Does the term "environmental law" have any significance beyond being a reference to an increasingly large group of statutes and court decisions? Does environmental law really represent a "new era," as Chief Judge Bazelon has proclaimed,¹ or is it instead very similar to the law taught in law schools (probably as administrative law) before the word "environment" had meaning for persons other than natural scientists?

Exploring these broad questions should help provide a foundation for the second issue I would like to raise, one that interests me not only conceptually but also personally, since it relates quite directly to the business of judging. Assuming there is something different about environmental law, what should be the judge's role in it? Should he immerse himself in the technical esoterica of, for example, respiratory absorption and epidemiology, as the District of Columbia Circuit did recently in Ethyl Corp. v. EPA,² or the reproductive habits of Hudson River striped bass, as my court did in the third Scenic Hudson³ case? Or should the judge instead limit his role solely to procedural review of decisions made by others with more specialized expertise, to making sure that all interests have been heard and all points of view fairly considered?

Those who accept the appellation "environmental lawyers" have an obligation to concern themselves with both of the broad issues outlined above — the role of environment in the law and the role of judges (and, by extension, litigators) in environmental law. This article is designed to stimulate that thinking, not to provide conclusions, although, as will be evident, I have formed a few tentative conclusions of my own.

Qualitative Differences in Environmental Law

The first such tentative conclusion, or, better, working hypothesis, is that, despite many links to the past, environmental law is in a real sense qualitatively different from other areas of administrative, regulatory, or public law. Because life itself is involved, there is no other area that I can think of that requires such a complex balancing of so many subtle relationships. An Interstate Commerce Commission (ICC) ratemaking decision, a Federal Communications Commission (FCC) television licensing decision — these and similar regulatory decisions have several dimensions, but a relatively finite number. By contrast, the number of dimensions to many environmental questions is almost staggering. It is not enough to balance economic effects against human health effects, or the need for a structure against its unsightliness. Any action taken in the environment, from driving a car to constructing a power plant, may have aesthetic, noise, air, water, waste disposal, land use, transportation, food supply, energy, interpersonal, health, and economic consequences. These consequences vary widely among individuals, depending upon such factors as age, location, race, and social class. To consider just living human beings, moreover, is not enough. The interests of future generations as yet unborn must be somehow weighed in the balance, as must the interests of animals and even plants on a species-by-species basis. The essence of the word "ecology" is the message that we are all interlinked in a closed system and that the right hand can never ignore what the left hand is doing.

What does all of this mean for law and lawyers? It means, first of all, that the would-be legal regulator — I speak in the broad sense of "regulator" — of an environmental action, be he judge, administrator, congressman, or litigator, has a more difficult task than the regulator of other actions. He must not only think in the abstract about the virtually infinite dimensions of an environmental problem; he has to make unquantifiable values like aesthetics or human health somehow comprehensible in terms rendering those values susceptible to being weighed against other unquantifiables like food production and jobs. The congressman has a certain advantage in this regard, since he can, and in the nature of political compromise that is the essence of congressional "action" generally does, pass the buck to the rest of us by referring in very general terms to "environmental impact," as does the National Environmental Policy Act (NEPA),⁴ or "adverse effect on public health or welfare," as does the Clean Air Act,⁵ or "economic, environmental, and societal significance," as does a recent energy statute.⁶ Such broad delegations, of course, complicate matters enormously for administrators and courts; they also help public interest groups to raise funds and private lawyers to collect comfortable fees.

While broad delegations are nothing new in administrative law, founded largely as it is on the concept of "public interest," they take on special significance in the environmental context. Because there are so many variables that are so inherently unquantifiable, our normal legal concepts of doctrine and precedent have much less significance. Cases instead tend to turn to a large extent on particular facts and on the attitudes of those applying what law there is to the facts. The attitudes of those in power, and the willingness of those not in power to fight for their views, become more important [7 ELR 50030] than is perhaps healthy in a society that prides itself on being governed by laws rather than men. In addition, arguments and decisions must be articulated to a large extent not in terms of statutory language, legislative history, and the reported cases, which are the usual lawyers' tools, but in terms of technical and scientific analyses that are not part of the standard law school curriculum.

Environmental law, then, is qualitatively different in a host of ways: in the nature of the problems addressed, in the nature of the balancing to be done, in the ability or willingness of legislators to set policy, in the value of precedent, and in the language of the legal debate. It is my guess, moreover, that these differences will become increasingly obvious over time, as we move out of the more traditional statutory construction phase of environmental litigation, usually in a NEPA framework, and settle into a newer phase of case-by-case, pollutant-by-pollutant analysis of enforcement and implementation efforts.

Judges and Substantive Judicial Review

If I am correct that there is much that is different about environmental law, one might be immediately alarmed about judges having anything to do with it. Judges, after all, are generally drawn from among the older members of the legal profession and thus, in terms of stereotypes, might be feared to be the most resistant to change. They tend, moreover, all too often to come from the upper-middle income groups and to be white and male. When complex questions of balancing unquantifiable values are at stake, it might seem that the last thing we as a society would want is for ultimate decisions to be made by a group with relatively uniform backgrounds far different from the backgrounds of the vast majority of Americans.

Fears such as these could have been legitimately harbored at the start of the 1970s, but I believe that our experience since then should put those fears to rest. There are two aspects to the judicial role in environmental litigation, one procedural, one substantive, and in both judges have been willing to recognize new forms of legal argument and able to transcend the narrowness one might possibly expect from their backgrounds.

The procedural aspect of judicial review in environmental cases has a familiar ring to it. When reviewing agency action, be it action of the Environmental Protection Agency (EPA) or the ICC, the courts first seek to determine whether there has been compliance with the fundamentals of due process — whether all interested persons and groups have had an opportunity to convey to the agency the relevant information that they possess; whether the agency has fairly considered this information and accompanying arguments; and whether the agency has adequately articulated the reasons for its decision.

In environmental cases, however, the courts have gone beyond traditional procedural review.They have made extra certain that all information is before the agency by broadly interpreting the case or controversy clause to permit standing⁷ — almost to the point of having a double "standing" standard — and by imposing procedural requirements not found in any statute, such as the cross-examination rights accorded participants in a legislative-type hearing by the District of Columbia Circuit's International Harvester decision.⁸ The courts have not hesitated to remand to agencies for additional hearings and an extended record, as the First Circuit did in the Boston transportation plan case.⁹ And, in the context of environmental impact statements (EIS) under NEPA, the courts have recognized the danger of pro forma agency compliance and have insisted that the agency instead "take a 'hard look' at the environmental consequences and alternatives," as my court recently did in a case involving a Postal Service EIS on a planned facility in suburban Rochester that the service wanted very badly to build.¹⁰

There are inherent limitations, however, on what a court can accomplish through procedural review. The agency, after holding more hearings, considering more evidence, and taking what appears to be a "hard look," may ultimately reaffirm its initial decision, and there is simply no way for a court to determine whether the entire decisionmaking process was anything more than empty formalism, ritual for ritual's sake (and for the sake of the reviewing court). These considerations have led Professor Joseph Sax to deride "the emphasis on the redemptive quality of procedural reform [as] about nine parts myth and one part coconut oil."¹¹ I would not go that far, but I do believe that a substantive judicial role is absolutely essential if judges are to meet their serious constitutional obligation to check abuses of executive discretion.

The debate about the extent to which judges should be involved in substantive review of highly technical environmental decisions is not a new one, nor is it likely to be resolved in the near future. In the District of Columbia Circuit's recent Ethyl decision, Chief Judge Bazelon, concurring, argued that "substantive review of mathematical and scientific evidence by technically illiterate judges is dangerously unreliable" and that courts should instead "concentrat[e] our efforts on strengthening administrative procedures."¹² His colleague, Judge Leventhal, responded by pointing out that courts have an unavoidable responsibility, delegated to them by Congress, to ensure that administrative actions remain within statutory limits and are not arbitrary and capricious and that conscientious judges can become sufficiently conversant in quite technical fields with enough study, at least to make a determination of arbitrariness or rationality.¹³ [7 ELR 50031] Judge Leventhal's statements to some extent echo those found in the majority opinion of Judge Wright; that opinion points out that a reviewing court cannot do its statutory duty unless it has studied the record enough to understand the difference between "the evidence relied upon and the evidence discarded" and "the questions addressed by the agency and those bypassed."¹⁴

Generalist Judges in a Technical World

As may be obvious from what I have said to this point, however much I may agree with Chief Judge Bazelon generally, I side with Judges Wright and Leventhal in this debate. I believe that a very strong case can be made for the propriety of vigorouse judicial scrutiny of environmental decisions. It is not merely a matter of appellate judges making these decisions because Congress has placed this responsibility on our shoulders, with the implication being that the responsibility might more wisely have been placed elsewhere. I believe that the (perhaps accidental but certainly convenient) congressional choice to give generalist, unelected judges a major role in reviewing environmental decisions was a wise one in the context of our overall system of government, and one that has yielded significant benefits for our country.

Before describing some of those benefits, I should explain that in my view neither the charge of technical illiteracy nor that of political unresponsiveness carries all that much weight. The criticism that judges are legal generalists who cannot intelligently analyze technical, nonlegal issues seems to me to contain two partially false assumptions: that judges are simply generalists and that generalist review is necessariliy a bad thing. On the first point, it is simply not true that judges are altogether incapable of mastering scientific concepts and terminology, as the Ethyl opinions themselves clearly demonstrate and as has been from time to time demonstrated for decades in the patent field.While a court may never understand a specific problem as well as does a scientist or the EPA Administrator, so as to be able to say a specific conclusion is right or wrong, such depth of understanding is not necessary to decide the lesser question whether an agency has acted arbitrarily or capriciously. When, as is so often the case in environmental litigation, briefs are submitted by three sides — agency, industry, and public interest group — no judge genuinely interested in the issue can fail to get a modicum of education sufficiently adequate for the problem at hand of limited review and more — everything one could ever want to know about carcinogens but should have been afraid to ask. In the end, much depends upon the conscientiousness or laziness of the individual judge, just as much depends, at other levels in the system, upon the individual traits of laboratory scientists and agency officials.

A degree of expertise and specialization, moreover, may derive from pre-bench exerience and on-the-bench assignments. In my own case, I have written a fair number of environmental and energy-related opinions, in part perhaps because my background includes service as special attorney to the Vermont Public Service Board in connection with energy imports from Niagara and St. Lawrence; as a state senator serving as chairman of the Committee on Conservation and Development; as a lobbyist supporting the importation of hydroelectric power from Quebec as an alternative to building a nuclear power plant; and as the person responsible, during a term as state Attorney General, for establishing the state's policy toward Vermont's only nuclear plant, involving, inter alia, water and air pollution considerations. My own experience is hardly unique; the average so-called "generalist judge" is not so unknowledgeable as might first appear. At the very least it can be said that lack of specialized knowledge at the appellate level is probably as much a problem in some other areas of the law where substantive review is widely accepted, such as tax or patent law, is it is in the environmental field. Which is not to say that techniques for remedying that lack need not be explored.

But even if all judges were pure generalists, lacking any special familiarity with environmental matters, I am far from convinced this would necessarily be bad. When experts talk only to each other, they tend to forget for whom the decisions are being made. When the experts are forced to explain their decisions in terms even a judge can understand, it is more likely that the public also will understand. This, then, is the first benefit from generalist court review: it makes environmental decisions more comprehensible to those who must ultimately pay the costs of implementation. One need only compare an opinion of the EPA Administrator on virtually any subject with the court of appeals' opinion on review to realize the service the courts are performing.

Generalist Judges in a Political World

If only a translator of EPA opinions were needed, however, a better, less cumbersome, less expensive method could certainly be devised. Courts contribute in other, more important ways to the process of environmental policymaking, ways best introduced by a discussion of the political unresponsiveness charge. It is well to remember, first, that the judicial system in general is not all that unresponsive. Judges do not rise to the bench from out of a vacuum, but rather out of a rich array of diverse backgrounds.Many judges had some connection with public service prior to donning the robes, and a very large number had political experience in the legislative or executive branches, or both, of state or federal government. We do not suddenly forget whence we came, and many of us make diligent efforts to keep in touch with people from all walks of life, as well as with a certain amount of economic and scientific thinking.

There are sufficient checks within the judicial system, moreover, to prevent any one view from dominating in court decisions. As one example, when lower courts started freely awarding attorneys' fees to public interest litigants,¹⁵ the Supreme Court, taking note of Professor Dawson's law review criticisms,¹⁶ put the brakes on in its [7 ELR 50032] Alyeska Pipeline decision.¹⁷ To take another example, while some are concerned about "upper middle class" judges "indulg[ing] a [regressive] preference for environmental quality,"¹⁸ a concern that I sometimes share, I have met a number of judges whose earlier legal careers were largely spent defending large industries and whose preferences for environmental quality have somehow been sublimated. The main charge against judges for the last 25 years has not been that they are too elitist, but too egalitarian. When we do have subjective value choices to make, the diversity of our backgrounds and current attitudes ensure that no one side will win too often. Within two days recently, for example, two different panels of my court held that the Clean Air Act preempted stringent New York City regulations regarding the content of lead in gasoline,¹⁹ and that EPA could enforce its metropolitan New York clean air plan requiring, among other things, the charging of tolls on previously toll-free bridges into the city,²⁰ two decisions with apparently contrary impact in terms of improving air quality.

The final assurance that the judiciary will be politically responsive comes from the political process itself. As was said by Finley Peter Dunne through his Chicago bartender, Mr. Dooley, "th' supreme coort foolows th' illiction returns." The turnover in judicial personnel, moreover, ensures that each president or each senator (senators dictate most lower federal court appointments) will have a chance to appoint those who, within certain parameters, think the way he and his supporters do.

The Strength of Substantive Judicial Review

If we thus have little to fear from substantive judicial review in environmental cases, what have we to gain? in addition to the function I mentioned earlier of making environmental decisions comprehensible, there is the further function of providing several additional levels of give-and-take on questions of great public moment. If the EPA Administrator's substantive decision were allowed to stand unchallenged, we would have much less assurance of its wisdom than we do in a system in which that decision is closely scrutinized for flaws by the interested parties and the court of appeals and then, quite often, by the parties again in the Supreme Court. The fact of all this scrutiny, of course, has an incentive effect on the initial decision; aware of what his decision must withstand, the Administrator will make extra sure it is as wise as possible and will take extra care to articulate his reasoning in terms that make the decision as defensible as possible.

These last observations serve to remind us of what is perhaps the greatest strength of substantive judicial review — that it is simply one part of an ongoing political process, in which all sides can seek to influence ultimate outcomes through many channels, in the best tradition of democratic pluralism. When, for example, acting as a district judge, I handed down a decision a few years ago that was disliked by highway construction interests — requiring Department of Transportation-authored NEPA statements on a regional basis²¹ — those interests went to Congress and, in effect, had my decision, which had been affirmed in the court of appeals,²² partially reversed.²³ To take another example, Congress is currently expanding attorneys' fees provisions, in civil rights²⁴ and eventually environmental statutes,²⁵ in the wake of Alyeska.

Do these congressional "reversals" of court decisions mean judicial review was a hindrance rather than a help? While I am tempted to say that it depends on whose ox is being gored, the more complete answer is that these judicials decisions and many others in the environmental field played a vital role in stimulating public debate, forcing interest group leaders and legislators to assess from a fresh perspective matters that had either been taken for granted or simply ignored.

At times, moreover, the politically, responsive bodies can learn from the courts, rather than just react to them. The Second Circuit's decision in the first Scenic Hudson case,²⁶ which required the Federal Power Commission to evaluate carefully the environmental impact of a pump-storage plant, helped shape the contours, a few years later, of NEPA, with its EIS requirement of searching the alternatives that had become so familiar to [7 ELR 50033] us all. Precisely because judges are free from some of the day-to-day political pressures faced by elected officials, they have a unique opportunity to develop creative solutions to particular problems, solutions that may prove to have general applications beyond the contours of the individual case.

In concluding on this back-patting note of praise for the courts' limited substantive and extensive procedural roles in environmental law, it is important to mention two assumptions that I consider crucial to all that I have said so far. One is rather obvious: judicial review is only as good as the judges who are doing the reviewing. Concerns about elitism and lack of expertise become more significant, and benefits like creativity less significant, as the quality of the judiciary declines. At the moment, however, as I have indicated, there are few reasons for concern on this score.

A second assumption is perhaps less obvious: the public interest groups must continue to play a major role in environmental litigation. One needs only to look through an environmental law casebook to appreciate the importance of such established groups as the Natural Resources Defense Council, the Environmental Defense Fund, Friends of the Earth, and the Sierra Club, and the many smaller, ad hoc groups, such as the Scenic Hudson Preservation Conference. Regardless of whether one agrees with their aims, or in a particular case their position, no judge can fail to be impressed with the assistance they have provided the body politic both by illuminating areas of difficulty and by stimulating counter-arguments from government and industry.

With good judges and vigorous public interest advocacy, we plainly have nothing to fear and much to gain from an active judicial role in environmental law. The field is a new and very much evolving one, with pressures from all sides that have been and will continue to be intense. The field is both conceptually complex, in terms of the many interests that must somehow be balanced, and highly technical, with scientists often disagreeing among themselves and with nonscientists frequently unsure about the scientists' language, much less their conclusions. But the pressures can be surmounted and the complexities mastered, if judges are cognizant of the limitations and possibilities inherent in their role at the center of a pluralistic, open-textured system of government. The examples I have cited suggest our system has been operating fairly well over the last decade; I am confident it can do even better in the next one.

This article is based on a speech delivered to Environmental Law VII, the ALI-ABA conference cosponsored by the Smithsonian Institution and the Environmental Law Institute, held February 10-12, 1977, Washington, D.C. Copyright 1977, Judge James L. Oakes. All rights reserved.

1. Environmental Defense Fund v. Ruckelshaus, 439 F.2d 594, 598, 1 ELR 20059, 20064 (D.C. Cir. 1971).

2. 541 F.2d 1, 6 ELR 20267 (D.C. Cir. 1976). See Comment, Precautionary Controls: D.C. Circuit Upholds EPA's Phase-Down of Gasoline Lead Additives in the Interest of Public Health, 6 ELR 10100 (May 1976).

3. Hudson River Fishermen's Ass'n v. FPC, 498 F.2d 827, 4 ELR 20446 (2d Cir. 1974).

4. 42 U.S.C. § 4332(2)(C)(i), ELR 41010.

5. 42 U.S.C. § 1857c-3(a)(1)(A), ELR 41203.

6. Federal Nonnuclear Energy Research and Development Act of 1974 § 8(b)(2), 42 U.S.C. § 5907(b)(2), ELR 41278.

7. United States v. SCRAP, 412 U.S. 669, 3 ELR 20536 (1973); City of Rochester v. U.S. Postal Service, 541 F.2d 967, 6 ELR 20723 (2d Cir. 1976); Coalition for the Environment v. Volpe, 504 F.2d 156, 4 ELR 20717 (8th Cir. 1974); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965). But see Comment, The Revival of the Standing Defense in Environmental Litigation, 7 ELR 10031 (Feb. 1977).

8. International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 3 ELR 20133 (D.C. Cir. 1973).

9. Natural Resources Defense Council v. EPA, 478 F.2d 875, 3 ELR 20375 (1st Cir. 1973).

10. City of Rochester v. U.S. Postal Service, 541 F.2d 967, 6 ELR 20723 (2d Cir. 1976).

11. Sax, The (Unhappy) Truth About NEPA, 26 OKLA. L. REV. 239 (1973).

12. Ethyl Corp. v. EPA, 541 F.2d 1, 67, 6 ELR 20267, 20304 (D.C. Cir. 1976) (Bazelon, C.J., concurring).

13. Id., 541 F.2d at 68-69, 6 ELR at 20305 (D.C. Cir. 1976) (Leventhal, J., concurring).

14. Id., 541 F.2d at 36, 6 ELR at 20286 (D.C. Cir. 1976).

15. See, e.g., La Raza Unida v. Volpe, 57 F.R.D. 94, 2 ELR 20691 (N.D. Cal. 1972). The cases are collected in Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 5 ELR 20286, 20293 n. 46 (1973).

16. Dawson, Lawyers and Involuntary Clients: Attorney Fees From Funds, 87 HARV. L. REV. 1597 (1974). See also Dawson, Lawyers and Involuntary Clients in Public Interest Litigation, 88 HARV. L. REV. 849 (1975).

17. Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 5 ELR 20286 (1975). See Comment, The Supreme Court Limits Attorneys' Fees Awards, 5 ELR 10095 (1975).

18. R. Stewart, Judging the Imponderables of Environmental Policy: Judicial Review Under the Clean Air Act 61 (paper delivered at the MIT Conference on Air Pollution and Administrative Control, Cambridge, Mass., Dec. 3, 1976; to be published in a book of the conference proceedings by the MIT Press, Fall 1977).

19. Exxon Corp. v. New York, City, __ F.2d __, 7 ELR 20130 (2d Cir. Jan. 17, 1977).

20. Friends of the Earth v. Carey, __ F.2d __, 7 ELR 20177 (2d Cir. Jan. 18, 1977).

21. Conservation Soc'y of Southern Vermont v. Secretary of Transportation, 362 F. Supp. 627, 3 ELR 20709 (D. Vt. 1973), aff'd, 508 F.2d 927, 5 ELR 20068 (2d Cir. 1974, vacated and remanded sub nom. Coleman v. Conservation Soc'y of Southern Vermont, 423 U.S. 809, 6 ELR 20068 (1975), rev'd, 531 F.2d 637, 6 ELR 20207 (2d Cir. 1976) (per curiam).

22. Conservation Soc'y of Southern Vermont v. Secretary of Transportation, 508 F.2d 927, 5 ELR 20068 (2d Cir. 1974, vacated and remanded sub nom. Coleman v. Conservation Soc'y of Southern Vermont, 423 U.S. 809, 6 ELR 20068 (1975), rev'd, 531 F.2d 637, 6 ELR 20207 (2d Cir. 1976) (per curiam).

23. P.L. 94-83, 89 Stat. 424, amending 42 U.S.C. § 4332, ELR 41010. See Comment, Two Amendments Leave NEPA Intact; Congress Confers Limited Authority on State Officials to Prepare NEPA Statements, 5 ELR 10173 (1975). See also Comment, Fallout From SCRAP II and the 1975 NEPA Amendments: Second Circuit Reverses Itself in Conservation Society, 6 ELR 10081 (Apr. 1976).

24. Civil Rights Attorney's Fees Awards Act of 1976, Pub. L. 94-559 § 2, 90 Stat. 2641 (Oct. 19, 1976), amending 42 U.S.C. § 1988.

25. See, e.g., Toxic Substances Control Act § 19(d), 15 U.S.C. § 2618(d), ELR 41348. For environmental statutes containing attorneys' fees provisions enacted prior to Alyeska, see Clean Air Act § 304, 42 U.S.C. § 1857h-2(d), ELR 41217; Federal Water Pollution Control Act Amendments of 1972, § 505(d), 33 U.S.C. § 1365(d), ELR 41126; Ocean Dumping Act § 105(g)(4), 33 U.S.C. § 1415(g)(4), ELR 41823; Noise Control Act § 12(d), 42 U.S.C. § 4911(d), ELR 41505.

26. Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965).

7 ELR 50029 | Environmental Law Reporter | copyright © 1977 | All rights reserved