E-law: What Started It All?
It began with a court battle over a power plant slated for Storm King Mountain and matured with test cases modeled on tactics pioneered by the NAACP.
Today there is a major branch of American jurisprudence whose practitioners meet their "clients" every time they step outdoors.
It may seem funny to think of forests and rivers and wetlands enjoying legal representation, but that is in essence what environmental public interest attorneys do: Use America's environmental statutes and legal precedents to advocate for and vigorously defend our natural resources. And they employ these same legal means in attempting to safeguard the public health from toxins and pollution.
Battleground at Storm King Mountain
It wasn't always this way. Environmental law has only been around since about the time of the first Earth Day in 1970. While its emergence can be traced to many large cultural and historical forces transforming the nation since World War II, the immediate cause was small enough: the announcement in 1963 by New York's utility company, Consolidated Edison, of plans to build a power plant on Storm King Mountain near the Hudson River. With the explosive growth of New York City and its suburbs, and the proliferation of home air conditioning and other major appliances, Con Ed wanted this plant to meet its customers' spiraling energy needs.
Though many residents of the nearby town of Cornwall-on-Hudson wanted the Con Ed plant because it would means jobs and a boost to the local economy, a few longtime residents of the area -- led by Wall Street lawyer Stephen Duggan and his wife Beatrice "Smokey" Duggan -- launched a campaign to halt it. Storm King Mountain, the surrounding Hudson Highlands, and indeed the entire Hudson River Valley, held a special place in American culture as the distinctively American wilderness venerated by the nation's earliest writers such as James Fenimore Cooper, Nathaniel Hawthorne, and Washington Irving, as well as the Hudson River school of landscape artists, including Thomas Cole, Asher Durand, and Frederick Church. The Duggans believed their beloved Hudson Highlands were as beautiful as anything in the Rhine Valley in Germany, and worth fighting to preserve.
At first they managed to attract only a few supporters. But when Con Ed made the mistake of publishing a drawing that actually exaggerated the size of the plant relative to its surroundings, the Duggans' phone began to ring with offers of support. Soon, the Duggans and the other Cornwall landowners were joined by various New York hikers' groups and conservationists in opposing the Con Ed plant. They called themselves the Scenic Hudson Preservation Conference.
The struggle, at first, was very much tilted in Con Edison's favor. The issues before the Federal Power Commission (FPC), which would grant Con Ed the right to proceed after public hearings, were largely technical in nature: Was the plant needed? Was Con Ed capable of building and operating it? And so on. Aesthetic considerations were irrelevant. At a hearing convened by the FPC the judge ruled in favor of Con Ed, despite Scenic Hudson's testimony that the plant's construction would mar one of the nation's scenic and cultural treasures. Scenic Hudson attorney Lloyd Garrison, a descendant of the famed 19th century Boston abolitionist William Lloyd Garrison, immediately appealed the Commission's decision, sending the matter to a federal circuit court.
There was little precedent for the federal judiciary to overrule decisions made by regulatory agencies like the FPC, and judges were traditionally reluctant to involve themselves in technical matters outside their expertise. But Garrison did not engage them on technical points; instead he argued, in Scenic Hudson Preservation Conference v. Federal Power Commission (1965), that the FPC had failed to protect the public interest in accordance with its Congressional mandate under the Federal Power Act (1920), by not adequately considering all the factors that were of interest to the public, namely, the beauty and historical significance of Storm King Mountain.
At the circuit court hearing Garrison was quiet but passionate, while the Con Ed attorney Randall LeBoeuf offended the judge with a show of arrogance, at one point even referring to the Scenic Hudson lawyers as "birdwatchers." When LeBoeuf stated that the plant Con Ed had designed would actually improve the beauty of Storm King Mountain, the court was incredulous. On December 29, 1965, it ruled in favor of Scenic Hudson, setting aside Con Ed's license and ordering the FPC to hold new hearings. Scenic Hudson, the court ruled, had "standing to sue" in the case.
The decision was a legal landmark. For the first time, a conservation group had been permitted to sue to protect the public interest. Although Scenic Hudson had no economic interest in Storm King -- the usual basis for standing -- the court ruled that it nonetheless could be construed to be an "injured party" and was entitled to judicial review of an agency ruling.
The Storm King battle would be fought for another decade before Con Edison was finally forced to abandon plans for the plant, but the 1965 ruling remained the significant legal precedent, helping to establish the legitimacy of environmental issues and opening the way for lawyers and the courts to play a highly significant role in all manner of land-use and environmental battles.
First Environmental Laws
Perhaps the leading model for would-be environmental public interest attorneys during this period was the NAACP Legal Defense and Educational Fund, which pioneered the idea of using test cases -- specific examples of racial injustice -- to illustrate the larger inequity of race relations in America, and to establish useful legal precedents for bringing needed reforms. The NAACP had won a series of historic cases, including Brown v. Board of Education (1954), which had struck down the "separate but equal" doctrine that had allowed segregation in schools until then.
But while the NAACP had the equal rights provision of the 14th Amendment on which to base its cases, environmental lawyers had nothing comparable. Applicable statutes were few, and principles of common law -- including nuisance, trespass, and strict liability -- were difficult to apply because they had evolved to protect individual property rather than broad public interests.
This state of affairs soon changed. As the decade drew to a close, environmental concerns that had been building throughout the 1960s swept to the top of the nation's political agenda, and on New Years Day, 1970, President Nixon signed into law the National Environmental Policy Act (NEPA). Among other things, it required that federal agencies conduct thorough assessments of the environmental impact of all major programs. (This provision, duplicated ultimately at state and local levels across America, remains a cornerstone of environmental law.)
Then came Earth Day, April 22, 1970, when massive rallies took place on virtually every college campus in America and in most large cities. TV and magazines gave the events extensive coverage, and both houses of Congress stood in recess in honor of the occasion.
With the president's basic approval, and public opinion loudly and clearly expressed by the Earth Day demonstrations, legislators in Washington and in state capitols and city halls across the nation in the early 1970s passed thousands of new environmental laws and ordinances. At the federal level, in addition to NEPA, the most important laws were the 1970 amendments to several pieces of "clean air" legislation dating back to 1963 (laws that collectively became known as the Clean Air Act), and the Federal Water Pollution Control Act of 1972, commonly known as the Clean Water Act. From these laws there evolved a large body of environmental case law. Subsequent federal legislation, notably the Consumer Product Safety Act (1972), the Environmental Pesticide Control Act (1972), the Endangered Species Act (1973), the Safe Drinking Water Act (1974), the Toxic Substances Control Act (1976), the Superfund legislation to clean up hazardous waste sites (1980), and the Emergency Planning and Community Right-to-Know Act (1986) added to the rising edifice of environmental statutes, and the lawyers who filed cases citing these laws created a huge annex of legal precedents.
Environmental lawyers who prior to 1970 had worried about the barrenness of their legal arsenal now found themselves armed with an abundance of new statutory weapons. The challenge was no longer to adapt principles of common law to environmental issues or dust off old, little-used statutes, but rather to monitor the administration of new statutes by the Environmental Protection Agency (EPA), itself a creation of the Nixon administration, and when necessary to prod the agency and test the laws by filing lawsuits.
Putting the Laws to Work
Two key environmental public interest law firms emerged from this productive period. The Environmental Defense Fund (EDF) was formed in 1967 as an outgrowth of a lawsuit brought by Long Island citizens to restrain the use of DDT by the Suffolk County Mosquito Control Commission. The Natural Resources Defense Council (NRDC) started in 1970 as the result of a partnership between a group of young, idealistic Yale Law School students and the older New York "establishment" attorneys of the Scenic Hudson Preservation Conference, led by Stephen Duggan, who had already incorporated under the NRDC name.
Since then, environmental lawyers have achieved great strides for the environment by using the legal means at their disposal to clean up rivers, decrease air pollution, ban toxic substances, force government and industry to comply with regulations, and even to prod the U.S. to participate in international negotiations on global climate change issues. And environmental law is so firmly established, it is taught as a separate branch of legal studies at most law schools today.
last revised 5/5/2000
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