23 ELR 10665 | Environmental Law Reporter | copyright © 1993 | All rights reserved

The Role of Public Opinion, Public Interest Groups, and Political Parties in Creating and Implementing Environmental Policy

Irma S. Russell

Editors' Summary: Modern environmental law in the United States is the product of public opinion. Until relatively recently, the public viewed America as a storehouse of virtually unlimited natural resources, and paid scant attention to the environmental consequences of industrial development. Beginning in the 1960s, however, that attitude changed. With dramatic events in the news focusing attention on dangers to human health and the environment, the public became more sensitive to environmental concerns, resulting in the enactment of all of the principal federal statutes designed to protect the environment.

The author discusses this shift in public opinion and the role that public interest groups and political parties have had in it. She begins with data compiled from public opinion polls and describes the current public attitude. She discusses some of the ways that this attitude has affected the political arena and consumer practices. She then discusses the different types of public interest groups, analyzing the ways in which representative groups have influenced environmental law and environmental protection. Finally, she examines the role of political parties and the interaction of this potent force with public opinion. She concludes that these three forces — public opinion, public interest groups, and political parties — which have done so much to write modern environmental law, will continue to do so in the future.

Ms. Russell is an Associate Professor at the Cecil C. Humphreys School of Law, Memphis State University. The author presented points raised in this Article at the International Symposium on Environmental Policy in Federal States sponsored by the Federalism Research Centre of the Australian National University in May 1993. The author wishes to express her gratitude to Memphis State University, the Cecil C. Humphreys School of Law, and the Federalism Research Centre for financial support that made her participation at this symposium possible. The author is especially grateful to Professors William P. Kratzke, Janet L. Richards, Ralph C. Brashier, and Otis Johnson for their insights on this topic. She also gratefully acknowledges the valuable research assistance of Larry Smith, Phillip Hoover, and George Pappas while they were third-year students at Cecil C. Humphreys School of Law, and the contribution of numerous students, especially Michael Pfrommer and Jonathan Hickman, who furnished information on specific environmental groups or problems.

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Environmental law as we know it did not exist until environmental problems forced themselves, relatively recently, into the public consciousness. Until the 1960s, modern environmental law did not exist,1 because before that pollution — even in cities — had not significantly threatened the health of U.S. citizens.2

This Article explores the change that has occurred in the attitude of Americans toward the environment over the last three decades. It posits that the new attitude has resulted from the interaction of three forces: public opinion, public interest groups, and political parties.

Public Opinion

Congress, like elected bodies in most countries, does not operate in a vacuum. It responds to public pressure. Most environmental legislation has been spurred by public opinion and by public interest groups that have marshalled and stimulated public opinion.3 The legislative response has come in most cases after dramatic events in the news4 have focused the public's attention on dangers to human health and the environment. Love Canal, Bhopal, the Exxon Valdez, Three Mile Island, and Chernobyl — all had far-reaching effects on public perception and public opinion.5 However, the public perception of the environment in this country has changed dramatically over the years.

Historically, America was a "frontier" land regarded as a "new" country in other parts of the world. The vast ranges of prairie and forest in this country may have inspired a [23 ELR 10666] belief — in both colonial America and the frontier states — that our natural resources were inexhaustible.6

The American environmental ethos has changed in the last few decades in part because of the realization that the earlier ethic of limitless resources was false and damaging. While some legal scholars view the growing demand for environmental protection and public oversight of governmental activities as contrary to the property and free market systems of this country,7 the gap between this view and the prevailing public opinion is widening. The Roper Center for Public Opinion Research has collected the results of public opinion polls dating from July 1971 to June 1993 on topics relating to public concern for the environment and political responses to environmental issues.8 In surveys since the mid-1970s, the public has stated that at the time of the survey the condition of the environment was the worst it had ever been. The majority of the public consistently agreed that stricter government controls were needed to protect the environment.9

Evidence of an environmental ethos in the United States can be seen in the effect of public opinion on recent presidential administrations. The Reagan and Bush years were marked by reduced enforcement or an absence of enforcement of significant environmental laws. For a time, the Bush Administration declared a moratorium on new environmental regulations in addition to delaying enforcement of existing regulations.10 Nevertheless, it did not achieve the repeal of any environmental laws. Moreover, the Clean Air Act Amendments of 1990,11 passed during the Bush presidency, have been heralded by environmentalists as a major step forward in the control of air pollution from industry sources.12

The impact of public opinion on political parties is also apparent. The major parties now state environmental "initiatives" in their campaign platforms.13 President Bush campaigned on the promise that he would be the "environmental president."14

This change in the public's attitude toward the environment has even affected economic considerations. The majority of those surveyed consistently agreed that protecting the environment should be a higher priority than creating new jobs.15 The majority has also agreed to raising taxes to protect or clean up the environment.16

As a result of the change in the public's attitude toward the environment, consumer habits in the United States have altered in some fairly significant respects. Some changes have occurred in personal usage and consumption habits,17 [23 ELR 10667] including recycling.18 Consumer demand has resulted in the production of more energy-efficient automobiles, insulation, lighting, and heating systems. The recycling movement has resulted in saving products and landfill space. Corporations have become sensitized to environmental issues, primarily because of public opinion. Many corporations have high profile programs or goals relating to the protection of the environment.19

Also, a new investment philosophy has developed. In the 1980s, investment companies began to provide the option of "social investing" for individuals opposed to investing in companies that either impact negatively on the environment or invest in countries that violate human rights.20 The 1993 Earth Journal: Environmental Almanac and Resource Directory (1993 Earth Journal)21 reported that socially responsible investing is "the fastest-growing niche in money management."22

The increase in greater public concern for the environment is also reflected by the inclusion of criminal penalties for willful violations in most laws designed to protect the environment.23 Such laws are examples of the "mutual coercion mutually agreed upon" suggested by Garrett Hardin in The Tragedy of the Commons, as the social arrangement most likely to result in protection of the environment.24

Public Interest Groups

Whether environmental public interest groups have formed as a result of the new environmental ethic or that ethic resulted from efforts of environmental interest groups is unknown. Whichever the case, the growth of environmental groups in the last three decades has been remarkable. The 1993 Earth Journal's directory of environmental groups lists more than 100 groups with a stated mission of preservation.25

Public opinion polls have consistently shown support for environmental groups and their leaders although only a small percentage of the population surveyed claims active participation or donations to environmental causes and less than one-third of those surveyed consider themselves "active environmentalists."26

Most environmental groups pursue one or more of the following missions: litigation, lobbying, direct action, land acquisition, education, and site preservation. Some undertake all of these missions to some extent.27

Litigation

In 1970, Joseph Sax noted the new trend toward citizen suits to preserve natural resources in his classic article on the public trust doctrine. He wrote:

Public concern about environmental quality is beginning to be felt in the courtroom. Private citizens, no longer willing to accede to the efforts of administrative agencies to protect the public interest, have begun to take the initiative themselves. One dramatic result is a proliferation of lawsuits in which citizens, demanding judicial recognition of their rights as members of the public, sue the very governmental agencies which are supposed to be protecting the public interest.28

Federal courts in the United States have jurisdiction to hear cases raising a general federal question.29 Often environmental [23 ELR 10668] statutes contain a provision allowing judicial challenge by citizen suits and an award of attorneys fees for successful litigants.30 This concept — sometimes referred to as the private attorney general concept — reflects a legislative decision to encourage private parties to enforce statutes.31 Additionally, the Administrative Procedure Act32 (APA) offers a general federal right of review of agency decisions subject to the exemptions stated in the Act.33 Agency decisions found by a federal court to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law are set aside.34

With the exception of land trust conservation societies, such as the Nature Conservancy, most of the groups discussed belowhave some involvement in litigation. Sierra Club, Sierra Club Legal Defense Fund, Wildlife Federation, the Environmental Defense Fund, Defenders of Wildlife, and the National Audubon Society all have brought significant cases in state and federal courts.

The Requirement of Standing: Lujan v. Defenders of Wildlife

A recent U.S. Supreme Court decision is of such significance to public interest groups — particularly those that litigate environmental issues — that it deserves special consideration here. In Lujan v. Defenders of Wildlife,35 the environmental public interest group Defenders of Wildlife (Defenders) challenged a rule36 promulgated by the Secretary of the Interior that interpreted § 7 of the Endangered Species Act37 (ESA) as applying the consultation requirement of the Act only to actions within the United States.38 Justice Scalia, writing for the majority, found that Defenders' members lacked an injury-in-fact, and that the claimed injury would not be redressable by the district court.39

The requirement of standing to sue traditionally requires that the plaintiff has suffered or will suffer an injury-in-fact, that the injury is traceable to the defendant's actions, and that the court has the power to redress the injury.40 Defenders' claimed injury was that the failure of agencies to consult with the Secretary of the Interior "with respect to certain funded activities abroad increase[d] the rate of extinction of endangered and threatened species."41 Defenders presented affidavits of members who had traveled abroad, observed particular endangered species and intended to do so in the future. The Court held that Defenders' record failed to meet its burden of showing an injury-in-fact.42

In a concurring opinion, Justice Stevens compared the loss of a species of interest to a death in the family and reasoned that the injury complained of occurs whether or not plaintiff's members return to the habitat. He wrote:

An injury to an individual's interest in studying or enjoying a species and its natural habitat occurs when someone … takes action that harms that species and habitat…. [T]he 'imminence' of such an injury should be measured by the timing and likelihood of the threatened environmental harm, rather than — as the Court seems to suggest — by the time that might elapse between the present and the time when the individuals would visit the area if no such injury should occur.43

Justice Scalia also found that the injury complained of by Defenders was not redressable by the district court, noting that whether the agencies were bound to consult by the Secretary's regulation, "is very much an open question."44 Justice Scalia stated that the initial decision of whether or not to consult lies with the funding agency45 and concluded that even with the changes sought in regulations, the funding agency could simply refuse to consult. This argument appears to overlook the mandate of the Act that each federal agency shall consult with the Secretary to "insure that any funded action is not likely to jeopardize the endangered or threatened species."46 Consultation appears not to be discretionary even though the final determination of the impact on the endangered or threatened species is committed to agency discretion.

Finally, Justice Scalia found that Defenders' claim was a procedural injury not redressable by the district court.47 "We do not hold that an individual cannot enforce procedural rights; he assuredly can, so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing."48

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Justice Scalia's analysis requires a separate injury-in-fact resulting from the plaintiff's relationship with the affected object — here the endangered species threatened by the agency action. Environmental groups seeking to litigate issues under the ESA or other environmental statutes must select plaintiffs who can show an imminent injury-in-fact in order to withstand a motion for summary judgment under the Lujan standard.49

Litigation Public Interest Groups

Several environmental public interest groups focus their efforts on litigation. These include local groups, as well as the Natural Resources Defense Council (NRDC),50 the Environmental Defense Fund,51 the National Wildlife Federation (NWF),52 and Sierra Club.53

[] Natural Resource Defense Council. One example of a litigation public interest group is the NRDC. The NRDC is a named party in 328 reported cases, many of which have significantly changed the face of U.S. environmental law.54 NRDC cases have been cited thousands of times as precedent in other cases.

The group started in 1969 when a group of Yale law students and two practicing New York lawyers independently sought funds from the Ford Foundation to start a law firm for the environment. Rather than fund two such similar projects, the Ford Foundation put these two groups in touch with each other and urged them to work together on one grant.55 The NRDC has developed into an organization with an annual budget of over $ 15 million, assets of over $ 25 million, and over 170,000 members.56

The NRDC routinely involves itself in the administrative process. When the U.S. Environmental Protection Agency (EPA) or another government agency proposes rules interpreting enacted legislation, the NRDC reviews the proposed interpretation or regulation and challenges it if the NRDC finds it unreasonable, vague, or inconsistent with the statute under which the agency proposes to promulgate it.57 The NRDC has used the APA58 to challenge agency regulations affecting virtually every major federal environmental statute.

For example, in Natural Resources Defense Council v. Callaway,59 the NRDC successfully challenged the U.S. Army Corps of Engineers' (Corps') interpretation of the Federal Water Pollution Control Act (FWPCA).60 Section 404 of the Act mandated regulation of the deposit of dredge and fill material into the "waters of the United States."61 Although the FWPCA is generally administered by EPA, Congress delegated administration of § 404 to the Corps with EPA oversight of the Corps' permits. When the Corps refused to regulate the deposition of dredge and fill material in waters not traditionally thought of as navigable, the NRDC filedsuit against the Corps,62 arguing that Congress intended the FWPCA's scope to be much broader than that of the Rivers and Harbors Appropriations Act of 1899.63 In a short opinion, the U.S. Court of Appeals for the D.C. Circuit agreed with the NRDC and ordered the Corps to regulate the desposition of dredge and fill material into the "waters of the United States" rather than the narrowly defined "navigable " waters. The eventual result of this decision brought about the regulation and protection of wetlands through FWPCA § 404.64

In a more recent case, the NRDC successfully challenged EPA's interpretation of its duties to control nonpoint source (NPS) pollution. In Natural Resources Defense Council v. U.S. Environmental Protection Agency,65 the NRDC convinced the U.S. Court of Appeals for the Ninth Circuit to require EPA to document its reasons for excluding certain activities from the NPS program and for failing to set deadlines for municipalities to comply with program regulations.66

[] Seirra Club. Sierra Club67 has litigated a number of crucial issues, including issues concerning old growth forests, endangered species, wetlands, and wilderness. One of the most notable precedents established by a Sierra Club litigation is [23 ELR 10670] the doctrine of organizational standing.68 In Sierra Club v. Morton,69 the U.S. Supreme Court held that an organization may sue in the name of its members if at least one of the members meets traditional standing requirements.

The national Sierra Club funds only a small proportion of the litigation brought in the name of Sierra Club. The local and state sections typically provide funding for legal actions. The clubs generally bring litigation to protect a resource, rather than litigation to compel an agency to take action as the NRDC does. Most actions litigated have a purpose beyond a particular controversy, however.

In Memphis, Tennessee, for example, Sierra Club members noted the destruction of streams in areas being urbanized. Creeks were routinely ditched or lined with concrete without buffer green ways. Relying on a Tennessee law that prohibits alteration of state waters without a state permit,70 Sierra Club members filed a complaint with the state to require the city of Memphis to obtain a permit before altering any stream.71

A separate entity, the Sierra Club Legal Defense Fund,72 assists on big cases or institutes actions independent of Sierra Club. The Sierra Club Legal Defense Fund was born in part because U.S. tax laws disallow deductions for contributions to politically active groups. In 1991, the Sierra Club Legal Defense Fund had a budget of over $ 9 million and had over 160,000 supporters and members, many of whom are also Sierra Club members.73

[] The Southern Environmental Law Center. Another form of environmental advocacy group is the public interest law firm. Typically, such firms are formed as nonprofit corporations. They help various environmental groups with law suits, as well as initiating their own legal actions.

A recent case illustrates the joint efforts of environmental groups through public interest law firms. The Southern Environmental Law Center74 filed a law suit75 on behalf of five Tennessee and North Carolina environmental groups (the Wilderness Society, Sierra Club, Smokey Mountain Hiking Club, Tennessee Citizens for Wilderness Planning, and Tennessee Audubon Council). The suit challenged the National Forest Service's approval of a timber management plan for the Cherokee National Forest in Tennessee. The suit alleged that the Forest Service had violated the National Forest Management Act76 by approving a plan to allow logging of public forests at a rate that would deplete the forests without requiring the loggers to replace the trees harvested. The Cherokee Management Plan controls development activities in the Cherokee National Forest until the year 2000. The suit has not been resolved to date.

Lobbying

While public opinion has set the stage for environmental legislation, it is public interest groups with technical expertise and knowledge of the legislative process that have influenced the actual language and parameters of legislation. Many groups, such as Sierra Club and the NWF, focus significant efforts on lobbying to pass new protective laws or to amend existing laws.

[] Tennessee Environmental Council. A good example of a coalition group focusing its efforts on lobbying is the Tennessee Environmental Council (TEC).77 TEC is a coalition made up of numerous environmental groups within the state of Tennessee, including the state chapters of Sierra Club and the National Audubon Society. It focuses on local issues such as strip mining, incineration, forest destruction, and hazardous wastes. These groups have names such as Save Our Cumberland Mountains (SOCuM) and Save Shelby Farms Forest. TEC provides strength in numbers and a staff system that many of the smaller groups cannot afford.78

[] Sierra Club. John Muir and a group of 182 charter members formed the Sierra Club in 1892 in hopes of saving America's endangered natural treasures.79 A century later, Sierra Club has 600,000 members and a powerful voice in public policy. In addition to litigating, Sierra Club lobbies to protect natural resources. The club is also very active in lobbying and campaigning for candidates at local, state, and federal levels. It was instrumental in the passage of the Clean Air Act Amendments of 1990, the Alaska National Interest Lands Conservation Act of 1980,80 and the Wilderness Act of 1964.81 State chapters are active in grassroots issues. For example, the Tennessee chapter of Sierra Club82 produces a weekly summary83 of all the pending legislation involving environmental issues, which is mailed to 300 members across the state and urges support for or opposition to individual bills.84

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[] Greenpeace. Greenpeace has supported several pieces of federal legislation.85 Examples include two bills, each entitled the Circle of Poison Prevention Act,86 whose purpose was to ban U.S. production of pesticides for export when the pesticide is banned from use in the United States.

Direct Action

Direct action groups range from the nonviolent to the radical. They see their mission as attempting to focus attention on environmental problems through demonstrations that confront a practice, industry, or group with opposition. Radical environmental groups such as Earth First!, the Wolf Action Network, the Rain Forest Action Network, Virginians for Wilderness, and Preserve Appalachian Wilderness have been charged with destructive and sometimes illegal tactics, including spiking trees in old growth forests, pouring sand in logging equipment, and sabotaging whaling ships.87 The Greens have significant political influence in some European countries, notably Germany and England.88 Green committees have been forming in the United States over the last 10 years.89

Greenpeace, an international environmental advocacy group, is possibly the best known of the environmental direct action groups. It has been called both "militant and mainstream."90 Greenpeace members practice nonviolent forms of direct action protest such as blocking effluent discharge pipes, interfering with whale hunts, hanging banners, and sponsoring events to focus attention on environmental problems. They are also active in lobbying, and producing and distributing studies on toxics and various government activities.91

Greenpeace owns seven ships that carry its message around the world. Greenpeace originated through a protest over an atomic bomb test near the Alaskan coast in 1971. The group was then a small band of people in an old battered boat. Today, Greenpeace has grown to a major nonprofit organization with a staff of 400 in 35 offices. It operates in 18 countries.92

In 1988, Greenpeace sponsored an event that focused attention on the Mississippi River. The Greenpeace research vessel Beluga traveled down the Mississippi River from Chicago to New Orleans, measuring pollution levels along the river with state-of-the-art testing equipment.93

Land Trust Societies

Conservation land trust societies, such as the Nature Conservancy, were born out of the frustrations experienced by conservationists and activist groups as they struggled with the complex maze of federal and state environmental laws. Experiencing compromises or the total loss of the habitat they sought to protect, groups of individuals banded together to form nonprofit land trust societies. These societies raise money to purchase wilderness, wetlands, or easements over the land.

The main tool used by these groups is the conservation easement donated by the landowner or purchased by the land trust. A conservation easement is an encumbrance on property that restricts the development or use of the subject property. Easement restrictions are tailored to the particular property and to the interests and needs of the owner. The land trust society rarely holds title to land indefinitely. If the group determines that a private sale of the property is not feasible, the society will often transfer the land to the state where it is located, or provide for the state to hold and enforce the easement as grantee. When the land is held by the government the conservation society will sometimes purchase the land from the government, place easements on it, and sell it back to the government at its reduced value. Thus, the society must absorb the reduction in market value.

In order to claim tax benefits, an easement donor must donate or sell the easement for less than fair market value to a public agency or to a conservation or historic preservation organization that qualifies as a public charity under the Internal Revenue Code.94 Granting an easement on land decreases the value of the land and results in lower property taxes and a decrease in the value of the owner's net estate for estate tax purposes.95

Education of the Public

The Environmental Education Act96 authorized programs relating to education of the public. It established an Office of Environmental Education and the Advisory Council on Environmental Education. Funding for this program expired in 1977. Additionally, EPA creates pamphlets, film strips, and other programs for community education.97 These programs have not gained significant public exposure and much of the work of educating the population on environmental issues has been left to nonprofit interest groups and for-profit schools with an environmental focus. The 1993 Earth Journal's Directory to Environmental Education Programs lists over 100 groups with education programs.98 Many of these organizations provide education relating to a specific problem.99 [23 ELR 10672] The goal of many of them is outdoor recreation and appreciation, as opposed to scientific education.

Most environmental groups have an education component. These vary in depth and scope, but virtually all encourage people to become interested in and more knowledgeable about the environment. The programs range from simple newsletters and workshops to long-term outreach programs. Ducks Unlimited, Trouts Unlimited, Rails to Trails Conservancy, and the World Wildlife Fund all have extensive educational programs. Sierra Club's Inner City Outings (ICO) program100 is a national program that provides outings and environmental education for selected groups of inner city children. Typically, a Sierra Club ICO program will work with an inner-city school or community center or a YMCA to provide a long-term program of outings coupled with environmental education.101 The National Audubon Society also has a very active education program directed toward school-age children.102 The national office provides educational materials to local Audubon chapters, which pass this information on to their adopted schools.103

An example of a long-term environmental education program is the recent initiative of the Mid-South Peace and Justice Center in Memphis, Tennessee.104 The center has undertaken a toxics awareness program in Memphis, providing newsletter articles, lectures, study circles with community members, and a large toxics seminar. The purpose of the campaign is to recognize and then address the issue of environmental racism, as well to raise general public consciousness about toxics in the environment.105

Another environmental group with educational programs is TEC. TEC monitors and distributes public notices regarding state permits, rules, and projects, including government projects and applications by private parties for permits to alter streams and wetlands or to store waste or to construct a landfill.

Site Preservation

The final category of public interest groups considered here includes organizations formed to preserve a particular geographical feature or site.106 Some of the major national groups functioning today began as site-specific groups. Both Sierra Club and Greenpeace were formed to protest degradation of particular sites.

Examples of such groups abound. A perusal of the table of contents of any casebook on environmental law will reveal a host of public interest groups with site-specific purposes.107 Almost any city of significant size has several such groups.108 In Memphis, Tennessee, the Wolf River Conservancy and the Chickasaw Bluffs Conservancy are environmental groups that have the specific purpose of protecting the feature from which they took their names. One of the most famous of such groups also had its birth in Memphis — Citizens to Preserve Overton Park. This citizen group took its case against the U.S. Department of Transportation to the U.S. Supreme Court and prevailed, ultimately halting the construction of an interstate highway system intended to traverse the center of a Memphis park.109

Site-specific groups often work by interacting with local governmental bodies such as city councils and city commissions, or county governmental bodies such as the county commission or county zoning boards. These groups have been instrumental at both the local and state level in achieving protection for the particular resource they are dedicated to preserving. Many of the endangered species currently listed have been found and listed as a result of the efforts of biologists who surveyed an area to help a group argue that a project slated for the area — whether it be construction of a dam or an airport, or some other federal action — violated the provision of the ESA prohibiting federal actions that endanger a species.110

Political Parties

Any major legislation must have the support of the party in power to pass both houses of Congress without suffering the crippling effect of committee changes and amendments that undermine its purpose. Whether the party system has furthered environmentally protective legislative is doubtful, however. The first and overriding goal of each political party is the acquisition and maintenance of its own power and its own continued existence.111

In his article, The Role of the Democratic and Republican [23 ELR 10673] Parties As Organizers of Shadow Interest Groups,112 Jonathan R. Macey explores the interaction of special interest groups he calls shadow interest groups within the established political parties.113 Professor Macey describes such shadow interest groups as falling somewhere between the two extremes of well-organized political interest groups and the general public and asserts that such groups hold and exert increasing influence in the U.S. political forum. Shadow interest groups benefit from the information that the political parties have gathered and made available.114 Unlike political parties or organized public interest groups, shadow interest group members act in small pockets or as individuals. The shadow interest groups follow an ideology relative to specific issues or concerns. Issues rather than political ideology is supreme for such groups.115 Macey argues that political parties serve as "political brokerage firms," enabling unorganized groups (shadow interest groups) to gain information and express their viewpoint in the political arena.116 He also notes that political parties "provide a mechanism by which politicians can make credible (bonded) promises to these groups."117

Arguably, the more organized environmental public interest groups would qualify for Macey's category of "true interest groups" rather than "shadow groups." Most environmental groups, whether highly organized or less organized, share one characteristic of shadow interest groups emphasized by Macey — "their policy preferences are almost exclusively tied to a particular set of issues,"118 rather than to political ideology. If we regard environmental public interest groups and perhaps even the segment of the public that consistently voices environmental concerns as within Macey's category of "shadow interest groups,"119 the recent history of public opinion seems to support Macey's thesis that political parties' are brokers of promises by politicians to interest groups.

Public Opinion, Political Parties, and the Political Process

The need for political initiatives on the environment has arisen not because political parties have motivated the public to examine environmental issues but because the public and perhaps "shadow interest groups" have demanded that the legislature institute laws protective of environmental resources and human health. This point is not so much a criticism of our system as an acknowledgement of its priorities. Public opinion is typically the genesis of changes in the law necessary for the public good. Even accepting this fact, however, the major political parties bear some responsibility for delays in achieving needed environmental protection. Vice President Gore has written:

Too often, politics and politicians have not served us well on environmental issues, but there is also a fundamental problem with the political system itself. Aside from its uninspired response to the environmental crisis, our political system itself has now been exploited, manhandled, and abused to the point that we are no longer making consistently intelligent choices about our course as a nation…. Thirty-second television commercials and sophisticated public opinion polling can now calibrate and target a political message with frightening speed and accuracy, and they can do more to manipulate the opinions of voters in two weeks than all the speeches and debates and political organizations together can accomplish in ten years.120

When it became clear that the common law of nuisance would not be adequate to provide protection of the environment and control of modern pollution problems and that the public favored protection, Congress and state legislatures passed a variety of statutes dealing with a wide range of environmental problems. Regulation extended to particularly hazardous substances, including toxics under the Toxic Substance Control Act,121 the Federal Insecticide, Fungicide, and Rodenticide Act,122 and the Comprehensive Environmental Response, Compensation, and Liability Act.123 Other statutes, including the FWPCA and the Clean Air Act,124 focused not on hazardous substances themselves, but on the media of our planet. Also, legislative bodies have sought to protect resources deemed to be particularly fragile or in need of intervention to preserve them. Examples of such legislation are the Forest and Rangeland Renewable Resources Acts,125 the Multiple-Use Sustained-Yield Act of 1960,126 the ESA, the FWPCA provisions that afford protection to wetlands, the Migratory Bird Treaty Act of 1976,127 and other acts aimed at protecting specific resources.128

Despite the shortcomings of our party system, most agree that the political arena is the best forum for setting goals and determining environmental priorities.

The politician does not reject thediscipline of economics; she merely switches to accommodate a broader range of values than most policy-oriented economists are willing to address. The pollution problem is not merely an economic problem, as some policy-oriented economists maintain; rather it is primarily a political problem to be resolved by the political process.129

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Conservatives and liberals agree that environmental problems can best be addressed through the political process.130

Even the staunchest of government-hands-off conservatives agree that some type of government intervention is generally called for in the case of pollution. Most environmental problems, pollution among them, must be solved by government action if they are to be solved at all.131

Conclusion

The advent and development of environmental law in the United States has been the direct result of a change in public opinion over the last 25 years. The general public has gained greater awareness and appreciation for environmental values. Congress has responded with legislation to prevent harm and to remediate the physical environment when contamination has occurred. Public opinion has been the impetus for legislation and enforcement of such legislation. The specific provisions of federal laws now existing have been formulated in large part as the result of efforts of environmental public interest groups working through political parties and the political process. The contours of these laws also have been affected by the countervailing forces of public interest groups and industry groups.

The interaction of public opinion, environmental public interest groups, and political parties has resulted in a consensus that environmental and health values must be given weight in the regulation of industry in the United States. Whether that consensus will endure and whether it will control in particular disputes is unknown. What is clear is that the story of environmental law in the United States, still in its early chapters, will continue to be written by public opinion, environmental public interest groups, and political parties.

1. See FREDERICK R. ANDERSON ET AL., ENVIRONMENTAL PROTECTION: LAW AND POLICY xvi (1990); see also JOHNE. BONINE & THOMAS O. MCGARITY, THE LAW OF ENVIRONMENTAL PROTECTION viii-ix (2d ed. 1991).

2. "Pollution usually was only a local public health problem. Only in Los Angeles, because of the combination of population and geography, did air pollution emerge in the 1950s, as other than a smoke nuisance problem." ANDERSON, supra note 1, at xxi.

3. For example, underground storage tank legislation came about as a program under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 11-78, after public scrutiny was focused on the issue by news media coverage of the health risk created by leaking underground storage tanks. See, e.g., Florio Vows Fight on Superfund Bill, N.Y. TIMES, Aug. 11, 1985, at A16; Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221.

4. Journalists and the news media have been a separate powerful influence in this arena.

5. See G. TYLER MILLER, AN INTRODUCTION TO ENVIRONMENTAL SCIENCE: LIVING IN THE ENVIRONMENT 561, 572-73, 616, 620 (7th ed. 1992).

6. One scholar has written:

American culture has developed, at every stage, with an acute awareness of wilderness — although more often in the direction of clearing the land, rather than saving it. Nevertheless, consciousness of wilderness has been essential to the American character, and a constant source of national pride. Columbus wrote of "fields very green and full of an infinity of fruits as red as scarlet, and everywhere there was the perfume of flowers and the singing of birds very sweet." … [R]everence for the American wilderness lit the inner eye with which early Americans saw nature.

Charles J. Meyers, An Introduction to Environmental Thought: Some Sources and Some Criticisms, 50 IND. L.J. 426, 428-29 (1975); see also E. Freyfogle, The Land Ethic and Pilgrim Leopold, 61 U. COLO. L. REV. 217 (1990).

7. See generally J. Huffman, Avoiding the Takings Clause Through the Myth of Public Rights: The Public Trust and Reserved Rights Doctrines at Work, 3 J. LAND USE & ENVTL. L. 171 (1987); J. Huffman, Trusting the Public Interest to Judges: A Comment on the Public Trust Writings of Professors Sax, Wilkinson, Dunning, and Johnston, 63 DENV. U. L. REV. 565 (1986).

8. Search of WESTLAW, Newspapers and Information library, Polls dialog database (June 29, 1993) (search for records containing "environment" in TEXT field). The Roper Center for Public Opinion Research is based at the University of Connecticut. Poll results have been collected and evaluated since 1970. Information detailing the group surveyed and the date the survey was conducted was included with each survey question in the documentation on WESTLAW. Likewise, the group conducting the survey and the source of the survey was also included for each survey question. Each survey was based on personal and telephone interviews. The sample numbers ranged from 500 to 16,000.

9. See WESTLAW, supra note 8 (search for the terms "environment; problems; government; regulation").

10. See Michael Silverstein, Bush's Polluter Protectionism Isn't Pro-Business, WALL ST. J., May 28, 1992, at A21.

11. Pub. L. No. 101-549, 104 Stat. 2399.

12. One scholar has written:

This maturation [of environmental law] occurred in the face of considerable opposition to environmental protection by the Reagan administration, especially the first administration. Environmental law continued to develop despite this position because the legislative programs of the 1970s were left in place and enforcement efforts increased in the mid-1980s. Since 1980, Congress has considered the reauthorization of almost all major programs and rejected fundamental revisions in their structure.

ANDERSON, supra note 1, at xxix. See also JERRY RIFKIN & CAROL GRUNEWALD RIFKIN, VOTING GREEN: YOUR COMPLETE ENVIRONMENTAL GUIDE TO MAKING POLITICAL CHOICES IN THE 1990's (1992).

13. See Democrats on the Environment, 22 ELR 10697 (Nov. 1992); Republicans on the Environment, 22 ELR 10699 (Nov. 1992). Opinion polls show that over the past 23 years, the public has perceived the Democratic party as a better protector of the environment than the Republican party. Likewise, during those 23 years, the Democratic nominee for President has held a consistent though not dramatic lead of 5 to 15 points over the Republican nominee in this category. In the 1992 campaign, Bill Clinton held only a 6 to 15 point lead at any one time over George Bush or Ross Perot in this category until the addition of Al Gore as the candidate for Vice President at the Democratic convention in July 1992. After Gore's addition to the ticket, the polls showed a surge in Clinton's ranking on environmental issues — at times as much as 50 points ahead of Bush. See WESTLAW, supra note 8 (search for the terms "presidential approval; parties; future; environment; election; presidency; leaders; vote for president"). For a further discussion of the interaction between public opinion and political parties, see infra notes 121-32 and accompanying text. See also RIFKIN & RIFKIN, supra note 12.

14. See Larry Tye, The Tough Decisions Facing EPA May Swamp Reilly, Critics Say, BOSTON GLOBE, Dec. 23, 1988, at 8; Ross K. Baker, Stumbling at the 'Bully Pulpit': Bush Has Not Used His License to Command Center Stage, L.A. TIMES, May 29, 1989, at 5.

15. This majority was narrowest after the energy crisis in the late 1970s. See WESTLAW, supra note 8 (search for the terms "presidential approval; environment").

16. Id. (search for the terms "spending; environment"). This result was consistent throughout the span of the polls, despite the question being rephrased to emphasize an increase in consumer prices due to stricter government regulation to protect the environment. When asked if the government was spending too much or too little on the environment, the most frequent response was "too little." See WESTLAW, supra note 8.

17. The Green Consumer Guide, published in 1988, was on the best-seller list for 35 weeks. See Tom Burke, The Year of the Greens: Britain's Cultural Revolution, 31 ENVIRONMENT 18 (1989). Polls in 1992 show that the importance of environmental values to Americans has increased and an "increasing proportion of individuals are trying" to apply these values in their daily lives. See Frederick Allen & Gregg Sekscienski, Greening at the Grassroots: What Polls Say About Americans' Environmental Commitment, 18 EPA J. 52 (1992).

18. Michael Alexander, The Challenge of Markets, 18 EPA J. 29 (1992).

19. For example, Target sponsors the Kids to Save The Earth Program. Wal-Mart Stores, Inc. labels products which are environmentally sensitive and, significantly, points out such labelling in its televised advertisements. Northwest Airlines, Inc. advertises its program for recycling aluminum cans and plastic dinnerware that it uses for in-flight dining.

20. See David Flaum, Social Investing Soothing to Conscience, MEMPHIS COM. APPEAL, Jan. 28, 1985, at B4. "Socially Responsible Investing" is a regular department report in the Co-op America Quarterly, a periodical published in Washington, D.C. The fifth edition of Co-op America's Financial Planning Handbook, which presents ideas on green investing, will be available in the spring of 1993.

21. JOSEPH E. DANIEL, 1993 EARTH JOURNAL: ENVIRONMENTAL ALMANAC AND RESOURCE DIRECTORY (1992).

22. Id. at 278.

23. See, e.g., FWPCA § 309(c), 33 U.S.C. § 1319(c), ELR STAT. FWPCA 64 (making knowing violation of FWPCA punishable by criminal penalties of fines and imprisonment); TENN. CODE ANN. § 68-221-713(g) (1992) (declaring willful violation of water laws a felony); see also Lisa A. Harig, Ignorance Is Not Bliss: Responsible Corporate Officers Convicted of Environmental Crimes and the Federal Sentencing Guidelines, 42 DUKE L.J. 145 (1992).

Both state and federal authorities are prosecuting environmental crimes and judges are imposing prison sentences on convicted violators. In 1991, the EPA Office of Enforcement, Criminal Investigations Division, reported convictions of 26 corporations and 49 individuals for criminal violations of federal environmental laws. See REGION IV CRIMINAL INVESTIGATION DIV., EPA, YEAR END REPORT (1991) (on file with author). For 1992, the American Bar Association Environmental Crimes & Enforcement Committee reported:

[Nineteen ninety-two] saw a record high in federal indictments and penalties for environmental crimes. The Justice Department (DOJ) reported 191 indictments as well as the imposition of $ 163,064,344 in penalties, during its 1992 fiscal year period. Penalties against individual corporations during this period were often much larger than in prior years, with Exxon being fined a record of $ 125 million in relation to the Valdez oil spill.

ENVTL. CRIMES & ENFORCEMENT COMM., AM. BAR ASS'N NATURAL RESOURCES, ENERGY AND ENVIRONMENTAL LAW: 1992 THE YEAR IN REVIEW 155 (1993) (footnotes omitted); see also William W. Bedsworth, The Verdict, SIERRA, May/June 1993, at 83.

24. See Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968), reprinted in ANDERSON, supra note 1, at 20 (suggesting mutual coercion in the context of relinquishing the freedom to reproduce without constraints).

25. DANIEL, supra note 21, at 344.

26. See WESTLAW, supra note 8 (search for the terms "environment; participation; groups; consumer").

27. The nature of the missions of public interest groups, as well as their existence itself, bears a direct relationship to the political structure and the realities of the political system of the United States. For example, in the U.S. federalist system of government, states often impose environmental protection requirements over and above that required by federal law. See Concerned Citizens of Neb.v. Nuclear Regulatory Comm'n, 970 F.2d 421, 22 ELR 21334 (8th Cir. 1992). Some federal statutes, such as the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA 002-034, for example, preempt state legislation in particular areas. See FIFRA § 24(b), 7 U.S.C. § 136v(b), ELR STAT. FIFRA 031. In part because of this principle, most environmental public interest groups operate on the state as well as federal level.

28. Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 473 (1969-70).

29. See 28 U.S.C. § 1331 (1988 & Supp. III 1991). One of the earliest cases involving a group demanding protection of a scenic value was heard in 1965. See Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965), cert. denied, 384 U.S. 941.

30. See, e.g., FWPCA §§ 505, 509, 33 U.S.C. §§ 1365, 1369, ELR STAT. FWPCA 101-102 (providing for citizen suits and recovery of attorneys fees for substantially prevailing party to compel performance of any nondiscretionary act under the FWPCA).

31. See Jeanette L. Austin, The Rise of Citizen-Suit Enforcement in Environmental Law: Reconciling Private and Public Attorneys General, 81 NW. U. L. REV. 220 (1987); Joseph L. Sax & Joseph F. DiMento, Environmental Citizen Suits: Three Years' Experience Under the Michigan Environmental Protection Act, 4 ECOLOGY L.Q. 1 (1974).

32. 5 U.S.C. §§ 506-559, 701-706, ELR STAT. APA 5-39.

33. 5 U.S.C. § 706, ELR STAT. APA 21.

34. Id.

35. 112 S. Ct. 2130, 22 ELR 20913 (1992).

36. See 51 Fed. Reg. 19926 (1986); 50 C.F.R. § 402.01 (1991). The joint rule provided for consultation relating to foreign actions. See 43 Fed. Reg. 874 (1978).

37. 16 U.S.C. § 1536, ELR STAT. ESA 010.

38. This rule, promulgated in 1986, reversed the long-standing rule that § 7 applied to all federal agency actions whether the actions occur in the United States or in a foreign nation. The merits of the case were never reached, however, because the Court applied a very restrictive standing requirement.

39. ESA § 7 requires that "each Federal Agency, in consultation with the Secretary of the Interior, insure that any agency action authorized, funded, or carried out by such agencies … is not likely to jeopardize the continued existence of any endangered species." 16 U.S.C. § 1536(a)(2), ELR STAT. ESA 011.

40. See Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136, 22 ELR 20913, 20917 (1992).

41. Id. at 2137, 22 ELR at 20917.

42. Id. at 2137-38, 22 ELR at 20917.

43. Id. at 2148-49, 22 ELR at 20921.

44. Id. at 2140, 22 ELR at 20917.

45. See 16 U.S.C. § 1536(a)(2), ELR STAT. ESA 010-11. This provision states:

All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title.

46. Id. (emphasis added).

47. The citizen suit provision of the Act states that "any person may commence a civil suit on his own behalf — A) to enjoin any person, including the United States … who is alleged to be in violation of any provision of this chapter…." ESA § 7(g), 16 U.S.C. § 1540(g), ELR STAT. ESA 025.

48. Lujan, 112 S. Ct. at 2142, 22 ELR at 20919.

49. In Sierra Club v. Clinical Handling Corp., 35 Env't Rep. Cas. (BNA) 1562 (D. Colo. 1992), the court held that Sierra Club had standing to bring an action alleging a RCRA violation based on the fact that the members it represented lived and owned property in the neighborhood where Clinical Handling Corporation carried out its business.

50. The national headquarters of the NRDC is located at 40 West 20th Street, New York, New York 10011.

51. The national headquarters of the Environmental Defense Fund is located at 257 Park Avenue South, New York, New York 10010.

52. The NWF is located at 1400 16th Street, N.W., Washington, D.C. 20036- 2266.

53. The national headquarters of Sierra Club is located at 730 Polk Street, San Francisco, California 94109.

54. Search of WESTLAW, Allfeds library (July 1993).

55. NATURAL RESOURCES DEFENSE COUNCIL, 1992 ANNUAL REPORT (1991).

56. Individual donations account for a majority of the NRDC's funding. Foundation grants and contract work, such as producing reports on toxics in groundwater, make up the balance of funding. Id.

57. NATURAL RESOURCES DEFENSE COUNCIL, supra note 55.

58. See 5 U.S.C. § 706, ELR STAT. APA 21. This law allows anyone who is an " aggrieved person" affected by an agency decision to file suit challenging the decision as arbitrary or capricious or otherwise not in accordance with the law.

59. 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).

60. 33 U.S.C. § 1251-1387, ELR STAT. FWPCA 13-110.

61. 33 U.S.C. § 1344, ELR STAT. FWPCA 94.

62. Callaway, 392 F. Supp. at 686, 5 ELR at 20285.

63. Ch. 425, 36 Stat. 593 (codified as amended at 33 U.S.C. §§ 401-418 (1988)).

64. Id.

65. 966 F.2d 1292, 22 ELR 20950 (9th Cir. 1992).

66. Id. Upon passage of the FWPCA in 1972, deposition of dredge and fill and discharge of pollutants from point sources, pipes, and ditches were regulated through § 404, 33 U.S.C. § 1342 (1973), amended by 33 U.S.C. § 1342 (1988 & Supp. III 1991), which controls the deposition of dredge and fill into the waters of the United States, and § 402, 33 U.S.C. § 1344 (1973), amended by 33 U.S.C. § 1344 (1988 & Supp. III 1991), which controls point source discharges into waters of the United States. Congress intentionally left a gap in the early legislation for the eventual control of NPS pollution, the cumulative effect of water running over hard surfaces such as parking lots, industrial areas, or construction sites and in the process picking up pollutants. FWPCA § 402 set deadlines for EPA to set rules and guidelines to control NPS pollution. EPA delayed promulgation of the rules for some time. When the rules were finally promulgated in draft form, the NRDC criticized the proposed rules for failing to fully regulate pollutants known to exist in NPS polluted runoff. The NRDC supplied numerous scientific reports and statistics to support its assertions.

67. For a further discussion of Sierra Club, see also infra notes 79-84 and accompanying text.

68. CHRISTOPHERD. STONE, SHOULD TREES HAVE STANDING, TOWARDS LEGAL RIGHTS FOR NATURAL OBJECTS (1988).

69. 405 U.S. 727, 2 ELR 20192 (1972).

70. TENN. CODE ANN. § 69-3-108 (Supp. 1993).

71. In re City of Memphis, No. 88-3365, slip op. (Tenn. Water Quality Control Bd.) (copy on file with author). See Tom Charlier, City Stream Policy Draws 10,000 (dollar) Fine, MEMPHIS COM. APPEAL, July 9, 1988, at B1; Interview with Larry Smith, Chair of Wetlands section, Sierra Club, in Memphis, Tenn. (Mar. 20, 1993). As a result of this case, a permit process was implemented, requiring public notice and comment. Some streams have been saved because of the process and developers have begun planning green buffer zones in anticipation of compliance with the permit process. The local planning authority has amended its drainage planning procedure to take into account the need to preserve the area's stream and wetland ecologies.

72. The Sierra Club Legal Defense Fund intends to drop "Sierra Club" from its name.

73. SIERRA CLUB LEGAL DEFENSE FUND, IN BRIEF (Winter 1993) (1991-92 annual report).

74. The Southern Environmental Law Center is located at 201 West Main Street, Suite 14, Charlottesville, Virginia 22901.

75. Wilderness Soc'y v. Alcock, No. 1:92-CV-1040-ODE (N.D. Ga. filed May 1, 1992).

76. 16 U.S.C. §§ 1600-1614, ELR STAT. NFMA 002-012.

77. TEC is located at 1700 Hayes Street, Suite 101, Nashville, Tennessee 37203.

78. TENNESSEE ENVTL. COUNCIL, PROMOTIONAL BROCHURE (on file with author).

79. SIERRA CLUB, CENTENNIAL CAMPAIGN (Sept. 1992) (draft case statement).

80. Pub. L. No. 96-487, 94 Stat. 2371 (codified as amended in scattered sections of 16 U.S.C. & 43 U.S.C.).

81. 16 U.S.C. §§ 1131-1136 (1988 & Supp. III 1991).

82. The address of the Tennessee chapter of Sierra Club is P.O. Box 15847, Nashville, Tennessee 37215.

83. The weekly summary is entitled Tennessee Legislative Update.

84. See TENNESSEE CHAPTER, SIERRA CLUB, TENNESSEE LEGISLATIVE UPDATE.

85. The U.S. headquarters of Greenpeace is located at 1436 U St., N.W., Washington, D.C. 20009. For further information on Greenpeace, see infra notes 90-93 and accompanying text.

86. S. 898, 102d Cong., 1st Sess. (1991); H.R. 2083, 102d Cong., 1st Sess. (1991).

87. See Jennifer Foote, Trying to Take Back the Planet, NEWSWEEK, Feb. 5, 1990, at 24. The Federal Bureau of Investigation has alleged that radical environmentalists have cut lines to nuclear power plants. Id. at 25.

88. Tom Burke, The Year of the Greens: Britain's Cultural Revolution, 31 ENVIRONMENT 18 (Nov. 1989).

89. NAT'L CLEARING HOUSE GREEN COMMS. OF CORRESPONDENCE, GREEN MOVEMENT IN AMERICA (on file with the author). The address of the Clearing House is P.O. Box 30208, Kansas City, Missouri 64112.

90. Foote, supra note 87, at 25.

91. See GREENPEACE, PROMOTIONAL LITERATURE (on file with Greenpeace, 1436 U St., N.W., Washington, D.C. 20009); GREENPEACE, NEVER REGISTERED PESTICIDES (July 1990); GREENPEACE, EXPORTING BANNED PESTICIDES (Aug. 1989).

92. Id.

93. See GREENPEACE, We All Live Downstream, MISSISSIPPI RIVER CAMPAIGN, PROMOTIONAL LITERATURE (1988).

94. See 26 U.S.C. § 501(c)(3) (1988) & Supp. III 1991).

95. See JANET DIEHL & THOMAS S. BARRETT, THE CONSERVATION EASEMENT HANDBOOK (1988).

96. 20 U.S.C. §§ 1531-1536 (only authorized appropriations from 1970 through 1977).

97. See Jeff Lewis, Environmental Education: Past and Present, 14 EPA J. 30, 31 (1988).

98. Daniel, supra note 21, at 366-89.

99. For example, the purpose of the Acid Rain Foundation, Inc., is apparent from its title.

100. The national headquarters of the Sierra Club is located at 730 Polk Street, San Francisco, California 94109.

101. Sierra Club provides insurance and guidelines for implementing an ICO program, but the local group of the Sierra Club initiates and manages an ICO program. A typical ICO program will have its own treasury and fund-raising drives.

102. The headquarters of the National Audubon Society is located at 700 Broadway, New York, New York 10003-9501.

103. Interview by Larry Smith with Ms. Marty Patchel, representative of the Memphis, Tennessee, chapter of the National Audubon Society, in Memphis, Tenn. (Apr. 2, 1993).

104. The address of the Mid-South Peace and Justice Center is 499 South Patterson Street, Memphis, Tennessee 38111 (or P.O. Box 11428, Memphis, Tennessee 38111).

105. "Environmental racism" is a new term for an old problem. In short, those who bear the greatest exposure to toxic waste are those who have the least economic and political power. See Luke W. Cole, Remedies for Environmental Racism: A View from the Field, 90 MICH. L. REV. 1991 (1992).

106. Most of these groups seek tax-free status as nonprofit entities under tax laws. For statutory requirements of nonprofit corporations, see 26 U.S.C. § 501(c) (1988 & Supp. III 1991).

107. See, e.g., Calvert Cliff's Coordinating Comm., Inc. v. Atomic Energy Comm'n, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971); Sierra Club v. Hodel, 848 F.2d 1068, 18 ELR 21237 (10th Cir. 1988).

108. A related category consists of groups designed to save a particular resource such as seals or whooping cranes. The NWF has a broader purpose, to preserve endangered species generally through land acquisition, education and other efforts.

109. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971). For a review of the history and impact of the case, see Peter L. Strauss, Revisiting Overton Park: Political and Judicial Controls Over Administrative Actions Affecting the Community, 39 UCLA L. REV. 1251 (1992). The U.S. Supreme Court's opinion in this case is discussed in many administrative law and environmental law casebooks. See, e.g., BONINE & MCGARITY, supra note 1, at 391. Examples of site-specific public interest groups in Tennessee include the Dead Pigeon River Council, Save Our Cumberland Mountains, and the Tennessee Valley Energy Coalition.

110. ESA § 7, 16 U.S.C. § 1536, ELR STAT. ESA 010.

111. To some extent, this criticism can also be made of environmental public interest groups. The educational surveys and door-to-door opinion polls serve to gather money as well as information.

112. See Jonathan R. Macey, The Role of the Democratic and Republican Parties as Organizers of Shadow Interest Groups, 89 MICH. L. REV. 1 (1990).

113. Id.

114. Id.

115. Id.

116. Id. at 1.

117. Id. at 2.

118. Id. at 2.

119. Certainly such individuals should not be lumped with the general public insofar as the public is classified by Macey as "atomistic" and a "highly unorganized, disagreeable" group, voting merely a personal agenda. Id. at 1, 28.

120. AL GORE, EARTH IN THE BALANCE 167 (1992).

121. 15 U.S.C. §§ 2601-2671, ELR STAT. TSCA 003-056.

122. 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA 002-034.

123. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 7-61.

124. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA 19-194.

125. Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476 (current version at 16 U.S.C. §§ 1600-1614 (1988 & Supp. III 1991)); Forest and Rangeland Renewable Resources Act of 1978, Pub. L. No. 95-307, 92 Stat. 353 (current version at 16 U.S.C. §§ 1641-1647 (1988 & Supp. III 1991)).

126. Pub. L. No. 86-517, 74 Stat. 215 (current version at 16 U.S.C. §§ 528-531 (1988)).

127. 16 U.S.C. §§ 703-711 (1988 & Supp. III 1991).

128. See, e.g., Wild and Free-Roaming Horses and Burrows Act of 1971, 16 U.S.C. §§ 1331-1340 (1988 & Supp. III 1991).

129. Thomas O. McGarity, Media-Quality, Technology, and Cost-Benefit Balancing Strategies for Health and Environmental Registration, 46 LAW & CONTEMP. PROBS. 159, 191 (1992).

130. Daniel Farber, Environmentalism, Economics, and the Public Interest, 41 STAN. L. REV. 1021, 1022 (1989).

131. James E. Krier, The Pollution Problem and Legal Institutions: A Conceptual Overview, 18 UCLA L. REV. 429 (1971).

23 ELR 10665 | Environmental Law Reporter | copyright © 1993 | All rights reserved