4 ELR 10019 | Environmental Law Reporter | copyright © 1974 | All rights reserved
Attorney General's Report Rejects Establishing an Environmental Court
[4 ELR 10019]
Section 9 of the Federal Water Pollution Control Act Amendments of 19721 requires that the President, acting through the Attorney General, report to the Congress on the feasibility of establishing a separate court, or court system, with jurisdiction over environmental matters. On October 11, 1973, the then Attorney General, Elliot Richardson, submitted the report,2 compiled by the Land and Natural Resources Division of the Department of Justice, with the recommendation that no action be taken to establish a separate environmental court.
Judging from the comments solicited from federal agencies experienced in environmental litigation and from private environmental organizations, such a court would not enjoy broad-based popular support. Federal agencies and environmental groups, frequently the opponents of the government in environmental litigation, were in nearly unanimous agreement on this particular issue. Of a total of 40 responses, both governmental and non-governmental, only the General Services Administration clearly favored the establishment of an environmental court system. This widespread lack of enthusiasm for a separate court system within the environmental "community" figured heavily in the decision to recommend that an environmental court not be established.
Three hypothetical models of environmental courts were proposed for the purpose of focusing into concrete terms consideration of the abstract environmental court concept. The first model was a court to hear environmental cases generally; the second was a court to review orders of federal agencies affecting the environment; the third was a court to review orders of certain specified environmental agencies. Comments were requested on each model and responding parties were encouraged to propose alternate models.
The authors of the report acknowledged consideration of the following factors in reaching their conclusion: the problems encountered in establishing other courts of limited or specific jurisdiction, such as the Tax Court, the Probate Court, and the Court of Claims; the fact that a review of environmental laws enacted by several states revealed these laws to be predicated on the existing court structure; and the realization that, despite the prominence accorded environmental cases, such litigation constitutes a very minor part of the workload of the United States district courts.
One basic problem in establishing an environmental court for which no apparent solution was reported is the creation of serious jurisdictional conflicts with other federal courts. Because many legal controversies may have primary or secondary environmental overtones, the issue of jurisdiction would have to be resolved before the substantive issues in a given situation could be litigated. Since whether a dispute is classified as environmental may depend on what issues are initially raised, the question of forum could be viewed by plaintiffs in terms of draftsmanship. If plaintiffs raised environmental issues in the complaint or petition, they could bring the case in an environmental court; if they did not, the case would go to the federal district court or court of appeals. The decision, in all likelihood, would be based upon a determination as to the forum in which plaintiff believed he would prevail. The report suggests that the result of this predicament would be the establishment of two parallel lines of precedent [4 ELR 10020] in the environmental court and in the federal courts on similar issues, and the encouragement of forum-shopping.
One proposed solution to this problem is the definition of the environmental courts' jurisdiction in terms of claims arising under orders issued pursuant to particular federal statutes. The Council of Environmental Quality pointed out, however, that:
… such a jurisdictional limit would sacrifice much of the rationale for the creation of a federal court. It would leave environmental issues which arise under other issues to be decided by the general federal courts. Furthermore, unless a list of agencies or statutes included was quite large, the environmental court would have a very small and very specialized workload.3
Although none of the porposed models said anything about the geographic location of an environmental court, the authors of the report assumed that because of the relatively small number of environmental cases such courts would be centrally located rather than spread throughout the country like the federal district courts. The report concluded that a centrally located court would be less advantageous than the present system where local judges frequently have direct knowledge of local situations and their factual settings, and can act swiftly in appropriate circumstances. A centrally located court would also be more expensive and inconvenient than a geographically dispersed system and would contribute to the formation of a local specialized bar.
Many observers of the environmental movement have called for the establishment of an environmental court because of an alleged special need for expertise in dealing with the complex scientific and technological matters that surround ecological disputes. The report concluded, however, that the federal courts are regularly involved in complex technical issues and often must make detailed findings of fact, as for example, in anti-trust, medical malpractice and patent cases; and have generally handled such tasks quite well. The report also pointed out that, unlike these areas of the law, environmental litigation involves many different statutes and varying technical and factual situations. In this regard, the National Wildlife Federation noted in its comments that environmental law may never develop into a distinct expertise:
[W]e do not believe that the development of judicial "environmental expertise" is feasible. No scientist, no matter how broad his background can hope to acquire in a lifetime the scientific expertise relevant to the most ordinary environmental cases. There is no single body of science to determine the value of a mountain range, the possibility of eutrophication due to water impoundment, melt-down in power reactors, or as [sic] the economic advantages of comparative transportation systems. The issues involve a mix of statutory interpretation, policy, and fact no different from issues which arise in all areas of civil litigation; a good judge will be able to grasp them and a poor one will not.4
In situations where courts face complex technical questions, existing devices are adequate to enable them to understand and resolve the issues. Special masters can be appointed, parties can be required to submit detailed proposed findings and briefs, and "neutral" expert witnesses can be appointed.
The report concluded that a strong preference toward generalist courts is in keeping with the trend of American jurisprudence. Several comments expressed the view that an environmental court might tend toward a narrow view of environmental issues to the exclusion of a broader public interest, while such interests would be given proper consideration by the "generalist" courts. There were also suggestions that the Supreme Court would benefit from the varying approaches taken by these courts.
It is indisputable that in a relatively short period of time the field of environmental litigation has undergone immense change. With the advent of NEPA and other laws giving rise to numerous causes of action, a considerable body of precedent has grown to become what is commonly called "environmental law." However, the boundaries between this constantly expanding area of the law and other legal fields remains ill-defined, and at some points non-existent. From the very first common law action in public nuisance, the recurrent lesson has been that legal action to protect the environment involves a multitude of diverse and yet interrelated issues. A single purpose court to hear only those matters pertaining to the environment, like single-purpose planning, is basically an attempt to solve some problems by denying their relationship to others.
1. ELR 41101.
2. Report of the President, Acting Through the Attorney General, on the Feasibility of Establishing an Environmental Court System, October 11, 1973.
3. Letter of February 1, 1973, from Timothy Atkeson, General Counsel, CEQ, at Appendix B-35.
4. Letter from Oliver A. Houck, Counsel, National Wildlife Federation, at Appendix B-81.
4 ELR 10019 | Environmental Law Reporter | copyright © 1974 | All rights reserved
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