I. Introduction

A somewhat obscure provision (section 9) of the 88-page Federal Water Pollution Control Act Amendments of October 18, 1972 [Public Law 92-500] requires the President, acting through the Attorney General, to: (1) "[M]ake a full and complete investigation and study of the feasibility of establishing a separate court, or court system, having jurisdiction over environmental matters;" and, (2) Within one year from the date of the Act, "report the results of such investigation and study together with his recommendations to Congress."

Little is known of the thought processes behind this provision. The congressional committee [House Committee on Public Works] responsible for the provision stated only that:

The Committee believes that this study will be useful in determining whether the time is now appropriate for the establishment of an environmental court. The increase in litigation on environmental matters, the detailed specialized legislation which has been enacted on this subject, the high degree of sophisticated technology involved in pollution control, and the increasing involvement of the judiciary in reviewing the beneficial and adverse effects of ongoing programs may well justify a new environmental court. [H. Rept. No. 92-911, 2d sess. (1972) p. 143.]

The Committee apparently assumed that there is a clearly distinguishable body of "environmental matters" before the courts. In any event, Congress did not attempt to define "environmental matters." Had it done so, the problems to which I shall refer should have been substantially reduced. Or, perhaps, an environmental court would never have been suggested.

Whatever Congress may have omitted, or neglected to explain, one thing was made unmistakably clear. The primary responsibility for reducing to concrete terms the abstract concept of an environmental court system was given to the Department of Justice.

II. Assignment of Responsibility and Method of Study

The Land and Natural Resources Division of the Department of Justice is responsible for the conduct of most of what is commonly understood to be environmental litigation. The Division's responsibilities in the conduct of such litigation fall into two main categories. On the one hand, the Division is called upon to prosecute in criminal actions or sue in civil actions private citizens who violate environmental control laws. On the other hand, the Division is responsible for the defense of federal officials who are accused of attempting to conduct governmental programs in violation of statutes calculated to insure a better environment, especially, the National Environmental Policy Act of 1969. With some reason, then, it fell to the lot of that Division to undertake the study called for by Congress and to make preliminary recommendations with respect to the desirability of an environmental court.

Shortly after the enactment of the 1972 water pollution control amendments, the Deputy Attorney General directed the formation of a task force to carry out the Department's assignment. The task force, supported by Land and Natural Resources Division staff attorneys with experience in environmental litigation, undertook to ascertain the facts needed for an informal judgment and to submit its own views with respect to the need for a separate environmental court.

Before any meaningful discussion of the merits of a separate environmental court can take place, two threshold questions need be answered: (1) What are to be the jurisdictional limits of such a court's and (2) How is the court to be structured? Since Congress suggested no answers to either of these questions, it became necessary at the outset of our study to do a little assuming and a little suggesting.

One of our initial assumptions was that, whatever limits might be placed upon its jurisdiction, an environmental court should have exclusive jurisdiction of the subject matter falling within those limits. That is, a plaintiff should not have a choice of forums. Closely related was an assumption that, once the environmental court took jurisdiction over a matter, it would have jurisdiction to resolve or review all related non-environmental legal issues. Since many, if not most, environmental cases involve [3 ELR 50014] issues falling outside the scope of environmental statutes, we considered a requirement of separate suits to decide the environmental and the nonenvironmental aspects of each case to be clearly undesirable. Other assumptions, based upon somewhat less certain grounds, were that judgments of an environmental court would be subject to review only by the Supreme Court upon certiorari, that the court would be created as a constitutional, rather than a legislative, court, and that the scope of judicial review of agency action would remain unchanged from that now available.

With these assumptions in mind, we formulated three model courts which, in our view, suggested major alternatives which might be followed in establishing an environmental court. The first was an environmental court to hear environmental cases generally. As envisioned, such a court would be structured along the lines of the Court of Claims. A group of commissioners, or trial judges, would individually handle trial matters. A panel of judges would sit as an appellate division. The court would have exclusive jurisdiction of environmental cases.

A second model court would consist of a panel of judges having exclusive jurisdiction to review Federal administrative orders affecting the environment. Such review would constitute the sole function of the court.

The third model would consist of a panel of judges having exclusive jurisdiction to review the orders of designated Federal agencies or of specified types of matter handled by Federal agencies.

Some of the questions immediately suggested to us by the congressional mandate were:

(1) Has environmental litigation become so extensive as to constitute an unmanageable burden upon our present court system?

(2) If not, is it likely that future environmental litigation will be too voluminous for the present courts to handle?

(3) Does environmental litigation involve such complex issues and sophisticated technological data that it cannot be understood by an ordinary judge and should therefore be handled by a specialized court possessing expertise in such matters?

In seeking answers to these questions we solicited comments from federal agencies and nongovernmental organizations including Bar associations known or believed to have an interest in environmental problems. We explained our initial assumptions and outlined our three model courts. We then sought from each organization:

(1) Its total litigation experience in terms of new cases, since January 1, 1970;

(2) The percentage of such cases having significant environmental issues;

(3) The percentage of cases having minor or tangential environmental issues;

(4) Its opinion of the ability of courts generally to handle technical environmental issues;

(5) Its preference among the three model courts suggested; and

(6) Suggested alternatives to the proposed models.

Simultaneously, we undertook to ascertain what part of the total case load of the federal courts may be attributable to environmental litigation.

III. Problems

The initial response to our request was a rapid succession of inquiries as to how we defined "environmental cases" and what we meant by "significant environmental issues." We had to acknowledge frankly that we had no definitions going beyond the meanings which the terms themselves suggested. We were interested, however, in what the unembellished terms mean to those whose views were sought.

This experience serves to illustrate a fundamental obstacle to the creation of an environmental court. As I have observed, Congress apparently assumed that there is a distinguishable body of environmental litigation. But is there in reality a body of cases involving environmental issues which can be distinguished for jurisdictional purposes from non-environmental cases?

There are areas of the law that can be and have been segregated with some degree of precision from the general body of law and assigned to courts of specialized jurisdiction. Ordinarily it can be ascertained from the allegations of a complaint if the plaintiff is seeking money damages from the United States based upon the Constitution, an act of Congress or administrative regulation or a contractual obligation, or if he is seeking a patent for an invention or if he is seeking relief under the Internal Revenue Code, any of which may confer jurisdiction on a specialized court. But how do we distinguish an environmental case?

Illustrative of the problem is the highly-publicized controversy over the proposed construction of an oil pipeline across the State of Alaska. In early 1970 three environmental organizations sought to enjoin the Secretary of the Interior from granting rights-of-way across public lands in Alaska for the construction of a pipeline to transport oil from Alaska's north slope. I doubt whether anyone familiar with the case would question whether this was an environmental case raising major environmental issues. Yet, when the United States Court of Appeals for the District of Columbia issued its 137-page opinion on February 9, 1973, declaring that the Secretary lacked authority to approve construction of the proposed pipeline, it ruled upon the basis of a non-environmental issue. It did not, in fact, reach the environmental issues in the case. Is it therefore not an environmental case?

Of course it is pure conjecture to try to guess what an environmental court would have done with the pipeline case. But it is reasonable to suppose that, by this time, that is, within three years, an environmental court would have decided the environmental issues.

[3 ELR 50015]

The fact is that nearly any controversy may have an environmental aspect to it, especially if it involves actions of the federal government. This is particularly true of controversies relating to the use or disposition of land or natural resources. At the same time most environmental litigation also involves non-environmental issues. Regardless of how jurisdiction might be defined, the jurisdictional problems of a general environmental court would be immense.

The jurisdictional problem would be minimized by the third model proposed, a court limited to reviewing the decisions of specified agencies or to reviewing certain types of agency decisions. But a court so restricted in jurisdiction would probably fail to satisfy most of the objectives sought in establishing an environmental court.

Another problem area is criminal jurisdiction. Some environmental statutes provide for criminal, as well as civil penalties. Should an environmental court have jurisdiction over both the civil and the criminal aspects of a case? Can a specialized court be given criminal jurisdiction without creating problems of constitutional rights? If so, is it either desirable or practicable to carve this particular segment of criminal jurisdiction out of the whole body of criminal law?

IV. Response To Our Inquiry

Our requests for comments elicited responses from 26 federal agencies and 9 private organizations, as well as responses from other divisions within the Department of Justice.The responding organizations represented a broad spectrum of viewpoints on environmental matters. Several of the responding environmental organizations have been in the forefront in environmental suits against some of the responding governmental agencies. It was somewhat suprising, therefore, to find near unanimity among federal agencies and environmental organizations alike in the strong opposition to the establishment of a separate environmental court.

Opinions differed as to which of the three model courts was preferable if one were to be adopted. But after expressing a prefence for one over the others, nearly every answering organization made it clear that it did not want any of them. Only one respondent proposed an alternative model. And it did not like that alternative either.

Principal reasons offered in support of a separate environmental court were that (1) greater uniformity in interpretation of environmental law should result; (2) the court should develop an expertise, not presently found, in dealing with environmental controversies; and (3) an environmental court might be more efficient in disposing of environmental litigation.

Among the principal reasons given for opposing the creation of an environmental court were:

(1) The difficulty in defining the jurisdiction of an environmental court;

(2) The broad range of issues involved in environmental litigation, which would defy the acquisition of "expertise" in environmental matters;

(3) Preference for the outlook of "generalist" courts over the narrower view likely to be developed by a specialist court on environmental matters;

(4) Fear that an environmental court would lack institutional strength to withstand the pressures likely to be focused upon it by special interest groups;

(5) Concern over the possibility that creation of an environmental court would lead to additional specialized courts and the fragmentation of our judicial system;

(6) Skepticism about an increase in environmental litigation of such magnitude as to warrant treatment as a separate body of law; and

(7) Fear that an environmental court would be less accessible to would-be litigants than the federal district courts.

The supposition that an environmental court would be better equipped to understand complex environmental legal issues and to evaluate technological data was given little credence. The district courts, it was pointed out, are accustomed to complex issues of law and to evaluating the testimony of experts in fields with which the judges are not familiar. There is nothing unique in the legal or technological complexity of environmental cases. Although not always satisfied with the results in particular cases, responding agencies saw no difference in the ability of present courts to deal with the complexities of environmental cases and their ability to handle other complex cases.

Our study also indicated that, although environmental litigation has had a dramatic impact upon the government and upon society generally, it has not had a very significant impact upon the total case load of the federal courts. As of June 30, 1972, there were 101,032 civil cases and 25,438 criminal cases pending in the United States district courts. In addition, there were 9,939 cases pending in the courts of appeals. At the same time, there were approximately 860 cases pending before those courts which could be identified as environmental. These constituted, then, less than seven tenths of one per cent of the total case load.

V. Conclusions

At this point I do not expect to startle very many of you by stating that the Land and Natural Resources Division has tentatively taken a position recommending against the establishment of an environmental court.

This is not a case of electing to support one of two opposing sides in a dispute. There are, so far as we have been able to ascertain, no identifiable proponents of an environmental court. Even the drafters of the mandate to study the merits of an environmental court did not indicate that they favored the creation of such an institution. They simply wondered about the need and the feasibility.

[3 ELR 50016]

In taking a tentative position in opposition to the creation of an environmental court, we have considered the following factors to be of particular significance:

(1) No workable definition of an environmental case has been advanced. Opinions of our contributors varied from the view that jurisdiction could be defined after careful thought and study to the view that a meaningful definition of environmental jurisdiction is not possible. No one suggested how jurisdiction should be defined.

(2) The total number of environmental cases is not now sufficient, and it cannot presently be predicted that it will ever become sufficient, to justify the creation of a separate court system.

(3) There is little reason to believe that a specialized environmental court would prove superior to existing courts either in its ability to cope with environmental issues or in its capacity to dispose of controversies in an efficient manner.

(4) There is virtually no evidence of support for a separate environmental court among those most directly affected by the manner in which environmental controversies are handled. Experience suggests that a court lacking active support from any of the influential interests to be affected by its operations does not have a bright future.

I do not mean to suggest that changes are not needed in our approach to environmental problems. The experience of more than three years since the enactment of NEPA indicates many areas in which improved methods of handling environmental disputes may be needed. Environmental litigation is costly both to the litigants and to others not directly involved but economically affected. It sometimes delays for long periods of time much needed projects while relatively trivial technicalities of the law are heatedly debated. And when it is finished, the original problem calling for action may well remain, worsened by several years delay during which no constructive action has been taken.

Viewing its advantages and disadvantages, it appears that an environmental court offers no panacea to our environmental problems. But before final judgment is made with respect to its feasibility, I suggest that other measures for improvement of our system of resolving environmental controversies be canvassed. Among those measures I would commend for your consideration are: (1) a system of more effective regulation within the executive branch of the formulation and consideration of environmental impact statements; (2) establishment of a uniform scope of judicial review of executive agency compliance with NEPA; and (3) any additional measures which would promote the orderly and expeditious resolution of environmental issues administratively and judicially.