ENCYCLOPEDIA OF ENVIRONMENTAL SCIENCE AND ENGINEERING - LEGAL ASPECTS OF THE ENVIRONMENT docx

L LEGAL ASPECTS OF THE ENVIRONMENT The environment has become a concern of the law and Environmental Law is now a recognized and established legal discipline The body of Environmental Law is growing in response to the felt needs of society which is beginning to acknowledge that the technological advances of this generation are destroying the legacy of the past and the capital assets of the future Historic forces forged common law doctrines suited to a world of endless frontiers, where ruthless exploitation of natural resources was a manifestation of the desperate need to subdue all nature as the means of survival in the wilderness of a new world Such survival techniques are no longer appropriate on an earth whose life support systems are as fragile as those in a space capsule As natural resources are being utilized at rates unprecedented in the history of civilization, and the quality of environment deteriorates, there is increasing public demand for legal aid to the environment Attorneys are being called upon to act as public defenders of the environment and the law is being asked to restore the quality of life Environment and the law interface in three significant areas: Legislation, Administration and Executive action, and Judicial determination There already exists a substantial body of statutory law at the federal, state and local levels dealing with matters of environmental concern, and there has been a perceptible evolution of ecologically sophisticated, environmentally responsible, socially relevant and politically feasible legislation at all operative levels of government Administrative agencies characterized by a combination of delegated legislative, executive and judicial powers, functions, and responsibilities affect the environment in the furtherance of their statutory mission The administrative agencies are legislative creations In theory, they exist to effect policy established by the elected legislative representatives of the people To accomplish this the legislature ceded rule-making power from its legislative mandate under the Constitution, the executive ceded a certain amount of administrative power, and the judiciary ceded certain judicial functions, in particular fact-finding and preliminary hearing As a result of this tripartite grant of power, administrative agencies represent not a fourth branch of government as some seem to think, but the foundation of all practical government operations: Administrative agencies provide the substantial bulk of bureaucracy The judiciary of the United States and that of the several states furnish the forum for environmental litigation Such litigation involves the interpretation of statutes and the adjudication of liabilities for damages resulting from nuisance, negligence, trespass and other traditional common law torts; as well as general actions seeking declaration of the rights of the people (in the form of class actions for declaratory judgment) and equitable relief (injunction, reparations) based on such ancient common law equitable principles as the Trust Doctrine and the maxim sic utere to alienam non laedas—so use your own property as not to injure that of another Following the trail blazed by the American Labor Movement and retracing many of the judicial steps of the Civil Rights struggle, while seeking judicial vindication of a fundamental human right, to a salubrious environment, as one of those rights “so basic and important to our society that it would be inconceivable that it is not protected from unwarranted interference” and is a right retained by the people of the United States under the Ninth Amendment of the Constitution of the United States and protected from disparagement by the actions of the federal government by operation of the due process and equal protection clauses of the Fifth Amendment of the Constitution and protected from disparagement by the actions of any of the several states by operation of the privileges or immunities, due process and equal protection clauses of the Fourteenth Amendment of the Constitution Environmental Law and Environmental Litigation became recognized elements of the Anglo-American legal system in the Spring of 1966 when a suburban housewife brought an action on behalf of all the citizens of Suffolk County, New York seeking equitable relief from a toxic insult to the community ecosystem; challenging not merely the local mosquito control commission still routinely using DDT in an 590 © 2006 by Taylor & Francis Group, LLC LEGAL ASPECTS OF THE ENVIRONMENT increasingly futile attempt to control a mosquito population that had long since become resistant to that pesticide, but the broad spectrum, persistent chemical biocide, 1,1,1-trichloro-2, 2-bis parachlorophenyl) ethane: DDT itself The New York State Supreme Court issued a temporary injunction restraining the County of Suffolk from using DDT for mosquito control on August 15, 1966 and continued this “temporary” injunction until December 6, 1967, finally holding that: DDT has, by its inherent chemical stability, become a continuing factor in some ecological life cycles so as to profoundly alter them and the environmental equilibrium Thus, it is reasonably apparent that DDT is capable of and actually has to some extent caused extraordinary damage to the resources of this country If in no other way, the chemical by its very stability has introduced an element of instability in the general ecosystem For instance, by reducing a food source of some of the larger wildlife and so reducing the overall large wildlife population, lesser elements multiply more quickly These lower forms are presumably more of a nuisance, assuming they in turn survive Furthermore, DDT affects wildlife directly Its ingestion, from whatever source has the capability, it seems, to disrupt reproductive processes or even more simply act as a poison It is fairly apparent then that the application of DDT in Suffolk County has and is continuing to have a demonstrable effect on local wildlife, reducing it slowly but surely, either directly across the board or indirectly from the top down, but reducing it nevertheless We have a situation where plaintiff has at least minimally sustained a massive effort to validiate the allegation that DDT does in fact biological harm [Yannacone v Dennison et al (1967) 55 Misc 2d 468, 471–472, 285 NYS 2d 476] ENVIRONMENTAL LEGISLATION National Environmental Policy Act of 1969 The principal national legislative statement on the environment is the National Environmental Policy Act of 1969 (National Environment Policy Act) the purpose of which is: To declare a national harmony which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality The National Environmental Policy Act (NEPA) is a synthesis by a Conference Committee of bills introduced in the Senate by Senator Jackson and in the House by Congressman Dingell The declaration of a national environmental policy contained in section 101 of the act speaks for itself Sec 101 (a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the © 2006 by Taylor & Francis Group, LLC 591 profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans (b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may 1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations: 2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings: 3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences: 4) preserve important historic, cultural, and natural aspects of our natural heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; 5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and 6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment Sec 101 (b) (95) is recognition by Congress that uncontrolled magnitude and distribution of population underlies many of this nation’s environmental and resource problems To insure that a high standard of living is made available to all citizens and that all citizens have the opportunity for aesthetic enjoyment from a quality environment, the intent of NEPA is that the Federal Government must strive to maintain the magnitude and 592 LEGAL ASPECTS OF THE ENVIRONMENT distribution capacity to provide such benefits By section 101 (b) (5) Congress has thus implied that the rights of underprivileged citizens to a high standard of living are not to be sacrificed as a result of the national environmental policy to protect and environment The provision of NEPA most debated by the members of Congress was section 102 Sec 102 The Congress authorizes and directs that, to the fullest extent possible; (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall— A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man’s environment; B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations; C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— i) the environmental impact of the proposed action, ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, iii) alternatives to the proposed action, iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and v) any reversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, © 2006 by Taylor & Francis Group, LLC United States Code, and shall accompany the proposal through the existing agency review processes; D) study, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources; E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs, designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment; F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment; G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and H) assist the Council on Environmental Quality established by title II of this Act NEPA strengthened the right of public access under the Freedom of Information to records and information of Federal agencies Act In addition, Congress has required all Federal agencies, to the fullest extent possible, to “make available to States, Counties, municipalities, institutions and individuals, advice and information useful in rest and maintaining, and enhancing the quality of the environment ” These provisions enable citizens, under the Freedom of Information Act, to gain access to those records of Federal agencies that are relevant to environmental protection in addition to the environmental impact statements required to be filed under Section 102 NEPA requires all Federal agencies and officials to consider environmental values in reaching decisions or in planning agency action Though Congress has enacted numerous laws over the past years that constitute Congressional mandates on various aspects on environmental policy, areas of Federal policy and action exist which have no environmental goals or policies and in which the conflicting operational necessities of different agencies complicate and often frustrate attainment of environmental quality objectives which are in the interest of the entire country Many of the older operating agencies of the Federal Government, for example, not, at present, have a mandate within the body of their enabling laws permitting them to give adequate attention to environmental values In other agencies, especially when the expenditure of funds are involved, the latitude of a public official to deviate from the most economical alternative to reach an environmental goal may be strictly circumscribed by Congressional authorizations which have overlooked existing or potential environmental LEGAL ASPECTS OF THE ENVIRONMENT problems There is also reason for serious concern over the activities of those agencies which not feel they have sufficient authority to undertake needed research and action to enhance, preserve, and maintain the quality of the environment in connection with development activities The National Environmental Policy Act reemphasizes the importance of existing statutory programs relating to the environment Prior to the passage of the National Environmental Policy Act of 1969, existing legislation involving certain areas of Federal activity did not provide “clear authority for the consideration of environmental factors which conflict with other objectives,” and many Federal agencies had not given substantial and consistent consideration to environmental factors during decision making in certain areas of their responsibility Section 102 (1) remedies these shortcomings in the statutory foundations of existing agency programs by incorporating the policy and goals set forth in section 101 into the actions and programs of all Federal agencies Section 102 (2) establishes procedures which will help to insure that the policies enunciated in sections 101 are implemented Prior to the passage of the National Environmental Policy Act of 1969, planning and decision-making that might have an effect on the quality of the environment was too often the exclusive province of the engineer and cost analyst The National Environmental Policy Act requires Federal agencies to consider all relevant points of view and draw upon the broadest possible range of social and natural scientific knowledge and design arts in planning and decision making In the past, Federal agencies have all too frequently ignored environmental factors in planning and decision making or omitted them from consideration during the early stages of planning because of the difficulty in evaluating such factors as compared with the ease of evaluating economic and technological factors Under NEPA, Federal agencies and officials are now required to develop the methodology and techniques necessary to determine the total environmental impact and full course of actions by the Federal government One of the most frequent sources of environment litigation involves the construction and application of the National Environmental Policy Act of 1969 and the sufficiency of environmental impact statements prepared pursuant to section 102 (2) (C) Although the initial determination of environmental impact is made by the agency itself, should the agency find that the proposed activity will have a significant effect on the environment, the agency report of recommendation supporting the proposal must make findings with respect to the environmental factors set forth in section 102 (2) (C) (i)–(v) If adverse environmental effects cannot be avoided by reasonable alternative actions the agency must demonstrate that such adverse environmental effects are justified by other considerations of national policy, which must be stated in detail The use of local, short-term resources must be found to be consistent with the maintenance and enhancement of the long-term productivity of the environment Proposals involving significant commitments of resources that will be irreversible and irretrievable under © 2006 by Taylor & Francis Group, LLC 593 conditions of known technology and reasonable economics must be found necessary The National Environmental Policy Act supplements the statutory authority of most Federal agencies and requires them to follow the policies, goals and procedures of the Act, unless the existing law governing such agency’s operations expressly prohibits full compliance, however section 103 provides that no Federal agency is to interpret its existing statutory authority in such a way as to avoid compliance with the directives of NEPA If the agency finds a clear conflict between its existing statutory mandate and the Act, the agency is required to propose to the President of the United States such measures as will be necessary to bring the statutory authority and mandate of the agency into conformity with the provisions of the National Environmental Policy Act The National Environmental Policy Act is a relevant statute within the meaning of the Administrative Procedure Act, thus conferring standing upon representatives of the general public seeking judicial review of actions and decisions by federal agencies which may have failed to follow the policies, goals and procedures of the Act, where such action or decision of the agency threatens to have adverse effects upon the ecological system an individual may reside in or use for recreation Section 101 (C) of the National Environmental Policy Act recognizes that “each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and the enhancement of the environment,” indicating that Congress intends to recognize the interests of individual citizens in the protection of the ecosystem they may reside in or use for recreation Such an individual citizen is within the class of persons which the National Environmental Policy Act was meant to protect, and is thus a person adversely affected or aggrieved within the meaning of the Administrative Procedure Act and as such a person is entitled to judicial review of the agency action The national goal and policies for the protections, establishment and enhancement of this Nation’s environment established by the National Environmental Policy Act are in the words of its Senate sponsor, Senator Jackson More than the statement of what we believe as a people and as a nation, it establishes priorities and gives expressions to our National goals and aspirations It provides a statutory foundation to which administrators may refer for guidance in making decisions which find environmental values in conflict with other values What is involved is a congressional declaration, that we not intend, as a government or as a people, to initiate actions which endanger the continued existence or the health of mankind: that we will not intentionally initiate actions which will irreparable damage to the air, land, and water which support life on earth An environmental policy is a policy for people Its primary concern is with man and his future The basic principle of the policy is that we must strive in all that we to achieve a standard of excellence in man’s relationship to his physical surroundings If there are to be departures from this standard of excellence, they should be exceptions to the rule and policy 594 LEGAL ASPECTS OF THE ENVIRONMENT Administrative Procedure Act The Administrative Procedure Act provides both an independent source of federal jurisdiction and a grant of standing to conservation organizations and aggrieved persons seeking to challenge decisions of, or actions by, Federal agencies which may result in environmental degradation Senator McCarren, the author of the bill which ultimately became the Administrative Procedure Act, explained that it conferred no administrative powers, but provided definitions of, and limitations upon, administrative action, to be interpreted and applied by the agencies in the first instance, but to be reviewed by the courts in the final analysis The scope of judicial review of agency action is governed by the language of the Administrative Procedure Act: To the extent necessary to decision, and when presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action The reviewing court shall 2) hold unlawful and set aside agency action, findings and conclusions found to be— A) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; B) Contrary to constitutional right, power, privilege or immunity; C) In excess of statutory jurisdiction, authority, or limitations, or short of statutory rights; F) Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court (5 United States Code § 706) Under the Administrative Procedure Act any person “suffering legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute” may seek judicial review Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review A preliminary, procedural, or intermediate agency action of ruling not directly reviewable is subject to review on the review of the final agency action Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of [the Administrative Procedure Act] whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to a superior agency or authority (5 United States Code § 104) The “legal wrong” contemplated by the Administrative Procedure Act is something more than the mere personal damage normally contemplated in the law of torts The damage necessary to constitute legal wrong under the © 2006 by Taylor & Francis Group, LLC provisions of the Administrative Procedure Act must produce some illegal effect and be demonstrably contrary to law in either substance or procedure However, the law considered relevant upon judicial review of agency action under the Administrative Procedure Act is not only the statutory law directly involved with the agency action, but general constitutional law as well The legal wrong necessary to confer jurisdiction on the court and standing to the party complaining can be the invasion of any legally protected right Jurisdiction can also be obtained over agents and officers of the United States Government such as contractors of the Atomic Energy Commission, the Secretary of Agriculture, the Secretary of Interior, and divisions and departments of Federal agencies such as the Division of Wildlife Services, the Bureau of Sport Fisheries and Wildlife, and the Bureau of Land Management of the United States Department of the Interior, the Corps of Engineers of the United States Army of the Department of Defense, and the Federal Aviation Administration and the Bureau of Public Roads of the Department of Transportation There is a basic presumption in the law favoring judicial review of agency or administrative action even where the statute prescribing agency action does not on its face provide for judicial review For the right of judicial review to be denied, the agency must produce clear and convincing evidence of legislative intent to foreclose judicial review The Supreme Court of the United States [Association of Data Processing Service Organizations, Inc v Camp (1970) 397 US 150, 25 h Edzd 184, 90 SCt 827] has reemphasized the presumption of judicial review of agency action in recent litigation which construed the Administrative Procedure Act not grudgingly but as serving a broadly remedial purpose holding that “the mere failure to provide specially by statute tor judicial review is certainly no evidence of intent to withhold review.” No presumption in favor of “administrative absolutism” and against judicial review exists A congressional purpose to preclude judicial review of agency action must be “fairly discernable in the statutory scheme,” since the right to judicial review is ordinarily inferred where congressional intent to protect the interests of the class of which the complainant is a member can be found Administrative action is not immune from judicial review because it may be committed to agency discretion or simply because the statute authorizes a public official to “prescribe such regulations as he may deem proper to carry out the provisions of [the legislation].” The right to judicial review of agency action is all that stands between the citizen and government by administrative fiat not subject to correction by the elective process Although a court usually will not substitute its judgement for that of an administrative agency, it can compel the proper exercise of statutory authority by the agency, since it is not for the administrative agency to finally determine the limits of its own power That is a judicial function Where a party aggrieved has no other adequate remedy following administrative action there is certainly the right, LEGAL ASPECTS OF THE ENVIRONMENT upon proper application, to judicial review of agency action Some confusion existed in the Federal Courts for a number of years after the passage of the Administrative Procedure Act because the provisions for judicial review apply, “According to the provisions thereof, except to the extent that agency action is committed to agency discretion by law” (5 United States Code § 701) Some Federal Courts held that agency action involving the exercise of discretion could not be reviewed for any reason under the Administrative Procedure Act, however, the majority of Federal Courts have adopted the rule that any agency action, even that involving the exercise of discretion and dependent upon the special technical and scientific expertise of the agency, is subject to judicial review to the extent provided by the Administrative Procedure Act The mere fact that the acts of some administrative official, even a cabinet-level Secretary, require the exercise of discretion and judgment does not preclude judicial review of official action Any contrary decision would lead to establishment of a shadow government by administrative officials not subject to popular election or judicial review and therefore totally outside the systems of checks and balances so carefully developed during the Constitutional Convention The rights and the public must receive active and affirmative protection at the hands of the administrative agencies Much environmental litigation has involved the standing of parties to bring suit against administrative agencies, their officials, employees and agents Recent decisions have established the right of public benefit organizations whose purposes include protection of the environment, or protection the lives, health, and property of human beings or animals, as well as individuals seeking to proceed in the public interest as “private attorneys general,” to bring actions to persons “adversely affected” or “parties aggrieved” without the meaning of the Administrative Procedure Act Neither economic injury nor a specific individual legal right are necessary adjuncts to standing A complainant need only demonstrate that it is an appropriate person (corporate or human) to question the alleged failure of an agency to protect those values recognized by law as in the public interest Environmental Protection Agency By virtue of the executive authority to reorganize Federal agencies, President Nixon created an Environmental Protection Agency to which was transferred, effective December 2, 1970, significant environmental responsibilities formerly scattered throughout the several executive and administrative branches of government Sec Transfers to Environmental Protection Agency (a) There are hereby transferred to the Administrator [of the Environmental Protection Agency] 1) All functions vested by law in the Secretary of the Interior and the Department of the Interior which are administered through the Federal © 2006 by Taylor & Francis Group, LLC 595 Water Quality Administration, all functions which were transferred to the Secretary of the Interior by Reorganization Plan No of 1966 (80 Stat 1608), and all functions vested in the Secretary of the Interior or the Department of the Interior by the Federal Water Pollution Control Act or by provisions of law amendatory or supplementary thereof 2) (i) The functions vested in the Secretary of the Interior by 16 USC 742d-1 (being an Act relating to studies on the effects of insecticides herbicides, fungicides, and pesticides upon the fish and wildlife resources of the United States), and (ii) the functions vested by law in the Secretary of the Interior and the Department of the Interior which are administered by the Gulf Breeze Biological Laboratory of the Bureau of Commercial Fisheries at Gulf Breeze, Florida 3) The functions vested by law in the Secretary of Health, Education, and Welfare or in the Department of Health, Education, and Welfare which are administered through the Environmental Health Service, including the functions exercised by the following components thereof: i) The National Air Pollution Control Administration, ii) The Environmental Control Administration; A) Bureau of Solid Waste Management, B) Bureau of Water Hygiene, C) Bureau of Radiological Health, except that functions carried out by the following components of the Environmental Control Administration of the Environmental Health Service are not transferred: (i) Bureau of Community Environmental Management, (ii) Bureau of Occupational Safety and Health, and (iii) Bureau of Radiological Health, insofar as the functions carried out by the latter Bureau pertain to (A) regulation of radiation from consumer products, including electronic product radiation, (B) radiation as used in the healing arts, (C) occupational exposures to radiation, and (D) research, technical assistance, and training related to clauses (A), (B), and (C) 4) The functions vested in the Secretary of Health, Education, and Welfare of establishing tolerances for pesticide chemicals under the Federal Food, Drug and Cosmetic Art, as amended, 21 USC 346, 346a, and 348, together with authority, in connection with the functions transferred, (i) to monitor compliance with the tolerances and the effectiveness of surveillance and enforcement, and (ii) to provide technical assistance to the States and conduct research under the Federal Food, Drug, and Cosmetic Act, as amended and the Public Health Service Act, as amended 596 LEGAL ASPECTS OF THE ENVIRONMENT 5) 6) 7) 8) 9) b) So much of the functions of the Council on Environmental Quality under section 204(5) of the National Environmental Policy Act of 1969 as pertains to ecological systems The functions of the Atomic Energy Commission under the Atomic Energy Act of 1954, as amended, administered through its Division of Radiation Protection Standards, to the extent that such functions of the Commission consist of establishing generally applicable environmental standards for the protection of the general environment from radioactive exposures or levels, or concentrations of quantities of radioactive material, in the general environment outside the boundaries of locations under the control of persons possessing or using radioactive material All functions of the Federal Radiation Council (42 USC 2021 (h)) (i) The functions of the Secretary of Agriculture and the Department of Agriculture under the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 USC 135–135k), (ii) the functions of the Secretary of Agriculture and the Department of Agriculture under section 408(1) of the Federal Food, Drug and Cosmetic Act, as amended (21 USC 346a(1)), and (iii) the functions vested by law in the Secretary of Agriculture and the Department of Agriculture which are administered through the Environmental Quality Branch of the Plant Protection Division of the Agricultural Research Service So much of the functions of the transfer of officers and agencies referred to in or affected by the foregoing provisions of this section as in incidental to for necessary of the performance by or under the Administrator of the functions transferred by those provisions or relates primarily to those functions The transfers to the Administrator made by this section shall be deemed to include the transfer of (1) authority, provided by law, to prescribe regulations relating primarily to the transferred functions, and (2) the functions vested in the Secretary of the Interior and the Secretary of Health, Education, and Welfare by section 169(d)(1)(B) and (3) of the Internal Revenue Code of 1954 (as enacted by section 704 of the Tax Reform Act of 1969, ); but shall be deemed to exclude the transfer of the functions of the Bureau of Reclamation under section 3(b)(1) of the Water Pollution Control Act (33 USC 446a(b)(1)) There are hereby transferred to the Agency: 1) From the Department of the Interior, (i) the Water Pollution Control Advisory Board (33 USC © 2006 by Taylor & Francis Group, LLC 2) 466t), together with its functions, and (ii) the hearing boards provided for in sections 10(c)(4) and 10(f) of the Federal Water Pollution Control Act, as amended (33 USC 446g(c)(4); 446g(f)) The functions of the Secretary of the Interior with respect to being or designating the Chairman of the Water Pollution Control Advisory Board are hereby transferred to the Administrator From the Department of Health, Education, and Welfare, the Air Quality Advisory Board (42 USC 1857c), together with its functions The functions of the Secretary of Health, Education and Welfare with respect to being a member of the Chairman of that Board are hereby transferred to the Administrator Sec Abolitions (a) Subject to the provisions of this reorganization plan, the following, exclusive of any functions, are hereby abolished: 1) 2) The Federal Water Quality Administration in the Department of the Interior (33 USC 446–1) The Federal Radiation Council ( ., 42 USC 2021(h)) Among the procedural landmark established in the Project Rulison litigation was the right of the plaintiff COSCC to take the depositions of experts prior to the determination of the defendants motion for summary judgment to dismiss the complaint COSCC argued that the motion for summary judgment could not be decided without considering the relevant testimony of certain experts under the control of the defendants and the Court directed the defendants to produce those experts for pre-trial oral examination The information obtained in those pre-trial examinations established the need for a full hearing on the merits as a condition precedent to determination of any AEC motion for summary judgment dismissing the complaint Sovereign Immunity and Popular Sovereignty Throughout the relatively short history of environmental litigation involving agencies of government, sovereign immunity has been raised as a defense by the government agency asserting that the action is a suit against the sovereign United States of America brought without the consent of congress and that the relief sought would invade the powers of officers of the executive branch of the Federal Government to whom the actions complained of had been delegated This defense is usually buttressed by an appeal for judicial restraint under the doctrine of Separation of Powers The general doctrine of the immunity of the United States from suit without consent of Congress is a rule propounded in a diction by United States Supreme Court Chief Justice John Marshall in the case of Cohens v Virginia [19 US (6 Wheat) LEGAL ASPECTS OF THE ENVIRONMENT 264, 411–412 (1821)] However, in the earliest discussion of sovereignty by the United States Supreme Court [Chisholm v Georgia (1973) US 419], the court stated, the term sovereign has for its correlative, subject In this sense, the term can receive no application; for it has no object in the Constitution of the United States Under the Constitution, there are citizens but no subjects the people of the United States have reserved the supreme power in their own hands; and on that supreme power have made these [governments] dependent, instead of being sovereign Even in almost every nation which has been denominated free the state has assumed a supercilious preeminence above the people who have formed it; hence the haughty notions of State independence, State sovereignty, and State supremacy In despotic governments, the government has usurped in a similar manner both upon the state and the people: hence all the arbitrary doctrines and pretensions concerning the supreme, absolute and incontrollable, power of government In each, man is degraded from the prime rank which he ought to hold in human affairs Another instance, equally strong, but still more astonishing is drawn from the British Government as described by Sir William Blackstone and his followers As described by him and them, the British is a despotic Government It is a Government without a people In that Government, as so described, the sovereignty is possessed by the Parliament: In the Parliament, therefore, the supreme and absolute authority is vested: In the Parliament resides that incontrollable and despotic power, which, in all Governments, must reside somewhere The constituent parts of the Parliament are the King’s Majesty, the Lord’s Spiritual, the Lord’s Temporal, and the Commons The King and these three Estates together form the great corporation of body politic of the Kingdom All these sentiments are found; the last expressions are found verbatim, in the Commentaries Upon the Laws of England The Parliament forms the great body politic of England What then, or where, are the people? Nothing! No where! They are not so much as even the “baseless fabric of a vision!” From legal contemplation they totally disappear! Am I not warranted in saying, that, if this is a just description; a Government, so and justly so described, is a despotic Government? Chief Justice Jay also recognized the people of the United States, not the Federal Government, as the sovereign: From the crown of Great Britain, the sovereignty of their country passed to the people of it [T]he people, in their collective and national capacity, established the present Constitution It is remarkable that in establishing it, the people exercised their own visits, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity “We the people of the United States, ordain and establish this Constitution.” Here we see the people acting as sovereigns of the whole country [T]he sovereignty of the nation as [in] the people of the nation © 2006 by Taylor & Francis Group, LLC 597 Chief Justice Jay noted that in England the doctrine of sovereignty was based on feudal principles that considered the prince as sovereign and the people as his subjects These feudal principals contemplated the sovereign As being the fountain of honor and authority; and from his grace and grant derives all franchises, immunities and privileges; it is easy to perceive that such a sovereign could not be amenable to a Court of Justice, or subjected to judicial control and actual constraint It was of necessity, therefore, that suability, became incompatible with such sovereignty Besides, the Prince having all the Executive powers, the judgment of the Courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised, is a distinct thing from a capacity to be sued The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject No such ideas obtain here At the Revolution, the sovereignty devolved on the people and they are truly the sovereigns of the country, but they are sovereigns without subjects and have none to govern but themselves, the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty Sovereignty is the right to government; a nation or State-sovereign is the person or persons in whom that resides In Europe the sovereignty is generally ascribed to the Prince; here it resides with the people Their Princes have personal powers, dignities, and pre-eminences, our rulers have none but official; nor they partake in the sovereignty otherwise, or in any other capacity, than as private citizens A majority of the Supreme Court of the United States, just five years after the adoption of the Constitution of the United States, rejected the idea of the United States as sovereign— and necessarily the rule of sovereign immunity from suit because “suability became incompatible with such sovereignty.” The people of the United States are the sovereign, not the United States government In 1882, the Supreme Court of the United States further said, Under our system the people, who are there [in England] called subjects, are the sovereign Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of a monarch The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right [United States v Lee (1882), 106 US 196, 205 to 209] Land Use and Resource Management Throughout history, land and natural resources have been considered the property of the sovereign to be used, abused, given or taken at the sovereign whim The history of civilization, to 598 LEGAL ASPECTS OF THE ENVIRONMENT a certain extent, can be considered a chronicle of wars and revolutions fought over the ownership and utilization of land and natural resources The Constitution of the United States provides that the rights not explicitly given by the people of the United States to the federal government are retained by the people of the United States, individually, and as collectively assembled in the several states The enumeration of the Constitution, of certain rights, shall not be constructed to deny or disparage others retained by the people (United States Constitution, Ninth Amendment) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people (United States Constitution, Tenth Amendment) As the individual state constitutions were formulated, the rights of individual property owners were strengthened, but at no time did the sovereign people of the United States relinquish the ultimate right to determine the highest and best use of the land and natural resources subject to the jurisdiction of the United States The justification for any legal restriction on the private use of land or natural resources is rooted in this concept of sovereignty in the people According to the report commissioned by the Council on Environmental Quality as a preparation for consideration of a National Land Use Policy Act, This country is in the midst of a revolution in the way we regulate the use of our land It is a peaceful revolution a quiet revolution The ancien regime being overthrown is the feudal system under which the entire pattern of land development has been controlled by thousands of individual local governments, each seeking to maximize its tax base and minimize its social problems, and caring less what happens to all the others And if we are to live in harmony with that which has been given to us from preceding generations, and from the earth before mankind appeared, we must make certain assumptions with respect to every accessible parcel of real property and every natural resource capable of exploitation 1) The area of resource is vulnerable 2) Development, exploitation or utilization of some kind is inevitable 3) The highest and best use of the land or resource as an element of human ecology must be accommodated 4) Development must be consistent with natural ecological constraints 5) Planned achievement of the highest and best use of land and resources is more profitable to mankind than unplanned development 6) The police power of the state, the ultimate sovereignty of the people, and the maintenance of private property concepts are compatible and can result in the harmonious, beneficial development of land and resources © 2006 by Taylor & Francis Group, LLC Recognizing the limited availability of land itself and the place of land as the basic capital asset of civilization, land use historically has been limited by executive, legislative and judicial process An early example of land use legislation—zoning—has been upheld by the courts on the grounds that it represents action by an individual community to assure the highest and best use of limited resources for the greatest number of people without undue infringement upon the rights of individuals Zoning is not just an expansion of the common law of nuisance It seeks to achieve much more than the removal of obnoxious gases and unsightly uses Underlying the entire concept of zoning is the assumption that zoning can be a vital tool for maintaining a civilized form of existence only if we employ the insights and the learning of the philosopher, the city planner, the economist, the sociologist, the public health expert and also the other professions concerned with urban problems This fundamental conception of zoning has been present from its inception The almost universal, statutory requirement that zoning conform to a “well-considered plan” or “comprehensive plan” is a reflection of that view [See Standard State Zoning Enabling Act, US Dept of Commerce (1926).] The thought behind the requirement is that consideration must be given to needs of the community as a whole In exercising their zoning powers, the local authorities must act for the benefit of the community as a whole following a common, deliberate consideration of the alternatives, and not because of the whims of either an articulate minority or even majority in the community Rather, the comprehensive plan is the essence of zoning Without it, there can be no rational allocation of land use It is the insurance that the public welfare is being served and that zoning does not become nothing more than just a Gallup poll [Udell v Hass (1968), 21 NY2d 463, NE2d 897, 288 NYS2d 888] The key to successful land use and resource utilization legislation is the community determination of the highest and best use of land and resources in terms of intrinsic suitability and naturally imposed constraints Of necessity this must be done by a team of individuals trained in the several disciplines necessary to define the environmental parameters of a Regional Ecological System The community itself, particularly its people, constitute elements of that regional ecological system just as surely as topography, hydrology, and climate One of the most significant contributions of environmental litigation to the development of Anglo-American jurisprudence has been the broadening of the concept of “expert witness” to include an individual member of a multidiscipline scientific team testifying about the work of the entire team even though the individual scientist may not have performed the work testified about personally Environmental litigation, particularly that involving such environmental toxicants as DDT and radionuclides has led to legal acceptance of the “environmental scientist” who is permitted to testify generally, upon a showing, to the satisfaction of the Court, of demonstrated competence in some recognized scientific discipline together with regular LEGAL ASPECTS OF THE ENVIRONMENT collaboration with other scientists of diverse disciplines upon general problems of environmental concern The adequate determination of the highest and best use of the limited natural resources of any regional ecological system mandates a systems approach supported by modern computer technology in order to determine the relevant boundary conditions and elemental optimizations of the complex, non-linear dynamic relationships that describe a natural system as it actually exists Courts increasingly are accepting evidence in environmental litigation, and the techniques of general systems analysis have become key factors in the resolution of environmental controversy such as that concerning the continued use of DDT, the distribution of radionuclides from peaceful applications of nuclear energy, and the Cross-Florida Barge Canal The acceptance of systems methods in ecology by the courts now means that any land use or resource utilization law which does not fully reflect the system characteristics of the Regional Ecological System in which it will operate is fatally defective in the legal sense It cannot be sustained in the face of sophisticated legal challenge; while any such law which does, in fact, reflect the system characteristics of the region can be sustained in the public interest, even where such a law appears to limit the rights incident to private property ownership The current litigation involving the adequacy of statements prepared under the mandate of section 102 of the National Environmental Policy Act (environmental impact statements) demonstrates that any failure to consider the ecological integrity of a region and fully determine the interrelationships among each element of the land, landscape and natural processes diminishes the legal value of the effort; while a full evaluation of any environmentally significant action with respect to its effect upon the overall ecological integrity of the region and the interrelationships among each element of land, landscape, and natural processes of the region can form the basis for legal restraints upon land use and resource exploitation, even where such restraints appear to infringe upon private property rights or government agency prerogatives ENVIRONMENTAL LITIGATION Environmental litigation includes almost all the actions brought before the courts of the United States, the several states, and the various administrative agencies exercising quasi-judicial powers which involve a determination which may affect natural processes, resources or the environment The Scenic Hudson Preservation Case One of the landmark cases in environmental law is Scenic Hudson Preservation Conference v Federal Power Commission [354 F2d 608 (1965, CA2), certiorari denied 384 US 941, 16 LEd 2d 540, 86 SCt 1462], which established the right of conservation organizations and other public interest groups to challenge the extent of consideration given © 2006 by Taylor & Francis Group, LLC 599 to historic, scenic, aesthetic, conservation and recreational aspects of power development by the Federal Power Commission The holding of that case has been extended to permit similar organizations to challenge the consideration of such values by the Secretary of Transportation (in approving federal-aid highways) and the Secretary of the Army and Chief of Corps of Engineers (in licensing and granting permits for projects on navigable waterways) The Scenic Hudson saga began on January 29, 1963 with Consolidated Edison of New York (the major electric power utility servicing the City of New York) filing an application with the Federal Power Commission (FPC) for a license to construct a pumped-storage hydroelectric facility on the west wide of the Hudson River at Storm King Mountain As information concerning the project spread, the Federal Power Commission directed that a public hearing on the project be held February 25, 1964 The Scenic Hudson Preservation Conference was hastily formed and filed a petition on February 6, 1964 seeking to intervene in the proceeding The petition was granted on February 14, 1964; intervention was permitted; hearings were held in Washington, DC; and the hearing examiner made an initial determination approving the license application on July 31, 1964 subject to review by the entire Federal Power Commission which eventually licensed the project on March 9, 1965 The pumped-storage plant proposed by Consolidated Edison would generate electric power for use during peak load periods in New York City using hydroelectric units driven by water from a reservoir The project consisted of three major components—a storage reservoir, a powerhouse, and transmission lines The reservoir would be located over the power house which was to be located on the shores of the Hudson River at the foot of Storm King Mountain, a mountain of striking aspect rising over 1,360 feet above the river The reservoir would be connected to the powerhouse by a tunnel 40 feet in diameter During slack periods of demand for electrical power in New York City, Consolidated Edison’s steam generating plants in New York City would provide electric power for the pumps at Storm King to force water through the tunnel and up the mountain into the reservoir The water would be stored in the reservoir until periods of peak demand for electrical power in New York City at which time the water would be released from the reservoir to rush down the mountain through the tunnel to power the generators The project was to have a capacity of two gigawatts (billion watts, or million kilowatts), but would be capable of expansion to three gigawatts At that time, the Storm King Project was to be the world’s largest pumped storage electric generating facility and was estimated to cost an estimated $162,000,000 Subsequently the United States Court of Appeals for the Second Circuit reviewed the determination of the Federal Power Commission holding, that if the Commission is properly to discharge its duty in this regard [approve those projects best adapted to a comprehensive plan for improving or developing a waterway], the record on which it bases its determination must be complete The petitioners and the public at large have a right to 600 LEGAL ASPECTS OF THE ENVIRONMENT demand this completeness It is our view, and we find, that the Commission has failed to compile a record which is sufficient to support its decision The commission has ignored certain relevant factors and failed to make a thorough study of possible alternatives to the Storm King Project would otherwise not be permitted but for existing conditions, pointing out that Consolidated Edison would rehabilitate the waterfront area in the vicinity of the project site, an area which the Commission euphemistically described as “blighted.” The court found that the Commission must take into consideration the unique beauty and important historical significant of the Hudson River noting that the Federal Power Act sought to “promote the comprehensive development of the Nation’s water resources.” The court directed the Federal Power Commission to reexamine all the issues that the court found had not been properly considered The commission’s renewed proceedings must include as a basic concern the preservation of natural beauty and of national and historic shrines, keeping in mind, that, in our affluent society, the cost of a project is only one of several factors to be considered The record as it comes to us fails markedly to make out a case for the Storm King Project on, among other matters, cost, public convenience and necessity, and absence of reasonable alternatives Of course the Commission should make every effort to expedite the new proceedings Following the hearings on remand, the hearing examiner made an initial determination on August 6, 1968 recommending that the license be issued New York City then petitioned to intervene prior to a decision by the Commission in order to introduce evidence of the effects project construction activities might have upon the safety of the Catskill Aqueduct which supplies a substantial part of the water for New York City The proceedings were reopened and on December 23, 1969 a supplemental decision was issued by the hearing examiner recommending that the licence be granted with some modifications On August 17, 1970, the Federal Power Commission issued the license for construction of a pumped-storage plant by Consolidated Edison at Storm King Mountain In a lengthy opinion, the Commission paid close attention to the decision of the Second Circuit Court of Appeals, giving detailed consideration to areas in which the court had found that the previous decision had been deficient, including alternative sources for the needed power, alternative sties for the project, fish protective devices, underground transmission lines, and the scenic, aesthetic, and historical values that would be affected by the project The Commission found the project to be compatible with the natural environment, and not to have an adverse effect upon the ecology of the area, the water quality of the Hudson River, or the fishery resources of the Hudson River The area would be replanted after construction; the power house would be totally underground and the Commission found that the project, as modified and as licensed, represented no real impairment to the environment and scenic aspects of the highlands and the natural beauty of the area The Commission recognized man’s already awesome impact on this section of the Hudson River shoreline, by stating that, Although the hearings had been conducted prior to the passage of the National Environmental Policy Act, the Commission found that full and careful consideration had been given to all the concerns which the Act embodies and that the licensing of the facility complied with the requirements of that Act All parties appealed to the Second Circuit Court of Appeals which affirmed the Commission’s issuance of the license The majority of the Court found that the decision of the Federal Power Commission was supported by substantial evidence and had been based on a consideration of all relevant factors, and had in fact complied with the requirements of the Federal Power Act and the National Environmental Policy Act After years of litigation, at enormous cost to the Scenic Hudson Preservation Conference, its supporters, and Consolidated Edison, not to mention the inconvenience and cost to the electric power-hungry people of the City of New York, the project would be constructed, little modified from the initial proposal The first decision of the Court of Appeals in the Scenic Hudson Preservation case represented a crucial selection event in the evolution of Environmental Law If the conservationists were willing to submit the controversy to the Federal Power Commission, then, according to the Court, the Federal Power Commission should hear and consider evidence on natural values and environmental impacts in addition to evidence on the economics of electric power generation and distribution The alternative choice open to the conservationists was to remain before the court and challenge the inherent suitability of the Federal Power Commission as a body capable of resolving environmental conflict The Scenic Hudson Preservation Conference, a coalition of preservationists and aesthetically concerned conservationists, chose to yield to the Federal Power Commission the authority to make an ecological judgment binding upon generations yet unborn, cloaking the Federal Power Commission with a mantle of ecological competence Since the Scenic Hudson Preservation Conference chose to take its “day in court” before an administrative agency rather than a court of equity, the findings of fact made by the Commission were binding upon the conservationists in subsequent review by the Courts Fortunately, the principles set forth by the Court of Appeals in its initial review of the Scenic Hudson case mandating consideration of all relevant issues including environmental issues, and requiring affirmative action by the Agency to protect the public interest are not limited in application to the Federal Power Commission Other agencies, including the Corps of Engineers of the United States Army, the Atomic Energy Commission, the Department of Transportation, the Department of the Interior and the it should not be inferred that previous and existing environmental detriment permits additional detriment which © 2006 by Taylor & Francis Group, LLC LEGAL ASPECTS OF THE ENVIRONMENT Department of Agriculture, must also consider all relevant issues, including environmental issues and take affirmative action to protect the public interest The Defense of Florissant The Florissant fossils, located a short distance west of Colorado Springs, Colorado, are found in more than 6,000 acres of an ancient lake bed where seeds, leaves, plants and insects from the Oligocene period (34 million years ago) are remarkably preserved in paper-thin layers of volcanic shale which disintegrate when left exposed to weather unless properly protected A number of bills had been introduced over the years in Congress to protect the Florissant fossil bed but they did not receive extensive consideration until the United States National Park Service promulgated a master plan detailing the paleontological and palynogical values of Florissant At the time the Florissant Fossil Beds National Monument Bill passed the Senate, Park Land Company, a Colorado Springs real estate group had already contracted to purchase 1,800 acres of the ancient lake bed While the House of Representatives was deliberating its version of the National Monument bill, Park Land Company announced it would bulldoze a road through a portion of the proposed national monument to open the area for development and immediate sale to anyone interested in recreational housing A group of Colorado conservationists met with the principles of the Park Land Company in an attempt to persuade them to withhold excavation in the area to be included within the Florissant Fossil Beds National Monument at least until the House of Representatives acted on the bill This request was refused as was a similar request to confine development activities to the area lying outside the ancient lake bed The only alternative offered the conservationists was the opportunity to purchase the land—for cash immediately—at a price considerably in excess of any appraised value based on recent land sales in the area Faced with the irreparable loss of a substantial portion of these unique and irreplaceable fossil beds, a small group of concerned citizens formed a non-profit, public benefit corporation called the Defenders of Florissant and commenced an action for declaratory judgment and an injunctive against the Park Land Company and all the other land owners and contract vendees in the area to be included within the proposed National Monument The United States District Court for the District of Colorado heard the Defenders of Florissant application for a temporary restraining order on July 9, 1969, and although the plaintiffs’ proof that the proposed excavations for roads and culverts would result in the destruction of some of the most valuable fossil areas in the proposed national monument was uncontradicted and unchallenged the District Court held that there was nothing in the United States Constitution preventing the owners from using their property in any way not prohibited by law The District Court denied the application for a temporary restraining order and a subsequent application © 2006 by Taylor & Francis Group, LLC 601 for a stay pending appeal, but did, however, note the importance of preserving the fossil beds Following the District Court decision, representatives of the plaintiffs’ held an informal conference in the Courtroom with two of the partners in the Park Land Company who agreed to postpone excavation until Monday, July 14, if the plaintiffs gave some assurance of raising the purchase price by that day Refusing to accept an offer they felt was a form of community blackmail, the Defenders of Florissant appealed to the Tenth Circuit Court of Appeals the following morning, July 10 At the hearing before three judges of that Court in the afternoon, the Court questioned whether it had authority to issue a restraining order in the absence of any statute protecting the fossils Admitting that Congress “ in its infinite wisdom, has not seen fit to pass legislation protecting fossil beds in general,” plaintiffs argued: “ if someone had found the original Constitution of the United States buried on his land and then wanted to use it to mop a stain on the floor, is there any doubt they could be restrained?” Legally, plaintiffs claimed that the right to preservation of the unique and irreplaceable Florissant fossils, a national, natural, resource treasure, was one of the unenumerated rights retained by the people of the United States under the Ninth Amendment of the Constitution and protected by the due process and equal protection clauses of the Fifth Amendment, and the privileges or immunities, due process and equal protection clauses of the Fourteenth Amendment Plaintiffs also asserted that the Florissant fossil beds were subject to judicial protection under the Trust Doctrine and while the defendants could profit from their nominal title to the land and make reasonable use of the area, they were under a duty to maintain that portion of the property vested with the public interest—the 34-million-year-old fossil shales Procedurally, the Defenders invoked the federal equity jurisdiction relying on the fundamental equitable maxim, “there shall be no wrong without a remedy.” In summation, counsel for the Defenders of Florissant picked up a fossil palm leaf that had been uncovered at Florissant, and holding it up to the Court, pleaded: The Florissant fossils are to geology, paleontology, paleobotony, palynology and evoluton what the Rosetta Stone was to Egyptology To sacrifice this 34 million year old record, a record you might say written by the mighty hand of God, for 30 year mortgages and the basements of the A-frame ghettos of the seventies is like wrapping fish with the Dead Sea Scrolls After a short recess, the Court issued an order restraining the defendants from disturbing the soil, subsoil or geological formation of the Florissant fossil beds by any physical or mechanical means After a trial on July 29, 1969, the District Court denied the Defenders application for a preliminary injunction for the same reasons it had previously denied the application of a temporary restraining order, and the Park Land Company announced that its bulldozer would begin excavation that 602 LEGAL ASPECTS OF THE ENVIRONMENT afternoon Several hours later, the Plaintiffs filed a motion for an emergency stay with the Tenth Circuit Court of Appeals, citing defendants threat, and the Court of Appeals for the Tenth Circuit dramatically issued an order extending the restraining order of July 10 indefinitely until further order On July 31, 1969, the House Interior and Insular Affairs Committee, through its Subcommittee on Parks and Recreation favorably reported an amended version of the Florissant Fossil Beds National Monument Bill, and floor action by the House of Representatives was scheduled for August During the argument of the appeal before the Tenth Circuit Court of Appeals, the plaintiffs amplified their legal position, asserting that the Federal Courts had a duty to cooperate with Congress, and that by issuing a preliminary injunction, pending the final deliberation of the Congress of the United States the court was thereby aiding the orderly operations of the Legislative and Executive branches of government Plaintiffs pursued their original theory that the Trust Doctrine protected the fossil beds, arguing that the land had acquired a public character due to the actions of Congress on the bills pending to dedicate the land as a national monument The Court reserved decision at the close of the arguments and continued the temporary restraining order That afternoon the House of Representatives passed its version of the bill as a number of concerned Congressmen from all over the country turned out to suspend the rules and consider the bill out of the regular order because of the pending threat to the fossils The Senate agreed to the House version of the bill on August 7, and the President signed the bill on August 14, 1969 The preliminary restraining order issued by the Tenth Circuit Court of Appeals remaining in effect while the United States of America instituted suit to acquire the Park Land Company land by condemnation The court order prohibiting excavation of the fossil beds may have deprived the landowners of the most profitable use of their land, but did not prohibit all uses of the land consistent with the protection of the fossil beds The landowners were free to develop the land for tourism, scientific research, or other uses compatible with maintenance of the paleontological integriryt of the area Such uses, while perhaps not the most profitable use of the land, would still return a reasonable yield on the defendants’ speculative investment The mere fact that the landowners might not wish to use the land for this purpose does not make the restraint on the land development an unreasonable taking where the public interest in the land was so great Certainly where a natural resource is as unique as the Florissant fossil beds were, the value to the public of protecting such a resource is so substantial as to justify the resultant burden upon the private property interests involved, even if it could have been shown that there was no reasonable expectation of profitable use of the property from tourism or other ancillary commercial development The message of the Florissant litigation is that judicial protection of a unique, national, natural resource treasure such as the 34-million-year-old Florissant fossil beds warrants restraint upon the rights of private property ownership, © 2006 by Taylor & Francis Group, LLC particularly during the period of due deliberation by Congress or other legislative body representative of the people The mere fact that Congress could not move as fast as the developers’ bulldozer does not prevent a federal court of equity from acting to protect a national, natural resource treasures threatened with irreparable damage Project Rulison Project Rulison provided the first direct confrontation among the several theories currently urged in support of citizen action to protect the environment from federal agency operations Three separate suits were filed concerned with the AEC-Austral Oil Co experiment seeking to stimulate production of natural gas by underground nuclear explosion The first action was supported by the American Civil Liberties Union and relied on conventional theories to establish standing: Individual plaintiffs alleged direct, personal, private injury and special damage, seeking injunctive relief to protect their own property rights The ACLU application sought to restrain detonation of the underground nuclear device as its principle request for relief, and had already been denied when the second action was filed by the Colorado Open Space Coordinating Council The title of that action in itself indicates the contrasting theories Colorado Open Space Coordinating Council, on behalf of all those entitled to the protection of their health and safety and of the health and safety of those generations yet unborn, from the hazards of ionizing radiation resulting from the distribution of radioactive materials through the permanent biogeochemical cycles of the Biosphere as a result of the defendants conduct of Project Rulison, and on behalf of all those entitled to the full benefit, use and enjoyment of the national, natural resource treasures of the State of Colorado without degradation resulting from contamination with radioactive material released as a result of the defendants conduct of Project Rulison, and all others similarly situated, Plaintiffs —against— AUSTRAL OIL COMPANY, INCORPORATED and CER GEONUCLEAR CORPORATION, Defendants US ATOMIC ENERGY COMMISSION, BUREAU OF MINES, US DEPARTMENT OF INTERIOR, and LOS ALAMOS SCIENTIFIC LABORATORY, as their several interests may appear The shift in emphasis in the COSCC action from an emotional outcry against the underground nuclear blast itself to a reasoned demand for care in the release of radionuclides to the environment led to a Court order restraining the “flaring” of the radioactive natural gas following the blast until the hearing and determination of the action brought by COSCC LEGAL ASPECTS OF THE ENVIRONMENT By amending their complaint, ACLU, on behalf of the other individuals concerned personally with the blast, remained in the action Subsequently, the District Attorney of the Ninth Judicial District of the state of Colorado attempted to bring an action in the state court on public nuisance theory, but that action was summarily transferred to the US district Court the consolidated with the COSCC and ACLU actions at the request of the Atomic Energy Commission EQUITY The truly unique element of the Anglo-American is the concept of equity Equity jurisprudence as a system of remedial law evolved from a number of common sources It can be found in the Talmud and the earliest writings of the Roman law It can be found today, though it is somewhat less than obvious, in the current system of civil jurisprudence derived from the Code Napoleon and used throughout most of Europe In its most elementary form, the fundamental principle of equity jurisprudence is the command: to use your own property as not to injure that of another And the law, in order to give effect to this right provides for appeal to the ultimate power of society, be it king, parliament, state, or people, with a corollary maxim: equity permits no wrong to be without a remedy! The effective assertion of equitable rights by an individual or group of individuals is limited only by the rule that a party seeking equitable relief must come forward with “clean hands”—the party must be morally right as well as legally justified There is an additional rule of restraint selfimposed by courts of equity: the relief granted must be commensurate with the injury suffered by the party seeking relief and tempered by the needs of society The Origin of Jurisdiction in Equity Aristotle asserted that all law is universal and thereby cannot admit of exceptions, yet laws promulgated to cover a broad range of human action frequently cause injustice to some innocent individual because a particular case does not appear to be covered by the application of the universal law Aristotle reasoned that when lawmakers make a law, they make it for the good of the community, therefore some legal remedy must be available to the individual treated unjustly by the particularly application of a general law In order to determine whether the individual was indeed being treated unfairly by the law, one must look to the intent of the lawmaker and the operation of the law The remedy for the individual unjustly treated in a particular case by application of a general law was termed by Aristotle Epicheia, which translates loosely as “There should be an exception.” It was left up to the judge deciding each particular case to determine whether a general or universal law was applicable, and if not, to make the appropriate exception in order to preserve the intention of the lawmaker, which was to ensure the good of the community © 2006 by Taylor & Francis Group, LLC 603 The early Roman lawgivers accepted this concept, named it equity, and used it as a cornerstone for the development of what we now call the Roman Law The intention of the Roman lawgivers was that one person should not benefit by a law while another person was injured by that law unintentionally and unnecessarily During the Middle Ages the heir apparent to the Roman legal system, the Christian church, developed the concept of equity even further, establishing the principle that “for every injury there must be some legal remedy,” on the philosophical grounds that if the lawmaker did not provide some remedy for injury to an innocent individual, the law would allow certain injustices to go unpunished while others were punished, and this would be unjust Since it was then an accepted principle that lawmakers were just, they could not have intended an injustice to follow from their laws, therefore, they intended to provide the legal remedy and the court would simply serve as the means to provide that which they intended to provide all along Although such circumlocution might have found favor with medieval philosophers, there was, nevertheless, a singular practical reason for development of he principle For if there was no procedure for individual relief from the unintended application of a general law, and sufficient individuals were oppressed by the unintended application of that law, then the individuals would tend to look with disfavor on the lawmakers and, in spite of the repression inherent in the feudal system, there might be civil unrest, a condition not conductive to the maintenance of the tenuous existence of the feudal estates which represented civilization in western Europe during the Middle Ages Equity jurisprudence developed throughout the ecclesiastical courts following the decline and fall of the Roman Empire, but it was to see its most dramatic development in England following the Norman conquest The common law, as distinguished from the customary law of the popular courts, originated in the establishment by Henry II of a national court administering a law for the entire nation, and by the end of the reign of Henry II, we find established a Curia Regis, a court of the King, which was a true court of law in the modern sense, administering a national law, common to the entire country, and which had largely displaced the customary laws of the different parts of the country This continued during the thirteenth century, so that by its close, the common law was definitely established as the law of the nation, displacing the customary law and the local courts which were limited to local petty maters The law of the Curia Regis, which had been the law of the very great, extended and adapted to the needs of the people so as to become the common law of a nation So long as the common law remained a flexible system with its field undefined, its power of inclusion unlimited, and its organs undifferentiated, there was no reason for distinguishing between the common law and equity But soon the common law became so fixed as inflexible and its practitioners so absorbed in nice questions of form and pleading, there was no longer room for equity By the early fourteenth century, the common law, which had supplanted the ancient customary law, had now, in its turn, become the regular 604 LEGAL ASPECTS OF THE ENVIRONMENT system of remedial justice, but with gaps and defects where sufficient remedies were not provided, and resort was necessary to the ancient power of the king as the fountain of all justice Equity did not directly contest the existence of settled legal right Rather, after recognizing those rights, equity went on to insist that the holder of such legal rights if they were acquired or retained unconscionably, or if they were being used in an unconscionable attempt to interfere with the fundamental rights of others, should be subject to the jurisdiction the “Chancellor” or the “Keeper of the Conscience of the King” as the source of all legal rights Equitable Relief It is a fundamental principle essential to the very existence of organized society, and civilization as we know it, that every person, in exercising personal rights and in the use of personal property shall respect the rights and properties of others Every person must so conduct themselves in the enjoyment of the rights and privileges which they may enjoy as individual members of society in such a way that they shall prejudice no one in their possession and enjoyment of their personal rights or the rights they hold in common as members of society When there is an invasion of the rights or privileges of the public or the rights and privileges of any individual held in common by reason of the existence of civilized society, the absence of exact precedent and the fact that commentators on the law not discuss the subject is of no material importance in awarding equitable relief That the exercise of the preventive powers of a court of equity is demanded in a novel case is not a fatal objection In social evolution, with the march of the arts and sciences, and in the resultant effects upon organized society, it is quite intelligible that new conditions must arise in personal relations, which the rules of the common law, cast in the rigid mold of an earlier status, were not designed to meet It would be a reproach to equitable jurisprudence, if equity were powerless to extend the application of the principles of common law, or of natural justice, in remedying a wrong, which in the progress of civilization, has been made possible as the result of new social or commercial conditions Equity is the agency by which law is brought into harmony with society It is one of the factors which operate in judicial evolution It succeeds legal fictions—those judicial assumptions through which a rule of law is modified in its operation—and it precedes legislation Equity has neither fixed boundaries, nor logical subdivisions, and its origin, both in Rome and in England, was that there was a wrong for which there was no remedy at law As Lord Chancellor Cottenham observed: It is the duty of this court, [equity], to adopt its practice and course of proceeding to the existing state of society and not, by a strict adherence to forms and rule, under different circumstances, to decline to administer justice and enforce rights for which there is no other remedy If it were necessary to go much further than it is, in order to open the doors of © 2006 by Taylor & Francis Group, LLC this court to those who could not obtain [justice] elsewhere, I should not shirk form the responsibility of doing so.† A distinguishing feature of equity jurisdiction is that it will apply settled rules to unusual conditions, and mold its decrees so as to justice between the parties Peculiar and extraordinary cases will arise in the complex and diversified affairs of men, which perhaps, cannot be classed under any of he distinct heads of equity jurisdiction, but which must be acknowledged, nevertheless, to come within the legitimate powers of a court of equity because complete justice cannot otherwise be done between the parties Therefore, when no remedy exists at law, courts of equity, to prevent injustice and in many cases on principles of general policy, will go far in granting relief Such was the law of equity at the start of the eighteenth century If that rule of law had been developed with vigor much of the human and environmental degradation of he Industrial Revolution might have been avoided Since that time, two anomalous rules have evolved, interfering with the principle that for every wrong there is a remedy The first of these anomalies concerns the artificial distinction between public and private nuisance and the second is the doctrine of “sovereign immunity.” Both of these doctrines can be attributed to the meddling of Sir William Blackstone (1723–1780) Public and Private Nuisance Until Blackstone there was no distinction made between public and private nuisance The rule had been well established that any individual could apply to a court of equity to abate a nuisance But during the later part of the eighteenth century, Blackstone created a new rule of law that was to represent a classic manifestation of the obfuscation of simple legal principles by “self-proclaimed” legal scholars This new rule of law proclaimed by Blackstone was to contribute substantially to the environmental and social crises of today and represents the kind of antisocial perversion of the law that made the common law of England during the seventeenth, eighteenth, and nineteenth centuries such an inviting target for the diverse talents of William Shakespeare, Jonathan Swift, Charles Dickens, and W.S Gilbert Blackstone created a difference between public and private nuisance, and the significance of that difference is to be fond in the criteria for abatement of the public nuisance: (1) only a public nuisance may be made the basis for a criminal prosecution, and (2) only the public, through he proper officer, may sue to enjoin or abate a public nuisance, in the absence of special damage to a particular private individual—damage which is substantially greater than that suffered by other individual members of society—a public nuisance is subject to correction only at the hands of public authority The mischief done and the disastrous consequence of Blackstone’s whim are still evident In 1965, an action was brought on behalf of the people of the Town of Brookhaven, in the County of Suffolk, † Wallworth v Holt Myl & C619, 41 Eng Rep 238 (1984) LEGAL ASPECTS OF THE ENVIRONMENT New York, by a group of citizens, to restrain the Long Island duck industry form discharging raw, untreated sewage equivalent to that of a city of one million people into the waters of Great South Bay, which was once one of the finest shellfishing and marine recreation areas on the east coast of the United States The duck industry defended the action by admitting that the eight million ducklings grown along the estuaries of he Great South Bay did in fact deliver the raw sewage effluent equivalent of a city of one million people into the Bay, but that the Court should dismiss the action on the grounds that such an affront to the public waters was so great that it was a “public nuisance” not a “private nuisance” and as a “public nuisance” it could only be attacked by the Attorney General of the State of New York, not by any private citizens, unless of course those private citizens could establish “special damages” different from the damages sustained by the public at large A New York Supreme Court, the same court that less than a year later in a dramatic reversal of precedent would issue that first injunction against the use of DDT ever granted by a Court, dismissed the case against the duck industry, accepting without question the argument that a public nuisance could not be abated by a private citizen or group of citizens How could this strange concept have crept into the law equity? What is the justification for this strange anomaly in that body of law that holds no wrong may exist without a remedy? In 1858, the Court of Appeals of the State of New York identified the source and expounded the justification for this onerous rule A contrary rule would be productive of very great inconveniences No private person or number of persons can assume to be the champions of the community and in its behalf, challenge the public officers to meet them in the courts of justice to defend their official acts The court continued and discussed the theory of the decision, The general rule is that for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the state in its political character, or by some officer authorized by law to act in its behalf The principle is further exemplified in questions respecting nuisances Common or public nuisances, which are such as are inconvenient or injurious to the whole community in general, are, as all are aware, indictable [the People of State can take action in a criminal proceedings] only, and the not actionable [any citizen can sue]; for as Blackstone [Blackstone’s Commentaries, Book 4, p 167] says, “it would be unreasonable to multiply suits by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow-citizens Just who was Sir William Blackstone that he should exert such a restraint on the general application of equitable principles? Referring to the eleventh edition of the © 2006 by Taylor & Francis Group, LLC 605 Encyclopaedia Britannica, published in 1911 and drawing on continual revisions from the first English edition in 1771, the following information may be elicited under the entry, “Blackstone, Sir William [1723–1780]: In 1746 he was called to the bar Though but little known or distinguished as a pleader, he was actively employed during his occasional residences at the university (Oxford), in taking part in the internal management of his college In May 1749, as a small reward for his services, and to give him further opportunity of advancing the interests of the college, Blackstone was appointed steward of its manors In the same year, on the resignation of his uncle, he was elected recorder for the Borough of Wallingford He accepted a seat on the bench, and on the death of Sir Joseph (Yates) succeeded him (in the court of common pleas) He died on the 14th of February, 1780 Blackstone was by no means what would now be called a scientific jurist He had only the vaguest possible grasp of the elementary conceptions of law Austin, who accused him of following slavishly the method of Hale’s Analysis of the Law, declares that he “blindly adopts the mistakes of his rude and compendious model; missing invariably, with a nice and surprising infelicity, the pregnant but obscure suggestions which it proffered to his attention, and which would have guided a discerning and inventive writer to an arrangement comparatively just.” From the small place which equity jurisprudence occupies in his arrangement, he would scarcely seem to have realized its true position in the law of England Bentham accuses him of being the enemy of all reform, and the unscrupulous champion of every form of professional chicanery Austin says that he truckled to the sinister influences and mischievous prejudices of power, and that he flattered the overweening conceit of the English in their own institutions “He displays much ingenuity in giving a plausible form to common prejudices and fallacies .” For more than a century the opinion of that one man has stood in the way of a proper disciplined application of a fundamental principle of equity jurisprudence, “equity will not suffer a wrong without a remedy.” Just what happened at the time of Blackstone? It was obvious that Blackstone set himself to the task of codifying the laws of England, but in the process of attempting to build a logical and consistent body of legal principles he lost the basic insight of the Anglo-American system of jurisprudence, the common law The common law grew with civilization and the practices and customs of society As the oppressed peasants obtained certain remedies during the Middle Ages, these remedies became a part of the common law That is why the AngloAmerican legal system depends on case law or precedent rather than elaborate codes promulgated by a legislature or king A system of administering justice based on precedent rather than stature is inherently more flexible and capable of meeting the needs of society because the court is free to 606 LEGAL ASPECTS OF THE ENVIRONMENT interpret the law with reference to, and by analogy with, part cases of similar import, though not precisely identical There is no doubt that Blackstone did a reasonable job of tidying-up the law, but in his attempt to make of law an axiomatic science little different from geometry, he lost the essential elements of equity jurisprudence, particularly the rule that for every injury there must be a legal remedy Blackstone’s justification for striking the principle that for every injury there must be a legal remedy from the law of England arose from his belief that the King could no wrong Reasoning that failure to provide an adequate legal remedy for an injury was wrong, and that the King could no wrong, it was obvious that there was no need for a rule of law providing a remedy for every wrong, because the King had obviously provided the remedy, since the King could no wrong and failure to provide a remedy for an injury would be wrong This perfectly circular argument has been exposed by many legal scholars, yet it still appears in decisions of courts that should know better Consider for a moment the ideological basis for establishing American independence The founding fathers of this country were asserting the fundamental equitable principle that no wrong should exist without an adequate legal remedy They did not deny the right of George III to tax his American colonies, they asserted that certain taxes were the wrong taxes, at the wrong time and for the wrong purposes Taxation without representation was wrong In other words, the King could, in fact, under certain circumstances, wrong, and the equitable rule of law that no wrong should exist without a legal remedy was a fundamental human right Environmental Law is a mixture of the new and the old Affirming the timeless principles of equity jurisprudence and asserting the unenumerated rights reserved to the people by the Ninth Amendment of the Constitution and protected by the equal protection and due process clauses of the Fifth Amendment and the privileges or immunities, due process and equal protection clauses of the Fourteenth Amendment of the Constitution, the law is newly applying these established principles and traditional legal procedures directly to the environmental crises threatening the Biosphere The basic element of environmental jurisprudence is recognition by our courts that the people have an absolute right to a salubrious environment as one of the “fundamental and inherent rights with which all humans are endowed even though no specific mention is made of them in either the national or state constitutions .” The inherent human freedoms with which mankind is endowed are “antecedent to all earthly governments’ rights that cannot be repealed or restrained by human laws, rights derived from the Great Legislator of the Universe.” [Colorado Anti-Discrimination Com v Case, 151 Colo 235, 380 P 2d 34 (1962).] The words of Lord Atkin in an English case are compelling: “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 © 2006 by Taylor & Francis Group, LLC 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 Barclay Bank, Ltd (1940) All En 20, (1941) A C 1, 29.] “The law will protect a flower or a vine as well as an oak ; [Such] damages are irreparable too, because the trees and vines cannot be replaced.” [Campbell v Seaman, 63 NY 568 (1978).] The above historical treatment presented an overview of the fundamental arguments of Environmental Law Some examples of recent legislative activity are discussed below by the editors The Clean Air Act Amendments of 1990 were the latest of a series which also include those of 1970 and 1977 They deal with the broad reduction of emissions from acid rain precursors (i.e., reductions of 10 million tons/yr and million tons/yr in SOx and NOx emissions, respectively within 10 years) and air toxic emissions from industrial sources including over 170 species not previously listed The American Electric Power Company said of the CAA amendments, “probably the most complex piece of legislation we’ve seen in the last 40 years.” Pursuant to the 1990 CAA requirements, Maximum Achievable Control Technology (MACT) regulations for many sources emitting hazardous air pollutants (HAP’s) have been promulgated and are being enforced Also new NAAQS limits have been established for particulate matter less than 2.5 micron diameter These regulations and their enforcement are discussed in the article by C.V Mathai and Elliott, E.D., EM, pp 25–34, May 2002 The U.S Supreme court may be called upon to settle some lawsuits brought forth by a coalition of states, local governments and environmental groups in the enforcement of EPA regulations, such as New Source Review (NSR) provisions—Smith, D.C.,” US Climate Change Legislation,” Refocus, pp 16–19, Apr/ May (2004) and Barcott, Bruce, “Changing all the Rules”, New York Times Magazine, pp 38–78, Apr 4, 2004 Also in the global arena, an administration’s failure to confront climate change by its rejection of the Kyoto agreement, may be the subject of a lawsuit before an international tribunal (Strauss, A., The legal Option: Suing the United States in International Forums for Global Warming Emissions,” Environmental Law Reporter, 33, 108185 (2002) David Grossman argues that there may be good reason to shift the costs of damages caused by fossil fuel companies that have received economic benefits of activities that negatively impact the environment (Grosssman, David A., “Warming up to a not so radical idea: Tort-based climate change litigation,” Columbia Journal of Environmental Law 28, (2003) REFERENCES Detailed treatment of the material contained in this article, including generally: Environmental Protection and the Law, The Trust Doctrine, The Ninth Amendment; Nuisance and Other Common Law Remedies; Environmental Legislation; Environmental Toxicants; Radiation; Water LEGAL ASPECTS OF THE ENVIRONMENT Pollution; Air Pollution; Noise; Visual Pollution; Solid Waste; Land Use and Natural Resource Management; Environmental Litigation and Administrative Agencies and the Environment, will be found in the treatise Environment Rights and Remedies by Victor John Yannacone, Jr., Bernard S Cohen, Steven Gebauer Davison (1971) Lawyers Cooperative Publishing Company, Rochester, New York/Bancroft Whitney Co., San Francisco, California Current material in the nature of news accounts, federal, state and significant local legislation as promulgated, and texts of the decisions of courts and selected administrative agencies, is published weekly by the Bureau of National Affairs, Washington, D.C., in their service Environment Reporter VICTOR J YANNACONE, JR Yannacone and Yannacone LAKES: see AQUATIC PRIMARY PRODUCTION, WATER—FRESH LEGAL ASPECTS: see also ENVIRONMENTAL LAW © 2006 by Taylor & Francis Group, LLC 607 ... as the Division of Wildlife Services, the Bureau of Sport Fisheries and Wildlife, and the Bureau of Land Management of the United States Department of the Interior, the Corps of Engineers of the. .. passage of the National Environmental Policy Act of 1969, planning and decision-making that might have an effect on the quality of the environment was too often the exclusive province of the engineer... achievement of the highest and best use of land and resources is more profitable to mankind than unplanned development 6) The police power of the state, the ultimate sovereignty of the people, and the