Environmental Law & Environmental Litigation

Introduction

Many law schools teach that environmental law consists of the regulatory programs that have been enacted by Congress and the states since 1970 together with the cases interpreting those statutes and regulations. Likewise, many students believe that environmental law can be found in standard law school casebooks. Rather, Environmental law was created on June 6, 1966, at a hearing in the Suffolk County Supreme Court in Riverhead, Long Island, during an argument before New York State Supreme Court judge D. Ormond Ritchie. The case was Yannacone v. Dennison and was the first battle in what came to be known as the DDT Wars.  

“Environment” and “environmental”

In any discussion where the word “environmental” is involved the fundamental concept of “Environment” must be considered.
Although the word “Environment” became common after the first trial of DDT in 1966, it was never defined until the final battle in the DDT Wars was fought in Madison Wisconsin in 1969. There, for the first time a legally precise definition of the word “Environment” and its derivative adjectival descriptor, “environmental” was established and it became possible for academics, scholars, and working scientists in a variety of fields to assert the claim that they were environmental scientists and therefore could testify in accordance with the level of their expertise about the Environment.
The legally precise and scientifically accurate definition of “Environment” is the General System (see, General Systems Theory) created from the set (in the mathematical sense of that term) of all the elements of and processes operating within the atmosphere, the hydrosphere, the lithosphere, the biosphere, and the ecosphere, each of which is itself all a General System all together with the interactions among all those elements and processes. Some environmental scientists also include the psychosphere and the sociosphere, however, they can be considered elements of or General Systems within the Econosphere.
Keep that definition in mind whenever you consider what many law professors and legal scholars consider “positive” environmental law — the body of statutes together with the legal decisions interpreting them which have been promulgated by legislative bodies or executive decrees in order to meet some perceived “environmental” issue.

Conventional view of “Environmental” Law

The conventional view of many law professors and legal scholars is that environmental law is positive law which reflects “environmentalism.” “Environmentalism” is then defined as the “wedding of two policy objectives: the protection of public health from the risks associated with involuntary exposures to pollutants and contaminants, and the protection and preservation of natural areas.” (Tarlock, 2000)
A more comprehensive definition of environmentalism was provided by Aldo Leopold in the 1930s, “a thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.”
However, only the common law of Equity and equitable relief, such as injunction, can provide the necessary and timely remedies required to protect an entire Environmental System or unique resource treasure facing imminent danger of serious, permanent, and irreparable damage..

“Environmental” litigation

When environmental law was created in 1966 and became an established element of the common law before passage of the National Environmental Policy Act of 1969, the elements of environmental litigation were clearly defined.

• Credible competent scientists identified an action which represented an imminent danger of serious, permanent, and irreparable damage and the source of the danger.
• A common law class action was brought based upon the two pillars of equity jurisprudence, the maxims, sic utere tuo ut alienum non laedas — in its modern form, use your own in such a way that you do not harm that which belongs to another particularly that which belongs to all human beings, the air we breathe, the water we drink, the land upon which we live and depend for food, and the diverse populations of plants and animals upon which human civilization depends.— and
• “equity suffers no wrong to be without a remedy.”

In his 1988 book, The Quiet Crisis and the Next Generation, former Secretary of the Interior, Stewart Udall, credited Victor Yannacone as the “first lawyer to try and stop the use of DDT,” but then went on to miss the point of all the litigation Yannacone has brought to protect the Environment and save natural resource treasures.

“Yannacone was a brilliant tactician, but from the beginning he had no illusions that litigation would produce resounding victories. His manner of model was, “Sue the Bastards,” and he envisioned his lawsuit as show trials to dramatize environmental truths that would ultimately compel members of the legislative and executive branches of government to act. He was willing to lose court decisions if his cause prevailed in the court of public opinion.”

While that was an interesting comment, it was not accurate, what Yannacone said was,

“The courtroom is the last arena where the individual citizen can meet big business for government and hope to survive. Litigation is civilization’s only alternative to war and bloody revolution. If you do not forsake your courts, they will not forsake you — the citizen — in your hour of need. Thomas Beckett and Thomas Moore are only two of the many who gave their lives that you, a citizen, could have your day in court. Don’t just sit there, Sue the Bastards!”

“Piper Cub” lawyers

Shortly after President Nixon signed the National Environmental Protection Act (NEPA) into law in 1970, a number of self-proclaimed “environmental” lawyers and newly created or refocused organizations such as the Environmental Defense Fund, the Natural Resources Defense Council, the National Audubon Society, together with all the other established fund raising “conservation organizations,” began to file lawsuits against federal and occasionally state agencies claiming that they failed to follow the mandates of NEPA and permits they may have granted or actions they intended to undertake should be held in abeyance until the appropriate “Environmental Impact Statements” (EIS) had been filed.
This litigation led the late Chief Justice Burger to lament in 1973, “The painful fact is that the courtrooms of America all too often have “Piper Cub” advocates trying to handle the controls of “Boeing 747” litigation.”

The “Rule of Law” and Environmental Law

The Anglo-American judicial system is based on the legal tradition of the “Rule of Law” as it grew from the writings of Aristotle sometime after 336 BC.
Aristotle began with Ethics and declared that any consideration of ethics necessarily led to discussion of politics and together they were the “philosophy of human affairs.” What we call the Rule of Law is derived from the statement by Aristotle in Book 3, chapter 11, §19 of the Politics, “personal rule “should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make exact pronouncements.” (Baker translation 1946)
Perhaps the most famous affirmation of the Rule of Law in the United States Was the decision by the Supreme Court in United States v. Nixon where the court rejected the claim of executive privilege as inconsistent “with our historic commitment to the rule of law.” (418 US 683, 708 (1974))
Innumerable law professors and legal scholars find difficulty reconciling the Rule of Law with protecting the Environment and natural resources. They wonder through the weeds of political philosophy and legal positivism and then go forth to present their confusion as scholarly conclusions — the blind leading the halt and the lame through the miasma of misunderstanding.

Legal positivism

The only difficulty in reconciling the Rule of Law with protecting the Environment and natural resources arises from confusing the Rule of Law with legal positivism.
For a positive law to effect justice, it must conform to the natural law. You are all familiar with the natural laws that are manifest throughout the physical world. The power of a natural law like gravity is that it exists, and it commands obedience whether we like it or not. You can disobey a fundamental natural law like that of gravitation, but you do so only at your own peril.
In the moral sphere and in the law, there are also natural laws.
Much of the difficulty in recognizing the natural law as an acceptable element of Anglo-American jurisprudence can be attributed to the rise of logical positivism as a philosophical system during the eighteenth and nineteenth centuries. The positivists insisted that the only source of human rights was positive law and that the positive law was independent of any natural law or universal law influence.
The positivist view of law leaves no room for equity, much less a philosophy of law that must concern itself with right, wrong, justice, and injustice. For if, as the legal positivists contend, just or unjust are identical with what is permitted or forbidden by positive law, there remains no room for any consideration of the philosophy of law, because it has all been stated by the positive law of the moment in any particular state or principality.
In 1932, legal positivism the philosophical support for the position that the judge and jurist must disregard their sense of justice and obey the command of the law as written by the state. Thus instructed, the jurists of Nazi Germany established the “justice” of the Third Reich.
The theoretical powerlessness of the German judiciary to resist the implementation of unjust laws made those judges agents for the imposition of policies such as genocide. German jurists were impotent before Hitler.
In 1947 after Nuremburg, the German scholar Radbruch wrote:

The traditional conception of the law, [t]he positivism that for decades dominated German jurists, and its teaching that ‘the law is the law’ were defenseless and powerless in the face of such an injustice [the Holocaust] clothed in the form of the law. The followers of [judicial positivism] were forced to recognize as ‘just’ even that iniquitous law.
The science of the law must again reflect upon the millennial common wisdom of Antiquity, the Christian Middle Ages, and the Age of Illumination, that there exists a higher justice [than positive law]— a natural law, a divine law, a law of reason—briefly a justice that transcends the [positive] law. As measured [against] this higher justice, injustice remains injustice, even when it is given in the form of a law. Before this higher justice also the judgment pronounced on the basis of such an unjust law is not the administration of justice but rather injustice. (G. Radbruch, Die Wandlung, quoted by W. Luijpen, Phenomenology of Natural Law, p. 27, 1967.)

Positivism continued to dominate the philosophy of law until the end of World War II. But legal positivism, as a justification for ignoring the natural law, was a hypothesis wrecked by the gruesome reality of history — The Holocaust and World War II.
Many of the law professors and academic scholars who try to treat “Environmental” law according to the tenets of legal positivism or even its latest reincarnation in the philosophy of H. L. A. Hart are tilting at windmills and their efforts are doomed to failure in the courts and probably in the legislature’s as well.

Environmental Law & Equity Jurisprudence

“Environmental” Law is an element of Equity Jurisprudence. By ignoring or forgetting that the common law of Equity is the foundation and linchpin of the Anglo-American system of jurisprudence, many law professors and legal scholars do not realize that the common principle that makes equity jurisprudence the basis for “Environmental” law is that each case is sui generis and must be decided on its own merits, based upon the evidence adduced, by a fair and impartial judge who is constrained only by the maxims of equity which are derived in large measure from the natural law which is as old as the Talmud and the Roman law and which was part of the philosophical and intellectual background of the founders who wrote the American Constitution.
It is obvious from The Federalist Papers that the founders expected and to a certain extent took for granted that the judges appointed under Article III would understand the natural law origins of Equity in the Anglo-American judicial system. Such judges would, as Lord Atkin said in a decision he wrote during the Battle of Britain,

“When Those Ghosts of the past Stand in the Path of Justice clanking their medieval chains, the proper course for the judge is to pass through them undeterred. … The common law does not go on the theory that a case of first impression presents a problem of legislative as opposed to judicial power.” (United Australia, Ltd. v. Berkeley Bank, Ltd. [1940] 4 All Eng 20, [1941] A C 1, 29.)

Even earlier, the New York Court of Appeals reminded us,

“the law will protect a flower or a vine as well as an oak. … These damages are irreparable too, because the trees and vines cannot be replaced.” (Campbell v. Seaman, 63 NY 568 (1876)

If you ever plan to litigate serious issues involving the Environment and natural resources, you must never allow the court or the media to treat “environmental” law as some kind of subset of general post-new Deal Administrative law.
You must never allow environmental litigation to be treated according to the principles of Administrative Law even when the defendant is a federal or state administrative agency.
“Environmental” law is now and always has been an element of Anglo-American Equity Jurisprudence.

“Environmental” litigation is often “unprecedented”

Actions against individuals, business entities, federal and state agencies seeking to prevent some action which might result in injury or damage to the Environment or some particular natural resource, is essentially uncomplicated though often unprecedented.
In actions against a federal or state agency, the plaintiff must establish by a fair preponderance of the substantial credible evidence that the agency acted ultra vires in ignoring its organic act; and/or that the agency failed to exercise its statutory discretion and justify its failure to use it; and/or the agency failed to follow prescribed procedures such as those required under NEPA.
In all environmental litigation, the burden is always on the plaintiff to establish their case by a fair preponderance of the substantial credible evidence. In most cases that means by presenting substantial credible scientific evidence, all of which should be set forth in the Complaint which commences the action not later in affidavits opposing motions to dismiss.
Environmental litigation is not an exercise in brief writing and legal scholarship, done in the library. Environmental litigation is won or lost in a courtroom on the basis of the scientific evidence presented and, where necessary, a credible attack on the science, if any, relied upon by the Defendant.
If an environmental advocate cannot handle the scientific evidence in the course of both direct and cross-examination, they have no place in the courtroom trying the case. Environmental litigation is too important to trust to “Piper cub” lawyers.
The purpose of “environmental” litigation has always been to challenge the ability of powerful corporations and other business entities together with their congressional and administrative agenccy allies to cause serious, permanent, and irreparable damage to the Environment.
Unfortunately, as soon as an “environmental” lawsuit is filed, the forces of big business and big government begin to attack those who challenge them as Marxists, radical socialists, junk scientists, or as the Public relations Council of the Electric Power Industry once publicly described Yannacone in a press release as, “the most insidious agent of the communist conspiracy since Alger Hiss.”

Positive “Environmental” Law

Some basic principles of “Environmental” law are suitable for expression as statutes and administrative regulations determined a priori from some kind of first principles.
“Environmental” law deals with specific issues affecting specific aspects of the Environment as a General System. Every case is sui generis and must be tried on its individual merits.
Administrative agencies can regulate individual and corporate behavior as it affects certain aspects of particular environmental systems or particular natural resources. There is certainly a place for positive environmental law in the context of conventional administrative law.

Making “Environmental” common law

Equity litigation is a fundamental element of the common law. It is based upon general principles of equity jurisprudence and the cases that have been decided under those principles.
Evironmental litigation involving actions which seek to prevent imminent danger of serious, permanent, and irreparable damage to the Environment such as from broad-spectrum persisting chemical biocides such as DDT and environmental toxicants such as PCBs and 2,3,7,8-tetrachloro di-benzo-p-dioxin; wholesale contamination of a Regional Environmental System such as the Hudson River or the North Atlantic Ocean; or destruction of unique national natural resource treasures such as the Florissant fossil beds or the Flint Hills Tallgrass Prairie can only be successful if brought in Equity as class actions for declaratory judgment and equitable relief.
For the committed “environmental” attorney, common law equity litigation is the only legal resource available to prevent or mitigate damage to the Environment or individual natural resources.
A proper complaint in an “environmental” lawsuit does not rely upon references to statutes other than as evidence of policy decisions made by elected representatives of the people which can be used to establish public rights and standing for the Plaintiff as a private attorney general.
What is critical to survival of the complaint in the face of a motion to dismiss is an extensive description of the General Environmental System involved and the specific elements of that General System which are threatened by the action sought to be enjoined.

Can “Environmental” law ever be “mature”

Many law professors and legal scholars consider “Environmental Law” a mature area of the law. It is not. By its very nature, environmental law must evolve at the same pace as environmental science evolves. Environmental Law can never be considered outside the context of environmental science.
This is especially true in the case of positive environmental law created by legislative bodies and then delegated to administrative agencies for implementation and enforcement. In many cases the legislation is far behind the science and the state-of-the-art in technology implementing the science.

Equity and distributive justice

Equity jurisprudence has evolved since the natural law of the Romans and the medieval efforts of the English Chancellor and has met the needs of distributive justice in every generation since the 13th century, a millennium ago.
Some law professors and legal scholars lament the fact that the real-world issues that give rise to “environmental” litigation require a holistic vision of the General Environmental System involved including all of its interacting included systems and the interaction among all the elements of each of those systems. Concepts they seemingly refuse to grasp They fail to understand that “environmental” law evolves from ad hoc, time and location-based litigation —an appeal tofundamental Equity Jurisprudence.
Since the environmental movement began with the Suffolk County DDT case in 1966 a substantial body of literature has grown on the subject “distributive justice.”
Distributive justice, however, is not really what “environmental” law is all about. The concept of social property which is at the heart of the Trust Doctrine is quite different from “distributive justice.”
Distributive justice is really an element of economics in that it considers the allocation of limited resources among a variety of competing consumers of those resources.
Environmental common law, however, considers the claims of individuals and Society itself on limited resources in the context of assuring that those resources are protected and conserved for the good of all human beings. Doing Equity!

Conclusion

Our experiment in representative American democracy is only a little over 200 years old, and the common law of equity in the United States is still evolving and being developed on a case-by-case basis.
The general principles of Equity Jurisprudence coupled with modern environmental systems science can assure at least a modicum of protection for the Environment and its natural resources, particularly the air we breathe, the water we drink, the land upon which we live, and the diverse populations of plants and animals upon which the human species depends.
Only enlightened and creative resort to and application of equity jurisprudence can provide a basis for resolving controversies over limited resources and threats to the Environment and its Systems without resort to war or bloody revolution.