Justice Department Study of Environmental Courts: Article by Deputy Assistant Attorney General Kiechel in this Issue

The Justice Department is presently investigating the feasibility of establishing a separate court system having exclusive jurisdiction over environmental issues.Section 9 of the Federal Water Pollution Control Act Amendments of 1972 authorized the study which will culminate in a report to Congress by October, 1973. As the keynote address of a two-day conference of the Special Committee on Environmental Law of the ABA, Deputy Assistant Attorney General Walter Kiechel, Jr. of the Justice Department gave a progress report on the feasibility study.¹ Although the study is not yet half over, it appears that Justice will probably recommend strongly against establishing an environmental court.

In his address Mr. Kiechel described the three proposed models for an environmental court. The first model is patterned after the Court of Claims and would have jurisdiction to hear environmental cases generally. Trial judges would hear trial matters, and a panel of such judges would constitute a reviewing court. Jurisdiction would be exclusive. The second model would establish a panel of judges with exclusive jurisdiction to review federal administrative decisions affecting the environment. This would be the sole function of the court. The third model would also have a panel of judges, but the review would only encompass decisions of designated agencies or of specified matters of such agencies.

As part of its study, Justice asked 26 agencies and 9 private organizations to comment on the merits of the three models. The responses were nearly unanimous in their strong opposition to the entire concept of a separate environmental court. Significantly, commentators gave little credence to the idea that an environmental court would be more competent to deal with the complexities of environmental litigation. In addition, Justice's investigation of the effect environmental litigation has had on the caseload in the federal courts revealed that less than 0.7 per cent of the current docketed caseload of the federal courts could be characterized as environmental.

Mr. Kiechel concluded his address by stating that an environmental court probably would not solve existing problems. Rather, he recommends more sophisticated procedures for Executive consideration of § 102(2)(C) impact statements.

In an ELR article last month entitled "Developments in Environmental Law," Judge Oakes of the Second Circuit stated that the establishment of an environmental court would be unwise for several reasons.² First, because environmental law has its roots in so many legal areas, it is crucial that judges who hear environmental cases have more than a passing familiarity with the more general body of legal concepts. Second, the cross-fertilization which occurs from having different courts rule on similar environmental issues provides a healthy testing ground from which the fittest principles will emerge. Third, centralized litigation would present insuperable problems for citizen plaintiffs in outlying areas. Fourth, special environmental judges might be more subject to lobbying than other federal judges. Finally, the current court system already allows for the consideration of the best technical expertise in environmental areas.

Judge Oakes concludes this section of his article by suggesting that an impartial environmental agency — with no developmental mandate — having a veto power over the projects of other agencies might be given further consideration. For instance, EPA could be given quasijudicial powers, or another agency could be created.

The Environmental Law Institute responded briefly to Justice's proposals. In a letter to Assistant Attorney General Kent Frizzell, Frederick R. Anderson emphasized the difficulty of defining the jurisdiction of an environmental court. In the letter, Mr. Anderson referred to a study for the National Water Commission by Grant P. Thompson, who was then an Institute Fellow. In his study, Courts and Water: The Role of the Judicial Process,³ Mr. Thompson contrasted the narrow bodies of law and neat patterns of jurisdiction of the present specialized courts with jurisdiction in the water resource field:

The hope for a neatly drawn system of water courts fades. A water case can arise in any number of ways and in a variety of factual and legal contexts. No single statute or code governs the field. It is difficult to know what specialty would best serve a judge if he were charged with hearing all water cases [pp. 10-11].

Mr. Thompson forcefully states the case for retaining the present system of generalist judges. "In decisions with large technical components," he asserts:

we must consider whether those components dominate or whether non-technical balancing of conflicting considerations is key. Some technical questions are clearly a matter of public policy. When a decision is made in Congress this is easily recognizable. A decision to build a prototype supersonic transport airplane involves economics, intangible matters of world prestige and highly complex engineering decisions. But to label that decision economic or sociological or scientific misses the point: it was a policy resolution concerning competing demands upon limited resources.

A similar weighing of public policy considerations takes place when courts act [p. 45].

As such an example, Mr. Thompson cites the Overton Park⁴ case, in which expertise would have been beside the point.

1. Reprinted at 3 ELR 50013.

2. 3 ELR 50001 (April, 1973).

3. Available from ELI (182 pp., $6.00).

4. 401 U.S. 402, 1 ELR 20110 (1971).