Environmental Litigation: The Beginning

On an October morning in 1959, pausing on the steps of the Appellate Division courthouse in Brooklyn, a whitehaired lawyer told his only son that, “If Society had a need there had to be a legal way to provide it. A lawyers job was to find the way and if there was as yet no way the lawyer had to invent it relying on the fundamental maxim of Equity Jurisprudence, ‘Let there be no wrong without a remedy.’ ” The young man had just been sworn in as an attorney and admitted to the Bar of New York State. Within a few days he was defending indigents wrongly accused of crimes and subjected to police brutality and filing class actions in the public interest to open beaches to all the People not just a few wealthy people who owned beachfront property.

In 1966, Society needed clean air, potable water, and diverse populations of plants and animals necessary to sustain the environment upon which human civilization had been built. The Law had ignored these needs, and in the case of chlorinated hydrocarbon pesticides and other environmental toxicants actively promoted practices which caused serious, permanent, and irreparable damage to the natural resources and Environment which was the common property of all human beings and the plants and animals with which they shared the Earth.

Late in the spring of 1966, the 30 year old Yannacone went to court on behalf of his wife, Carol Yannacone, a natural scientist, and sued “on behalf of all the people entitled to the full benefit, use, and enjoyment of the environment and its natural resources without degradation from the effects of DDT.” It was a class-action seeking equitable relief, an injunction prohibiting the for the use of DDT in a futile effort to “control” mosquitoes which, as a species, had become genetically resistant to this broad-spectrum, persisting, chemical biocide.

Eventually, after a full trial on the merits widely reported by the mass media, the judge was forced to rule that although the case against DDT had been proven, he lacked the power to prohibit its use. Out of that trial and its coverage by the mass media the Environment Movement arose culminating in Earth Day on April 22, 1970.

At the National Audubon Society Annual Meeting in 1967,the 31-year-old trial lawyer, Victor Yannacone who tried the case against DDT called upon all those concerned with protecting the Environment to create an Environmental Defense Fund and go to court and challenge whatever action by government or business represented a threat of imminent danger of serious, permanent, and irreparable damage to natural resources or the Environment.

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: so use your own property as not to injure the property of another—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.

In November 1967 the Environmental Defense Fund was incorporated and until December 22, 1969 it took action throughout the country to right environmental wrongs.

EDF: The Environmental Defense Fund

The Environmental Defense Fund was created to do what could not be done by any existing “Conservation” organization and was not even under consideration by any of the established “conservation” groups. EDF arose from the success of Carol Yannacone’s attack on the indiscriminate use of DDT to control mosquitoes in Suffolk County where the indigenous mosquito population had long since become resistant to DDT and the natural predators of those mosquitoes had been all but wiped out.

The Environmental Defense Fund only intended to act against of imminent danger of serious, permanent, and irreparable damage to unique national natural resource treasures and the Environment. It was to litigate substantive issues only and bring the best scientific evidence into the courtroom. The goal was always a trial on the merits and the cases were to be tried by skilled advocates who thoroughly understood the science of the case. It was expected that the drama of direct and cross-examination in the courtroom would generate sufficient media interest to provide meaningful and accurate public information and education that could not be obtained elsewhere.

For a brief, bright, glorious time, the Environmental Defense Fund acted according to its original Charter and mission statement, but then like so many well-intentioned organizations created to pursue noble causes, it lost sight of the original purpose. The Environment Movement soon became just another catchphrase to identify a group of fund raising organizations.

None of today’s environmental fund raising organizations are organized or managed to do what has to be done at this time under the circumstances and constraints that now exist on efforts to bring rational science to public policy decision making and protect the Environment and natural resources which belong to all the sovereign People of the United States and stop the erosion of fundamental civil and human rights throughout the Country.

However, upon passage of the National Environmental Policy Act, NEPA, in 1970, the Environmental Defense Fund abandoned Yannacone’s declaratory judgment actions seeking equitable relief in favor of procedural challenges to federal agencies for failing to shuffle their papers under NEPA regulations.

The original purpose of environmental litigation was to demand immediate equitable relief to protect unique national natural resource treasures such as the Florissant Fossil Beds <> in “class actions” on behalf of all the people entitled to the full benefit, use, and enjoyment of that natural resource as part of their inherent sovereignty stated in the Declaration of Independence and reaffirmed in the very first sentence of the Preamble to the United States Constitution in the simple statement, “We the people…”

As each of these early cases was filed, inquiring journalists from print and electronic media accurately and extensively reported the issues raised in these declaratory judgment actions for the American people to consider. In many cases the voters took these causes to their elected representatives at all levels of government. The public response to these early environmental lawsuits served as an ad hoc plebiscite which elected officials could only ignore at the peril of losing their seats.

NEPA, the Toxic Substances Control Act, the Clean Water Act Amendments, the Clean Air Act, and many other legislative efforts to protect the Environment were quickly passed by Congress and state legislatures during the early 1970s. Unfortunately, in their legislative haste, elected representatives abdicated their responsibility to unaccountable administrators at administrative agencies essentially immune from public oversight.

It soon became clear that some of the worst offenders in the process of environmental degradation are not ruthless entrepreneurs dedicated to wanton exploitation of our natural resources — the profiteers and abusers of the public interest in the air, water, land and landscape — but rather shortsighted, mission-oriented, allegedly public interest agencies.

The common denominator for the serious, environmental crises facing all technologically developed countries, regardless of their nominal form of government, seems to be entrenched bureaucracies essentially immune from criticism or public action. These self-perpetuating, self-sufficient, self-serving bureaus are power sources unto themselves, effectively insulated from the people and responsible to no one but themselves.

One of the strange inconsistencies of bureaucracy is the reluctance of administrative agencies to expose themselves to public scrutiny. Assuming the best of motives on the part of bureaucrats and politicians, this course of conduct can only be explained by a kind of totalitarian paternalism inconsistent with American constitutional concepts.

When the U.S. Environmental Protection Agency, EPA, began it was staffed primarily by young inexperienced recent law graduates from some of the nation’s most prestigious law schools. There were few if any “environmental scientists” available at the time and most of the scientists who had established careers at the well-funded cabinet level departments such as USDA and DOI were not interested in moving to a lower level, less prestigious Agency which they expected to be rather short-lived and no one ever expected would rise to cabinet level.

The young lawyers that staffed EPA were well-meaning ideologues without any significant background in Science and mathematics. Nevertheless they had the power to regulate the basic engines of the American Economy.

Since 1970, the number of “environmental organizations has proliferated and those which have brought any kind of lawsuits use them not as an effective means of public information and education about rational science, but as a tool for fundraising to increase their organizational bureaucracies. They have not presented meaningful cases in a court room for trial on the merits based on properly gathered real world data validated by the scientific method.

Rather than filing class actions for declaratory judgment and equitable relief to stop whatever action represented an imminent danger of serious, permanent, and irreparable damage to natural resources and the Environment, these organizations challenged government agency action for failing to comply with the letter of regulations promulgated by countless unaccountable bureaucrats under a variety of well-meaning, but poorly crafted statutes.

Successful environmental litigation

Yannacone built environmental litigation on the model of the United States Marine Corps in World War II –– direct and overwhelming assault upon the entrenched fortifications of junk science using only the basic weapon of class actions in the public interest seeking declaratory judgment and equitable relief — usually an injunction —to prevent serious, permanent, and irreparable damage to natural resources and the Environment.

The primary objective of such litigation was to present the issues to the conscience of the community in a court of equity and make the science upon which the action was based accessible to the general public through the media coverage of the litigation. Scientists were presented as witnesses in the context of their work and not as partisans in the litigation but the attorney was not subject to any of the constraints upon rhetorical excess that characterized membership in the academic research community at that time.

The evidence presented in court came from scientists actively involved in research, and their testimony was limited to the areas in which they were truly expert as the legal system understood the meaning of “expert”. Their trial lawyer and Barrister was expected to commit the time necessary to master the science underlying the litigation and the place of each witnesses research in the overall evidentiary edifice that would be built in the courtroom to support the prayer for relief in the action.