3 ELR 50001 | Environmental Law Reporter | copyright © 1973 | All rights reserved

Developments in Environmental Law [3 ELR 50001]

I will try to give you in a few moments one federal judge's view of certain recent developments in environmental law. It will necessarily be rapid-fire and broadly reportorial. I will follow with some thoughts on the role of litigation in safeguarding the environment. Despite the title of this talk, I come to you today with no gospel, no Word, very little sermon, but merely with a built-in set of biases and prejudices probably equivalent to those of the person sitting next to you, but not to your own.

The first problem for an introductory speaker is to attempt to answer the question, what is environmental law? I underestand there are now five casebooks on it and 80 professors teaching it; there are two law reporter services (Environmental Law Reporter, Environment Reporter) and a number of law reviews. The field, however, is diffuse. It comes, among other things, from international law, constitutional law, administrative law, public health law, nuisance law, natural resources and property law, conservation law, and a myriad of statutes, federal and state. So to narrow the field somewhat, I will consider developments in the courts — that is, in litigation only — and will discuss briefly four areas that are largely procedural in nature: (1) standing, (2) financing the costs of litigation, (3) NEPA, and (4) nuisance as a form of environmental action.

Standing

"Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy"1 has been traditionally referred to as the issue of standing to sue. No discussion of standing can proceed very far without mention of Scenic Hudson I,2 the Second Circuit case in which Judge Hays' opinion reversed the Federal Power Commission's holding that one must have a "personal economic injury" in order to have standing. Those who "by their activities and conduct" have exhibited a special interest in "aesthetic, conservational, and recreational" areas — specifically conservation organizations — were held to have standing to contest an FPC grant of a license to construct a power facility.3 This case, as you know, is the keystone of environmental litigation.

No court has yet gone so far as to adopt sua sponte Professor Joseph Sax's far-reaching proposal adopted first by the legislature in Michigan in 1969 and subsequently in several other states. It gives every citizen standing to sue.4 To those who would be fearful of the proverbial flood of litigation that might ensue, Professor Sax's own statistics in Michigan are resuscitating.5 In any event, one need do no more than quote Judge Hays in Scenic Hudson I: "Our experience with public actions confirms the view that the expense and vexation of legal proceedings is not lightly undertaken."6

Parenthetically, the rather broad form of citizens' suits created by the Clean Air Act Amendment of 19707 as well as by the 1972 amendments to the Federal Water Pollution Control Act8 will be discussed later in this program.

[3 ELR 50002]

Sierra Club v. Morton9 was thought by some to be a major retreat from Association ofData Processing Service Organizations v. Camp10 and Barlow v. Collins,11 both of which had broadened standing concepts in a nonenvironmental context. A majority of the Court held that the Sierra Club was not among those "injured in fact" by the construction of both a 20-mile-long highway and a high-voltage line through Sequoia National Park. Apparently, however, Sierra Club v. Morton has turned out to be merely a pleading decision. As of now, we understand, the Sierra Club has amended its complaint and has alleged that its members would be affected in their activities or pastimes by the proposed Disney development, and the amendment has been found sufficient.12

As yet no court has adopted Mr. Justice Douglas's theory expressed in dissent in Sierra Club v. Morton13 that trees or mountains should have standing to sue, but do not be surprised if a court does.14 After all, an organization bringing an environmental action is also suing on behalf of the purblic,15 and an individual who asserts that he is individually affected by a given project has "standing."16 There is ample common law precedent in the admiralty17 or in connection with deodands18 for readopting the primitive anthropomorphic concept of endowing objects with personality and hence giving them responsibility or "standing" at least as parties defendant. Why not give them protection or "standing" as parties plaintiff? One commentator has suggested the converse: that offending factories or plants might be objects subject to seizure or forfeiture.19

Generally, in any event, standing may be obtained by almost any environmental group, from the Businessmen Affected Severely by the Yearly Action Plans20 to the Goose Hollow Foothills League,21 the Harrisburg Coalition Against Ruining the Environment,22 and Students Challenging Agency Regulatory Procedures.23 Standing now is often assumed to exist without contest.24 There are only a few cases where standing has not been found to exist at least where a conservation association is the party plaintiff.25

Standing under the Rivers and Harbors Appropriation Act of 189926 is something else again. Perhaps with the citizens' suit now permitted under the 1972 Federal Water Pollution Control Act, this is an academic subject. Recently the Third Circuit has held that there is no private civil cause of action,27 while long ago the Fifth Circuit [3 ELR 50003] had held that there was.28 A number of courts have held in favor of a private cause where there is "special injury" within the zone of the Act's protection.29 That zone has been expanding. The Act, its protection originally limited to navigational obstructions in some quarters,30 was extended first to protect riparian owners.31 Recently ecology, specifically marine life, was recognized as within the Act's zone of protection first by the Fifth Circuit, although not in a standing case.32 This case, Zabel v. Tabb, was relied upon by the Ninth Circuit in the Alameda Conservation Society case to give San Francisco Bay individuals (not their association, however) standing to sue to protect against fish and wildlife destruction.33 Without citing Alameda, my own circuit recently held, however, that an environmental protection group purporting to represent the public had no right to sue to enjoin § 13 violations, at least in a suit on behalf of the general public without special injury.34 This has somewhat discouraged — I am informed by my 17-year-old son — the Choate School Environmental Protection Corporation from seeking to enjoin the Wallingford Silver manufacturers from polluting a nearby stream. I gather that the new Federal Water Pollution Control Act means that Alameda and not Connecticut Action Now will hold sway. Indeed, if the Connecticut Action people had sued individually — as fishermen, swimmers, or boatsmen — the result would have been different in that case, I think.35

Of course, the other side of the "standing" coin is the doctrine of res judicata or, more accurately, collateral estoppel. If A has standing to raise environmental issue X, and does so but loses, is not B precluded from raising the same issue? As Professor Howard Kalodner pointed out to the Second Circuit Judicial Conference last summer, since Blonder-Tongue Laboratories, Inc. v. University of Illinois36 held that a patent-holder who has lost a suit to infringer A on the grounds of invalidity was estopped from asserting validity in a suit against infringer B, why is not citizen B estopped by citizen A's or group C's losing an environmental suit? This, of course, is one area in which a defendant may want to seek to have a suit designated as a class action, as he may do,37 so as to avoid a multiplicity of litigation. The role of the class action in environmental suits — and isn't that what all of them really are, the class after Sierra Club v. Morton being the affected public — has yet to be explicated by the courts. Snyder v. Harris,38 precluding aggregation of claims to make up the required $10,000 amount for federal controversy, followed by my own circuit's peculiar Zahn v. International Paper Co., applying Snyder to environmental diversity suits, have made class actions less important as such, perhaps quite impotent, at least temporarily. However, since certiorari has been granted in Zahn,40 we will soon have some definitive clarification of this important issue. Even if the Second Circuit's result is upheld, the resulting narrowing of entry to class actions would cut both ways. It would make it more difficult for environmental groups to being class actions, but it would also make it more difficult for polluting defendants to force potential plaintiffs into one suit a la Sierra Club v. Hardin.

In summary, the courts are moving toward wider standing for groups and individuals bringing environmental suits. Unfortunately there has also been some foot-dragging such as Zahn, which I believe to have been wrongly decided for the reasons put forward in Judge Timbers' dissenting opinion in that case, and the Third Circuit's Red Star Towing. Red Star Towing should, I believe, have followed Neches Canal, the earlier Fifth [3 ELR 50004] Circuit opinion. In my opinion it is important that the courts continue to permit interested individuals and groups to raise environmental issues by litigation. At a time when preservation of the environment is, to say the least, one of the most pressing issues of the day, we can ill afford to bar cases involving major public interests on narrow technical grounds.

Financing The Litigation

Directly related to standing in terms of access to the courts, and of great importance both to the parties and to their counsel, is the matter of financing the litigation. At a time when contributions for financing environmental litigation are harder to come by, environmental plaintiffs are turning more and more to the awards of costs under the general statutes and rules of court and searching out other means, such as seeking an award of attorneys' and expert witnesses' fees or obtaining a portion of a fine for an exvironmental plaintiff or informer.

It is a congressional Act that prohibits the awarding of attorneys' fees and expenses against the United States or any agency or official acting in his official capacity.41 However, the award of attorneys' and experts' fees has been the subject of discussion in several environmental cases. In Greene County Planning Board v. FPC,42 they were denied under NEPA, the Federal Power Act, or as a matter of equitable discretion, the court preferring not "to inject the federal courts into this area of administrative discretion …."43 So, too, District Judge Newman in Connecticut in Committee to Stop Route 7 v. Volpe44 interpreted the federal Act as mandatory and went on to hold that to award attorneys' fees against the state defendants in a NEPA case would be unfair, since NEPA applies only to federal agencies. But in a case involving NEPA, § 4(f) of the Department of Transportation Act of 1966 and various statutory provisions dealing with housing displacement and relocation, Judge Peckham in the Northern District of California has awarded both attorneys' and experts' fees against the California Highway Department and its officials.45 The basis of the award was that the suit helped enforce a congressional policy in an environmental action; the court took the lead from the "private attorney-general concept," advanced by Judges Wisdom and Johnson in segregation and civil rights cases.46 Judge Peckham held that the following factors should be considered in deciding whether the "private attorney general concept" is applicable: (a) strength of congressional policy, (b) the number of people benefited by the litigant's efforts, and (c) the necessity and financial burden of private enforcement.

Of course legislative action may prove helpful in providing environmentalists with litigation expenses, especially when it is supplemented by expansive court interpretation. By congressional enactment, informants under the 1899 Refuse Act47 may be entitled to a portion of the fine levied. Only recently the Fourth Circuit has held that the statute requires an award of one-half the fine to the informant.48

Indeed, some years hence one may look back upon the sixties and seventies as an era of the law's developing its own internal self-sustaining institution, meeting the social demand for law actively to subserve the public interest in environmental protection — creating in three steps (1) a public right, (2) persons (or objects) with standing to assert that right, and (3) provision of the means for paying the lawyers and technical experts who do the work to assert the right. Thus evolves democracy in our law-oriented society.

[3 ELR 50005]

The National Environmental Policy Act of 1969

Most commentators (though certainly not all) regard the National Environmental Policy Act49 as a procedural statute.50 That is to say, they view NEPA as imposing procedural duties only on administrative agencies, duties which may be summed up in the concept of giving "full good faith consideration" to environmental factors in decision-making.51 The minority view suggested by Mr. Justice Douglas in his dissent from the denial of certiorari in Scenic Hudson II52 — that NEPA § 101 may create justiciable standards of administrative conduct — has not yet been widely adopted elsewhere, not even in the landmark Calvert Cliffs' Coordinating Committee, Inc. v. AEC.53 But under the procedural interpretation of the Act, within recent months litigation has played a very important role in delaying proposed projects for the requisite statutory consideration of environmental factors. Such projects have included abandonment of a railroad,54 construction of highways,55 the operation of nuclear plants temporarily at less than 50 percent capacity,56 the construction of dams and waterways,57 construction of a federal jail in Manhattan,58 the sale of off-shore oil lands,59 construction of high-voltage transmission lines,60 and others.61 Calvert Cliffs' itself is said to have affected some 93 proposed reactors, representing over 80 million kilowatts of generating capacity.62 NEPA has even been used against the Environmental Protection [3 ELR 50006] Agency, both by environmentalists and by industry.63 At the same time, NEPA-based attacks in recent months have by no means always been successful, particularly where an element of retroactivity or national security is involved.64

I think it important to remember that NEPA basically has been interpreted only to require that the agency give due consideration to environmental impact.In two cases injunctions originally granted under NEPA have been lifted upon the filing of a more complete impact statement by the agency involved — one involving the Gillham Dam across the Cossatot River,65 a second involving the Alaska pipeline.66 In a third involving a federal jail in Manhattan, there has been yet a second remand.67 Of these the Alaska pipeline case has by far the most impact environmentally. Perhaps of even more importance from a long-range point of view is the pending lawsuit of the Scientists' Institute for Public Information (SIPI) against the AEC seeking to require a NEPA impact statement assessing the long-range consequences of and possible alternatives to the breeder reactor,68 on the development of which the AEC is expected to spend more than $2 billion by 1980, more than is being spent for research on all other types of energy together.69 This case presents the question: How early a stage in a given agency's research and development program must environmental impact be examined, or at what stage is a program substantive and no longer simply exploratory?

Pursuant to what standards have environmental impact statements been examined by the courts? As Tussman and tenBroek noted in their seminal article on equal protection published in 1949,70 the United States courts from their earliest days have been mightly concerned with procedural safeguards — what we embody in concepts of "procedural due process." Part of the expansive judicial interpretation given to NEPA by the courts may be attributed to this heritage. As we saw only a few weeks ago in Anaconda Co. v. Ruckelshaus,71 industry as well as environmentalists may use this penchant for due process to advantage.

When NEPA was enacted it was unclear how the broad statement of substantive policy72 set forth in § 101 and the procedureal requirements of § 102 would be interpreted. The Act seemed to be without teeth.One law review note with a rather clouded crystal ball was entitled NEPA, A Sheep in Wolf's Clothing?73 Looked at another way, was the language of the Act so broad that Congress could be said to have abdicated its authority to set specific procedural guidelines by passing the buck to the courts? Under such conditions no one should have been surprised by Judge Skelly Wright's opinion in Calvert Cliffs' or Judge Irving Kaufman's opinion in Greene County Planning Board.74 If the procedures demanded [3 ELR 50007] by the courts under NEPA are costly and repetitive, then Congress is to blame for not being more explicit, not the courts for following the spirit of the Act in the light of our due process heritage.

Calvert Cliffs' held that an agency which is going to take an action which will affect the environment must balance "environmental amenities" against "economic and technical considerations" in specific projects. Judge Wright stressed that:

Of course, all of these Section 102 duties were qualified by the phrase "to the fullest extent possible." We must stress as forcefully as possible that this language does not provide an escape hatch for footdragging agencies; it does not make NEPA's procedural requirements somehow "discretionary." Congress did not intend the Act to be such a paper tiger. Indeed, the requirement of environmental consideration "to the fullest extent possible" sets a high standard for the agencies, a standard which must be vigorously enforced by the reviewing courts.75

Greene County is significant because it makes specific what Calvert Cliffs' may only have implied. The detailed statement is to be developed by the agency itself, on the basis of its own research, and it cannot meet the mandate of NEPA by collecting information provided by others and then selecting from among the suggested approaches.76 Greene County makes it clear that federal agencies have an affirmative duty not only to consider environmental factors and to include them in the record but also, under § 102(2), "to consider environmental values 'at every distinctive and comprehensive stage of the [agency's] process.'"77 Thus Greene County and Calvert Cliffs' mean that every federal agency must prepare its own detailed statement except in cases where explicitly exempted by Congress. That impact statement is the finished product of the agency's environmental analysis envisaged by NEPA. The statement must be prepared before conducting any public hearing on a proposed federal action significantly affecting the environment. Whether it must be prepared earlier will depend on SIPI, the breeder reactor case.

Greene County and Calvert Cliffs' left open many questions relative to the scope of the independent review demanded of federal agencies. For example, the case that best exemplifies examination of other requirements insuring "that presently unquantified environmental amenities … be given appropriate consideration"78 is Natural Resources Defense Council v. Morton,79 the off-shore oil lease case. This case held that in examining "alternatives to the proposed action" as required by § 102(2)(C) (iii), only reasonable probabilities need be considered, that is, solar energy as a fuel source need not — but lifting of the oil import quota need be — considered as an alternative to granting off-shore oil leases.

Here there is room for considerable dispute. One commentator, Professor Murphy of Columbia,80 thinks that the consideration of alternatives is the "booby trap" of Calvert Cliffs'. For example, the possible alternatives to the construction of a power plant, including not building any plant, "require consideration of a virtually unlimited number of highly speculative factors." This he considers a task that "may be impossible" for the agencies to perform.81 He also points out that the given agency may not have the power to effectuate the particular preferable alternative: the FPC may not be able to arrange for more oil importation, for example.

Leaving aside for the moment this can of worms, one case that has suggested a minimum allowable standard of conformance is Environmental Defense Fund, Inc. v. TVA.82 That case required that the agency explicitly set forth environmental factors with sufficient precision to permit realistic cost-benefit evaluation. A recent Note in the Yale Law Journal suggests that such data must include: (1) identification and description of probable environmental effects, (2) estimates of the magnitude and probability of environmental effects, and (3) placing a monetary value on such effects, even where such effects are not of monetary value as is usually the case.83 This third factor — placing a monetary value on environmental harm — is, of course, a matter in which reasonable men will disagree mightily. Obviously, since many if not most environmental amenities or threatened species of flora or fauna have no clearly measurable monetary value, to weigh them in this scale could result in widely disparate results. Although the balancer (under NEPA, the agency) can assign these environmental amenities a monetary value, that value would always be open to a great deal of debate. Any agency doing an assignment of value under this suggestion has a great deal to power to bias its cost-benefit analysis for or against the environment, depending on what monetary value it assigns these "intangible" factors. Having sat as a district judge in a Vermont highway case involving a unique combination of wildflowers on a little limestone hillside called a "cobble" and some rather unusual bogs, I must concede that not everyone might have found them so valuable as I did.

There are those who predict a congressional attack on [3 ELR 50008] NEPA and, in addition to Professor Murphy's fears he so well expresses, the argument basically is the practical one of cost and time consumed while needed projects may be delayed. "Don't hamstring economic development" is the argument.

I suggest that the problem with NEPA is not one of time and cost, however, or the fact that it has been applied to going or inchoate projects. Granted, there has been a good bit of expensive delay while the courts and the agencies interpret and adjust to NEPA. This is true of every transition in the law. I have already alluded to Professor Murphy's claim that over 90 nuclear plants have been delayed as a result of Calvert Cliffs'. Granted, it has been expensive and difficult for agencies to acquire the expertise even to prepare their own environmental impact statements. But these largely are short-term delays and expenses which should not be viewed out of perspective. Once an agency has learned to prepare one environmental impact statement, much of that work may be applicable to other statements. Indeed, some of the highway impact statements are already said to be quite repetitive, perhaps so much so that one wonders whether "environmental impact" comes out of a can that is readily recycled by the agency. Once the courts find, however, that a given agency is acting in good faith and presenting clear and thorough statements, there will be much less judicial delay.

A respectable argument can be made that NEPA's requirements should be sharpened, i.e., that the agency's duties should be more thoroughly spelled out. But I hope new legislation will not bar the courts from considering the big questions, the ones Professor Murphy calls non-justiciable. I should hope not, unless some other new institution for decision-making is conceived.

Rather, the problem with NEPA that I perceive is the opposite side of the coin: it does not take into account that for the most part the agencies which must do the "full good faith" balancing of economic and social costs against environmental costs are generally structured to be advocates for economic expansion. As long as agencies are left to do the balancing, and as long as they have a dual mandate of environmental protection and economic development in their particular field — for example, power growth for the FPC, nuclear development for the AEC, or flood containment for the Army Corps of Engineers — is not the environment bound to come out on the short end? The structure of the decision-making process on the agency level, I am suggesting, is biased against the environment. By the nature of judicial review, which requires reviewing courts to rely upon the judgment of the original balancers (here the agencies), the courts cannot adequately compensate for this structural bias. Thus, while NEPA must be viewed as an improvement over the single expansionist mandate which the agencies used to have, if ecological requirements are to receive truly unbiased weighing as against economic demands, then a first step might be for Congress to explore making changes either in who does the ultimate balancing at the agency level, or in the structure of the agencies themselves. I will discuss this more specifically later.

Nuisance

While NEPA is a new development, common law nuisance is an old dog with clear antecedents in the Roman law84 and the 13th-century English assize of novel dissein.85 Indeed, until very recently the law of nuisance had changed very little from its early English background.86

As you know, there are two distinct brands of nuisance law — private nuisance and public nuisance.87 Professor Prosser points out that private nuisance has been limited in its usefulness in air and water pollution suits because (1) the court in a request for injunctive relief will consider only the damage to the individual who is suing,88 (2) there must be interference with that individual plaintiff's use and enjoyment of his land,89 and (3) private nuisance is limited by the reasonable use doctrine,90 that is, the doctrine that the defendant has a privilege to use his own premises and conduct his affairs in a reasonable way, and often some pollution is considered reasonable.91 Thus private nuisance has not allowed the courts to weigh the totality of the harm to all people caused by the polluting activity against the total benefit of the activity.

The law of public nuisance, on the other hand, calls for such a weighing.92 It has, however, also been of limited [3 ELR 50009] usefulness because most courts considered it to provide a criminal cause of action93 and because of the "particular" or "special" damage limitation,94 that is, the requirement that the plaintiff must show that he has suffered damage of a different kind from that of the public generally.

The restraints on public and private nuisance cases have inhibited the bringing of suits, at least in the water pollution field (the only area from which we have data). In fact, the incidence of such suits had been on the decline;95 but now, in Tentative Draft No. 1796 of the Restatement (Second) of Torts and in a few recent cases, the courts and legal scholars have, in the great tradition of the living common law, begun to teach the old dog new tricks and to adjust public nuisance doctrine to the realities of modern technology. The cases include those establishing a federal common law of nuisance97 and others cutting back on the special injury requirement.98

Tentative Draft No. 17 of the Restatement of Torts may be to the law of nuisance what McPherson v. Buick99 has been to the law of products liability. The draft has discarded the criminal requirement in its definition of public nuisance.100 Instead, the Tentative Draft gives a broad definition of public nuisance as a tort and suggests that public nuisance should be and can be a broader cause of action than it has been recognized to be in the past.101

The "particular damage" rule, also referred to as the "special damage" rule,102 has been to a large extent abandoned by Tentative Draft No. 17 of the Restatement (Second).103 This invitation toward broader standing in public nuisance cases will, I hope, be taken up by the courts.

Even before this new draft of the Restatement (Second) there were occasional cases, such as Karpisek v. Cutler & Sons Construction, Inc.104 and Wade v. Campbell,105 which allowed a public nuisance action to be brought by plaintiffs who were not qualitatively affected differently from others in the community. However, even in those cases the plaintiffs gained standing because they were quantitatively more greatly harmed than others in the community. It is my belief that the Tentative Draft is correct in its suggestion that in cases where the plaintiff is (1) a representative of the general public, (2) a citizen in a citizen's action (such as citizens in those states which have passed Sax-type statutes permitting private citizens to sue on behalf of the public to enjoin public nuisance),106 or (3) a member in a class action, a citizen should be able to bring a private nuisance action without special damage.

It is important that there be a private way to get total public harm from the alleged polluter balanced against total public benefit from the polluting activity, unhindered by the politics of the highway lobby, industrial polluters or the municipalities which send their un- or undertreated sewage and gaseous wastes into the water and air. The public nuisance suit will be a widely used private cause of action if the suggestions of Tentative Draft No. 17 are followed in the courts.

[3 ELR 50010]

Once the standing requirements for public nuisance are broadened, the next questions to be considered are what kind of balancing test is to be used, and which remedies should be applied (injunction or damages) in the appropriate circumstances.

In this field we need a balancing test which places environmental factors in the scale. I propose a two-part test better to define the values being weighed when we come to the situation where the costs of correction are prohibitive. The first part is a scale of environmental problems; I derive it from the 1971 annual report of Resources for the Future (Washington, D.C.) at 16:

In ascending order of gravity our environmental problems can be ranked in this order:

1. amenity considerations like litter, noise and appearance of cities and countryside;

2. threats to human health;

3. threats to human genetics and reproduction; and

4. effects on ecological systems that would threaten the earth's capacity to support life.

The second part is a scale of economic demands — equally rough, but it will make the point, and there may be disagreement as to the order of gravity:

1. Real or supposed needs for durable and non-durable goods for individual use in work or leisure hours;107

2. Suitable housing, transportation108 and communication;

3. Manufacturing and construction capacity;

4. Energy sources.109

It would seem that the more vital the offending activity is to the good of the public (as contrasted to the good of merely the owners of the polluting activity) and the less harm in my ascending scale of harm to the community, the less appropriate is an injunction. Rather, damages may and in some cases should be used.110 However, in measuring harm the court should consider the harm to the entire community, not just the specific plaintiffs, and in considering benefit, the benefit to all those affected by the enterprise — workers, shareholders, community, etc.

Admittedly to formulate and to apply an appropriate balancing test is extremely difficult, but some test is necessary, absent technological resolution of the environmental problem, in order to force our economy to be rational, i.e., to force it to recognize the externalities of polluting activities.111 Moreover, for all the problems of judgment and quantification of costs involved, there are certain factors which tend to make courts qualified to perform this balancing task. First, they are insulated from the lobbying of special interest groups. Second, judges are often intimately familiar with the area of the country from which they serve, thereby giving them a special feeling for the benefits and burdens imposed by the alleged polluting activity. Finally, balancing of the equities is a task which is constantly performed by judges, and this practice may produce attention to detail and a system of thinking which will lead to fair decisions in nuisance cases.

I pass on, then, to a few observations about the role of litigation in environmental matters. It has been a broad one; it may be broader still. It is also a disputed one. A member of the Scenic Hudson Preservation Conference might give you a different view of environmental litigation than the promoter of a nuclear plant or the general counsel to a federal agency. On the positive side, litigation has no doubt helped raise the level of public consciousness in reference to environmental matters. By giving the public, through interested groups and individuals, access to the courts to raise environmental issues, litigation has made those issues no longer the private domain of private industry and the agency charged with the dual conflicting role of regulating and promoting that industry. The environment has become a matter of public concern through the courts. This is as it should be. It has been the largest single positive factor, I suggest, in environmental preservation. Vermont's own former FPC Commissioner Charles Ross, whose original dissent in the Commission in Scenic Hudson I may be said to have started this whole thing, is of the view that public participation in the decision-making process is the key. I am anxiously awaiting his forthcoming article to this effect in the next issue of the Annals of the American Academy of Political and Social Science.

Litigation has also filled a void where public laws have been lacking or enforcement weak, and it has pointed the way toward legislative-administrative-congressional regulation in a number of areas. Indeed, the Council on [3 ELR 50011] Environmental Quality had this to say of the landmark Scenic Hudson I:

Scenic Hudson, by placing a positive responsibility on the FPC to consider less environmentally damaging alternatives, laid a foundation for the obligation to develop alternatives imposed by NEPA.112

Further, litigation under the Refuse Act of 1899 has done much to prevent further pollution of our rivers and lakes and to create the public interest in clean water culminating in the Federal Water Pollution Control Act of 1972.

But as a federal appellate judge I must express some caveats, as we try to determine the proper role of judicial decision-making in connection with resource planning, management and protection. Generally speaking, litigation by definition is piecemeal in nature. It is often at most dilatory in substance, even though delay can itself resolve some problems. The courts view problems largely out of context. They cannot devote attention of a continuous nature to a given problem. They may lack a national overview which in a country as vast and complex as ours is sometimes desirable if difficult to achieve. As generalists, judges generally lack environmental expertise. And finally, litigation sometimes sheds more heat than light, which an environmental wag might add is in either case a contribution to the energy crisis or a waste of resources.

Thus I am convinced that while litigation in the courts well serves certain limited purposes in connection with environmental protection, it is by its nature supplemental only, to be used when other devices fail or are lacking in the scheme of things. However well equipped courts may be to assess priorities, or in a specific situation to strike a balance between economic demands and ecological requirements in some such scale of values as I have discussed previously, such assessment and such weighing ultimately involves political judgments in the broad sense of the term.

Thus, I come close to agreeing with my critic, Professor Murphy, when he suggests that courts are not really capable of deciding the big questions like which mix of power production sources is best and what is the optimal trade-off between economic growth and environmental cleanliness. Those are complex political questions, usually with economic implications, and the courts have no political mandate.

However, we can help needle the other branches of government into action on these questions by bringing portions of the economy to a halt, as in the recent surge of NEPA impact statement cases, or by conjuring up visions of gasoline rationing, as in the recent California air pollution case. But we must ask ourselves whether some of these may best be dealt with by some other institution or device or set of institutions and devices in our form of government. As environmental lawyers, teachers and judges, at the least we must ourselves explore the alternatives to litigation.

But what I gather is Professor Murphy's alternative — having the agencies decide the big questions — is equally as unhappy a solution. They also have problems in obtaining the requisite environmental expertise. The idea that the five members of the FPC are any more qualified as non-geologists than you or I to evaluate the geological structural danger to the 50-year-old Moodna Aqueduct by the construction of the Storm King pump reservoir — especially after listening to the conflicting testimony of admittedly uncertain geological experts — strikes me as somewhat ridiculous. As Professor Murphy suggests, there may be matters that are so complex or politically intricate as to be non-justiciable, but if so they are as non-justiciable by an agency as by the courts. As I have pointed out above, the courts are fairer forums for environmental adjudication than many of the agencies, because the courts do not have the agencies' dual mandates.

As I have discussed when reviewing NEPA, the agencies are currently biased against the environment. How can this agency bias be counteracted? There is currently a proposal being considered by the Land and Natural Resources Division of the Justice Department for the establishment of an Environmental Court comparable to the Court of Claims or the Customs Court. It would be created by federal statute and would have exclusive jurisdiction of environmental cases, including citizen suits against private parties and civil enforcement actions by the United States. Exclusive appellate jurisdiction would exist as of right over its trial judges or commissions and over environmental orders of federal agencies. Supposedly such a court would allow the development of expertise on environmental matters and thereby improve the level of judicial competence in this area. I believe that for the following reasons the establishment of a special environmental Court would be unwise.

First, as pointed out in my introduction, environmental law, unlike Customs law, Court of Claims work, or Tax Court cases, is a sort of hodgepodge of international law, administrative law, tort, procedure, statutory construction, etc. Environmental litigation has roots in a myriad of legal areas. Therefore it is crucial that judges who are passing upon environmental cases have more than a nodding acquaintance with these other legal areas. The wisdom and overview which comes from dealing with these areas in non-environmental contexts will, I believe, lead to the development of a sounder and more consistent body of environmental law.

Second, it is important to have the sort of testing-out of diverse new doctrines which now often occurs in the different circuits and states. Although the Supreme Court may eventually bring into line conflicting doctrine in the different circuits and states, there is a healthy cross-fertilization which occurs from having different courts rule on given environmental questions and then living with those decisions for a time.

[3 ELR 50012]

Third, it is best to continue to allow environmental cases to be tried locally, rather than to channel them into a centralized place as, for example, are Court of Claims cases which are all heard in Washington. To try an environmental case in the first instance in Washington would present almost insuperable problems from the standpoint of citizen plaintiffs. It is important to have local access to the courts and to have trial judges who are familiar with local conditions and aspirations, which differ widely the country round.

Fourth, it is quite possible that the appointment of Environmental Court judges would be much more subject to influence by lobby than are appointments of district or court of appeals judges. This is true simply because those whose aims are not supportive of environmental protection would be likely to concentrate their very substantial resources on influencing the appointments to these specialized positions.

Finally, and perhaps most importantly, the current system of review by generalist judges already allows for the consideration of the best technical expertise in the various areas of environmental concern. The adversary system, with introduction of expert testimony and careful cross-examination, allows for pretty careful examination of the most advanced technical knowledge about the costs of a given polluting activity and the alternatives to that activity.

For these and other reasons, I believe an Environmental Court is not the answer. But if it is not, what is? Perhaps an impartial environmental agency — with no developmental mandate — which would have a veto power over the projects of other agencies, is one answer that needs further exploration. Should we give EPA quasi-judicial powers, or create another agency? I can hear the howls go up already. Along the same lines in the energy field would be a power siting agency.113 Another approach — and one being used — is the legislative-administrative one, establishing, for example, minimum standards of requirements in respect to air, water, noise, etc., or providing for solid waste management or the like. This approach allows case-by-case consideration as in nuisance suits, but has the salutary effect of improving and safeguarding whole portions of the environment on a national basis, not just a small part of it on a regional or local one. It is of course subject inevitably to compromise, but is that not the art of government?

In conclusion, then, let me say to the environmentalists present not to put all of your thinking, hopes or commitments into litigation. Lobbying and public education must be viewed as at least equally important, for legislation is now pending or planned for introduction which will affect environmental protection favorably or adversely, as the case may be. NEPA could be emasculated. On the other hand a national Sax-type bill could be adopted. Litigation, if you will, is one legal approach to solution of environmental problems, but one approach only.

1. Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972), 2 ELR 20192-93.

2. Scenic Hudson Preservation Conference v. Federal Power Comm'n, 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966).

3. 354 F.2d at 616, 1 ELR at 20294.

4. Mich. Comp. Laws Ann. §§ 691.1201-07 (Supp. 1972). See Sax, Defending the Environment (1970). Other states have adopted similar legislation: Conn. Gen. Stat. Ann. §§ 22a-16 (Supp. 1972); Fla. Stat. Ann. § 403.412 (Supp. 1972); Ind. Ann. Stat. § 3-3051 (Supp. 1972); Mass. Gen. Laws Ann. ch. 214, § 10A (Supp. 1972); Minn. Stat. Ann. § 116 B.10 (Supp. 1972). Federal legislation is pending in the form of the Hart-McGovern bill, S. 1032, 92d Cong. 1st Sess. (1971). Both California and Montana almost adopted the Sax proposal in 1972; a news report indicates that in those states and Maryland it will be introduced in 1973. New York Times, Jan. 1, 1973, at 18, col. 3.

5. See Sax, The Michigan Environmental Protection Act of 1970: A Progress Report, 70 Mich. L. Rev. 1003 (1972).

6. 354 F.2d at 617, 1 ELR at 20295.See also Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 872 (D.C. Cir. 1970); Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev. 450, 471 (1970).

7. Section 304(a), 42 U.S.C. § 1857h-2, ELR 41201 et seq.

8. Federal Water Pollution Control Amendments of 1972, 33 U.S.C. § 1151 et seq., Pub. L. No. 92-500, 86 Stat. 816 (Oct. 18, 1972).

9. Supra note 1.

10. 397 U.S. 150 (1970).

11. 397 U.S. 159 (1970).

12. 405 U.S. at 735, 2 ELR at 20194, motion for leave to amend granted, __ F. Supp. __, 2 ELR 20469 (N.D. Cal.), 348 F. Supp. 219, 2 ELR 20576 (N.D. Cal. 1972). See Comment, The Supreme Court, 1971 Term, 86 Harv. L. Rev. 1, 238 n. 25 (1972).

13. 405 U.S. at 741-43, 2 ELR at 20196-99.

14. See Stone, Should Trees Have Standing?-Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972).

15. See Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965); cert. denied sub nom. Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941 (1966); Scenic Hudson II, 453 F.2d 468, 1 ELR 20496 (2d Cir. 1971), cert. denied, 407 U.S. 926, 2 ELR 20436 (1972); La Raza Unida v. Volpe, 337 F. Supp. 221, 1 ELR 20642 (N.D. Cal. 1971), __ F. Supp. __, 2 ELR 20691 (N.D. Cal. 1972). Cf. Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966); Road Review League v. Boyd, 270 F. Supp. 650 (S.D.N.Y. 1967).

16. See Lauritzen v. Chesapeake Bay Bridge & Tunnel Dist., 259 F. Supp. 633 (E.D. Va. 1966), aff'd in part, rev'd in part, 404 F.2d 1001 (4th Cir. 1968).

17. E.g., Tucker v. Alexandroff, 183 U.S. 424, 438 (1902).

18. See Holmes, The Common Law, ch. 1 (1881); United States v. United States Coin & Currency, 401 U.S. 715, 719-20 (1970); Goldsmith-Grant Co. v. United States, 254 U.S. 505, 510-11 (1920).

19. See Rosenthal, The Federal Power to Protect the Environment: Available Devices to Compel or Induce Descried Conduct, 45 S. Cal. L. Rev. 397, 424 (1972).

20. Businessmen Affected Severely by the Yearly Action Plans, Inc. v. D.C. City Council, 339 F. Supp. 793, 2 ELR 20237 (D.D.C. 1972).

21. Goose Hollow Foothills League v. Romney, 334 F. Supp. 877, 1 ELR 20492 (D. Ore. 1971).

22. Harrisburg Coalition Against Ruining the Environment v. Volpe, 330 F. Supp. 918, 1 ELR 20237 (M.D. Pa. 1971).

23. Students Challenging Regulatory Agency Procedures v. United States, 346 F. Supp. 189, 2 ELR 20486 (D.D.C. 1972), application for stay pending appeal denied sub nom. Aberdeen & Rockfish Ry. Co. v. SCRAP, __ U.S. __, 2 ELR 20491 (Burger, Circuit Justice, 1972), cert. granted, 41 U.S.L.W. 3339 (U.S., Dec. 19, 1972) (No. 72-535).

24. E.g., Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 2 ELR 20162 (4th Cir. 1972), rev'g 332 F. Supp. 1218, 1 ELR 20486 (E.D. Va. 1971); cert. denied sub nom. Fugate v. Arlington Coalition on Transporation, 41 U.S.L.W. 3249 (Nov. 7, 1972); Conservation Society v. Volpe, 343 F. Supp. 761, 2 ELR 20270 (D. Vt. 1972). See generally Gellhorn, Public Participation in Administrative Proceedings, 81 Yale L.J. 359 (1972); Davis, The Liberalized Law of Standing, 37 U. Chi, L. Rev. 450 (1970).

25. Alameda Conservation Ass'n v. California, 437 F.2d 1087, 1 ELR 20097 (9th Cir.), cert. denied, 402 U.S. 908 (1971) (dismissing suit by association, but permitting suit by individual affected members).

26. 33 U.S.C. §§ 401, 403-04, 406-07, 408-09, 411-15, 418 (1970), Act of Mar. 3, 1899, ch. 425 §§ 9-20, 30 Stat. 1121, 1151-55, 2 ELR 41141. Sec. 407 of Title 33 is popularly known as the Refuse Act. See generally Note, Environmental Law, 50 Texas L. Rev. 1255 (1972).

27. Red Star Towing & Transportation Co. v. Department of Transportation, 423 F.2d 104 (3rd Cir. 1970).

28. Neches Canal Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (5th Cir. 1928) (Sec. 9 violation through dam construction).

29. See Lauritzen v. Chesapeake Bay Bridge & Tunnel District, 259 F. Supp. 633 (E.D. Va. 1966), aff'd in part, rev'd in part, 404 F.2d 1001 (4th Cir. 1968); Puente de Reynosa, S.A. v. City of McAllen, 357 F.2d 43 (5th Cir. 1966).

30. H. Christiansen & Sons, Inc. v. City of Duluth, 154 F.2d 205 (8th Cir. 1946).

31. Tatum v. Brackstock, 319 F.2d 397 (5th Cir. 1963). The Corps of Engineers' own regulations require recognition of ecological factors. 33 C.F.R. § 209.120(d)(1) (1971).

32. Zabel v. Tabb, 430 F.2d 199, 1 ELR 20023 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971) (suit against Secretary of the Army by would-be riparian fillers); see Note, 50 B.U. L. Rev. 616 (1970); Note, 50 Texas L. Rev., supra note 26 at 1257. See also United States v. Standard Oil Co., 384 U.S. 224 (1966); Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97, 1 ELR 20005 (2d Cir. 1970), aff'g 302 F. Supp. 283, 1 ELR 20001 (S.D.N.Y. 1969). Cf. Petterson v. Resor, 331 F. Supp. 1302, 2 ELR 20013 (D. Ore. 1971), sub nom. Petterson v. Froehlke, __ F. Supp. __, 2 ELR 20747 (D. Ore. 1972); Delaware v. Pennsylvania N.Y. Cent. Transp. Co., 323 F. Supp. 487, 1 ELR 20105 (D. Del. 1971).

33. Alameda Conservation Association v. California, 437 F.2d 1087, 1 ELR 20097 (9th Cir.), cert. denied, 402 U.S. 908 (1971). But see Guthrie v. Alabama By-Products Co., 328 F. Supp. 1140, 1 ELR 20334 (N.D. Ala. 1971).

34. Connecticut Action Now, Inc. v. Royal Plating Co., 457 F.2d 81, 2 ELR 20157 (2d Cir. 1972), rev'g __ F. Supp. __, 1 ELR 20370 (D. Conn. 1971).

35. Id., 457 F.2d at 90, 2 ELR at 20161: "Instead of a private claim for relief for a specific private injury as in those decisions, what we have here is an action by parties claiming to be surrogates for the public over and above the normal and official representative of the public interest."

36. 402 U.S. 313 (1971).

37. Sierra Club v. Hardin, 325 F. Supp. 99, 104, 1 ELR 20161, 20162 (D. Alas. 1971).

38. 394 U.S. 332 (1969).

40. 41 U.S.L.W. 3441 (U.S., Feb. 20, 1973) (No. 72-888).

41. 28 U.S.C. § 2412 (Supp. 1972). See Ewing v. Gardner, 341 U.S. 321 (1951); United States v. 87.30 Acres of Land, 430 F.2d 1130 (9th Cir. 1970).

42. 455 F.2d 412, 2 ELR 20017 (2d Cir.), cert. denied, 41 U.S.L.W. 3184 (U.S., Oct. 10, 1972).

43. 455 F.2d at 427, 2 ELR at 20024.

44. 346 F. Supp. 731, 2 ELR 20446 (D. Conn.), motions to amend the judgment denied, __ F. Supp. __, 2 ELR 20612 (D. Conn. 1972) (attorneys' fees not awardable against federal defendants).

45. La Raza Unida v. Volpe, 337 F. Supp. 221, 1 ELR 20642 (N.D. Cal. 1971), __ F. Supp. __, 2 ELR 20691 (N.D. Cal. 1972).

46. See Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) (Wisdom, J.); NAACP v. Allen, 340 F. Supp. 703 (N.D. Ala. 1972) (Johnson, J.). See also Bradley v. School Board, 53 F.R.D. 28 (E.D. Va. 1971) (Merhige, J.). Cf. Knight v. Ancello, 453 F.2d 852 (1st Cir. 1972); Yablonski v. United Mine Workers, Civ. No. 24,560-63 (D.C. Cir., Aug. 3, 1972) (fees awarded in suit for violations of Labor Management Reporting and Disclosure Act of 1959); Dyer v. Love, 307 F. Supp. 974 (N.D. Miss. 1969). See Note, 41 Cinn. L. Rev. 405 (1972). These cases in turn rest on the cornerstone Sprague v. Ticonic National Bank, 307 U.S. 161, 162 (1939). See also Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392 (1970); Farmer v. Arabian American Oil Co., 379 U.S. 227 (1964); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) (fees awardable in class action under 1964 Civil Rights Act).

In Sprague v. Ticonic National Bank, supra, the plaintiff sued to establish a lien upon the proceeds of certain bonds held in trust by the bankrupt defendant. She succeeded, and was awarded attorney's fees. The Court noted that even though the plaintiff had sued as an individual and not as a representative of a class, her suit had benefited numerous (14) other trusts — in effect, had created a common fund. This consideration was held to support the district court's consideration of a petition for reimbursement.

Judge Peckham in La Raza rejected the "common fund" concept used in Sprague, however, which has been suggested at least by one commentator as applicable to NEPA litigation. Note, The Allocation of Attorneys' Fees After Mills v. Electric Auto-Lite Co., 28 U. Chi. L. Rev. 316 (1971).

47. 33 U.S.C. § 411.

48. Miller v. United States, 455 F.2d 833, 1 ELR 20628 (4th Cir. 1971). See also United States v. St. Regis Paper Co., 328 F. Supp. 660, 1 ELR 20309 (D. Wis. 1971) (Congressman who was informant entitled to one-half of fines levied).

49. 42 U.S.C. §§ 4321-47 (1970), ELR 41009. Compare Hanks & Hanks, An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969, 24 Rutgers L. Rev. 230 (1970), with Murphy, The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace, 72 Colum. L. Rev. 963 (1972) (hereinafter cited as "Murphy, NEPA").

50. Note, Evolving Judicial Standards Under the National Environmental Policy Act and the Challenge of the Alaska Pipeline, 81 Yale L.J. 1592 (1972).

51. Id. at 1606. As Professor Murphy points out, 72 Colum. L. Rev. supra note 49 at 967, under § 102(2)(C), agencies must determine "the relationship between local short-term uses of man's environment and the maintenance and enforcement of long-term productivity" as well as "any irreversible and irretrievable commitments of resources which would be involved." Even while one agrees with him that there are involved "a complicated series of value judgments." 72 Colum. L. Rev. 977, one may disagree with him that these are "factors not amenable to resolution" in an adjudicatory proceeding. He goes on to say at 991:

The decision to go forward with nuclear plants is, therefore, a value judgment that the risk is worth assuming. One can argue whether a risk should be taken, but it is not useful to "try" that question in the traditional adjudicatory setting.

If not there, one may inquire, where? In an agency setting, where the agency is, as are the AEC and FPC, for example, charged with promotional duties? See 72 Colum. L. Rev. at 974. See Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463, 482-83, 1 ELR 20496, 20506-13 (2d Cir. 1971) (Oakes, J., dissenting). One notes that Professor Murphy has sat as a nontechnical member of the Atomic Safety and Licensing Board. At 974 n. 54.

52. 407 U.S. 926, 2 ELR 20436; see Judge Timbers dissenting from the denial of en banc in Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463, 494 (2d Cir. 1971), cert. denied, 107 U.S. 926 (1972) (Douglas, J., dissenting).

53. 449 F.2d 1109, 1 ELR 20346, 20348 (D.C. Cir. 1971).

54. City of New York v. United States, 337 F. Supp. 150, 2 ELR 20275 (E.D.N.Y. 1972) (three-judge court) (ICC impact statement required).

55. Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 2 ELR 20162 (D.C. Cir. 1972), rev'g 332 F. Supp. 1218, 1 ELR 20486 (E.D. Va. 1971), cert. denied sub nom. Fugate v. Arlington Coalition on Transportation, 41 U.S.L.W. 3249 (Nov. 7, 1972); Lathan v. Volpe, 455 F.2d 1111, 1 ELR 20602 (9th Cir. 1971); modified on rehearing, 455 F.2d 1122, 2 ELR 20090 (9th Cir.), 350 F. Supp. 262, 2 ELR 20545 (W.D. Wash. 1972); Conservation Society of Southern Vermont v. Volpe, 343 F. Supp. 761, 2 ELR 20270 (D. Vt. 1972); Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731, 2 ELR 20446 (D. Conn. 1972), motions to amend the judgment denied, __ F. Supp. __, 2 ELR 20612 (D. Conn. 1972).

56. Izaak Walton League v. Schlesinger, 337 F. Supp. 287, 2 ELR 20039 (D.D.C.), court approved settlement, __ F. Supp. __, 2 ELR 20039 (D.D.C. 1971) (AEC).

57. United States v. 247.37 Acres, __ F. Supp. __, 1 ELR 20513 (S.D. Ohio, Jan. 24, 1972) (Corps of Engineers); Environmental Defense Fund, Inc. v. Corps of Engineers (Tennessee-Tombigbee Waterway), 331 F. Supp. 925, 1 ELR 20466 (D.D.C. 1971), 348 F. Supp. 916, 2 ELR 20536 (N.D. Miss. 1972), Environmental Defense Fund, Inc. v. Tennessee Valley Authority (Tellico Dam), 339 F. Supp. 806, 2 ELR 20044 (E.D. Tenn.), aff'd __ F.2d __, 2 ELR 20726 (6th Cir. 1972).

58. Hanly v. Mitchell, 460 F.2d 640, 2 ELR 20216 (2d Cir. 1972), rev'g __ F. Supp. __, 2 ELR 20181 (S.D.N.Y.), cert. denied, 41 U.S.L.W. 3247 (U.S., Nov. 7, 1972) (GSA); but cf. Hanly v. Kleindienst, __ F. Supp. __, 3 ELR 20016 (S.D.N.Y.), rev'd __ F.2d __, 20717 (2d Cir. 1972) (remanded for further findings).

59. Natural Resources Defense Council, Inc. v. Morton, 337 F. Supp. 165, 2 ELR 20028 (D.D.C.), 337 F. Supp. 167, 2 ELR 20089 (D.D.C. 1971), motion for summary reversal denied, 458 F.2d 827, 2 ELR 20029 (D.C. Cir.), dismissed as moot, 337 F. Supp. 170, 2 ELR 20071 (D.D.C. 1972).

60. Greene County Planning Board v. FPC, 455 F.2d 412, 2 ELR 20017 (2d Cir.), cert. denied, 41 U.S.L.W. 3184 (Oct. 10, 1972).

61. E.g., SCRAP v. United States, 346 F. Supp. 189, 2 ELR 20486 (D.D.C.), application for stay pending appeal denied sub nom. Aberdeen & Rockfish Ry. Co. v. SCRAP (U.S.), 2 ELR 20491 (Burger, Circuit Justice, 1972), cert. granted, 41 U.S.L.W. 3339 (Dec. 19, 1972) (higher freight rates for recyclable material — ICC); National Helium Corp. v. Morton, 326 F. Supp. 151, 1 ELR 20157 (D. Kan. 1971), aff'd, 455 F.2d 650, 1 ELR 20478 (10th Cir. 1971) (cancellation of helium purchase contract by Secretary of Interior).

62. See Murphy, NEPA, supra note 49 at 969.

63. Environmentalists: Kalur v. Resor, 355 F. Supp. 1, 1 ELR 20637 (D.D.C. 1971) (in issuing permits under the Refuse Act of 1899, 33 U.S.C. § 407 (1970)). Industry: Anaconda Co. v. Ruckelshaus, __ F. Supp. __, 3 ELR 20024 (D. Colo. 1972) (Winner, J.) (impact statement and adversary hearing required before limitations on sulphur oxide emissions imposed). This case may point up a little irony in the broadened venue statutes of 1962 — permitting plaintiffs to bring suits against agencies outside of the District of Columbia, because an action against EPA may now be brought by an industry in a court with a "favorable climate."

64. Retroactivity: Scenic Hudson II, 453 F.2d 463, 1 ELR 20496 (2d Cir. 1971), cert. denied, 407 U.S. 926, 2 ELR 20436 (1972); Environmental Defense Fund v. Hardin, 325 F. Supp. 1401, 1 ELR 20207 (D.D.C. 1971) (Mirex, a crop spray, USDA). National security: Citizens for Reid State Park v. Laird, 336 F. Supp. 783, 2 ELR 20122 (D. Me. 1972).

65. Environmental Defense Fund, Inc. v. Corps of Engineers (Gillham Dam), 325 F. Supp. 728, 1 ELR 20130 (E.D. Ark. 1970-71), __ F. Supp. __, 2 ELR 20260 (E.D. Ark.), 342 F. Supp. 1211, 2 ELR 20353 (E.D. Ark.), aff'd, 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972).

66. Wilderness Society v. Hickel, 325 F. Supp. 422, 1 ELR 20042 (D.D.C. 1970), sub nom. Wilderness Society v. Morton, 463 F.2d 1261, 2 ELR 20250 (D.C. Cir.), __ F. Supp. __, 2 ELR 20583 (D.D.C. 1972), rev'd, __ F.2d __, 3 ELR 20085 (D.C. Cir. 1973).

67. See note 58 supra.

68. President Nixon announced the breeder reactor program in a message to Congress, Clean Energy Needs, H.R. Doc. No. 82-118, 117 Cong. Rec. 4715 (June 4, 1971).

69. The lawsuit was dismissed by District Judge Hart, Scientists' Institute for Public Information v. Atomic Energy Commission, __ F. Supp. __, 2 ELR 20642 (D.D.C. 1972), but is on appeal and still undecided as of this writing. Compare the testimony of AEC Chairman Schlesinger, quoted in Murphy, supra note 49 at 983 n. 93:

Continuing efforts and projects are designed to clarify and to provide answers for these uncertainties and unknowns. In such a situation, the procedural exigencies of the 102 environmental statement, together with the deceptively simple appearing five-point requirement for the contents of the statement, allow the implication — readily picked up by zealous litigants, not to mention ordinary citizens and other Federal agencies — that the R&D project should not begin until the statement can be made to contain the very answers which the R&D effort is seeking.

70. Tussman & tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341 (1949).

71. Supra note 63.

72. "[I]t is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy [to restore and preserve environmental quality]." 42 U.S.C. § 4331 (1970).

73. Note, 37 Brooklyn L. Rev. 139 (1970).

74. Calvert Cliffs' Coordinating Comm., Inc. v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972). Greene County Planning Board v. FPC, 455 F.2d 412, 2 ELR 20017 (2d Cir.), cert. denied, 41 U.S.L.W. 3184 (Oct. 10, 1972).

75. 449 F.2d at 1113-14, 1 ELR at 20348.

76. 455 F.2d at 419-20, 2 ELR at 20019-20.

77. 455 F.2d at 420, 2 ELR at 20020.

78. Sec. 102(2)(A); looking with an "interdisciplinary approach" (§ 102(2)(B)); seeking interagency cooperation (§ 102(2)(C)); recognizing "the world wide and long range character" of environmental questions (§ 102(2)(E)).

79. 458 F.2d 827, 2 ELR 20029 (D.C. Cir. 1972).

80. See, e.g., Murphy, NEPA, supra note 49 at 981.

81. Murphy, NEPA, supra note 49 at 981.

82. 339 F. Supp. 806, 2 ELR 20044 (E.D. Tenn., Jan. 11, 1972.

83. Note, Evolving Judicial Standards under the National Environmental Policy Act and the Challenge of the Alaska Pipeline, 81 Yale L.J. 1592, 1600 (1972).

84. See DeVilliers, Nuisance in Roman Law, 13 L.Q. Rev. 387 (1897). The word "nuisance" is derived from the Latin "nocumentum." History of English Law 534 n. 2 (2d ed. 1898).

85. C. Fifoot, History and Sources of the Common Law 5-7 (1949).

86. See generally Bryson & Macbeth, Public Nuisance, the Restatement (Second) of Torts, and Environmental Law, 2 Ecology Law Quarterly 241 (1972) [hereinafter Bryson & Macbeth]; P. Davis, Theories of Water Pollution Litigation, 1971 Wis. L. Rev. 738 [hereinafter Davis]; Woods & Reed, The Supreme Court and Interstate Environmental Quality, 12 Ariz. L. Rev. 691 (1970); Newark, The Boundaries of Nuisance, 65 L.Q. Rev. 480 (1949); McRae, The Development of Nuisance in the Early Common Law, 1 U. Fla. L. Rev. 27 (1948); Comment, Federal Common Law and the Environment: Illinois v. Milwaukee, 2 ELR 10168 (August 1972); Note, Federal Common Law and Interstate Pollution, 85 Harv. L. Rev. 1439 (1972); Note, Equity and the Ecosystems, 68 Mich. L. Rev. 1254 (1969); Schuck, Air Pollution as a Private Nuisance, 3 Natural Res. Law 475 (1970); Porter, Role of Private Nuisance Law in the Control of Air Pollution, 10 Ariz. L. Rev. 107 (1968).

87. W. Prosser, Law of Torts 605-27 (3rd ed. 1964) [hereinafter Prosser]. See also 1 F. Harper & F. James, The Law of Torts § 1.23-1.30 (1956).

88. Prosser, supra note 87 at 611.

89. Id.

90. Id. at 616; P. Davis, supra note 86 at 746.

91. Id.

92. Bryson & Macbeth, supra note 86.

93. Prosser, supra note 87 at 605-08.

94. Id. at 608-11.

95. Davis, supra note 86 at 775.

96. Restatement (Second) of Torts (Tent. Draft No. 17, 1971) [hereinafter Tent. Draft No. 17].

97. Illinois v. City of Milwaukee, 406 U.S. 91, 2 ELR 20201 (1972), and Texas v. Pankey, 441 F.2d 236, 1 ELR 20089 (10th Cir. 1971). These two cases held that there is a federal common law of interstate water and air pollution. See Comments, 1 ELR 10018 (Feb. 1971), 10038 (March 1971), 2 ELR 10168 (Aug. 1972).

98. Ozark Poultry v. Gorman, 472 S.W.2d 714, 2 ELR 20016 (Ark. 1971) (quantity of interference great, quality of difference insufficient to bring a private nuisance suit — suit permitted by a large number of plaintiffs against a rendering plant); Stock v. Ronan, 63 Misc. 2d 735, 313 N.Y.S.2d 508 (Sup. Ct. 1970) (standing granted in a public nuisance suit where plaintiff had not proved special injury but was particularly threatened by the nuisance challenged). Cf. Karpisek v. Cutler & Sons Construction, Inc., 174 Neb. 234, 117 N.W.2d 322 (1962) (proximity alone to the source of the nuisance may constitute sufficient damage on which to base standing in a public nuisance suit). Accord, Wade v. Campbell, 200 Cal. App. 2d 54, 60, 19 Cal. Rptr. 173, 176 (5th Dist. 1962).

99. 217 N.Y. 382, 111 N.E. 1050 (1916).

100. Tent. Draft No. 17 at § 821B:

(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Factors conducing toward a determination that an interference with a public right is unreasonable, including the following:

(a) The circumstance that the conduct involves the kind of interference with the public health, the public safety, the public peace, the public comfort or the public convenience which sufficed to constitute the common law crime of public nuisance,

(b) the circumstance that the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) The circumstance that the conduct is of a continuing nature or has produced a permanent or long-lasting effect, that its detrimental effect upon the public right is substantial, that the actor knows or has reason to know of that effect.

101. For an excellent discussion of public nuisance and the Restatement see Bryson & Macbeth, supra note 86.

102. W. Prosser, The Law of Torts § 88 (4th ed. 1971).

103. Tentative Draft § 821C(2):

In order to maintain a proceeding to enjoin or abate a public nuisance, one must

(c) Have standing to sue as a representative of the general public, or as a citizen in a citizen's action, or as a member of a class in a class action.

104. Supra note 98.

105. See note 98 supra.

106. See supra note 4.

107. "Pollution Curbs on Automobiles Seen Adding $860 to Car Price," New York Times, Jan. 9, 1973, at 65.

108. May I suggest that no every state has mass transit problems? In Texas, as throughout much of the Midwest and Southwest, we still do not have severe traffic congestion between the principal population centers; thus the interstate highway program is a godsend.

Let New York, Illinois, Pennsylvania, New Jersey and Massachusetts divide their allocations from the Highway Trust Fund any way the people see fit.In Texas our need is for broad, safe expressways. Dallas and Houston are capable of financing their own rapid transit needs when the time is ripe. (Letter to the Editor, Time Magazine, Nov. 6, 1972.)

109. The Problems in connection with power plant siting have been pointed out by my colleague, Judge Irving Kaufman, in his article, Power for the People — and by the People: Utilities, the Environment and the Public Interest, 46 N.Y.U.L. Rev. 867 (1971). See also Willrich, The Energy-Environment Conflict: Siting Electric Power Facilities, 58 Va. L. Rev. 257 (1972); Special Committee on Electric Power and the Environment, Ass'n of the Bar of the City of New York, Electicity and the Environment (1972), proposing to establish a new Energy Commission to handle decision-making.

110. A case which seems to apply this sort of reasoning is Boomer v. Atlantic Cement, 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970).

111. Cf. Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149 (1971); Ackerman, Regulating Slum Housing Markets on Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Distribution Policy, 80 Yale L.J. 1092 (1971).

112. Environmental Quality, Second Annual Report 160 (Aug. 1971).

113. See supra note 109.

3 ELR 50001 | Environmental Law Reporter | copyright © 1973 | All rights reserved