Book Review: Pulling It All Together in a New Treatise on Environmental Law

William Rodgers, a professor at the Georgetown University Law Center, has entitled his new book simply Environmental Law, holding out the promise to the reader of comprehensive coverage of an expansive, evolving, and amorphous body of law. A first reading of the book reveals that Rodgers has succeeded in imposing some structure on the masses of material involved and in producing an insightful analysis of the field. He has done so by limiting the scope of the book, however, consciously avoiding discussion of certain topics and concentrating his analysis of the material under several broad subject headings.

The treatise is well researched and documented and is, at the same time, a highly personal exposition of environmental law. Often, after analyzing the current state of the law, Rodgers adds a reasoned opinion of what the law should be or indicates his approval of a particular trend. The organization of the material clearly reflects the author's view that common law concepts underlie most statutory provisions, administrative action, and judicial interpretations in the environmental field. The text draws parallels between statutory and common law where they exist, and it points out the ways that the statutes deviate from or revise common law principles. In short, the changing substance of a highly administrative body of law is projected against a background of legal principles and techniques which, as the author says, "are not subject to summary overruling in tomorrow's Federal Register."

Building upon Barry Commoner's definition of ecology in The Closing Circle, Rodgers defines environmental law as the law of planetary housekeeping. After introducing the reader in the initial chapters to some of the legal tools of the global housekeeper, the balance of the book is devoted to his techniques. The law is grouped under chapter headings of Air Pollution, Water Pollution, Noise Pollution, and Solid Waste Resource Recovery, with a full chapter near the end of the book devoted to the National Environmental Policy Act (NEPA). The final chapter is given over to a thorough discussion of a particular class of pollutants — pesticides and toxic substances — and to the law of their control.

Conspicuously absent from the major headings are such non-pollution related areas as natural resource allocation, administration of public lands, wildlife preservation, and energy production. These areas are, of course, vital components of any planetary concept of environmental law, but were apparently excluded according [8 ELR 10036] to the author's unspoken assumption that they are outside the scope of the book. However, Rodgers does discuss many of these topics in the context of the effects resource management decisions have on air and water pollution. He also analyzes federal statutes such as the Endangered Species Act and the Department of Transportation Act in terms of the substantive force they add to the procedural environmental protections provided by NEPA. The environmental problems associated with surface mining, for example, are mentioned briefly in connection with non-point source water pollution, and the national parks make a rare appearance in the discussion of the non-degradation principles of the Clean Air Act.

The scope, limitations, and organization of the text are reasonable in light of the size of the task. On the other hand, one of the few frustrating aspects of the book is the fact that the subject index tracks the structure too closely and often refuses to divulge any information on the location of a subtopic. There is no entry for "wetlands," for example, in spite of the author's thorough discussion of dredge and fill regulation in the chapter on water pollution and of the public trust doctrine in the chapter on the common law. Lack of easy access could limit the usefulness of the treatise for someone seeking specific information with little prior knowledge of environmental law.

One distinguishing feature of the book is its concern with the practice of environmental law as well as the substance. This concern is best demonstrated by the introductory chapter, which contains a potpourri of useful information for the practitioner. After a general introduction to the chapter of the field — its interdisciplinary and overwhelmingly administrative nature and its integration of other fields of law such as contracts, trusts, and tax — the chapter discusses pitfalls and hurdles to successful litigation such as the scope of judicial review, the law of standing, sovereign immunity, and judicial deference to administrative decision making. It then moves on to review some useful tools and information, thoroughly discussing the significance of the Freedom of Information Act, the Advisory Committee Act, and statutory citizen suit provisions. Finally, in an apparently unrelated discussion of the possibility of population control as a technique of environmental protection, Rodgers demonstrates how much the current regulatory approach is based on the use and control of technology.

The second chapter is in a sense also introductory in that the common law doctrines discussed there recur throughout the book. The chapter begins with a detailed discussion of the law of nuisance — its history, development, and elements — and of the techniques developed by the courts of equity to deal with nuisancecausing activities. The concept of balancing interests and the requirement of best available technology, which have been incorporated in current statutory schemes, are first described in their common law forms. The chapter also discusses water law and the public trust doctrine in some detail and closes with a discussion of land use and development controls. Zoning and special purpose land use controls are analyzed, both for their effect on land use and their efficacy in protecting the environment. The section concludes with a short discussion of the taking issue.

The chapters on air, water, and noise pollution discuss both the relevant major statutes and the common law basis of regulation, focusing on the techniques of control and enforcement, and evaluating the ability of the legal system to deal with such pollution. The economic impacts of control strategies are not ignored, and an interesting section of the chapter on air pollution describes the stages of regulation at which technological and economic barriers to pollution control may be considered by decision makers.

The book's emphasis on legal control techniques and on the common doctrines of environmental law should guard it, at least for a while, against premature obsolescence. In the months since the book was published, both the Clean Air Act and the Federal Water Pollution Control Act have undergone significant revisions (with the added complication that the location of the Clean Air Act in the United States Code has been completely changed). However, Congress, in revising the Acts, made no great changes in the strategies employed in the fight against pollution, and in many cases merely codified or clarified judicial decisions interpreting the earlier versions. Unless and until the congressional approach to the problems changes, the Rodgers' hornbook should remain a vital source of legal analysis.

The seventh chapter of Environmental Law is a 130-page explication of NEPA, including a summary of similar state laws and a discussion of several federal statutes with substantive environmental provisions which "complement" the procedural safeguards of NEPA. The chapter is a painstaking, critical review of the provisions of the Act and the cases decided under it, with an especially detailed discussion of the issues which repeatedly arise in connection with the environmental impact statement process.

In summary, Environmental Law seems most useful when read as a whole; because of the continuity of the analysis, any given chapter is best understood in relation to the others, especially to the chapters on the common law and NEPA. This is not to say that the hornbook does not provide the answers to specific questions; each of the major chapters stands on its own as a summary of a portion of the field. Access to specific information is not always easy, however, because of occasional problems with the indexing system, and the researcher seeking to resolve a single question may arrive at answers which seem to suffer from a lack of background. Thus, it may be that the best way to approach this book is to read it for a couple of quiet evenings in a favorite armchair. The author's clear and provocative writing style makes for enjoyable reading, and such an initial investment of time will both enhance the usefulness of the treatise as a research tool and add to any reader's understanding of the complicated field of environmental law.