5 Suffolk ULRev 820
5 Suffolk ULRev 820
5 Suffolk ULRev 820
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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
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
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
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
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
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
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
V. ENVIRONMENTAL POLITY
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
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
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