Environmental Law

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Environmental law

Environmental law has been defined as the law of planetary housekeeping. It is concerned with protecting the planet and its people from activities that upset the earth and its life-sustaining capabilities, and it is aimed at controlling or regulating human activity toward that end.

Until the 1960s, most environmental legal issues in the United States involved efforts to protect and conserve natural resources , such as forests and water. Public debate focused on who had the right to develop and manage those resources. In the succeeding decades, lawyers, legislators and environmental activists increasingly turned their attention to the growing and pervasive problem of pollution . In both instances, environmental law—a term not coined until 1969—evolved mostly from a grassroots movement that forced Congress to pass sweeping legislation, much of which contained provisions for citizen suits. As a result, the courts were thrust into a new era of judicial review of the administrative processes and of scientific uncertainty.

Initially, environmental law formed around the principles of common law, which is law created by courts and judges that rests upon a foundation of judicial precedents. However, environmental law soon moved into the arena of administrative and legislative law, which encompasses most of today's environmental law. The following discussion looks at both areas of law, reviews some of the basic issues involved in environmental law, and outlines some landmark cases.

Generally speaking, common law is based on the notion that one party has done harm to another, in legal terms called a tort. There are three broad types of torts, all of which have been applied in environmental law with varying degrees of success. Trespass is the physical invasion of one's property, which has been interpreted to include situations such as air pollution , runoff of liquid wastes, or contamination of groundwater .

Closely associated with trespass are the torts of private and public nuisance. Private nuisance is interference with the use of one's property. Environmental examples include noise pollution , odors and other air pollution, and water pollution . The operation of a hazardous waste site fits the bill for private nuisance, where the threat of personal discomfort or disease interferes with the enjoyment of one's home. A public nuisance adversely affects the safety or health of the public or causes substantial annoyance or inconvenience to the public. In these situations, the courts tend to balance the plaintiff's interest against the social and economic need for the defendant's activity.

Lastly, negligence involves the defendant's conduct. To prove negligence it must be shown that the defendant was obligated to exercise due care, that the defendant breached that duty, that the plaintiff suffered actual loss or damages, and that there is a reasonable connection between the defen dant's conduct and the plaintiff's injury.

These common law remedies have not been very effective in protecting the overall quality of our environment . The lawsuits and resulting decisions were fragmented and site specific as opposed to issue oriented. Further, they rely heavily on a level of hard scientific evidence that is elusive in environmental issues. For instance, a trespass action must be based on a somehow visible or tangible invasion, which is difficult if not impossible to prove in pollution cases. Common law presents other barriers to action. Plaintiffs must prove actual physical injury (so-called "aesthetic in juries" don't count) and a causal relationship to the plaintiff's activity, which again, is a difficult task in environmental issues.

In the early 1970s, environmental groups, aided by the media, focused public attention on the broad scope of the environmental crisis, and Congress reacted. It passed a host of comprehensive laws, including amendments to the Clean Air Act (CAA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), and others. These laws, or statutes, are implemented by federal agencies, who gain their authority through "organic acts" passed by Congress or by executive order.

As environmental problems grew more complicated, legislators and judges increasingly deferred to the agencies' expertise on issues such as the health risk from airborne lead , the threshold at which a species should be considered endangered, or the engineering aspects of a hazardous waste incinerator. Environmental and legal activists then shifted their focus toward administrative law—challenging agency discretion and procedure as opposed to specific regulations—in order to be heard. Hence, most environmental law today falls into the administrative category.

Most environmental statutes provide for administrative appeals by which interest groups may challenge agency decisions through the agency hierarchy. If no solution is reached, the federal Administrative Procedures Act provides that any person aggrieved by an agency decision is entitled to judicial review.

The court must first grant the plaintiff "standing," the right to be a party to legal action against an agency. Under this doctrine, plaintiffs must show they have been injured or harmed in some way. The court must then decide the level of judicial review based on one of three issues—interpretation of applicable statutes, factual basis of agency action, and agency procedure—and apply a different level of scrutiny in each instance.

Generally, courts are faced with five basic questions when reviewing agency action: Is the action or decision constitutional? Did the agency exceed its statutory authority or jurisdiction? Did if follow legal procedure? Is the decision supported by substantial evidence in the record? Is the decision arbitrary or capricious? Depending on the answers, the court may uphold the decision, modify it, remand or send it back to the agency to redo or reverse it.

By far the most important statute that cracked open the administrative process to judicial review is NEPA. Passed in 1969, the law requires all agencies to prepare an Environmental Impact Statement (EIS) for all major federal actions, including construction projects and issuing permits. Environmental groups have used this law repeatedly to force agencies to consider the environmental consequences of their actions, attacking various procedural aspects of EIS preparation. For example, they often claim that a given agency failed to consider alternative actions to the proposed one, which might reduce environmental impact.

In filing a lawsuit, plaintiffs might seek an injunction against a certain action, say, to stop an industry from dumping toxic waste into a river, or stop work on a public project such as a dam or a timber sale that they claim causes environmental damage. They might seek compensatory damages to make up for a loss of property or for health costs, for instance, and punitive damages, money awards above and beyond repayment of actual losses.

Boomer v. Atlantic Cement Co. (1970) is a classic common law nuisance case. The neighbors of a large cement plant claimed they had incurred property damage from dirt, smoke and vibrations. They sued for compensatory damages and to enjoin or stop the polluting activities, which would have meant shutting down the plant, a mainstay of the local economy. The New York court rejected a long-standing practice and denied the injunction. Further, in an unusual move, the court ordered the company to pay the plaintiffs for present and future economic loss to their properties. A dissenting judge said the rule was a virtual license for the company to continue the nuisance so long as it paid for it.

Sierra Club v. Morton (1972) opened the way for environmental groups to act on behalf of the public interest, and of nature , in the courtroom. The Sierra Club challenged the U.S. Forest Service's approval of Walt Disney Enter prises' plan to build a $35 million complex of motels, restaurants, swimming pools and ski facilities that would accommodate up to 14,000 visitors daily in Mineral King Valley, a remote, relatively undeveloped national game refuge in the Sierra Nevada Mountains of California. The case posed the now-famous question: Do trees have standing? The Supreme Court held that the Sierra Club was not "injured in fact" by the development and therefore did not have standing. The Sierra Club reworded its petition, gained standing and stopped the development.

Citizens to Preserve Overton Park v. Volpe (1971) established the so-called "hard look" test to which agencies must adhere even during informal rule making. It opened the way for more intense judicial review of the administrative record to determine if an agency had made a "clear error of judgment." The plaintiffs, local residents and conservationists, sued to stop the U.S. Department of Transportation from approving a six-lane interstate through a public park in Memphis, Tennessee. The court found that Secretary Volpe had not carefully reviewed the facts on record before making his decision and had not examined possible alternative routes around the park. The case was sent back to the agency, and the road was never built.

Tennessee Valley Authority v. Hill (1978) was the first major test of the Endangered Species Act and gained the tiny snail darter fish fame throughout the land. The Supreme Court authorized an injunction against completion of a multi-million dollar dam in Tennessee because it threatened the snail darter, an endangered species. The court balanced the act against the money that had already been spent and ruled that Congress's intent in protecting endangered species was paramount.

Just v. Marinette County (1972) involved wetlands , the public trust doctrine and private property rights. The plaintiffs claimed that the county's ordinance against filling in wetlands on their land was unconstitutional, and that the restrictions amounted to taking their property without compensation. The county argued it was exercising its normal police powers to protect the health, safety and welfare of citizens by protecting its water resources through zoning measures. The Wisconsin appellate court ruled in favor of the defendant, holding that the highest and best use of land does not always equate to monetary value, but includes the natural value. The opinion reads, "...we think it is not an unreasonable exercise of that [police] power to prevent harm to public rights by limiting the use of private property to its natural uses."

Although some progress was made in curbing environmental degradation through environmental law in the 1970s, environmental legislation was significantly weakened by the Supreme Court in the 1980s.

[Cathryn McCue ]