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Citation: 5 Suffolk U. L. Rev. 820 1970-1971

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Copyright Information
ENVIRONMENTAL RIGHTS FOR THE
ENVIRONMENTAL POLITY
JOHN S. WINDER, JR.*

44THE air, the water and the ground are free gifts to man and no
one has the power to portion them out in parcels. Man must
drink and breathe and walk and therefore each man has a right to
his share of each." 1
Earth Day, April 22, 1970, represented an unprecedented demon-
stration of a national awakening. In the closing hours of the decade
of the '60's, the United States woke up to the fact that the richest
country in the world was in the midst of an environmental crisis. We
said goodbye to pelicans, realized that the ubiquitous automobile was
the cause of smog and of the Santa Barbara oil slick, and meditated,
for the first time, on the catastrophic consequences of gracious living.
Mother's milk, we were told, was not fit to drink.' The first annual
report of the President's Council on Environmental Quality vividly
described this crisis:
The public has begun to realize the interrelationship of all living
things-including man-with the environment. The Santa Barbara
oil spill in early 1969 showed an entire nation how one accident
could temporarily blight a large area. Since then, each environmental
issue-the Jetport project near Everglades National Park, the pro-
posed pipeline across the Alaskan wilderness, the worsening blight
of Lake Erie, the polluted beaches off New York and other cities,
smog in mile-high Denver, lead in gasoline, phosphates in detergents,
and DDT-flashed the sign to Americans that the problems are
everywhere and affect everyone. Millions of citizens have come to
realize that the independent web of life-man, animals, plants, earth,
air, water and sunlight-touches everyone.3
Environmental pollution touches everyone. Each of us share the
insults of air, water, noise and other forms of pollution; and each of
us shares the burden of solution-improvement of the quality of life.
Moreover, if we assume that improving the quality of the environ-
ment is in the "public interest," then we must force those facets and
institutions of our society which comprise this public interest to res-
* Executive Director, Metropolitan Washington Coalition for Clean Air, Inc.;
Juris Doctor, George Washington University, 1969.
1 J.F. COOPER, TEx PRAmxa (1827).
2 T=x EVImONMNTAL HANDBoox xiii (G. De Bell ed. 1970).
3 ENVIRONmENTAL QuALITY, FiRsT ANNUAL REPORT OF THE CoUNqcm ON ENmVION-
MENTAL QuALTy 6 (1970).
THE ENVIRONMENT AND THE LAW

pond to the environmental crisis. The purpose of this Article is to


promote such a response. Within this context we must take every
opportunity to refine the ecological conscience of the executive,
legislative, and judicial branches of our system of Government; we
must develop a singular body of environmental law; and, at the
same time, we must activate every member of the public whose
environment is at stake, i.e., the environmental polity. It is hoped
that this Article will formulate the basis upon which to build that
new body of law, i.e., environmental law. The crisis facing our
society has many fronts, as evidenced by a recent statement that
"groups of well meaning, but highly emotional and overzealous and
sometimes uninformed persons seemed to be playing a numbers
game with air quality standards." 4 Yet, when confronted with the
Alaskan pipeline, the supersonic transport (SST), the highway
trust fund, and more and more freeways, where does one draw the
lines between emotions, legal rights, and moral rights? The United
States Congress recently avoided the critical question of our environ-
mental rights when they refused to recognize that "each person has
a fundamental and inalienable right to a healthful environment."5
The subsequent congressional compromise only served to raise
additional questions: 6 If Congress "recognizes that each person
should enjoy a healthful environment," does this language reflect a
right? A pre-existing right? If so, how long has it existed? Is it a
"natural right?" How can this right be enforced? Is such a right
limited to questions of health? 7

I. GOVERNMENT
Further analysis of this crisis leads directly to one basic element
and fault, namely that "the machinery of government has not been
designed for environmental policy; it is in fact largely dysfunctional
for environmental protection and management having been intended,
insofar as any specific intention was evident, to assist the exploitation
or development of discrete resources with minimal regard to the full
range of environmental interrelationships or consequences." ' We

4 ENVIRONmNTAL HEALTH LETTER, April 1, 1970, at 1 (Fishbein, G. publisher).


5 National Environmental Policy Act of 1969, S. 1075.
6 National Environmental Policy Act of 1969, Pub. L. No. 91-190.
7 0. GRAY, ENVIRONMENTAL LAW-CASES AND MATERIALS 9 (1970).
8 Caldwell, Achieving Environmental Quality: Is Our Present Government Organiza-
tion Adequate, 13TH NATIONAL CONERENCE, U.S. NATIONAL COMMISSION FOR UNESCO
5 (1969).
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

must ask again and again why the Congress failed to embody in
legislative form our "inalienable" environmental rights.
The governmental failure to respond to environmental rights is in
another sense self-perpetuating:
It has now become commonplace that the individual citizen in our
vast, multitudinous complexes feels excluded from government. Thus,
while governmental power expands, individual participation in the
exercise of power contracts. This is unfortunate because the feeling
of helplessness and exclusion is in itself an evil, and because the
individuals and the organized groups are a source of information,
experience and wisdom.9
In short, in the judicial and administrative branches of government,
environmental decisions are frequently made without the benefit of
strong advocacy of the public interest and without the benefit of
articulate expressions of citizen concern.1 °
The fate of the environmental public interest is perhaps most
bleak in the hands of the governmental regulatory agencies. The
Environmental Quality Report concedes that "[m]ost government
agencies charged with solving environmental problems were not
originally designed to deal with the severe tasks they now face.
And their focus is often too narrow to cope with the broad environ-
mental problems that cut across many jurisdictions."" In fact, it is
common knowledge that often regulatory bodies become the protec-
tors of the very institutions which they were originally designed to
regulate.' Or as one state senator recently announced in his
newsletter, "Past experience indicates that administrative agencies
are over-responsive to the interests of industry."'8 (Emphasis
supplied.)
An environmentalist who is dealing with one of these "Neander-
thal" agencies must be fully cognizant of the fact that it is notorious
that government agencies look with disfavor on "public interest"
representatives; the "public interest," in their view, is something
to be worked out between the applicant and the agency. Seldom does
an agency give more than lip service to the impact of public, citizen
participation. Written comments are generally preferred over public
9 Jaffe, The Citizen as Litigant in Public Actions: The Non-Hojeldian or Ideo-
logical Plaintiff, 116 U. PA. L. REv. 1044 (1968).
10 LAW AND THE ENvIRONMENT-THE ROLE OF TuE LAWYER IN ENVIRONMENTAL
CONSERVATION, CONSERVATiON FOUNDATION (Conference Memo).
11 See EN IRONmENTAL QUALITY, supra note 3, at 15.
12 See K. DAvIs, ADMINISTRATIVE LAW 7 (1959).
is Conservation News and Comment, February 12, 1971, at 2.
19711 THE ENVIRONMENT AND THE LAW

hearings; any hearings are -generally held after the planning has
been accomplished; and "expert" witnesses receive almost exclusive
14
consideration, notwithstanding articulate, lay, citizen testimony.
For example, a panel of concerned scientists describing the Massa-
chusetts Department of Public Health, Bureau of Air Use Manage-
ment, stated:
In putting its "resources" philosophy into effect, the Bureau has
failed to acknowledge the crucial role of the citizens of the Common-
wealth in resolving the complex social, economic and aesthetic issues
of air pollution control. The citizens, after all, must bear the cost of
control as well as the adverse effects arising from lack of controls.
The Bureau regards the formation of pollution control policy as a
purely technical problem with a "correct" answer and feels that it
alone should provide that answer. For example, the Bureau has chosen
to ignore the public's voice in establishing priorities for enforcement
activities. A high BAUM official has justified this on the grounds
that: "there is an area of judgment here and I think this is what the
public is missing. This Department of Public Health employs pro-
5
fessionals who are engaged to exercise professional judgment."'
In this context, it may or may not be surprising to learn that one
court decision has held that a pollution control agency best represents
the interest of all concerned, suggesting that a polluter should not be
subject to individual suits by those who are unrepresentative of the
entire public interest. 16
Faced with repeated examples of inadequate, non-existent environ-
mental considerations by regulatory agencies, one leading trial
lawyer has concluded that "[o]nly imaginative legal action on
behalf of the general public, in class actions for declaratory judg-
ments and injunctive relief, will lay the matter before the conscience
of the community in a forum where the conflict can be resolved and
7
the evidence tested in the crucible of cross-examination.' Growing
recognition, therefore, of the many complex components of the
environmental crisis is rapidly leading to the development of new
environmental concepts and new environmental law.
14 ANS, E. & J., The Right to a Habitable Environment, ACLU's BssxmAL
CONPERENCE 5 (New York University Workshop Discussion Paper, 1970).
15 The Massachusetts Department of Public Health-A Critical Study of Failure in
Government, ComurTrTrz ON ENVIRONMENTAL POLUTION, UNION O CONCERNED
SC=TisTs, 16 (1970).
16 Garland Grain Company v. D-C Home Owners Improvement Association, 393
S.W.2d 635, 639-40 (Texas, 1965).
17 Yannacone, People Need Advocates, A. mmcA FOREST 62 (1970).
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

II. ENVIRONMENTAL LAW


Some ecologists today suggest that the foundation for solutions to
our environmental crisis rests upon the development of an "environ-
mental ethic" that "provides a national code of standards to make
judgment between right and wrong, similar to the Golden Rule and
the Ten Commandments, in giving us guide posts in our personal and
moral conduct."' 8 On the other hand, some adhere to the suggestion
that "[i]n the final analysis, it is the political process which must
shape environmental law." Countless federal, state, and local statutes
are required to continuously define people's rights to their resources
of air, water, and land. The substantive illegality of a proposed
project which may have an adverse effect on the environment must
be found in some code of statutes. Many teachers and students of the
law today are attempting to devise theories establishing the existence
of environmental rights per se, based upon constitutional principles
and common law rules. Thus far, courts have been reluctant to
recognize such rights; therefore, it is argued that the primary hope
for such legal-environmental protection lies in our legislatures.' 9
However, does one, in fact, have a legal right to breach clean air?
A growing number of conservation organizations and government
agencies alike contend that one does, and that one likewise is legally
entitled to clean water, aesthetically pleasing surroundings, and all
other facets of a clean, healthy environment. They contend, more-
over, that it does not require a special statute to guarantee the
right to these resources, which are inalienable rights.2 0
Traditional Law
Many environmental insults cannot await the development of an
environmental ethic or cannot wait until state or Federal legislators
join "Consciousness III."" Advocates, therefore, of legal rights to a
clean, healthy environment must increasingly turn to the existing
legal system for the necessary guarantees of this right. At the outset,
moreover, the concept of new wine in old bottles appears laden with
opportunities for the environmental lawyer. Injunctions for trespass
or nuisance, for example, must be sought.22
18 LANE, L.W., JR., An Environmental Ethic, BACKGROUND Boox OF THE 13TH
NATIONAL CONFERENCE OF THE U.S. NATIONAL COMMISSION FOR UNESCO 33 (1969).
19 Sive, The Law and the Land, THE JOuRNAL, Jan.-Feb. 1970, at 37.
20 Conti, Cleaning Up in Court-Conservationist Press Suits to Assert Right to a
Clean Environment, The Wall Street Journal, March 26, 1970, at 1.
21 See generally C. REICH, THE GREENING or AMERICA (1970).
22 Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959), where the
court declared:
19711 THE ENVIRONMENT AND THE LAW

Time-honored cases and statutes are replete with the words


"trespass" and "nuisance," but, today, the barrage of environmental
insults such as offensive odors from diesel buses or rendering plants,
and the scars of a strip mine, which may cause no more than injury
to the aesthetic senses, has forced new meaning into these common
law concepts.
"Viewed in this way, we may define trespass as any intrusion
which invades the possessor's protected interest in exclusive posses-
sion, whether that intrusionis by visible or invisible pieces of matter
or by energy which can be measured only by the mathematical
language of the physicist."2 3 (Emphasis supplied.) Damages for
nuisance or trespass to land may be sought. Nuisance law tradition-
ally covers invasion of another's property rights, and is increasingly
being applied to environmental pollution. "In air pollution you may
very well show that the value of your property was diminished
because of the effects of smoke."2 4 Inverse condemnation should
prevent the federal government or the states from taking private
property without just compensation. Theories for civil remedies for
personal injuries due to environmental pollution must also be sought,
including nuisance and trespass, negligence, battery, and many
others. Other personal tort liability concepts must also be examined:
strict liability, trespass upon the person and reckless conduct.2 5 As
another example, anti-trust laws are being invoked currently in a
massive air pollution control case against the automobile manu-
facturers. 6 Finally, one of the most sacrosanct of all legal rights,
that of property, must begin to encompass our environment. For
example, now that the Supreme Court has recognized a property
right in air space, which right may be violated by low flying airplanes,
it must be argued that this right may be equally deprived by sus-
pended particulate matter and other air pollutants. Similarly, urban
areas are now experiencing the development of housing in the air
space "property" over freeways. Does not the quality of life in this

Trespass and private nuisance are separate fields of tort liability relating to ac-
tionable interference with the possession of land. They may be distinguished by
comparing the interest invaded; an actionable invasion of a possessor's interest
in the exclusive possession of land is a trespass; an actionable invasion of a
possessor's interest in the use and enjoyment of his land is a nuisance. Id. at 90,
342 P.2d at 792.
23 Id.
24 TIME, Oct. 24, 1969, at 54.
25 Peterson & Lawrence, The Challenge of Environmental Quality: An Outline of
Remedies to Meet It, 1 ENvmoNm LAW 72 (1970).
TANr,.
26 In re: Multi-District Vehicle Air Pollution, C. John Handy v. General Motors
Corp., M.D.L. Docket No. 31, Civil No. 69-1548-R (D.C.D. Cal.).
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

new property deserve equal protection ?27 Traditional legal theories


must be employed with a new genius, and innovative environmen-
talists must develop new legal concepts to cope with the environ-
mental crisis.
One recent environmental decision, however, exemplifies the
difficulties inherent in the use of traditional legal theories.2 8 In a
recent New York case, plaintiffs, who owned land adjacent to de-
fendant's large cement plant, alleged injury to property from dirt,
smoke and vibration emanating from the plant. A nuisance was
found after trial, thereby permitting recovery of temporary dam-
ages; however, it was held, "in an opinion reminiscent of decisions
in the late 1800's and early 1900's, setting back the cause of job
injury compensation for fifty years, that the defendants should not
be enjoined. The court stated:
The ground for the denial of injunction, notwithstanding the finding
both that there is a nuisance and that plaintiffs have been damaged
substantially, is the large disparity in economic consequences of the
nuisance and of the injunction.8 0
This is the type of outmoded philosophy which has hindered the
development of an environmental ethic and has retarded any efforts
to reshape the traditional legal concepts to meet the demands for the
environmental polity.
III. NEw ENVIRONMENTAL LAW
A. Judicial
Customarily, the law has been slow to change, therefore, the
traditional legal remedies and causes for action must be tried and
tested again and again; and, in time they will begin to reflect our
environmental experience. However, the man who is emerging as the
dean of environmental law, Professor Joseph L. Sax of the Univer-
sity of Michigan law faculty, has stated, "The number 1 legal
priority of those concerned with environmental protection now is

27 Cohen, The Constitution, The Public Trust Doctrine and the Environment, 1970
UTAH L. REV. 392, 393.
28 Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d

870 (1970).
29 HANKS, supra note 14, at 8.
80 See Cohen, supra note 27, where the author states:
The nuisance complained of by these plaintiffs may have other public or private
consequences, but these particular parties are the only ones who have sought
remedies and the judgment will fully redress them. The limitation of relief granted
is a limitation only within the four corners or these actions and does not foreclose
public health or other public agencies from seeking proper relief in a proper court.
1971l THE ENVIRONMENT AND THE LAW

that the old restraints of the public nuisance doctrine, and other
archaic rules, be rooted out of the law and be replaced with recog-
nition of every citizen's opportunity to enforce at law the right to a
decent environment."'" With the help of Professor Sax and other
environmental activists, we are witnessing the development of an
entirely new body of environmental law, which is emerging at a
number of different fronts. The first and perhaps most challenging is
the emergence of new legal theory for the establishment and pro-
tection of an environmental right.
In 1943, it was held that Congress could statutorily confer stand-
ing on private citizens to contest Federal agency action and that the
citizens would then be acting as a "Private Attorney General." 32 In
1966, various lower Federal Court decisions began to recognize the
standing of conservation groups claiming to represent the public
interest, thereby serving as private attorneys general.33 In fact, the
increasing use of the private attorney general theory has begun to
inspire some public officials. For example, following Boomer v. At-
lantic Cement Company,34 which was indeed a "license to pollute,"
the New York Attorney General recommended that the legislature
provide that, where litigation is begun, involving water or air
pollution, the Attorney General's office must be notified so that it
may participate where the public interest is involved. It is difficult,
if not impossible, to separate the public interest represented by
pollution abatement from the specific, individual private injuries
which may result from pollution emissions. "A judicial disposition in
the public interest should be keyed to abatement rather than con-
tinuance of the pollution."3 5
In order that the great increase of public concern for our environment
may be made an effective force in protecting the environment, a
viable legal theory which can be used by private litigants is urgently
needed .... The Public Trust Doctrine . . . can become one of the

31 Sax, Environment in the Courtroom, SATURDAY REviEw, Oct. 3, 1970, at 56.


32 Associated Industry of New York State v. Ickes, 134 F.2d 694, 700 (2d Cir. 1943).
33 See, e.g., Citizens Comm. for the Hudson Valley v. Volpe, 425 F.2d 97 (2d
Cir. 1970) (conservation group attacking construction of freeway which would
require filling a portion of the Hudson River); Norwalk CORE v. Norwalk Re-
development Agency, 395 F.2d 920 (2d Cir. 1968) (families displaced by urban
renewal); Nashville 1-40 Steering Comm. v. Ellington, 387 F.2d 179, 180, 181 (6th
Cir. 1967), cert. denied, 390 U.S. 921 (1968) (neighborhood group protesting highway
relocation).
34 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970).
35 Clean Air and Water News, CommFRcE CLEAiNG HOUSE No. 13, March 28, 1970,
SUFFOLK UNIVERSITY LAW REVIEW [Vol V:820

major legal tools of the environmental lawyer .... In essence, the


Public Trust Doctrine makes the government the public guardian of
those valuable natural resources which are not capable of self-
regeneration and for which substitutes cannot be made by man. 6
"In this role the government has a high fiduciary duty of care and
responsibility to the general public much as has a trustee to the
beneficiary."3 7 The foundation for this doctrine was articulated by
President Roosevelt's head of the National Conservation Commis-
sion, Secretary Holmes, when he stated that:
The resources which have required ages for their accumulation to
the intrinsic value and quality of which human agency has not con-
tributed, which there are no known substitutes, must serve as the
welfare of the nation. In the highest sense, therefore, they should
be regarded as property held in trust for the use of the race rather
than for a single generation and for the use of the nation, rather than
for the benefit of a few individuals who may hold them by right of
8
discovery or by purchase.
The effectiveness of the trust doctrine continues to be recognized
to the present day. It is a device by which the government can and
must utilize, as well as preserve, natural resources for the benefit of
the people. The trust must be viewed as a perpetual enclave for the
public interest and for the environmental benefits that this interest
represents. It is implicit that the trust protects the maximum benefit
of a clean environment for present as well as future generations. 39 This
common law theory holds new life for the development of environ-
mental law in that it "seems to have the breadth and substantive
content which might make it useful as a tool of general application
for citizens seeking to develop a comprehensive legal approach to
resource management problems."4 °
In essence, the idea of a public trusteeship rests upon three
related principles:
First, that certain interest-such as the air and the sea-have such
importance to the citizenry as a whole that it would be unwise to
make them the subject of private ownership. Second, that these in-
terests partake so much of the bounty of nature, rather than of indi-

86 Cohen, supra note 26, at 388.


37 Cohen, supra note 26, at 388.
38 S. Doc. No. 676, 60th Cong., 2d Sess. 109 (1909).
89 LAW AND TuE ENVIRONMENT 170 (Baldwin and Page, Jr. 1970).
40 Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial
Intervention, 68 MxcH. L. REv. 471, 474 (1970).
1971] THE ENVIRONMENT AND THE LAW

vidual enterprise, that they should be made freely available to the


entire citizenry without regard to economic status. And, finally, it
is a principal purpose of government to promote the interest of the
general public rather than to redistribute public goods from broad
public uses to restricted private benefit. 41
In addition to the application of the public trust doctrine to the
traditional parkland and water use issues it has been suggested that
such a philosophy should be equally applicable to other types of
controversies, such as those concerning air pollution, pesticides,
rights of way for utilities, and in some cases wetland filling on
private lands. 2
In a promising conceptual context, the public trust doctrine may
be developed and refined so as to insure the fair presentation and
adequate consideration of the public interest (citizen concern for
environmental protection) before regulatory agencies-and before
all levels of government. "[P]ublic Trust Law is not so much a
substantive set of standards for dealing with the public domain as it
is a technique by which courts may mend perceived imperfection in
the legislative and administrative process. The public trust approach
43
•. .is, more than anything else, a medium for democratization.)
Recently, public attention has been focused upon the following
possible approaches to environmental law questions:
(1) procedural fairness and the public's right to know of and par-
ticipate in governmental decisions affecting the environment, (2) the
trustee theory ... , (3) the right to life as supported by language in
the Declaration of Independence and by the safeguards of the Fifth
Amendment and encompassing.., the right to a liveable environment
free from improvident destruction or pollution, and (4) the right to
privacy which protects against unwarranted intrusions into a man's
44
home, which many environmental pollutants constitute.
In addition to the courts and in addition to the imaginative
thinking of environmental lawyers, some Federal agencies are also
contributing to the promotion of new environmental law concepts.
Some control agencies, such as the Air Pollution Control Office
(Environmental Protection Agency) are advocating the development
of a new tort of a "damage to health from air pollution," thereby
broadening the concept of the causes of damage. This thesis, of

41 Sax, Environment, MIcmGAr Ar. umus 7 (1970).


42 Sax, supra note 40.
48 Sax, supra note 40.
44 See ACLU BimmAL CoNFKR.Ncx, supra note 14, at 3-4.
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

course, rests upon the basic assumption that courts should look first
to the injury, and then devise remedies and structure legal theories
to adapt to the instant facts."
B. Legislative
For the most part, both the legislative and the executive branches
of government have failed to come to grips with the complex prob-
lems of ecology. In response, however, to the increasing demands
for an effective body of environmental law, the political system has
not been entirely lacking. Sporadically, Federal and state legislation
is beginning to reflect and articulate citizens' environmental rights.
The Environmental Policy Act of 1969,40 for example, notwith-
standing compromises, included language that "The Congress recog-
nizes that each person has a responsibility to contribute to the
preservation and enhancement of the environment."47 The 1970
Environmental Quality Report accurately observed that the Na-
tional Environmental Policy Act supports and, in fact, inspires the
individual citizen's role in enhancing the quality of the environment.
Section 102 (c) of the Act makes available to the public the environ-
mental impact statements which all Federal agencies must submit
describing the potential environmental effects of their legislative
recommendations or proposals. Similarly, Section 102(f) requires
Federal agencies to prepare for the public advice and information
useful in restoring, maintaining, and enhancing the environment.",
Unquestionably, the landmark state legislation dealing with en-
vironmental law is the Michigan Environmental Protection Act of
1970, which states that ".... any person... may maintain an action
... for the protection of the air, water and other natural resources
and the public trust therein from pollution, impairment or destruc-
tion."4 9 Such legislation promises a dramatic legal breakthrough in
the efforts to preserve fundamental rights to environmental protec-
tion. It recognizes that every citizen, simply by virtue of his status as
a member of the public, has enforceable, environmental rights. For
45 Farrell, Let the Polluter Beware, CASE AND COMMENT 7 (1970).
46 National Environmental Policy Act of 1969, Pub. L. No. 91-190.
47 42 U.S.C.A. § 4331 (1970).
48 ENVIRONMENTAL QUALITY, supra note 3, at 212, 213.
49 The Thomas J. Anderson, Gordon Rockwell Environmental Protection Act of
1970, Act No. 127 of the Michigan Public Acts of 1970, was signed into law by
Governor Milliken on July 27, 1970. The Act became effective on October 1, 1970. A
second Michigan environmental act will go into effect in March, 1971. Known as the
Truth in Pollution Act, the legislation will provide private and public parties with
much of the information they might need to press environmental suits.
19711 THE ENVIRONMENT AND THE LAW

the first time in American statutory law, the right to a clean, healthy
environment has been raised to the level of the traditional property
rights which permitted exploitation of natural resources without
regard to their environmental impact. Now the citizen has given the
opportunity to defend the public-environmental interest.5 0
IV. CONSTITUTIONAL RIGHTS AND THE ENVIRONMENT

A. Judicial
Statutory directives, to date, however, remain inadequate. As pre-
viously noted, when the Environmental Policy Act was first passed
by the United States Senate, one provision had the ring of an environ-
mental bill of rights-stating that "each person has a fundamental
and inalienable right to a healthful Environment." This explicit
language, however, was deleted at the insistence of the House con-
51
ferees.
In the continuing search for environmental rights, therefore, one
turns inevitably to the seemingly inexhaustible source of legal pro-
tection-the United States Constitution. Perhaps the best protection
of environmental rights may fall within the letter or penumbra of
the Constitution. In recent years, a body of thought has begun to
develop which asserts that there is a Constitutionalright to a clean
environment, and there also have been many attempts to articulate
that right in state constitutions. In Griswold v. Connecticut,52 the
majority held that the Ninth Amendment guaranteed to the people
certain fundamental rights beyond those enumerated in the first
eight amendments. This avenue undoubtedly opens a broad area of
contention that certain forms of pollution are constitutionally
prohibited in certain circumstances.
It is apparent that "The time has come for all.., who would de-
fend the environment to assert the right to a salubrious environment
for all men as one of the fundamental unenumerated rights guaran-
teed by the Ninth Amendment to the Constitution and protected by
the due process and equal protection clauses of the Fifth and Four-
teenth Amendments to the Constitution." 5 It must be argued that,
in fact, there now exists a constitutional right to a decent environ-
ment, which mandates that every governmental agency will not only

50 Sax, supra note 31, at 56-57.


51 Carter, Environmental Policy Act: Congress Passes a Landmark Measure-
Maybe 16 ScIENcE 35-36 (Jan. 2, 1970).
52 381 U.S. 479 (1965).
53 Yannacone, supra note 17.
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

act as an agent for the public, in a manner consistent with the pre-
vention of further environmental degradation, but will also act in
a manner which will improve the environment, whenever possible.
Faced with a continuing series of environmental insults and crises,
the time is ripe for the Supreme Court to recognize and enunciate
this fundamental constitutional right of the people.'
We are dealing with a global environmental crisis, neither the
intensity nor the lasting effects of which is yet definable. "Against
this setting, it is difficult for an American lawyer to accept the prop-
osition that the widespread threat of total human extinction is not
somehow addressed by the panoply of rights delineated in the central
legal document of our nation, the Constitution of the United States
of America."5 In the Constitution we find no explicit mention of the
right to be free from environmental pollution. Yet the pervasive con-
cern in that document for individual liberty and freedom should
remind the Justices of the Supreme Court of the famous words of
Mr. Justice Holmes in the case of Missouri v. Holland:"6
When we are dealing with words that are also a constituent act,
like the Constitution of the United States, we must realize that they
have called into life a being, the development of which could not
have been foreseen completely by the most brilliant of its begetters.
It was enough for them to realize or to hope that they had created an
organism; it has taken a century and cost their successors much
sweat and blood to prove that they created a nation. The case before
us must be considered in light of our whole experience, and not
7
merely in that of what was said a hundred years ago.
The extension of the logic of the Holland and Griswold cases can,
as has been argued, and must be applied to environmental protection.
The court has apparently treated the Ninth Amendment as a rule of
construction permitting the development of new rights from values
implicit in expressed rights. It can be argued, similarly, that a right
to a clean, healthy environment is an implicit premise of the Con-
stition, and all other life-protecting rights are meaningless without it.
Environmental rights which may be at stake in an administrative
proceeding deserve no less protection than the constitutional safe-
guards protecting a man's life and liberty in a criminal prosecution.
54 Roberts, An Environmental Lawyer Urges: Plead the Ninth Amendment, NAT-
uRALHISTORY, Aug.-Sept. 1970, at 26.
55 Esposito, Air and Water Pollution: What To Do While Waiting For Washington,
S H av. Civ. Lin.-Crv. RIGHTS L. REv. 32, 47-48 (1970).
56 Missouri v. Holland, 252 U.S. 416 (1920).
5T Id.
19711 THE ENVIRONMENT AND THE LAW

Furthermore, since these are constitutional safeguards supporting


a claim to a right of marital privacy, similarly, the penumbra of the
express safeguards affecting a man's life would seem to support a
claim of a constitutional right to a decent environment.5 8 In the
Griswold case, Mr. Justice Goldberg's concurring opinion, which was
based upon the Ninth Amendment, further clarifies the meaning of
the "penumbra" concept:
And the Ninth Amendment, in indicating that not all... liberties are
specifically mentioned in the first eight amendments, is surely rele-
vant in showing the existence of other fundamental personal rights,
now protected from state, as well as federal infringement. In sum,
the Ninth Amendment simply lends support to the view that the
liberty protected by the Fifth and Fourteenth Amendments from in-
fringement by the Federal Government or the States is not restricted
to rights specifically mentioned in the first eight amendments.59
In addition, the Due Process Clause of the Fourteenth Amendment
supports the Ninth Amendment umbrella argument: Air and water
pollution and other forms of environmental degradation, must "deny
or disparage" the rights of persons injured or affected. Therefore,
when a Government agency does not adequately control or prevent
pollution by a regulated industry, it can be argued that the state is
in a position of depriving the citizens of their rights. Thus, the two
amendments could be construed as a constitutional basis for the
protection of environmental rights."0
Civil libertarians have advocated another approach to due process
claims: "Since the nature of environmental decisions affecting life
are of a different order from the economic decisions which the courts
have rightfully refused to review since the 1930's, it can be argued
that the due process clauses of the Fifth and Fourteenth Amendments
give a right to a healthful environment that the courts should recog-
nize."
Although the National Environmental Policy Act of 1969 does
contain language which may be construed as a Congressional recog-
nition of the constitutional right to a healthful environment,62 "to the
extent that constitutional pronouncements reflect the distillation of
58 HANKS, supra note 14, at 4.
59 381 U.S. at 493.
60 Gilluly, Taking Polluters to the Courts, SCIENCE NEWS, Sept. 26, 1970, at 273.
61 See HANKS supra note 14, at 3.
62 42 U.S.CA. § 4331 (a) (1970). See also Environmental Defense Fund, Inc. v.
Hoerner Waldorf Corp., Civil No. 1694 (D. Mont. 1970) (an action based upon the
constitutional argument).
SUFFOLK UNIVERSITY LAW REVIEW (Vol. V:820

considered wisdom relevant to necessary restructuring of our basic


law to keep its tenor consonant with our evolving society's needs,
there already exists a constitutional right to a decent environment.
We merely need a ringing decision to ratify this existential fact of
life."6 3 The time is ripe for such a judicial pronouncement. Any
further delay could be catastrophic.
B. Legislative
Some who have less faith in the speed or vitality of our living
Constitution, suggest more immediate articulations of our environ-
mental rights. It has been argued, for example, that the entire Con-
stitution may need to be re-written to reflect what we have learned
about ourselves and technical society.64 Others, however, suggest the
enactment of Constitutional protection of environmental rights
within the framework of our existing Constitution vis-at-vis the
Constitutional amendment process. One ecologist, for example, states
that "it seems we have reached a cultural and biological point of no
return. Therefore, the time to press for an enforceable environmental
Bill of Rights is now-irrevocably now.""
Legislative proposals to amend the Federal as well as many state
constitutions by adding such an "environmental bill of rights," have
been introduced with increasing frequency. 66 One such Federal
proposal states "every person has the inalienable right to a decent
environment. The United States and every state shall guarantee this
right."' 7 A primary purpose of this constitutional amendment would
be to provide every citizen with a "clear, legal, or explicit Constitu-
tional avenue to protect the sensitivities and well being of himself,
his family, or his community from environmental assault.1 68 The
need to establish this environmental right, as well as the means for
its protection in the Constitution, stems from the historic deficiencies
of common law. Basic protection developed by the Anglo-Saxon
common law has generally focused on traditional economic or
personal injury. Today, we have discovered that the insidious and
pervasive injuries caused by environmental pollution are just as

63 Supra note 38, at 165.


64 Ferry, The Unanswerable Questions, T=E CENTER MAGAZINE, July, 1969, at 4.
65 Brandwein, Needed-An Environmental Bill of Rights, A.mR icAN FOREST, April,
1970, at 31.
66 See, e.g., H.J. RES. 1321, 90th Cong., 2d Sess. (1968).
67 S.J. REs. 169 (1970).
68 Gillman, Washington Report, JouRNAL or THE Am PoLLUTiON CONTROL AssocIA-
TIOx, March, 1970, at 126.
19711 THE ENVIRONMENT AND THE LAW

much a threat to the quality of life. 69 One such state environmental


bill of rights has already been approved by the legislature and the
electorate of the State of New York. Similar proposals to amend the
state constitutions have been introduced in the Virginia and Mary-
land legislatures, as well as others. The legislative tide is beginning
to turn in favor of the environmental polity.

V. ENVIRONMENTAL POLITY

In the face of an ecological crisis, and in light of the rapid devel-


opments on many fronts whereby efforts to identify and secure en-
vironmental rights have been made, there is little question as to who
is the beneficiary of these rights and these solutions. The spark of
public interest in environmental protection has been ignited dramat-
ically, illustrated by the vastly increased participation by citizens
and citizens' organizations in the governmental process.7 ° In other
words, "the public-in this case, the choking, soot-covered and in-
creasingly sickened public-has finally become aware that thou-
sands of industries have been blatantly polluting the once-pure
American air, land and water."71
In the hearing rooms, as well as in the court rooms, the citizen is
gradually taking custody of his environment. While environmental
pollution may be cured in time by the marshalling of national and
international resources and the eventual triumph of government over
its inadequacies, the burden of immediate action is rapidly shifting
to a traditionally more dormant resource-the public whose envi-
ronment is in jeopardy. 72 Citizens have begun to organize and build
what has been described by one ecologist as "a constituency for the
biosphere, a polity for the public environment . . . , drawing upon
the range of grass roots energies and interest. . .. ,7" As explicitly
pointed out in a manual for citizen action, "the very vitality of the
national program to clean up the air depends upon citizen involve-
ment in the process. Only an active, informed citizenry can insure
fair and complete presentation of the case for stringent control, pro-
viding the best chance for the adoption and achievement of such
69 Id.
70 Supra note 3, at 211.
71 McCarthy, Pollution Control Through Lawsuit, Washington Post, Jan. 20, 1970,
at A-14.
72 Winder, Citizen Groups, The Law and The Environment, 1970 UTAH L. Rav.
404, 406.
73 Scheffey, The Grass-Roots Organization, 13TH NATIONAL CONGRESS OF THE
U.S. NATiONAL COIUSSION FOR UNESCO, BACKGROUm BOOK 96 (1969).
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

control." 4 This environmental polity presents a new focus to the


regulators as well as to the regulated. Citizens are willing to assign
value to and demand protection for all of the benefits of a clean en-
vironment. They are not willing to limit their concern to only those
benefits that experts can measure in terms of direct health effects or
75
economic costs.
One singular contribution which this polity brings to the forum of
environmental law-making derives from a tendency in layment to
"judge the nation's allocation of resources by broad, humanistic
standards. They tend to ask those two vital questions 'What will this
program do for people and how will it affect the quality of life?' ,T7
The ability of the people to identify the public interest and to par-
ticipate in the protection of that interest is the essence of our de-
mocracy. The foundation of this system would become seriously
damaged if all serious public problems were dealt with in closed-
door meetings attended only by technical, scientific experts, to the
exclusion of public participation. 77 One of the original co-sponsors
of Earth Day succinctly summarized the task of the environmental
polity: "A concerned public holds the key to eventual success for
environmental efforts. Without a sustained effort by millions of citi-
' 78
zens, the best administered programs can fail.

A. The Right to Participate


Concurrent with the rapid development of a widespread citizen
awareness of the duty to participate in the development of environ-
mental protection, and in light of the persistent reluctance of many
regulators to welcome this new citizen-spokesman, there is develop-
ing support for the legal right to participate. For example, it has
been suggested that the right to a healthful and habitable environ-
ment might embrace at least two functions:
First, it should set limits, similar to those in the Bill of Rights, be-
yond which even a majority could not tamper with the environment.
Examples might include the extermination of an animal species, the
destruction of a phenomenon of nature of international uniqueness
such as the Grand Canyon or Niagara Falls, or the release of nuclear
74 YOUR RIGHT TO CLEAN Ain-A MANUAL ooR CrrizEN ACTION, CONSERVATION
FOUNDATION Aug. 1970 at 27.
75 Id. at 26.
76 115 CONO. REc. 19, 403-04 (1969) (remarks of Hazel Henderson).
77 Bruch, Voluntary Behavior as a Means to Reduce Consumer Health Hazards
and Environmental Pollution, Txa BRooRNucs INSTITUTION. 1969.
7T Nelson, Pollution and a Concerned Public, CURRENT HISTORY, July, 1970 at 35.
19711 THE ENVIRONMENT AND THE LAW

radiation into the environment in quantities immently dangerous to


health and life. Second, such a right should give all interested parties
the opportunity to participate effectively in political and economic
decision making processes which, individually or collectively, have a
79
substantial impact on the environment.
Indeed, such procedural,constitutional environmental rights may be
just as effective as substantive rights. Moreover, the two most im-
portant procedural rights for environmental protection are the right
to have the potential environmental risks, whenever it proposes an
action which may have an impact on the environment, and the right
to effective participation of the public in the decision-making pro-
80
cesses.
Several constitutional arguments can be pressed for the recogni-
tion of the right to participate. The Due Process Clauses of the
Fifth and Fourteenth Amendments furnish one basis.8 1 These provi-
sions which explicitly safeguard the rights of life, liberty, and prop-
erty-such as the guarantee to presentment or indictment and the
freedom from self-incrimination-illustrate the importance of the in-
dividual in the forum wherein his rights are at stake. Professor Reich
has suggested that the citizen's need to be heard by his government
should be met with the right of public participation found in the
free-speech clause of the First Amendment. 2 In the context of the
regulatory agency considering environmental rights, the freedom of
speech must be considered to embody the freedom to be heard.
"Aside from due process and First Amendment arguments, a denial
of effective citizen participation in agency decision making may be
a denial of equal protection under the Fourteenth Amendment and
the due process clause of the Fifth Amendment as it incorporates
the concept of equal protection."83
Finally, the Ninth Amendment concept could protect the right of
the citizen to have a say in his government under the penumbra of
several sections of the Constitution: The Ninth Amendment, it can
be argued, must permit the development of the constitutional right
79 Supra note 14, at 1.
80 Supra note 14, at 4.
81 Supra note 14, at 5.
82 Reich, The Law of the Planned Society, 75 YALE L.J. 1227, 1260-61 (1966).
88 Supra note 14, at 6. "To the extent that the FCC, for example, allows television
broadcasters to participate in its decisions but denies that right to the viewing public,
members of the viewing public are denied the equal protection of the laws. Only a
warped set of values would treat the interest of the viewing public as inferior to the
interests of the broadcasters and hence conclude that the exclusion of the public is
not a denial of equal protection."
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

of citizen participation derived from values implicit in the First


Amendment protection of speech and the right to petition the gov-
ernment. The method of election of Representatives and Senators,
delineated in Article I, Section 2 and in the Seventeenth Amend-
ment, similarly preserve the right of public participation in govern-
ment. Article IV, Section 4 also elevate the status of the individual
citizen with the guarantee to every state in the union of a republican
form of government. "In total these provisions give operative mean-
ing to the values expressed in the Declaration of Independence. But
... the right to vote is no longer sufficient; agency administrators
are for the most part beyond the reach of the vote. A new right must
be fashioned to fill the void-a right to effective participation in
agency decision-making." 4
Aside from the basic right to a quality life and environment, there
exists a sound basis for this second constitutional right-the right to
effective public participation in the decision-making process of ad-
ministrative government. This second constitutional right is pri-
marily procedural. It would not assure that the eventual govern-
mental decisions would not lead to a further deterioration of the
environment. It would, however, preserve the opportunity for all
interested persons to participate in those decisions. This right of
participation is similar to the environmental interest created by the
National Environmental Policy Act. This Act, however, merely
states a national policy in favor of a decent environment; it does not
guarantee it. It does direct agencies to guide their action by consid-
erations of preventing further environmental degradation. The Act
gives citizens the right to police agencies to insure performance of
the directives of the Congress. It requires agencies, for example, to
make available to the public a wealth of information describing the
environmental consideration which entered into the agency decision-
making process. "If effective public participation does not halt fur-
ther environmental deterioration, redress will no longer be to the
courts, but to the Congress. Ultimately, our only redress is our-
selves."' 5
B. Participation
Far beyond mere theory of democracy and environmental rights,
the courts have begun to bend in the direction of the environmental
polity. Environmental lawyers across the country, therefore, are
84 HFNxs, supra note 14, at 6.
85 HAKS, supra note 14, at 18.
19711 THE ENVIRONMENT AND THE LAW 839

heeding the appeal that "we must knock at the door of courthouses
throughout the nation and seek equitable protection for our envi-
ronment. Let each man and every corporation so use his own prop-
erty as not to injure that of another, particularly so as not to injure
that which is the common property of all the people and let no
wrong be without a remedy!" 8
The Environmental Quality Report has also recognized this
new form of activism, observing that environmental organizations
throughout the country have begun to focus their environmental
protection efforts on the courts. 7 Furthermore, redress through the
judicial system, a relatively new citizen tactic in the ecology area,
has been significantly encouraged by a series of recent Federal court
cases which have facilitated access to the courtroom for the citizens'
groups seeking to represent the environmental polity. This founda-
tion concept of standing has received a major impetus from two
landmark decisions which further open the door of the courtroom to
the environmental polity. In Scenic Hudson Preservation Confer-
ence v. FPC,8 8 a conservation society was held to have standing to
attack an order of the Commission. In Office of Communication of
the United Church of Christ v. FCC,8 9 the court held that plaintiffs,
a group purporting to represent the listening public, had standing to
intervene in the licensing renewal application before the FCC. This
expansion received firm backing in 1968 by the United States Su-
preme Court which, in Flast v. Cohen,9" expanded the definition of
standing to the question of "whether the party seeking relief has
'alleged such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of
difficult constitutional questions.' "s1 The encompassing language of
"a personal stake in the outcome" is, in fact, the very thesis upon
which the environmental polity stakes its total commitment. That is,
for the first time masses of citizens have recognized, and have
flooded the hearing rooms to protect, their personal stake in the de-
velopment of a highway, in the preservation of a river basin, in the
improvement of the quality of life. More recently, in the case of

86 Yannacone, supra note 17, at 61.


87 Supra note 3, at 218.
88 Scenic Hudson Preservation Conference v. FPC, 359 F.2d 608 (2d Cir. 1965).
89 United Church of Christ v. FPC, 359 F.2d 994 (D.C. Cir. 1966).
90 392 U.S. 83, 99 (1968).
91 id.
840 SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

Association of Data ProcessingService Organization,Inc. v. Camp,92


Mr. Justice Douglas articulated wide-ranging dictum to improve the
standing of the environmental polity. In describing the zone of in-
terest to be protected by the finding of sufficient standing, Mr. Jus-
tice Douglas stated: "That interest, at times, may reflect 'aesthetic,
conservational recreational' as well as economic values . . .. We
mention these non-economic values to emphasize that standing may
stem from them as well as from the economic injury on which peti-
tioner relies here." 93
The gradual opening of the doors of the courtroom to pleas for
the protection of the environment has increasingly served to admit
official pollution control agencies as well as the environmental polity.
For example, in Cleveland, pollution inspectors now prepare every
citation on the assumption it will end up in court. 4 In our Nation's
Capitol, however, the District of Columbia Air Pollution Control
Division finds itself in a courtroom on the opposite side of the citi-
zens' organization. The Metropolitan Washington Coalition for
Clean Air, Inc., a citizens' organization sponsored by another public
interest entity-the D.C. Tuberculosis and Respiratory Disease As-
sociation-has, for many months, attempted to assist the enforce-
ment of the D.C. air pollution control regulations by filing com-
plaints and encouraging citizens to protest about apparent polluters.
However, after noting that approximately 1,000 complaints had
been filed with the Air Pollution Division, in 1970 only about 450
written notices of violation had been served on the alleged polluters,
and only 5 cases had been referred to the Office of Corporation
Counsel for enforcement, on October 22, 1970, the Stern Commu-
nity Law Firm-a public interest law firm within the District of Co-
lumbia-filed suit9 5 in the United States District Court for the Dis-
trict of Columbia on behalf of the Coalition for Clean Air and
against officials in the D.C. Air Pollution Division and others in the
D.C. Government, alleging failure to enforce the air pollution con-
trol regulations. Such failure, it was argued, had amounted to the
granting of de facto variances.
The District of Columbia Air Quality Control Regulations, spec-
ify the exclusive conditions under which the Director may tolerate

92 397 U.S. 150 (1970).


98 Id. at 154.
94 MacGregor, Several Communities Haul Firms Into Court In Bid to Clean Up
Air, Wall Street Journal, July 24, 1970.
95 Civil Action No. 3143-70.
1971] THE ENVIRONMENT AND THE LAW 841

less than complete performance by any person of the requirements


of the Regulations. Plaintiffs argue that unlawful, de facto variances
have been granted by virtue of the fact that while over 391 com-
plaints were received by defendant Air Pollution Division, in 1969
only 76 written notices of violations were served on alleged polluters,
and only 6 cases were referred to the D.C. Office of Corporation
Counsel for enforcement. The litigation which has been commenced
on behalf of the Coalition for Clean Air, prays for a mandamus and
injunctive relief, based on the claim that the government practices
((constitute a deprivation under color of law of rights, privileges, and
immunities secured to plaintiffs by the Constitution, the District of
Columbia Air Pollution Control Act, Section 101 (c) of the National
Environmental Policy Act of 1969, and other Acts of Congress."9 6
The Coalition for Clean Air is also a plaintiff in another unique
environmental lawsuit, Virginians for Dulles v. Volpe,97 wherein the
relief sought is the reduction or elimination of the massive amounts
of noise and air pollution created by the intense jet traffic at the
Washington National Airport. In an innovative complaint filed in
this action, plaintiffs pray for damages and injunctive relief. Plain-
tiffs allege that the action of defendants which causes drastic over-
utilization of National Airport is an unreasonable, unwarrantable, un-
justifiable and inexcusable use of the facilities at National and there-
fore constitutes a nuisance. The action of defendants, it is argued,
have resulted in a direct assault to the persons and property of the
plaintiffs and others similarly situated, and that such direct assaults
constitute a trespass upon the persons and property of the plaintiffs.
In addition, plaintiffs argue, the actions of defendants, resulting in
critical safety hazards and massive quantities of air and noise pollu-
tion, deprive the plaintiffs and all those similarly situated of their
rights to the full benefit, use and enjoyment of their property and
their health and welfare, in violation of the protection of those rights
under the Ninth Amendment and as recognized by the National En-
vironmental Policy Act of 1969. Lastly, plaintiffs allege that the ac-
tions of the Airline defendants to perpetuate the over-utilization of
National and the under-utilization of Dulles International Airport
is part of a conspiracy and combination in restraint of trade in vio-
lation of the anti-trustlaws of the United States.98 Such a lawsuit is
indicative of the inventiveness of the environmental attorney in pre-
96 Id. at 10.
97 Civil Action No. 507-78.
98 Id. at 24.
SUFFOLK UNIVERSITY LAW REVIEW [Vol V:820

senting as broad and as all-encompassing an assault upon the citadel


of judicial conservatism.
These and many other environmental lawsuits are based upon the
considered hope that:
When the courts fully recognize that there is a constitutionally pro-
tected right to breathe clean air, drink clean water, eat uncontami-
nated food, and have wilderness areas preserved, they will also have
to recognize that the state or federal government having dominion
or control over air, water, food, or other valuable resources, has
obligations imposed on it by a public trust to guard against en-
vironmental insults and the resulting despoilation of the resource and
the environment. The failure to carry out the obligations of the
trust amounts to a breach of constitutionally protected rights which
no court can permit. 99
Notwithstanding the eventual outcome of environmental litiga-
tion, equally and at times more important than the slow but steady
growth of environmental case law is the public awareness created
by such lawsuits.' Many times, for example, the public interest
comes under closer scrutiny in judicial proceedings due to the com-
bative nature of such proceedings. The judicial forum tends to
even the sides, and the resulting balance is far more visible than the
regulatory process which is open to pressures, overt and otherwise.1 0'
Even when environmental and conservation lawyers lose in court,
the impact of such legal action goes far beyond the confines of the
court room and helps to "focus public attention and disseminate in-
formation about intolerable conditions. 1 °2
Pressures invited by the administrative process remain, but the
participation of the environmental polity in the hearing room con-
tinues to expand at an unprecedented rate. Reluctant pollution con-
trol agencies are again and again hearing the demand that "[m] ost
importantly, the Department must be made to acknowledge the im-
portance of value judgments in air pollution control and the conse-
quent right of the public to have its views incorporated into policies
03
concerning air quality."'
99 Cohen, supra note 26, at 388-92.
100 Winder, supra note 72, at 405.
101 Development of Air Quality Standards, edited by Arthur Atkisson and Richard
S. Gaines, Charles E. Merrill Publishing Co. (Columbus, Ohio), 1970, at 211-12.
102 Flor, Legal Units Formed by Conservationist to Fight Pollution, The Evening
Star, Sept. 15, 1969, at Bi.
103 Supra note 15, at 23.
19711 THE ENVIRONMENT AND THE LAW

Air Quality Act


The Federal Air Quality Act of 196714 has invited and received
massive doses of citizen participation; and the regulatory field of air
pollution control, like others, has begun to reflect the public-environ-
mental interest. The Department of Health, Education and Welfare
Guidelines to this Act left no doubt as to the requirement of citizen
participation:
The Air Quality Act requires that States hold public hearings as a
part of the process of adopting air quality standards for air quality
control regions. This requirement is intended to insure, first, that all
segments of the public-including representatives of business and in-
dustry, scientists, and private citizens-will have an opportunity to
express their views and, second, that those views will be taken into
consideration before standards are officially adopted ....
In general, hearings held under the Act should be an open forum for
presentation of facts and expression of opinions on the air quality
standards and on the proposed timetables for attainment of the stan-
dards. The States should try to provide the greatest possible opportu-
nity for participation by all person and groups who ask to appear.1 5
The Third Congressional Report by the Secretary of HEW, enti-
tled "Progress in the Control and Prevention of Air Pollution,"
clearly identifies the response to these guidelines. There has been a
favorable response consistent with the intent of the Clean Air Act,
as evidenced by a high degree of public participation in State hear-
ings on air quality standards for the various air quality control re-
gions across the country. The citizen response, for example, has of-
ten been so overwhelming as to cause the State officials to change
the site of the hearing to a larger hearing room. Organized citizen
groups, drawing upon the public services of the legal and scientific
talent in their communities, have resulted in the appearance of a
quantity and quality of citizen involvement that is unprecedented
in the history of air pollution control efforts.10 6
As one close observer of the environmental polity has stated, "We

104 81 Stat. 485.


105 GuimLmEs FOR =HEDEVELOPMENT OF AIR QUALITY STANDARDS AND IMPLEMEN-
TATION PLANs, U.S. DEPT. OF HEALTa, EDUCATION AND WELFARE, PUBLIC HEALTE
SERVICE, CONSUMER PROTECTION AND ENviRoNMNTAL HEALTH SERVICE, May, 1969
at 33.
106 PROGRESS IN THE PREVENTION AND CONTROL OF AIR POLLUTION, THRD REPORT
OF THE SECRETARY OF HFEALTH, EDUCATION AND WELFARE TO THE CONGRESS OF TUE
UNITE STATES, MARCH 1970; April 27, 1970-Doc. N9. 91-64, at ix.
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

have seen people, just plain people, getting involved and questioning
the system, the establishment, which permits one man's profit at the
1 07
expense of everyman's pollution.1
Reaction to the jurisdictional guidelines of the Air Quality Act
has been mixed, as singularly, the Act places the responsibility and
political power to control and develop regional programs in the
hands of state governments, notwithstanding the claim that in the
field of air pollution control, the states have been, in most instances,
the weak link in a federal-state-local partnership." 8 But, as the
chairman of one state air pollution control board has suggested,
"The federal activity is a back-up to the state and local activity in
case state and local governments fail to act."'0 9 In fact, the Act is
replete with reminders of the Federal "back-up" potential. For ex-
ample,
The Administrator shall, after consideration of any State hearing
record, promptly prepare and publish proposed regulations ...if...
the State fails to submit an implementation plan for any national
ambient air quality primary or secondary standards within the time
prescribed .... If such State held no public hearing associated with
respect to such plan (or revision thereof), the Administrator shall
provide opportunity for such hearing within such State on any pro-
posed regulation.110
At still another level, however, many city officials justify their
tough stand on air pollution control as a reaction to a general disil-
lusionment with Federal and state control efforts under the Federal
Act.1 ' It is perhaps such disagreement about this unique arrange-
ment for government partnership which has allowed and inspired
meaningful citizen participation in the regulatory process. "One
way to look at it is that the '67 Act has reduced the level of air pol-
lution control activity in the U.S. to the lowest common level of ef-
fort.""' 2 But again, this lowest common level has brought environ-
mental pollution control to the grass roots, and the power of the
107 Seldin, What's Ahead in the Quest for Environmental Quality? 1 ENVIRoN-
MENTAL EDUCATION 146-47 (1970).
108 Handbook on Environmental Law (Preliminary Draft), Work Paper No. 1,
University of Michigan Law School, Environmental Law Society, Ann Arbor,
Michigan (1970); page 8.
109 S.S.M., Air Pollution Control Hits Red Tape, ENV oN ENTAL SCIENCE &
TEcaNOLOGY, Vol. 4, No. 10, October 1970; page 804.
110 Clean Air Amendments of 1970, Pub. L. No. 91-604, § 110(c), 84 Stat. 1676
(1970).
Ill MacGregor, supra note 94.
112 S.S.M., supra note 109 at 802.
1971] THE ENVIRONMENT AND THE LAW

environmental polity increasingly inspires the government effort. It


is accurate to conclude that in 1967, the President and the Congress
not only reflected but also stimulated the increasing public concern
for effective air pollution and environmental control."n
Public concern and involvement did not go unnoticed by the 91st
Congress which enacted the Clean Air Amendments of 1970, which
has been one of the strongest pieces of environmental legislation to
date.1 14 In addition to stringent Federal regulations, the environ-
mental polity received a vote of confidence, as evidenced by Section
110(a) (1) of the Act. This section requires, for the first time, that
each State conduct a public hearing to consider the State plan
"which provides for implementation, maintenance, and enforcement
of such primary standard in each air quality control region .. .
Section 114(c) provides that all records, reports or information re-
garding pollution data shall be available to the public, except upon
a showing that such information, other than emission data, is confi-
dential information. Thirdly, and perhaps most important for the
development of environmental law, Section 304 provides liberal pro-
visions for citizen suits to insure the implementation and enforce-
ment of this Act.
Examples of specific language used by state and local control of-
ficials and by the environmental polity itself can best illustrate the
interaction between these entities pursuant to the Air Quality Act.
In one set of air quality control regulations proposed by the State of
Maryland, the following policy statement was included: "In deter-
mining the ways and means to be required for reducing concentra-
tions of carbon monoxide, matters of economics and private inter-
ests and other factors shall be subordinate considerations to the
necessity of achieving the standards, for protection of the public
health."115
On the other hand, the Virginia State Air Pollution Control Board
presented a quite different policy statement at a public hearing.
Their proposed regulation stated: Air is a natural resource. It is
needed for life; combustion of fuels for heat, power and transporta-
tion; and for the dispersion or purification of natural and man-made
wastes. Although never inexhaustible, this air resource is, at certain
118 Martin and Symington, A Guide to the Air Quality Act of 1967, 33 LAw AND
CONTEMPORARY PROBLEMS 240 (1968).
114 Pub. L. No. 91-604, 84 Stat. 1676 (1970).
115 Proposed Amendments to 43POS-Regulations Governing the Control of Air
Pollution, Maryland State Department of Health and Mental Hygiene (Baltimore,
Maryland), Section 0606 8(2) (1970).
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

times and places, further limited by weather conditions such as tem-


perature inversions, low wind speeds and stagnate high pressure
areas. Especially under the conditions of urban crowding in metro-
politan areas, a portion of the emissions of air pollutants to the out-
door atmosphere must be limited. 16 Such phraseology indicates the
divergence in attitudes which confront the environmental polity.
These differences inspire the environmental polity to speak in
terms such as are represented by the following citizen recommenda-
tion that:
The proposed Virginia ambient air quality standards for carbon
monoxide, photochemical oxidants, and hydrocarbons, if adopted,
would permit levels of these pollutants which will constitute a serious
hazard to the health and welfare of the citizens of the entire metro-
politan area. Without exception, the proposed standards fail to pro-
vide any margin of safety, and in many cases, the standards far
exceed the minimum levels where damaging health effects result. The
Virginia proposal must be strengthened considerably in order to in-
117
sure protection of the public health.
At another level of interaction, the Board of County Commission-
ers of Prince George's County, Maryland, one of the sectors of the
National Capital Interstate Air Quality Control Region, recently
passed the following resolution which stated that:
the County Commissioners of Prince George's County are strongly
opposed to the proposed amendments to the State Health Department
Regulation 43 PO 5-Regulation governing the control of air pollu-
tion in air quality control area IV (Montgomery and Prince George's
County), as too restrictive, unfair, impractical from the viewpoints
of minor percentages of benefits received for the costs involved,
questionable attainability, and if enacted, having adverse impact on
the citizens, industry and economy of the County.118
The MWCCA promptly urged the County Commissioners to re-
consider their resolution in light of the public interest. The unre-
sponsiveness of some local officials and a failure to take a strong
position on an environmental issue was dramatically illustrated by
116 Proposed Amendment to Rules for the National Capital Interstate Air Quality
Control Region, State Air Pollution Control Board (Richmond, Virginia), First Draft:
January 9, 1970; page 1; Va. 500.3(a).
117 Virginia State Air Pollution Control Board, public hearing, Fairfax, Virginia,
Oct. 12, 1970.
118 Minutes of the Meeting of the Board of County Commissioners, Courthouse,
Upper Marlboro, Prince Georges County, Maryland, April 21, 1970; pages 3-5.
1971l THE ENVIRONMENT AND THE LAW

the response to this challenge of the citizens from the Vice Chair-
man of the County Board, which stated in part:
The record will reflect that I had serious reservations about it, and
voted for the resolution only after stating why. That reason is as
follows.
I believe that adequate air quality standards must be established
At the same time, as with every law, I think the rule of reason must
be a part of the legislative process. That is, I do not think any law
should require measures that are unreasonable, in the light of the
benefits to be gained. Perfection is a desired goal, but I do not be-
lieve we should seek that goal on a cost-is-no-object basis, unless
there is absolutely no alternative.
For myself, my vote for the resolution in question was more of a
symbolic act, urging the resolution writers to use the test of reason
in what they proposed. I made clear, then, however, that the public
need for above-adequate air quality must not be compromised in any
case.119
Undaunted, the environmental polity continues to push the gov-
ernment into the environmental forum, and successes are not rare.
Recently, the National Park Service issued proposed rule-making
for new regulations governing the issuance for permits for motor ve-
hicles using the George Washington Memorial Parkway. 2 ' In re-
sponsive comment, the Coalition for Clean Air urged the Park Ser-
vice to require the use of maximum feasible air pollution control
devices for all vehicles subject to the regulations considered herein.
As a result of this request, this federal agency is presently consider-
ing adoption of the following addition to the new regulations:
Consistent with the purpose and policy enunciated in the National
Environmental Policy Act of 1969 and other applicable provisions of
laws or regulations, operators of commercial and passenger-carrying
vehicles to whom these regulations apply are required to employ on
such vehicles the most advanced pollution control devices available,
in order to prevent the excessive emission of smoke and other harm-
ful elements into the air. Such operators shall utilize improved, sys-
tematic and frequent maintenance procedures designed to reduce the
121
exhaust emission from these vehicles.
119 Letter from Francis B. Francois, Vice Chairman, Prince Georges County
(Maryland) Commissioners, June 18, 1970, to John S. Winder, Jr., Executive Director,
Metropolitan Washington (D.C.) Coalition for Clean Air.
120 36 CFR Part 50, Commercial Vehicles, Common Carriers, School Buses,

Recreational Vehicles.
121 Letter from E.V. Buschman, Staff Assistant, Regulations, US. Department of
SUFFOLK UNIVERSITY LAW REVIEW [Vol. V:820

This response vividly illustrates an increasing awareness on be-


half of the government to the crisis which the environmental polity
has been seeking to expose.
VI. CONCLUSION

The citizen voice is unquestionably felt and beginning to receive


heed by our public servants. "Municipal and County governments
formerly were hesitant to bring actions against firms important to
the local economy. But now citizen pressure is making the govern-
' 122
ments more responsive.
The National Environmental Policy Act of 1969 has indeed
heralded a new era of legal protection for the environment. When
we find that even "the Congress recognized that each person should
enjoy a healthful environment and that each person has a responsi-
bility to contribute to the preservation and enhancement of the en-
vironment, 23 we may conclude that progress is beginning to ap-
pear. This act:
creates a judicially protectable interest in the environment of which
all of us are the intended beneficiaries. The legislative history leads
inevitably to this conclusion. The congressional mood toward our en-
vironmental ills and, inferentially, this legislation, was composed of
a sense of shock at the all-pervasive environmental destruction, de-
terioration and mismanagement; or urgency in trying to avert a
collision course with ecological disaster; and of dedication to a policy
which, in the words of the Act, "will encourage productive and en-
joyable harmony between man and his environment." In form, the
124
Environmental Policy Act is a statute; in spirit a constitution ....
This environmental-constitutional mandate will unquestionably be
reflected in many ways and in many areas. For example, it is, in
part, the inspiration for such state legislation as recently introduced
Senate Bill 238125 to provide the State of Maryland with an office of
"Protector of the Environment." This bill establishes a new public
office for the purpose of independent representation of the public in-
terest with authority to intervene on behalf of the public in any pro-
ceeding in which it is found that the quality of the environment
might be affected.126
the Interior, National Park Service (Washington, D.C.) to John S. Winder, Jr.,
Executive Director, Metropolitan Washington (D.C.) Coalition for Clean Air, 1970.
122 Gilluly, supra note 60, at 274.
128 P.L. 91-190.
124 HANKS, sUpra note 14, at 12.
125 115 CONG. REc. S. 7815 (July 10, 1969).
126 Supra note 13 at 2.
1971] THE ENVIRONMENT AND THE LAW 849

The environmental polity-growing numbers of citizens and stu-


dents intensely committed and deeply concerned about the growing
problems of environmental pollution-promise to provide the major
impetus for the development of an environmental ethic. Moreover,
the masses of environmental activists promise to develop the law of
the environment and to inspire the lawmaker. The Citizen and his
law bequeath to us the blessings of a clean environment.'2 7
127 Winder, supra note 72, at 412.

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