corporation so use his own property as not to injure that of another, particularly so as not to injure that which is the common property of all the people and let no wrong be without a remedy!

The DDT Wars

In 1966, a citizen sought equitable relief from a toxic insult to the community ecosystem, suing not just a local mosquito commission using DDT, but 1,1,1-trichloro-2,2-bis(parachlorophenyl) ethane—DDT itself. [Yannacone v. Dennison, et al., 55 Misc.2d 468, 285 Supp.2d. 53]
Finally in a New York court of equity the full weight of scientific evidence against DDT was presented to the social conscience of the community in a forum protected from the political, economic and bureaucratic pressures that for 20 years had successfully suppressed that evidence of DDT’s worldwide damage to the environment. Finally, the Agrichemical-political complex was forced to put its propaganda to the test in the crucible of cross-examination.

Three years later, at Madison, Wisconsin, Dr. Harry W. Hays, Director of the Pesticides Registration Division of the U.S. Department of Agriculture testified: “If the data appear to us to be adequate, the product is registered. We look at the data, but we don’t do it analytically. We don’t check it by the laboratory method.” At last Americans were told that the Department of Agriculture relies entirely on data furnished by pesticide manufacturers and does not conduct any tests on its own.

The incredible lack of concern for the safety of the American people became apparent on further cross-examination when Dr. Hays admitted that if a pesticide was checked at all, it was checked by an entomologist only for its effectiveness of the target insect and not on beneficial insects or fish and wildlife. “We don’t assume that the intended use will cause any damage,” he explained.
Moreover, Dr. Hays further admitted that, although he has personal knowledge of scientific studies showing damage to fish and wildlife from DDT, USDA is “not doing anything” about possible environmental hazards from the pesticide. Dr. Hays proudly stated, however, that the Department of Agriculture is completely responsible for the registration of pesticides and for determining whether they may be shipped in interstate commerce. He reluctantly admitted that the public has no access to USDA records of pesticide registration.
Only in an adversary judicial proceeding was it finally demonstrated that the United States Department of Agriculture is really serving the Agrichemical industry and not the American people.

Protecting civilization

At this time the environmental interests of civilization can only be protected by direct attack upon those actions which can cause serious, permanent and irreparable damage to our natural resources. Only advocates, barristers, asserting the basic constitutional rights of all to a salubrious environment in courts of equity throughout the nation, can marshal the weight of scientific evidence in defense of our environment.
In the struggle to protect natural resources against the predations of such short-sighted, limited-vision, governmental agencies as the Corps of Engineers and the Department of Agriculture, any attack upon agency decisions must not be based on damage to any particular private economic interest.

The Everglades cannot be saved from the Army Engineers by showing the potential loss of income to hot-dog vendors in the Everglades National Park as the National Audubon Society attempted to do in the C-111 case. Nor could the Florissant fossils have been saved by any unscientific appeal to aesthetic sensibilities.
Since the development of modern scientific methods of determining the real social cost and actual social benefits of a “public-improvement,” it is obvious that the only way to save any national natural resource is to establish with competent scientific evidence that the resource represents a unique and essential element of our environment and belongs to all the people not only of this generation but of those generations yet unborn, and that the actions of the defendants will indeed cause serious, permanent and irreparable damage, in the
Conventional conservation education will not save the Everglades, the Grand Canyon, the Yukon, the Ocklawaha, the Florissant fossil beds or any ·other natural resource which has become the object of private greed or public blundering.

Only imaginative legal action on behalf of the general public, in class actions for declaratory judgments and injunctive relief, will place the jssues before the conscience of the community in a forum where the conflict can be resolved and the evidence tested in the crucible of cross-examination.

Although we advocates and barristers consider it our professional obligation to avoid litigation and encourage settlement whenever possible, there is a time not to settle. There is a time not to compromise. There is a time to try the case.
Where the issue is of national significance and vested interests are arrayed against the common public right, trial is inevitable. Only during a trial before an impartial court or jury with skilled advocates presenting the evidence on both sides of the issue can the conscience of the community balance the equities and ultimately determine the matter on the merits.

The time has come for all of you who would defend the environment to assert the right to a salubrious environment for all human beings as one of the fundamental unenumerated rights guaranteed by the Ninth Amendment to the Constitution and protected by the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the Constitution.
The time has come for all of you who would protect the environment to knock on the door of every courthouse in the land and establish once and for all time that the natural resource treasures of the nation are a public trust held by each generation for the benefit, use and enjoyment of the next.

Litigation may be the only way

Experience has shown that litigation is the only non-violent, civilized way to secure immediate consideration of basic questions of human rights. Litigation seems to be the only rational way to focus the attention of our legislators on the basic problems of human existence. The only way, that is, short of bloody revolution. The door to the courthouse must be held open, so the door to the streets and the battlefields may remain closed.
Those of you who would make wise use of our natural resources and protect the basic elements of our environment: air, water and diverse, viable populations of plants and animals.
Look to the history of the human rights struggle in the American courts. Look to the success of the American Labor Movement and the surprising corporate survival of General Motors and the Coal industry in spite of the court’s eventual recognition of the rights of the United Auto Workers and the CIO.

Most of the major social changes which have made America a better place to live have had their basis in fundamental constitutional litigation. Someone had to sue somebody before the legislature in their enlightened self-interest, recognizing the public benefit, took action.
Our adversary system of litigation as the method for presenting and testing evidence has been the touchstone of Anglo-American jurisprudence for centuries. It has always been the last hope of the citizen seeking redress of a public wrong. It is the last hope of the environment now.

The Courtroom is the last arena where individual citizens can meet mighty government or big business and hope to survive. The environment, the very breath of life on this Earth, needs the protection of advocates and barristers.

As Woody Guthrie sang throughout the Country,
“This land is your land, This land is my land,
From California to the New York Island,
From the Red wood forests to the Gulfstream waters,
This land belongs to you and me.”
The air we breathe, the water we drink and our natural resource treasures must have their day in court.