ENCYCLOPEDIA OF ENVIRONMENTAL SCIENCE AND ENGINEERING - LEGAL ASPECTS OF THE ENVIRONMENT docx

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LEGAL ASPECTS OF THE ENVIRONMENT
The environment has become a concern of the law and
Environmental Law is now a recognized and established legal
discipline.
The body of Environmental Law is growing in response
to the felt needs of society which is beginning to acknowl-
edge that the technological advances of this generation are
destroying the legacy of the past and the capital assets of the
future.
Historic forces forged common law doctrines suited to
a world of endless frontiers, where ruthless exploitation of
natural resources was a manifestation of the desperate need
to subdue all nature as the means of survival in the wilder-
ness of a new world. Such survival techniques are no longer
appropriate on an earth whose life support systems are as
fragile as those in a space capsule.
As natural resources are being utilized at rates unprec-
edented in the history of civilization, and the quality of envi-
ronment deteriorates, there is increasing public demand for
legal aid to the environment. Attorneys are being called upon
to act as public defenders of the environment and the law is
being asked to restore the quality of life.
Environment and the law interface in three significant
areas: Legislation, Administration and Executive action, and
Judicial determination.
There already exists a substantial body of statutory law at
the federal, state and local levels dealing with matters of envi-
ronmental concern, and there has been a perceptible evolution
of ecologically sophisticated, environmentally responsible,

socially relevant and politically feasible legislation at all opera-
tive levels of government.
Administrative agencies characterized by a combination
of delegated legislative, executive and judicial powers, func-
tions, and responsibilities affect the environment in the fur-
therance of their statutory mission.
The administrative agencies are legislative creations. In
theory, they exist to effect policy established by the elected
legislative representatives of the people. To accomplish this
the legislature ceded rule-making power from its legislative
mandate under the Constitution, the executive ceded a cer-
tain amount of administrative power, and the judiciary ceded
certain judicial functions, in particular fact-finding and pre-
liminary hearing. As a result of this tripartite grant of power,
administrative agencies represent not a fourth branch of gov-
ernment as some seem to think, but the foundation of all
practical government operations: Administrative agencies
provide the substantial bulk of bureaucracy.
The judiciary of the United States and that of the several
states furnish the forum for environmental litigation. Such
litigation involves the interpretation of statutes and the adju-
dication of liabilities for damages resulting from nuisance,
negligence, trespass and other traditional common law torts;
as well as general actions seeking declaration of the rights
of the people (in the form of class actions for declaratory
judgment) and equitable relief (injunction, reparations)
based on such ancient common law equitable principles as
the Trust Doctrine and the maxim sic utere to alienam non
laedas—so use your own property as not to injure that of
another. Following the trail blazed by the American Labor

Movement and retracing many of the judicial steps of the
Civil Rights struggle, while seeking judicial vindication of
a fundamental human right, to a salubrious environment,
as one of those rights “so basic and important to our soci-
ety that it would be inconceivable that it is not protected
from unwarranted interference” and is a right retained by
the people of the United States under the Ninth Amendment
of the Constitution of the United States and protected from
disparagement by the actions of the federal government by
operation of the due process and equal protection clauses of
the Fifth Amendment of the Constitution and protected from
disparagement by the actions of any of the several states by
operation of the privileges or immunities, due process and
equal protection clauses of the Fourteenth Amendment of
the Constitution.
Environmental Law and Environmental Litigation became
recognized elements of the Anglo-American legal system in
the Spring of 1966 when a suburban housewife brought an
action on behalf of all the citizens of Suffolk County, New
York seeking equitable relief from a toxic insult to the
community ecosystem; challenging not merely the local mos-
quito control commission still routinely using DDT in an
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LEGAL ASPECTS OF THE ENVIRONMENT 591
increasingly futile attempt to control a mosquito population
that had long since become resistant to that pesticide, but the
broad spectrum, persistent chemical biocide, 1,1,1-trichloro-2,
2-bis parachlorophenyl) ethane: DDT itself.
The New York State Supreme Court issued a temporary
injunction restraining the County of Suffolk from using

DDT for mosquito control on August 15, 1966 and continued
this “temporary” injunction until December 6, 1967, finally
holding that:
DDT has, by its inherent chemical stability, become
a continuing factor in some ecological life cycles so as to
profoundly alter them and the environmental equilibrium.
Thus, it is reasonably apparent that DDT is capable of and
actually has to some extent caused extraordinary damage to
the resources of this country. If in no other way, the chemi-
cal by its very stability has introduced an element of insta-
bility in the general ecosystem. For instance, by reducing a
food source of some of the larger wildlife and so reducing
the overall large wildlife population, lesser elements multiply
more quickly. These lower forms are presumably more of a
nuisance, assuming they in turn survive. Furthermore, DDT
affects wildlife directly. Its ingestion, from whatever source
has the capability, it seems, to disrupt reproductive processes
or even more simply act as a poison. It is fairly apparent then
that the application of DDT in Suffolk County has and is con-
tinuing to have a demonstrable effect on local wildlife, reduc-
ing it slowly but surely, either directly across the board or
indirectly from the top down, but reducing it nevertheless.
We have a situation where plaintiff has at least minimally
sustained a massive effort to validiate the allegation that DDT
does in fact do biological harm [ Yannacone v. Dennison et al.
(1967) 55 Misc 2d 468, 471–472, 285 NYS 2d 476].
ENVIRONMENTAL LEGISLATION
National Environmental Policy Act of 1969
The principal national legislative statement on the environ-
ment is the National Environmental Policy Act of 1969

(National Environment Policy Act) the purpose of which is:
To declare a national harmony which will encourage pro-
ductive and enjoyable harmony between man and his envi-
ronment; to promote efforts which will prevent or eliminate
damage to the environment and biosphere and stimulate the
health and welfare of man; to enrich the understanding of
the ecological systems and natural resources important to the
Nation; and to establish a Council on Environmental Quality.
The National Environmental Policy Act (NEPA) is a syn-
thesis by a Conference Committee of bills introduced in the
Senate by Senator Jackson and in the House by Congressman
Dingell.
The declaration of a national environmental policy con-
tained in section 101 of the act speaks for itself.
Sec. 101. (a) The Congress, recognizing the profound
impact of man’s activity on the interrelations of all com-
ponents of the natural environment, particularly the
profound influences of population growth, high-density
urbanization, industrial expansion, resource exploitation,
and new and expanding technological advances and rec-
ognizing further the critical importance of restoring and
maintaining environmental quality to the overall welfare
and development of man, declares that it is the continu-
ing policy of the Federal Government, in cooperation
with State and local governments, and other concerned
public and private organizations to use all practicable
means and measures, including financial and technical
assistance, in a manner calculated to foster and promote
the general welfare, to create and maintain conditions
under which man and nature can exist in productive har-

mony, and fulfill the social, economic, and other require-
ments of present and future generations of Americans.
(b) In order to carry out the policy set forth in
this Act, it is the continuing responsibility of
the Federal Government to use all practicable
means, consistent with other essential con-
siderations of national policy, to improve and
coordinate Federal plans, functions, programs,
and resources to the end that the Nation may
1) fulfill the responsibilities of each generation
as trustee of the environment for succeeding
generations:
2) assure for all Americans safe, healthful,
productive, and esthetically and culturally
pleasing surroundings:
3) attain the widest range of beneficial uses of
the environment without degradation, risk
to health or safety, or other undesirable and
unintended consequences:
4) preserve important historic, cultural, and natu-
ral aspects of our natural heritage, and maintain,
wherever possible, an environment which sup-
ports diversity and variety of individual choice;
5) achieve a balance between population and
resource use which will permit high stan-
dards of living and a wide sharing of life’s
amenities; and
6) enhance the quality of renewable resources
and approach the maximum attainable recy-
cling of depletable resources.

(c) The Congress recognizes that each person should
enjoy a healthful environment and that each per-
son has a responsibility to contribute to the pres-
ervation and enhancement of the environment.
Sec. 101 (b) (95) is recognition by Congress that uncon-
trolled magnitude and distribution of population under-
lies many of this nation’s environmental and resource
problems. To insure that a high standard of living is
made available to all citizens and that all citizens have
the opportunity for aesthetic enjoyment from a qual-
ity environment, the intent of NEPA is that the Federal
Government must strive to maintain the magnitude and
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592 LEGAL ASPECTS OF THE ENVIRONMENT
distribution capacity to provide such benefits. By section
101 (b) (5) Congress has thus implied that the rights of
underprivileged citizens to a high standard of living are
not to be sacrificed as a result of the national environmen-
tal policy to protect and environment.
The provision of NEPA most debated by the members
of Congress was section 102.
Sec. 102. The Congress authorizes and directs that, to the
fullest extent possible; (1) the policies, regulations, and
public laws of the United States shall be interpreted and
administered in accordance with the policies set forth in
this Act, and (2) all agencies of the Federal Government
shall—
A) utilize a systematic, interdisciplinary approach
which will insure the integrated use of the natural
and social sciences and the environmental design

arts in planning and in decision making which
may have an impact on man’s environment;
B) identify and develop methods and procedures,
in consultation with the Council on Environmental
Quality established by title II of this Act, which
will insure that presently unquantified environ-
mental amenities and values may be given appro-
priate consideration in decision making along
with economic and technical considerations;
C) include in every recommendation or report on
proposals for legislation and other major Federal
actions significantly affecting the quality of the
human environment, a detailed statement by the
responsible offi cial on—
i) the environmental impact of the proposed
action,
ii) any adverse environmental effects which
cannot be avoided should the proposal be
implemented,
iii) alternatives to the proposed action,
iv) the relationship between local short-term uses
of man’s environment and the maintenance and
enhancement of long-term productivity, and
v) any reversible and irretrievable commitments
of resources which would be involved in the
proposed action should it be implemented.
Prior to making any detailed statement, the
responsible Federal official shall consult with
and obtain the comments of any Federal agency
which has jurisdiction by law or special exper-

tise with respect to any environmental impact
involved. Copies of such statement and the
comments and views of the appropriate Federal,
State, and local agencies, which are authorized
to develop and enforce environmental stan-
dards, shall be made available to the President,
the Council on Environmental Quality and to
the public as provided by section 552 of title 5,
United States Code, and shall accompany the
proposal through the existing agency review
processes;
D) study, develop, and describe appropriate alter-
natives to recommend courses of action in any
proposal which involves unresolved conflicts con-
cerning alternative uses of available resources;
E) recognize the worldwide and long-range character
of environmental problems and, where consistent
with the foreign policy of the United States, lend
appropriate support to initiatives, resolutions, and
programs, designed to maximize international
cooperation in anticipating and preventing a
decline in the quality of mankind’s world envi-
ronment;
F) make available to States, counties, municipalities,
institutions, and individuals, advice and informa-
tion useful in restoring, maintaining, and enhanc-
ing the quality of the environment;
G) initiate and utilize ecological information in the
planning and development of resource-oriented
projects; and

H) assist the Council on Environmental Quality
established by title II of this Act.
NEPA strengthened the right of public access under the
Freedom of Information to records and information of
Federal agencies Act. In addition, Congress has required
all Federal agencies, to the fullest extent possible, to “make
available to States, Counties, municipalities, institutions and
individuals, advice and information useful in rest and main-
taining, and enhancing the quality of the environment . . .”
These provisions enable citizens, under the Freedom of
Information Act, to gain access to those records of Federal
agencies that are relevant to environmental protection in
addition to the environmental impact statements required to
be filed under Section 102.
NEPA requires all Federal agencies and officials to con-
sider environmental values in reaching decisions or in plan-
ning agency action.
Though Congress has enacted numerous laws over the
past years that constitute Congressional mandates on various
aspects on environmental policy, areas of Federal policy and
action exist which have no environmental goals or policies
and in which the conflicting operational necessities of dif-
ferent agencies complicate and often frustrate attainment of
environmental quality objectives which are in the interest of
the entire country. Many of the older operating agencies of
the Federal Government, for example, do not, at present, have
a mandate within the body of their enabling laws permitting
them to give adequate attention to environmental values. In
other agencies, especially when the expenditure of funds are
involved, the latitude of a public official to deviate from the

most economical alternative to reach an environmental goal
may be strictly circumscribed by Congressional authorizations
which have overlooked existing or potential environmental
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LEGAL ASPECTS OF THE ENVIRONMENT 593
problems. There is also reason for serious concern over the
activities of those agencies which do not feel they have suf-
ficient authority to undertake needed research and action to
enhance, preserve, and maintain the quality of the environ-
ment in connection with development activities.
The National Environmental Policy Act reemphasizes
the importance of existing statutory programs relating
to the environment. Prior to the passage of the National
Environmental Policy Act of 1969, existing legislation
involving certain areas of Federal activity did not provide
“clear authority for the consideration of environmental
factors which conflict with other objectives,” and many
Federal agencies had not given substantial and consistent
consideration to environmental factors during decision
making in certain areas of their responsibility.
Section 102 (1) remedies these shortcomings in the stat-
utory foundations of existing agency programs by incorpo-
rating the policy and goals set forth in section 101 into the
actions and programs of all Federal agencies. Section 102
(2) establishes procedures which will help to insure that the
policies enunciated in sections 101 are implemented.
Prior to the passage of the National Environmental
Policy Act of 1969, planning and decision-making that
might have an effect on the quality of the environment was
too often the exclusive province of the engineer and cost

analyst. The National Environmental Policy Act requires
Federal agencies to consider all relevant points of view
and draw upon the broadest possible range of social and
natural scientific knowledge and design arts in planning
and decision making. In the past, Federal agencies have all
too frequently ignored environmental factors in planning
and decision making or omitted them from consideration
during the early stages of planning because of the diffi-
culty in evaluating such factors as compared with the ease
of evaluating economic and technological factors. Under
NEPA, Federal agencies and officials are now required
to develop the methodology and techniques necessary to
determine the total environmental impact and full course
of actions by the Federal government.
One of the most frequent sources of environment liti-
gation involves the construction and application of the
National Environmental Policy Act of 1969 and the suffi-
ciency of environmental impact statements prepared pursu-
ant to section 102 (2) (C). Although the initial determination
of environmental impact is made by the agency itself, should
the agency find that the proposed activity will have a sig-
nificant effect on the environment, the agency report of rec-
ommendation supporting the proposal must make findings
with respect to the environmental factors set forth in section
102 (2) (C) (i)–(v). If adverse environmental effects cannot
be avoided by reasonable alternative actions the agency
must demonstrate that such adverse environmental effects
are justified by other considerations of national policy,
which must be stated in detail. The use of local, short-term
resources must be found to be consistent with the mainte-

nance and enhancement of the long-term productivity of the
environment. Proposals involving significant commitments
of resources that will be irreversible and irretrievable under
conditions of known technology and reasonable economics
must be found necessary.
The National Environmental Policy Act supplements
the statutory authority of most Federal agencies and requires
them to follow the policies, goals and procedures of the Act,
unless the existing law governing such agency’s operations
expressly prohibits full compliance, however section 103
provides that no Federal agency is to interpret its exist-
ing statutory authority in such a way as to avoid compliance
with the directives of NEPA. If the agency finds a clear con-
flict between its existing statutory mandate and the Act, the
agency is required to propose to the President of the United
States such measures as will be necessary to bring the
statutory authority and mandate of the agency into conformity
with the provisions of the National Environmental Policy Act.
The National Environmental Policy Act is a relevant stat-
ute within the meaning of the Administrative Procedure Act,
thus conferring standing upon representatives of the general
public seeking judicial review of actions and decisions by
federal agencies which may have failed to follow the poli-
cies, goals and procedures of the Act, where such action or
decision of the agency threatens to have adverse effects upon
the ecological system an individual may reside in or use for
recreation. Section 101 (C) of the National Environmental
Policy Act recognizes that “each person should enjoy a
healthful environment and that each person has a responsi-
bility to contribute to the preservation and the enhancement

of the environment,” indicating that Congress intends to rec-
ognize the interests of individual citizens in the protection of
the ecosystem they may reside in or use for recreation.
Such an individual citizen is within the class of persons
which the National Environmental Policy Act was meant to pro-
tect, and is thus a person adversely affected or aggrieved within
the meaning of the Administrative Procedure Act and as such a
person is entitled to judicial review of the agency action.
The national goal and policies for the protections, estab-
lishment and enhancement of this Nation’s environment
established by the National Environmental Policy Act are in
the words of its Senate sponsor, Senator Jackson.
More than the statement of what we believe as a people
and as a nation, it establishes priorities and gives expressions
to our National goals and aspirations. It provides a statutory
foundation to which administrators may refer . for guid-
ance in making decisions which find environmental values
in conflict with other values.
What is involved is a congressional declaration, that we
do not intend, as a government or as a people, to initiate
actions which endanger the continued existence or the health
of mankind: that we will not intentionally initiate actions
which will do irreparable damage to the air, land, and water
which support life on earth.
An environmental policy is a policy for people. Its
primary concern is with man and his future. The basic prin-
ciple of the policy is that we must strive in all that we do to
achieve a standard of excellence in man’s relationship to his
physical surroundings. If there are to be departures from this
standard of excellence, they should be exceptions to the rule

and policy.
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594 LEGAL ASPECTS OF THE ENVIRONMENT
Administrative Procedure Act
The Administrative Procedure Act provides both an indepen-
dent source of federal jurisdiction and a grant of standing to
conservation organizations and aggrieved persons seeking to
challenge decisions of, or actions by, Federal agencies which
may result in environmental degradation.
Senator McCarren, the author of the bill which ultimately
became the Administrative Procedure Act, explained that it
conferred no administrative powers, but provided definitions
of, and limitations upon, administrative action, to be inter-
preted and applied by the agencies in the first instance, but
to be reviewed by the courts in the final analysis.
The scope of judicial review of agency action is gov-
erned by the language of the Administrative Procedure Act:
To the extent necessary to decision, and when presented
the reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and deter-
mine the meaning or applicability of the terms of an agency
action. The reviewing court shall . . .
2) hold unlawful and set aside agency action, find-
ings and conclusions found to be—
A) Arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with
the law;
B) Contrary to constitutional right, power, privi-
lege or immunity;
C) In excess of statutory jurisdiction, authority,

or limitations, or short of statutory rights;
F) Unwarranted by the facts to the extent that
the facts are subject to trial de novo by the
reviewing court (5 United States Code
§ 706).
Under the Administrative Procedure Act any person “suf-
fering legal wrong because of agency action or adversely
affected or aggrieved by agency action within the meaning
of a relevant statute” may seek judicial review.
Agency action made reviewable by statute and final
agency action for which there is no other adequate remedy
in a court are subject to judicial review. A preliminary,
procedural, or intermediate agency action of ruling not
directly reviewable is subject to review on the review of
the final agency action. Except as otherwise expressly
required by statute, agency action otherwise final is final
for the purposes of [the Administrative Procedure Act]
whether or not there has been presented or determined an
application for a declaratory order, for any form of recon-
sideration, or, unless the agency otherwise requires by
rule and provides that the action meanwhile is inoperative,
for an appeal to a superior agency or authority. (5 United
States Code § 104).
The “legal wrong” contemplated by the Administrative
Procedure Act is something more than the mere personal
damage normally contemplated in the law of torts. The
damage necessary to constitute legal wrong under the
provisions of the Administrative Procedure Act must pro-
duce some illegal effect and be demonstrably contrary to
law in either substance or procedure. However, the law

considered relevant upon judicial review of agency action
under the Administrative Procedure Act is not only the stat-
utory law directly involved with the agency action, but gen-
eral constitutional law as well. The legal wrong necessary
to confer jurisdiction on the court and standing to the party
complaining can be the invasion of any legally protected
right.
Jurisdiction can also be obtained over agents and officers
of the United States Government such as contractors of the
Atomic Energy Commission, the Secretary of Agriculture,
the Secretary of Interior, and divisions and departments of
Federal agencies such as the Division of Wildlife Services,
the Bureau of Sport Fisheries and Wildlife, and the Bureau
of Land Management of the United States Department of the
Interior, the Corps of Engineers of the United States Army
of the Department of Defense, and the Federal Aviation
Administration and the Bureau of Public Roads of the
Department of Transportation.
There is a basic presumption in the law favoring judicial
review of agency or administrative action even where the
statute prescribing agency action does not on its face pro-
vide for judicial review. For the right of judicial review to be
denied, the agency must produce clear and convincing evi-
dence of legislative intent to foreclose judicial review. The
Supreme Court of the United States [Association of Data
Processing Service Organizations, Inc. v. Camp (1970) 397
US 150, 25 h Edzd 184, 90 SCt 827] has reemphasized the
presumption of judicial review of agency action in recent
litigation which construed the Administrative Procedure Act
not grudgingly but as serving a broadly remedial purpose

holding that “the mere failure to provide specially by stat-
ute tor judicial review is certainly no evidence of intent to
withhold review.”
No presumption in favor of “administrative absolutism”
and against judicial review exists. A congressional purpose
to preclude judicial review of agency action must be “fairly
discernable in the statutory scheme,” since the right to judi-
cial review is ordinarily inferred where congressional intent
to protect the interests of the class of which the complainant
is a member can be found.
Administrative action is not immune from judicial review
because it may be committed to agency discretion or simply
because the statute authorizes a public official to “prescribe
such regulations as he may deem proper to carry out the pro-
visions of [the legislation].”
The right to judicial review of agency action is all that
stands between the citizen and government by administra-
tive fiat not subject to correction by the elective process.
Although a court usually will not substitute its judgement
for that of an administrative agency, it can compel the proper
exercise of statutory authority by the agency, since it is not
for the administrative agency to finally determine the limits
of its own power. That is a judicial function.
Where a party aggrieved has no other adequate remedy
following administrative action there is certainly the right,
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LEGAL ASPECTS OF THE ENVIRONMENT 595
upon proper application, to judicial review of agency action.
Some confusion existed in the Federal Courts for a number of
years after the passage of the Administrative Procedure Act

because the provisions for judicial review apply, “According
to the provisions thereof, except to the extent that agency
action is committed to agency discretion by law” (5 United
States Code § 701).
Some Federal Courts held that agency action involv-
ing the exercise of discretion could not be reviewed for any
reason under the Administrative Procedure Act, however,
the majority of Federal Courts have adopted the rule that
any agency action, even that involving the exercise of discre-
tion and dependent upon the special technical and scientific
expertise of the agency, is subject to judicial review to the
extent provided by the Administrative Procedure Act. The
mere fact that the acts of some administrative official, even
a cabinet-level Secretary, require the exercise of discretion
and judgment does not preclude judicial review of official
action. Any contrary decision would lead to establishment of
a shadow government by administrative officials not subject
to popular election or judicial review and therefore totally
outside the systems of checks and balances so carefully
developed during the Constitutional Convention. The rights
and the public must receive active and affirmative protection
at the hands of the administrative agencies.
Much environmental litigation has involved the stand-
ing of parties to bring suit against administrative agencies,
their officials, employees and agents. Recent decisions have
established the right of public benefit organizations whose
purposes include protection of the environment, or protec-
tion the lives, health, and property of human beings or ani-
mals, as well as individuals seeking to proceed in the public
interest as “private attorneys general,” to bring actions to

persons “adversely affected” or “parties aggrieved” without
the meaning of the Administrative Procedure Act.
Neither economic injury nor a specific individual legal
right are necessary adjuncts to standing. A complain-
ant need only demonstrate that it is an appropriate person
(corporate or human) to question the alleged failure of an
agency to protect those values recognized by law as in the
public interest.
Environmental Protection Agency
By virtue of the executive authority to reorganize Federal agen-
cies, President Nixon created an Environmental Protection
Agency to which was transferred, effective December 2,
1970, significant environmental responsibilities formerly
scattered throughout the several executive and administrative
branches of government.
Sec. 2 Transfers to Environmental Protection Agency.
(a) There are hereby transferred to the Administrator [of
the Environmental Protection Agency].
1) All functions vested by law in the Secretary of
the Interior and the Department of the Interior
which are administered through the Federal
Water Quality Administration, all functions
which were transferred to the Secretary of the
Interior by Reorganization Plan No. 2 of 1966
(80 Stat. 1608), and all functions vested in the
Secretary of the Interior or the Department of the
Interior by the Federal Water Pollution Control
Act or by provisions of law amendatory or sup-
plementary thereof.
2) (i) The functions vested in the Secretary of the

Interior by . . . 16 USC 742d-1 (being an Act
relating to studies on the effects of insecti-
cides herbicides, fungicides, and pesticides
upon the fish and wildlife resources of the
United States), and (ii) the functions vested
by law in the Secretary of the Interior and
the Department of the Interior which are
administered by the Gulf Breeze Biological
Laboratory of the Bureau of Commercial
Fisheries at Gulf Breeze, Florida.
3) The functions vested by law in the Secretary
of Health, Education, and Welfare or in the
Department of Health, Education, and Welfare
which are administered through the Environmental
Health Service, including the functions exercised
by the following components thereof:
i) The National Air Pollution Control
Administration,
ii) The Environmental Control Administration;
A) Bureau of Solid Waste Management,
B) Bureau of Water Hygiene,
C) Bureau of Radiological Health,
except that functions carried out by the following com-
ponents of the Environmental Control Administration
of the Environmental Health Service are not transferred:
(i) Bureau of Community Environmental Management,
(ii) Bureau of Occupational Safety and Health, and
(iii) Bureau of Radiological Health, insofar as the func-
tions carried out by the latter Bureau pertain to (A) reg-
ulation of radiation from consumer products, including

electronic product radiation, (B) radiation as used in the
healing arts, (C) occupational exposures to radiation, and
(D) research, technical assistance, and training related to
clauses (A), (B), and (C).
4) The functions vested in the Secretary of Health,
Education, and Welfare of establishing tolerances
for pesticide chemicals under the Federal Food,
Drug and Cosmetic Art, as amended, 21 USC 346,
346a, and 348, together with authority, in connec-
tion with the functions transferred, (i) to monitor
compliance with the tolerances and the effective-
ness of surveillance and enforcement, and (ii) to
provide technical assistance to the States and con-
duct research under the Federal Food, Drug, and
Cosmetic Act, as amended and the Public Health
Service Act, as amended.
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596 LEGAL ASPECTS OF THE ENVIRONMENT
5) So much of the functions of the Council on
Environmental Quality under section 204(5) of the
National Environmental Policy Act of 1969 as
pertains to ecological systems.
6) The functions of the Atomic Energy Commission
under the Atomic Energy Act of 1954, as amended,
administered through its Division of Radiation
Protection Standards, to the extent that such func-
tions of the Commission consist of establishing
generally applicable environmental standards for
the protection of the general environment from
radioactive exposures or levels, or concentrations

of quantities of radioactive material, in the gen-
eral environment outside the boundaries of loca-
tions under the control of persons possessing or
using radioactive material.
7) All functions of the Federal Radiation Council
(42 USC 2021 (h)).
8) (i) The functions of the Secretary of Agriculture
and the Department of Agriculture under the
Federal Insecticide, Fungicide, and Rodenticide
Act, as amended (7 USC 135–135k), (ii) the
functions of the Secretary of Agriculture and
the Department of Agriculture under sec-
tion 408(1) of the Federal Food, Drug and
Cosmetic Act, as amended (21 USC 346a(1)),
and (iii) the functions vested by law in the
Secretary of Agriculture and the Department
of Agriculture which are administered through
the Environmental Quality Branch of the
Plant Protection Division of the Agricultural
Research Service.
9) So much of the functions of the transfer of officers
and agencies referred to in or affected by the fore-
going provisions of this section as in incidental to
for necessary of the performance by or under the
Administrator of the functions transferred by those
provisions or relates primarily to those functions.
The transfers to the Administrator made by this
section shall be deemed to include the transfer of
(1) authority, provided by law, to prescribe regula-
tions relating primarily to the transferred functions,

and (2) the functions vested in the Secretary of the
Interior and the Secretary of Health, Education,
and Welfare by section 169(d)(1)(B) and (3) of
the Internal Revenue Code of 1954 (as enacted by
section 704 of the Tax Reform Act of 1969, );
but shall be deemed to exclude the transfer of
the functions of the Bureau of Reclamation under
section 3(b)(1) of the Water Pollution Control Act
(33 USC 446a(b)(1)).
b) There are hereby transferred to the Agency:
1) From the Department of the Interior, (i) the Water
Pollution Control Advisory Board (33 USC
466t), together with its functions, and (ii) the
hearing boards provided for in sections 10(c)(4)
and 10(f) of the Federal Water Pollution Control
Act, as amended (33 USC 446g(c)(4); 446g(f)).
The functions of the Secretary of the Interior with
respect to being or designating the Chairman of
the Water Pollution Control Advisory Board are
hereby transferred to the Administrator.
2) From the Department of Health, Education, and
Welfare, the Air Quality Advisory Board (42 USC
1857c), together with its functions. The func-
tions of the Secretary of Health, Education and
Welfare with respect to being a member of the
Chairman of that Board are hereby transferred to
the Administrator.
Sec 6. Abolitions (a) Subject to the provisions of this reorga-
nization plan, the following, exclusive of any functions, are
hereby abolished:

1) The Federal Water Quality Administration in the
Department of the Interior (33 USC 446–1).
2) The Federal Radiation Council (. . ., 42 USC
2021(h)).
Among the procedural landmark established in the Project
Rulison litigation was the right of the plaintiff COSCC to
take the depositions of experts prior to the determination
of the defendants motion for summary judgment to dismiss
the complaint. COSCC argued that the motion for summary
judgment could not be decided without considering the rel-
evant testimony of certain experts under the control of the
defendants and the Court directed the defendants to produce
those experts for pre-trial oral examination. The information
obtained in those pre-trial examinations established the need
for a full hearing on the merits as a condition precedent to
determination of any AEC motion for summary judgment
dismissing the complaint.
Sovereign Immunity and Popular Sovereignty
Throughout the relatively short history of environmental liti-
gation involving agencies of government, sovereign immu-
nity has been raised as a defense by the government agency
asserting that the action is a suit against the sovereign United
States of America brought without the consent of congress
and that the relief sought would invade the powers of officers
of the executive branch of the Federal Government to whom
the actions complained of had been delegated. This defense
is usually buttressed by an appeal for judicial restraint under
the doctrine of Separation of Powers.
The general doctrine of the immunity of the United States
from suit without consent of Congress is a rule propounded in

a diction by United States Supreme Court Chief Justice John
Marshall in the case of Cohens v. Virginia [19 US (6 Wheat)
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LEGAL ASPECTS OF THE ENVIRONMENT 597
264, 411–412 (1821)]. However, in the earliest discussion of
sovereignty by the United States Supreme Court [ Chisholm v.
Georgia (1973) 2 US 419], the court stated,
. . . the term sovereign has for its correlative, subject. In
this sense, the term can receive no application; for it has no
object in the Constitution of the United States. Under the
Constitution, there are citizens but no subjects.
. . . the people of the United States have reserved the
supreme power in their own hands; and on that supreme
power have made these [governments] dependent, instead of
being sovereign
Even in almost every nation which has been denominated
free the state has assumed a supercilious preeminence above
the people who have formed it; hence the haughty notions of
State independence, State sovereignty, and State supremacy.
In despotic governments, the government has usurped in a
similar manner both upon the state and the people: hence
all the arbitrary doctrines and pretensions concerning the
supreme, absolute and incontrollable, power of government.
In each, man is degraded from the prime rank which he
ought to hold in human affairs
Another instance, equally strong, but still more astonish-
ing is drawn from the British Government as described by
Sir William Blackstone and his followers. As described by
him and them, the British is a despotic Government. It is a
Government without a people. In that Government, as so

described, the sovereignty is possessed by the Parliament: In
the Parliament, therefore, the supreme and absolute author-
ity is vested: In the Parliament resides that incontrollable
and despotic power, which, in all Governments, must reside
somewhere. The constituent parts of the Parliament are the
King’s Majesty, the Lord’s Spiritual, the Lord’s Temporal,
and the Commons. The King and these three Estates together
form the great corporation of body politic of the Kingdom.
All these sentiments are found; the last expressions are found
verbatim, in the Commentaries Upon the Laws of England.
The Parliament forms the great body politic of England. What
then, or where, are the people? Nothing! No where! They are
not so much as even the “baseless fabric of a vision!” From
legal contemplation they totally disappear! Am I not warranted
in saying, that, if this is a just description; a Government, so
and justly so described, is a despotic Government?
Chief Justice Jay also recognized the people of the United
States, not the Federal Government, as the sovereign:
From the crown of Great Britain, the sovereignty of their
country passed to the people of it . . . [T]he people, in their
collective and national capacity, established the present
Constitution. It is remarkable that in establishing it, the
people exercised their own visits, and their own proper sov-
ereignty, and conscious of the plenitude of it, they declared
with becoming dignity. “We the people of the United States,
do ordain and establish this Constitution.” Here we see the
people acting as sovereigns of the whole country . . . [T]he
sovereignty of the nation as [in] the people of the nation . . .
Chief Justice Jay noted that in England the doctrine of
sovereignty was based on feudal principles that considered

the prince as sovereign and the people as his subjects. These
feudal principals contemplated the sovereign.
As being the fountain of honor and authority; and from
his grace and grant derives all franchises, immunities and
privileges; it is easy to perceive that such a sovereign could
not be amenable to a Court of Justice, or subjected to judicial
control and actual constraint. It was of necessity, therefore,
that suability, became incompatible with such sovereignty.
Besides, the Prince having all the Executive powers, the judg-
ment of the Courts would, in fact, be only monitory, not man-
datory to him, and a capacity to be advised, is a distinct thing
from a capacity to be sued. The same feudal ideas run through
all their jurisprudence, and constantly remind us of the dis-
tinction between the Prince and the subject. No such ideas
obtain here. At the Revolution, the sovereignty devolved on
the people and they are truly the sovereigns of the country,
but they are sovereigns without subjects. . . and have none to
govern but themselves, the citizens of America are equal as
fellow citizens, and as joint tenants in the sovereignty.
Sovereignty is the right to government; a nation or
State-sovereign is the person or persons in whom that resides.
In Europe the sovereignty is generally ascribed to the Prince;
here it resides with the people . . . Their Princes have personal
powers, dignities, and pre-eminences, our rulers have none
but official; nor do they partake in the sovereignty otherwise,
or in any other capacity, than as private citizens.
A majority of the Supreme Court of the United States, just
five years after the adoption of the Constitution of the United
States, rejected the idea of the United States as sovereign—
and necessarily the rule of sovereign immunity from suit

because “suability became incompatible with such sover-
eignty.” The people of the United States are the sovereign,
not the United States government.
In 1882, the Supreme Court of the United States further
said,
Under our system the people, who are there [in England]
called subjects, are the sovereign. Their rights, whether col-
lective or individual, are not bound to give way to a senti-
ment of loyalty to the person of a monarch. The citizen here
knows no person, however near to those in power, or however
powerful himself, to whom he need yield the rights which
the law secures to him when it is well administered. When
he, in one of the courts of competent jurisdiction, has estab-
lished his right to property, there is no reason why deference
to any person, natural or artificial, not even the United States,
should prevent him from using the means which the law gives
him for the protection and enforcement of that right [United
States v. Lee (1882), 106 US 196, 205 to 209].
Land Use and Resource Management
Throughout history, land and natural resources have been con-
sidered the property of the sovereign to be used, abused, given
or taken at the sovereign whim. The history of civilization, to
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598 LEGAL ASPECTS OF THE ENVIRONMENT
a certain extent, can be considered a chronicle of wars and
revolutions fought over the ownership and utilization of land
and natural resources.
The Constitution of the United States provides that the
rights not explicitly given by the people of the United States
to the federal government are retained by the people of the

United States, individually, and as collectively assembled in
the several states.
The enumeration of the Constitution, of certain rights,
shall not be constructed to deny or disparage others retained by
the people ( United States Constitution, Ninth Amendment).
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people. ( United States
Constitution, Tenth Amendment).
As the individual state constitutions were formulated,
the rights of individual property owners were strengthened,
but at no time did the sovereign people of the United States
relinquish the ultimate right to determine the highest and
best use of the land and natural resources subject to the juris-
diction of the United States. The justification for any legal
restriction on the private use of land or natural resources is
rooted in this concept of sovereignty in the people.
According to the report commissioned by the Council on
Environmental Quality as a preparation for consideration of
a National Land Use Policy Act,
This country is in the midst of a revolution in the way we
regulate the use of our land. It is a peaceful revolution a
quiet revolution . . .
The ancien regime being overthrown is the feudal system
under which the entire pattern of land development has been
controlled by thousands of individual local governments,
each seeking to maximize its tax base and minimize its social
problems, and caring less what happens to all the others.
And if we are to live in harmony with that which has been
given to us from preceding generations, and from the earth

before mankind appeared, we must make certain assump-
tions with respect to every accessible parcel of real property
and every natural resource capable of exploitation.
1) The area of resource is vulnerable.
2) Development, exploitation or utilization of some
kind is inevitable.
3) The highest and best use of the land or resource
as an element of human ecology must be
accommodated.
4) Development must be consistent with natural eco-
logical constraints.
5) Planned achievement of the highest and best use
of land and resources is more profitable to man-
kind than unplanned development.
6) The police power of the state, the ultimate sov-
ereignty of the people, and the maintenance of
private property concepts are compatible and can
result in the harmonious, beneficial development
of land and resources.
Recognizing the limited availability of land itself and the
place of land as the basic capital asset of civilization, land
use historically has been limited by executive, legislative and
judicial process.
An early example of land use legislation—zoning—has
been upheld by the courts on the grounds that it represents
action by an individual community to assure the highest
and best use of limited resources for the greatest number
of people without undue infringement upon the rights of
individuals.
Zoning is not just an expansion of the common law of

nuisance. It seeks to achieve much more than the removal of
obnoxious gases and unsightly uses. Underlying the entire
concept of zoning is the assumption that zoning can be a vital
tool for maintaining a civilized form of existence only if we
employ the insights and the learning of the philosopher, the
city planner, the economist, the sociologist, the public health
expert and also the other professions concerned with urban
problems
This fundamental conception of zoning has been present
from its inception. The almost universal, statutory requirement
that zoning conform to a “well-considered plan” or “compre-
hensive plan” is a reflection of that view. [See Standard State
Zoning Enabling Act, US Dept of Commerce (1926).] The
thought behind the requirement is that consideration must be
given to needs of the community as a whole. In exercising their
zoning powers, the local authorities must act for the benefit
of the community as a whole following a common, deliber-
ate consideration of the alternatives, and not because of the
whims of either an articulate minority or even majority in the
community . . . Rather, the comprehensive plan is the essence
of zoning. Without it, there can be no rational allocation of
land use. It is the insurance that the public welfare is being
served and that zoning does not become nothing more than
just a Gallup poll [Udell v. Hass (1968), 21 NY2d 463, NE2d
897, 288 NYS2d 888].
The key to successful land use and resource utilization
legislation is the community determination of the high-
est and best use of land and resources in terms of intrinsic
suitability and naturally imposed constraints. Of necessity
this must be done by a team of individuals trained in the

several disciplines necessary to define the environmental
parameters of a Regional Ecological System. The com-
munity itself, particularly its people, constitute elements
of that regional ecological system just as surely as topog-
raphy, hydrology, and climate. One of the most significant
contributions of environmental litigation to the development
of Anglo-American jurisprudence has been the broadening
of the concept of “expert witness” to include an individual
member of a multidiscipline scientific team testifying about
the work of the entire team even though the individual sci-
entist may not have performed the work testified about per-
sonally. Environmental litigation, particularly that involving
such environmental toxicants as DDT and radionuclides
has led to legal acceptance of the “environmental scientist”
who is permitted to testify generally, upon a showing, to the
satisfaction of the Court, of demonstrated competence in
some recognized scientific discipline together with regular
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LEGAL ASPECTS OF THE ENVIRONMENT 599
collaboration with other scientists of diverse disciplines
upon general problems of environmental concern.
The adequate determination of the highest and best use
of the limited natural resources of any regional ecological
system mandates a systems approach supported by modern
computer technology in order to determine the relevant
boundary conditions and elemental optimizations of the
complex, non-linear dynamic relationships that describe a
natural system as it actually exists. Courts increasingly are
accepting evidence in environmental litigation, and the tech-
niques of general systems analysis have become key factors

in the resolution of environmental controversy such as that
concerning the continued use of DDT, the distribution of
radionuclides from peaceful applications of nuclear energy,
and the Cross-Florida Barge Canal.
The acceptance of systems methods in ecology by the
courts now means that any land use or resource utilization
law which does not fully reflect the system characteristics
of the Regional Ecological System in which it will operate
is fatally defective in the legal sense. It cannot be sustained
in the face of sophisticated legal challenge; while any such
law which does, in fact, reflect the system characteristics of
the region can be sustained in the public interest, even where
such a law appears to limit the rights incident to private
property ownership.
The current litigation involving the adequacy of state-
ments prepared under the mandate of section 102 of the
National Environmental Policy Act (environmental impact
statements) demonstrates that any failure to consider the
ecological integrity of a region and fully determine the inter-
relationships among each element of the land, landscape and
natural processes diminishes the legal value of the effort;
while a full evaluation of any environmentally significant
action with respect to its effect upon the overall ecologi-
cal integrity of the region and the interrelationships among
each element of land, landscape, and natural processes of the
region can form the basis for legal restraints upon land use
and resource exploitation, even where such restraints appear
to infringe upon private property rights or government agency
prerogatives.
ENVIRONMENTAL LITIGATION

Environmental litigation includes almost all the actions
brought before the courts of the United States, the several
states, and the various administrative agencies exercising
quasi-judicial powers which involve a determination which
may affect natural processes, resources or the environment.
The Scenic Hudson Preservation Case
One of the landmark cases in environmental law is Scenic
Hudson Preservation Conference v. Federal Power
Commission [354 F2d. 608 (1965, CA2), certiorari denied
384 US 941, 16 LEd 2d 540, 86 SCt 1462], which established
the right of conservation organizations and other public
interest groups to challenge the extent of consideration given
to historic, scenic, aesthetic, conservation and recreational
aspects of power development by the Federal Power
Commission. The holding of that case has been extended to
permit similar organizations to challenge the consideration
of such values by the Secretary of Transportation (in approv-
ing federal-aid highways) and the Secretary of the Army
and Chief of Corps of Engineers (in licensing and granting
permits for projects on navigable waterways).
The Scenic Hudson saga began on January 29, 1963 with
Consolidated Edison of New York (the major electric power
utility servicing the City of New York) filing an application
with the Federal Power Commission (FPC) for a license
to construct a pumped-storage hydroelectric facility on the
west wide of the Hudson River at Storm King Mountain. As
information concerning the project spread, the Federal Power
Commission directed that a public hearing on the project be
held February 25, 1964. The Scenic Hudson Preservation
Conference was hastily formed and filed a petition on

February 6, 1964 seeking to intervene in the proceeding. The
petition was granted on February 14, 1964; intervention was
permitted; hearings were held in Washington, DC; and the
hearing examiner made an initial determination approving
the license application on July 31, 1964 subject to review
by the entire Federal Power Commission which eventually
licensed the project on March 9, 1965.
The pumped-storage plant proposed by Consolidated
Edison would generate electric power for use during peak
load periods in New York City using hydroelectric units
driven by water from a reservoir. The project consisted of
three major components—a storage reservoir, a powerhouse,
and transmission lines. The reservoir would be located over
the power house which was to be located on the shores of the
Hudson River at the foot of Storm King Mountain, a mountain
of striking aspect rising over 1,360 feet above the river. The
reservoir would be connected to the powerhouse by a tunnel
40 feet in diameter. During slack periods of demand for elec-
trical power in New York City, Consolidated Edison’s steam
generating plants in New York City would provide electric
power for the pumps at Storm King to force water through
the tunnel and up the mountain into the reservoir. The water
would be stored in the reservoir until periods of peak demand
for electrical power in New York City at which time the water
would be released from the reservoir to rush down the moun-
tain through the tunnel to power the generators. The project
was to have a capacity of two gigawatts (billion watts, or mil-
lion kilowatts), but would be capable of expansion to three
gigawatts. At that time, the Storm King Project was to be the
world’s largest pumped storage electric generating facility

and was estimated to cost an estimated $162,000,000.
Subsequently the United States Court of Appeals for the
Second Circuit reviewed the determination of the Federal
Power Commission holding, that
if the Commission is properly to discharge its duty in this
regard [approve those projects best adapted to a compre-
hensive plan for improving or developing a waterway], the
record on which it bases its determination must be complete.
The petitioners and the public at large have a right to
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600 LEGAL ASPECTS OF THE ENVIRONMENT
demand this completeness. It is our view, and we find, that
the Commission has failed to compile a record which is suf-
ficient to support its decision. The commission has ignored
certain relevant factors and failed to make a thorough study
of possible alternatives to the Storm King Project.
The court found that the Commission must take into
consideration the unique beauty and important historical sig-
nificant of the Hudson River noting that the Federal Power
Act sought to “promote the comprehensive development of
the Nation’s water resources.”
The court directed the Federal Power Commission to
reexamine all the issues that the court found had not been
properly considered.
The commission’s renewed proceedings must include
as a basic concern the preservation of natural beauty and of
national and historic shrines, keeping in mind, that, in our
affluent society, the cost of a project is only one of several fac-
tors to be considered. The record as it comes to us fails mark-
edly to make out a case for the Storm King Project on, among

other matters, cost, public convenience and necessity, and
absence of reasonable alternatives. Of course the Commission
should make every effort to expedite the new proceedings.
Following the hearings on remand, the hearing
examiner made an initial determination on August 6, 1968
recommending that the license be issued. New York City
then petitioned to intervene prior to a decision by the
Commission in order to introduce evidence of the effects
project construction activities might have upon the safety
of the Catskill Aqueduct which supplies a substantial part
of the water for New York City. The proceedings were
reopened and on December 23, 1969 a supplemental deci-
sion was issued by the hearing examiner recommending
that the licence be granted with some modifications.
On August 17, 1970, the Federal Power Commission
issued the license for construction of a pumped-storage plant
by Consolidated Edison at Storm King Mountain. In a lengthy
opinion, the Commission paid close attention to the decision of
the Second Circuit Court of Appeals, giving detailed consid-
eration to areas in which the court had found that the previous
decision had been deficient, including alternative sources for
the needed power, alternative sties for the project, fish protec-
tive devices, underground transmission lines, and the scenic,
aesthetic, and historical values that would be affected by the
project. The Commission found the project to be compatible
with the natural environment, and not to have an adverse effect
upon the ecology of the area, the water quality of the Hudson
River, or the fishery resources of the Hudson River. The
area would be replanted after construction; the power house
would be totally underground and the Commission found

that the project, as modified and as licensed, represented no
real impairment to the environment and scenic aspects of the
highlands and the natural beauty of the area. The Commission
recognized man’s already awesome impact on this section of
the Hudson River shoreline, by stating that,
. . . it should not be inferred that previous and existing envi-
ronmental detriment permits additional detriment which
would otherwise not be permitted but for existing condi-
tions, pointing out that Consolidated Edison would rehabili-
tate the waterfront area in the vicinity of the project site, an
area which the Commission euphemistically described as
“blighted.”
Although the hearings had been conducted prior to the
passage of the National Environmental Policy Act, the
Commission found that full and careful consideration had
been given to all the concerns which the Act embodies and
that the licensing of the facility complied with the require-
ments of that Act.
All parties appealed to the Second Circuit Court of
Appeals which affirmed the Commission’s issuance of the
license. The majority of the Court found that the decision of
the Federal Power Commission was supported by substantial
evidence and had been based on a consideration of all rel-
evant factors, and had in fact complied with the requirements
of the Federal Power Act and the National Environmental
Policy Act.
After 8 years of litigation, at enormous cost to the
Scenic Hudson Preservation Conference, its supporters, and
Consolidated Edison, not to mention the inconvenience and
cost to the electric power-hungry people of the City of New

York, the project would be constructed, little modified from
the initial proposal.
The first decision of the Court of Appeals in the Scenic
Hudson Preservation case represented a crucial selection
event in the evolution of Environmental Law. If the con-
servationists were willing to submit the controversy to the
Federal Power Commission, then, according to the Court,
the Federal Power Commission should hear and consider
evidence on natural values and environmental impacts in
addition to evidence on the economics of electric power gen-
eration and distribution. The alternative choice open to the
conservationists was to remain before the court and challenge
the inherent suitability of the Federal Power Commission
as a body capable of resolving environmental conflict. The
Scenic Hudson Preservation Conference, a coalition of pres-
ervationists and aesthetically concerned conservationists,
chose to yield to the Federal Power Commission the author-
ity to make an ecological judgment binding upon genera-
tions yet unborn, cloaking the Federal Power Commission
with a mantle of ecological competence. Since the Scenic
Hudson Preservation Conference chose to take its “day in
court” before an administrative agency rather than a court
of equity, the findings of fact made by the Commission were
binding upon the conservationists in subsequent review by
the Courts.
Fortunately, the principles set forth by the Court of
Appeals in its initial review of the Scenic Hudson case
mandating consideration of all relevant issues including
environmental issues, and requiring affirmative action by
the Agency to protect the public interest are not limited in

application to the Federal Power Commission. Other agen-
cies, including the Corps of Engineers of the United States
Army, the Atomic Energy Commission, the Department
of Transportation, the Department of the Interior and the
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LEGAL ASPECTS OF THE ENVIRONMENT 601
Department of Agriculture, must also consider all relevant
issues, including environmental issues and take affirmative
action to protect the public interest.
The Defense of Florissant
The Florissant fossils, located a short distance west of
Colorado Springs, Colorado, are found in more than 6,000
acres of an ancient lake bed where seeds, leaves, plants and
insects from the Oligocene period (34 million years ago) are
remarkably preserved in paper-thin layers of volcanic shale
which disintegrate when left exposed to weather unless
properly protected. A number of bills had been introduced
over the years in Congress to protect the Florissant fossil
bed but they did not receive extensive consideration until the
United States National Park Service promulgated a master
plan detailing the paleontological and palynogical values of
Florissant.
At the time the Florissant Fossil Beds National Monument
Bill passed the Senate, Park Land Company, a Colorado
Springs real estate group had already contracted to purchase
1,800 acres of the ancient lake bed. While the House of
Representatives was deliberating its version of the National
Monument bill, Park Land Company announced it would
bulldoze a road through a portion of the proposed national
monument to open the area for development and immediate

sale to anyone interested in recreational housing. A group of
Colorado conservationists met with the principles of the Park
Land Company in an attempt to persuade them to withhold
excavation in the area to be included within the Florissant
Fossil Beds National Monument at least until the House of
Representatives acted on the bill. This request was refused as
was a similar request to confine development activities to the
area lying outside the ancient lake bed. The only alternative
offered the conservationists was the opportunity to purchase
the land—for cash immediately—at a price considerably in
excess of any appraised value based on recent land sales in
the area.
Faced with the irreparable loss of a substantial portion of
these unique and irreplaceable fossil beds, a small group of
concerned citizens formed a non-profit, public benefit cor-
poration called the Defenders of Florissant and commenced
an action for declaratory judgment and an injunctive against
the Park Land Company and all the other land owners and
contract vendees in the area to be included within the pro-
posed National Monument.
The United States District Court for the District of
Colorado heard the Defenders of Florissant application for a
temporary restraining order on July 9, 1969, and although the
plaintiffs’ proof that the proposed excavations for roads and
culverts would result in the destruction of some of the most
valuable fossil areas in the proposed national monument was
uncontradicted and unchallenged the District Court held that
there was nothing in the United States Constitution prevent-
ing the owners from using their property in any way not pro-
hibited by law. The District Court denied the application for

a temporary restraining order and a subsequent application
for a stay pending appeal, but did, however, note the impor-
tance of preserving the fossil beds.
Following the District Court decision, representatives of
the plaintiffs’ held an informal conference in the Courtroom
with two of the partners in the Park Land Company who
agreed to postpone excavation until Monday, July 14, if
the plaintiffs gave some assurance of raising the purchase
price by that day. Refusing to accept an offer they felt was
a form of community blackmail, the Defenders of Florissant
appealed to the Tenth Circuit Court of Appeals the following
morning, July 10. At the hearing before three judges of that
Court in the afternoon, the Court questioned whether it had
authority to issue a restraining order in the absence of any
statute protecting the fossils
Admitting that Congress “. . . in its infinite wisdom, has
not seen fit to pass legislation protecting fossil beds in gen-
eral,” plaintiffs argued: “. . . if someone had found the origi-
nal Constitution of the United States buried on his land and
then wanted to use it to mop a stain on the floor, is there any
doubt . . . they could be restrained?”
Legally, plaintiffs claimed that the right to preservation
of the unique and irreplaceable Florissant fossils, a national,
natural, resource treasure, was one of the unenumerated
rights retained by the people of the United States under
the Ninth Amendment of the Constitution and protected by
the due process and equal protection clauses of the Fifth
Amendment, and the privileges or immunities, due process
and equal protection clauses of the Fourteenth Amendment.
Plaintiffs also asserted that the Florissant fossil beds were

subject to judicial protection under the Trust Doctrine and
while the defendants could profit from their nominal title to
the land and make reasonable use of the area, they were under
a duty to maintain that portion of the property vested with
the public interest—the 34-million-year-old fossil shales.
Procedurally, the Defenders invoked the federal equity juris-
diction relying on the fundamental equitable maxim, “there
shall be no wrong without a remedy.”
In summation, counsel for the Defenders of Florissant picked
up a fossil palm leaf that had been uncovered at Florissant,
and holding it up to the Court, pleaded:
The Florissant fossils are to geology, paleontology, paleo-
botony, palynology and evoluton what the Rosetta Stone was
to Egyptology. To sacrifice this 34 million year old record, a
record you might say written by the mighty hand of God, for
30 year mortgages and the basements of the A-frame ghet-
tos of the seventies is like wrapping fish with the Dead Sea
Scrolls.
After a short recess, the Court issued an order restraining
the defendants from disturbing the soil, subsoil or geologi-
cal formation of the Florissant fossil beds by any physical or
mechanical means . .
After a trial on July 29, 1969, the District Court denied the
Defenders application for a preliminary injunction for the
same reasons it had previously denied the application of a
temporary restraining order, and the Park Land Company
announced that its bulldozer would begin excavation that
© 2006 by Taylor & Francis Group, LLC
602 LEGAL ASPECTS OF THE ENVIRONMENT
afternoon. Several hours later, the Plaintiffs filed a motion for

an emergency stay with the Tenth Circuit Court of Appeals,
citing defendants threat, and the Court of Appeals for the
Tenth Circuit dramatically issued an order extending the
restraining order of July 10 indefinitely until further order.
On July 31, 1969, the House Interior and Insular
Affairs Committee, through its Subcommittee on Parks and
Recreation favorably reported an amended version of the
Florissant Fossil Beds National Monument Bill, and floor
action by the House of Representatives was scheduled for
August 4.
During the argument of the appeal before the Tenth
Circuit Court of Appeals, the plaintiffs amplified their legal
position, asserting that the Federal Courts had a duty to
cooperate with Congress, and that by issuing a preliminary
injunction, pending the final deliberation of the Congress of
the United States the court was thereby aiding the orderly
operations of the Legislative and Executive branches of gov-
ernment. Plaintiffs pursued their original theory that the Trust
Doctrine protected the fossil beds, arguing that the land had
acquired a public character due to the actions of Congress
on the bills pending to dedicate the land as a national monu-
ment. The Court reserved decision at the close of the argu-
ments and continued the temporary restraining order. That
afternoon the House of Representatives passed its version
of the bill as a number of concerned Congressmen from all
over the country turned out to suspend the rules and consider
the bill out of the regular order because of the pending threat
to the fossils. The Senate agreed to the House version of the
bill on August 7, and the President signed the bill on August
14, 1969. The preliminary restraining order issued by the

Tenth Circuit Court of Appeals remaining in effect while the
United States of America instituted suit to acquire the Park
Land Company land by condemnation.
The court order prohibiting excavation of the fossil beds
may have deprived the landowners of the most profitable use
of their land, but did not prohibit all uses of the land consis-
tent with the protection of the fossil beds. The landowners
were free to develop the land for tourism, scientific research,
or other uses compatible with maintenance of the paleonto-
logical integriryt of the area. Such uses, while perhaps not
the most profitable use of the land, would still return a rea-
sonable yield on the defendants’ speculative investment.
The mere fact that the landowners might not wish to use
the land for this purpose does not make the restraint on the
land development an unreasonable taking where the public
interest in the land was so great.
Certainly where a natural resource is as unique as the
Florissant fossil beds were, the value to the public of protect-
ing such a resource is so substantial as to justify the resultant
burden upon the private property interests involved, even if it
could have been shown that there was no reasonable expec-
tation of profitable use of the property from tourism or other
ancillary commercial development.
The message of the Florissant litigation is that judicial
protection of a unique, national, natural resource treasure
such as the 34-million-year-old Florissant fossil beds war-
rants restraint upon the rights of private property ownership,
particularly during the period of due deliberation by Congress
or other legislative body representative of the people.
The mere fact that Congress could not move as fast as

the developers’ bulldozer does not prevent a federal court
of equity from acting to protect a national, natural resource
treasures threatened with irreparable damage.
Project Rulison
Project Rulison provided the first direct confrontation
among the several theories currently urged in support of citi-
zen action to protect the environment from federal agency
operations. Three separate suits were filed concerned with
the AEC-Austral Oil Co. experiment seeking to stimulate
production of natural gas by underground nuclear explo-
sion. The first action was supported by the American Civil
Liberties Union and relied on conventional theories to estab-
lish standing: Individual plaintiffs alleged direct, personal,
private injury and special damage, seeking injunctive relief
to protect their own property rights. The ACLU. application
sought to restrain detonation of the underground nuclear
device as its principle request for relief, and had already been
denied when the second action was filed by the Colorado
Open Space Coordinating Council. The title of that action in
itself indicates the contrasting theories.
Colorado Open Space Coordinating Council, on behalf
of all those entitled to the protection of their health and
safety and of the health and safety of those generations
yet unborn, from the hazards of ionizing radiation result-
ing from the distribution of radioactive materials through
the permanent biogeochemical cycles of the Biosphere as
a result of the defendants conduct of Project Rulison, and
on behalf of all those entitled to the full benefit, use and
enjoyment of the national, natural resource treasures of the
State of Colorado without degradation resulting from con-

tamination with radioactive material released as a result of
the defendants conduct of Project Rulison, and all others
similarly situated,
Plaintiffs
—against—
AUSTRAL OIL COMPANY, INCORPORATED
and
CER GEONUCLEAR CORPORATION,
Defendants
US ATOMIC ENERGY COMMISSION,
BUREAU OF MINES, US DEPARTMENT
OF INTERIOR, and
LOS ALAMOS SCIENTIFIC LABORATORY,
as their several interests may appear.
The shift in emphasis in the COSCC action from an emo-
tional outcry against the underground nuclear blast itself to
a reasoned demand for care in the release of radionuclides to
the environment led to a Court order restraining the “flaring”
of the radioactive natural gas following the blast until the
hearing and determination of the action brought by COSCC.
© 2006 by Taylor & Francis Group, LLC
LEGAL ASPECTS OF THE ENVIRONMENT 603
By amending their complaint, ACLU, on behalf of the other
individuals concerned personally with the blast, remained in
the action. Subsequently, the District Attorney of the Ninth
Judicial District of the state of Colorado attempted to bring
an action in the state court on public nuisance theory, but that
action was summarily transferred to the US district Court
the consolidated with the COSCC and ACLU actions at the
request of the Atomic Energy Commission.

EQUITY
The truly unique element of the Anglo-American is the con-
cept of equity. Equity jurisprudence as a system of remedial
law evolved from a number of common sources. It can be
found in the Talmud and the earliest writings of the Roman
law. It can be found today, though it is somewhat less than
obvious, in the current system of civil jurisprudence derived
from the Code Napoleon and used throughout most of
Europe.
In its most elementary form, the fundamental principle
of equity jurisprudence is the command: to use your own
property as not to injure that of another. And the law, in order
to give effect to this right provides for appeal to the ultimate
power of society, be it king, parliament, state, or people, with
a corollary maxim: equity permits no wrong to be without
a remedy! The effective assertion of equitable rights by an
individual or group of individuals is limited only by the rule
that a party seeking equitable relief must come forward with
“clean hands”—the party must be morally right as well as
legally justified. There is an additional rule of restraint self-
imposed by courts of equity: the relief granted must be com-
mensurate with the injury suffered by the party seeking relief
and tempered by the needs of society.
The Origin of Jurisdiction in Equity
Aristotle asserted that all law is universal and thereby cannot
admit of exceptions, yet laws promulgated to cover a broad
range of human action frequently cause injustice to some
innocent individual because a particular case does not
appear to be covered by the application of the universal law.
Aristotle reasoned that when lawmakers make a law, they

make it for the good of the community, therefore some legal
remedy must be available to the individual treated unjustly
by the particularly application of a general law.
In order to determine whether the individual was indeed
being treated unfairly by the law, one must look to the intent
of the lawmaker and the operation of the law. The remedy for
the individual unjustly treated in a particular case by appli-
cation of a general law was termed by Aristotle Epicheia,
which translates loosely as “There should be an exception.”
It was left up to the judge deciding each particular case to
determine whether a general or universal law was applicable,
and if not, to make the appropriate exception in order to pre-
serve the intention of the lawmaker, which was to ensure the
good of the community.
The early Roman lawgivers accepted this concept,
named it equity, and used it as a cornerstone for the develop-
ment of what we now call the Roman Law. The intention of
the Roman lawgivers was that one person should not benefit
by a law while another person was injured by that law unin-
tentionally and unnecessarily.
During the Middle Ages the heir apparent to the Roman
legal system, the Christian church, developed the concept
of equity even further, establishing the principle that “for
every injury there must be some legal remedy,” on the philo-
sophical grounds that if the lawmaker did not provide some
remedy for injury to an innocent individual, the law would
allow certain injustices to go unpunished while others were
punished, and this would be unjust. Since it was then an
accepted principle that lawmakers were just, they could not
have intended an injustice to follow from their laws, there-

fore, they intended to provide the legal remedy and the court
would simply serve as the means to provide that which they
intended to provide all along. Although such circumlocution
might have found favor with medieval philosophers, there
was, nevertheless, a singular practical reason for develop-
ment of he principle. For if there was no procedure for indi-
vidual relief from the unintended application of a general
law, and sufficient individuals were oppressed by the unin-
tended application of that law, then the individuals would
tend to look with disfavor on the lawmakers and, in spite of
the repression inherent in the feudal system, there might be
civil unrest, a condition not conductive to the maintenance of
the tenuous existence of the feudal estates which represented
civilization in western Europe during the Middle Ages.
Equity jurisprudence developed throughout the ecclesi-
astical courts following the decline and fall of the Roman
Empire, but it was to see its most dramatic development in
England following the Norman conquest.
The common law, as distinguished from the customary
law of the popular courts, originated in the establishment by
Henry II of a national court administering a law for the entire
nation, and by the end of the reign of Henry II, we find estab-
lished a Curia Regis, a court of the King, which was a true
court of law in the modern sense, administering a national
law, common to the entire country, and which had largely
displaced the customary laws of the different parts of the
country. This continued during the thirteenth century, so that
by its close, the common law was definitely established as
the law of the nation, displacing the customary law and the
local courts which were limited to local petty maters. The

law of the Curia Regis, which had been the law of the very
great, extended and adapted to the needs of the people so as
to become the common law of a nation.
So long as the common law remained a flexible system
with its field undefined, its power of inclusion unlimited,
and its organs undifferentiated, there was no reason for dis-
tinguishing between the common law and equity. But soon
the common law became so fixed as inflexible and its prac-
titioners so absorbed in nice questions of form and pleading,
there was no longer room for equity. By the early fourteenth
century, the common law, which had supplanted the ancient
customary law, had now, in its turn, become the regular
© 2006 by Taylor & Francis Group, LLC
604 LEGAL ASPECTS OF THE ENVIRONMENT
system of remedial justice, but with gaps and defects where
sufficient remedies were not provided, and resort was neces-
sary to the ancient power of the king as the fountain of all
justice.
Equity did not directly contest the existence of settled
legal right. Rather, after recognizing those rights, equity
went on to insist that the holder of such legal rights if they
were acquired or retained unconscionably, or if they were
being used in an unconscionable attempt to interfere with the
fundamental rights of others, should be subject to the juris-
diction the “Chancellor” or the “Keeper of the Conscience of
the King” as the source of all legal rights.
Equitable Relief
It is a fundamental principle essential to the very existence
of organized society, and civilization as we know it, that
every person, in exercising personal rights and in the use

of personal property shall respect the rights and properties
of others. Every person must so conduct themselves in the
enjoyment of the rights and privileges which they may enjoy
as individual members of society in such a way that they
shall prejudice no one in their possession and enjoyment of
their personal rights or the rights they hold in common as
members of society. When there is an invasion of the rights
or privileges of the public or the rights and privileges of any
individual held in common by reason of the existence of
civilized society, the absence of exact precedent and the fact
that commentators on the law do not discuss the subject is of
no material importance in awarding equitable relief.
That the exercise of the preventive powers of a court of
equity is demanded in a novel case is not a fatal objection.
In social evolution, with the march of the arts and sciences,
and in the resultant effects upon organized society, it is quite
intelligible that new conditions must arise in personal rela-
tions, which the rules of the common law, cast in the rigid
mold of an earlier status, were not designed to meet. It would
be a reproach to equitable jurisprudence, if equity were pow-
erless to extend the application of the principles of common
law, or of natural justice, in remedying a wrong, which in the
progress of civilization, has been made possible as the result
of new social or commercial conditions.
Equity is the agency by which law is brought into har-
mony with society. It is one of the factors which operate in
judicial evolution. It succeeds legal fictions—those judicial
assumptions through which a rule of law is modified in its
operation—and it precedes legislation.
Equity has neither fixed boundaries, nor logical subdivi-

sions, and its origin, both in Rome and in England, was that
there was a wrong for which there was no remedy at law. As
Lord Chancellor Cottenham observed:
It is the duty of this court, [equity], to adopt its practice
and course of proceeding to the existing state of society and
not, by a strict adherence to forms and rule, under different
circumstances, to decline to administer justice and enforce
rights for which there is no other remedy . . . If it were neces-
sary to go much further than it is, in order to open the doors of
this court to those who could not obtain [justice] elsewhere, I
should not shirk form the responsibility of doing so.
†
A distinguishing feature of equity jurisdiction is that it
will apply settled rules to unusual conditions, and mold its
decrees so as to do justice between the parties.
Peculiar and extraordinary cases will arise in the com-
plex and diversified affairs of men, which perhaps, cannot be
classed under any of he distinct heads of equity jurisdiction,
but which must be acknowledged, nevertheless, to come
within the legitimate powers of a court of equity because
complete justice cannot otherwise be done between the
parties. Therefore, when no remedy exists at law, courts of
equity, to prevent injustice and in many cases on principles
of general policy, will go far in granting relief.
Such was the law of equity at the start of the eighteenth
century. If that rule of law had been developed with vigor
much of the human and environmental degradation of he
Industrial Revolution might have been avoided.
Since that time, two anomalous rules have evolved,
interfering with the principle that for every wrong there is

a remedy. The first of these anomalies concerns the arti-
ficial distinction between public and private nuisance and
the second is the doctrine of “sovereign immunity.” Both
of these doctrines can be attributed to the meddling of Sir
William Blackstone (1723–1780).
Public and Private Nuisance
Until Blackstone there was no distinction made between public
and private nuisance. The rule had been well established that
any individual could apply to a court of equity to abate a
nuisance. But during the later part of the eighteenth century,
Blackstone created a new rule of law that was to represent a
classic manifestation of the obfuscation of simple legal princi-
ples by “self-proclaimed” legal scholars. This new rule of law
proclaimed by Blackstone was to contribute substantially to
the environmental and social crises of today and represents the
kind of antisocial perversion of the law that made the common
law of England during the seventeenth, eighteenth, and nine-
teenth centuries such an inviting target for the diverse talents
of William Shakespeare, Jonathan Swift, Charles Dickens, and
W.S. Gilbert.
Blackstone created a difference between public and
private nuisance, and the significance of that difference is
to be fond in the criteria for abatement of the public nui-
sance: (1) only a public nuisance may be made the basis for
a criminal prosecution, and (2) only the public, through he
proper officer, may sue to enjoin or abate a public nuisance,
in the absence of special damage to a particular private
individual—damage which is substantially greater than that
suffered by other individual members of society—a public
nuisance is subject to correction only at the hands of public

authority. The mischief done and the disastrous consequence
of Blackstone’s whim are still evident.
In 1965, an action was brought on behalf of the people
of the Town of Brookhaven, in the County of Suffolk,
†
Wallworth v. Holt 4 Myl & C619, 41 Eng. Rep. 238 (1984).
© 2006 by Taylor & Francis Group, LLC
LEGAL ASPECTS OF THE ENVIRONMENT 605
New York, by a group of citizens, to restrain the Long Island
duck industry form discharging raw, untreated sewage
equivalent to that of a city of one million people into the
waters of Great South Bay, which was once one of the finest
shellfishing and marine recreation areas on the east coast of
the United States. The duck industry defended the action by
admitting that the eight million ducklings grown along the
estuaries of he Great South Bay did in fact deliver the raw
sewage effluent equivalent of a city of one million people
into the Bay, but that the Court should dismiss the action on
the grounds that such an affront to the public waters was so
great that it was a “public nuisance” not a “private nuisance”
and as a “public nuisance” it could only be attacked by the
Attorney General of the State of New York, not by any pri-
vate citizens, unless of course those private citizens could
establish “special damages” different from the damages sus-
tained by the public at large.
A New York Supreme Court, the same court that less
than a year later in a dramatic reversal of precedent would
issue that first injunction against the use of DDT ever granted
by a Court, dismissed the case against the duck industry,
accepting without question the argument that a public nui-

sance could not be abated by a private citizen or group of
citizens.
How could this strange concept have crept into the law
equity? What is the justification for this strange anomaly
in that body of law that holds no wrong may exist without
a remedy? In 1858, the Court of Appeals of the State of
New York identified the source and expounded the justifica-
tion for this onerous rule.
A contrary rule would be productive of very great
inconveniences. . . No private person or number of persons
can assume to be the champions of the community and in
its behalf, challenge the public officers to meet them in the
courts of justice to defend their official acts.
The court continued and discussed the theory of the
decision,
The general rule is that for wrongs against the public,
whether actually committed or only apprehended, the
remedy, whether civil or criminal, is by a prosecution insti-
tuted by the state in its political character, or by some officer
authorized by law to act in its behalf
The principle is further exemplified in questions respecting
nuisances. Common or public nuisances, which are such
as are inconvenient or injurious to the whole community
in general, are, as all are aware, indictable [the People of
State can take action in a criminal proceedings] only, and
the not actionable [any citizen can sue]; for as Blackstone
[Blackstone ’ s Commentaries, Book 4, p. 167] says, “it
would be unreasonable to multiply suits by giving every man
a separate right of action for what damnifies him in common
only with the rest of his fellow-citizens.

Just who was Sir William Blackstone that he should
exert such a restraint on the general application of equi-
table principles? Referring to the eleventh edition of the
Encyclopaedia Britannica, published in 1911 and drawing
on continual revisions from the first English edition in 1771,
the following information may be elicited under the entry,
“Blackstone, Sir William [1723–1780]:
. In 1746 he was called to the bar. Though but little known
or distinguished as a pleader, he was actively employed
during his occasional residences at the university (Oxford),
in taking part in the internal management of his college. In
May 1749, as a small reward for his services, and to give him
further opportunity of advancing the interests of the college,
Blackstone was appointed steward of its manors. In the same
year, on the resignation of his uncle, he was elected recorder
for the Borough of Wallingford He accepted a seat on
the bench, and on the death of Sir Joseph (Yates) succeeded
him (in the court of common pleas). He died on the 14th of
February, 1780
Blackstone was by no means what would now be called a
scientific jurist. He had only the vaguest possible grasp of
the elementary conceptions of law. Austin, who accused
him of following slavishly the method of Hale’s Analysis
of the Law, declares that he “blindly adopts the mistakes of
his rude and compendious model; missing invariably, with a
nice and surprising infelicity, the pregnant but obscure sug-
gestions which it proffered to his attention, and which would
have guided a discerning and inventive writer to an arrange-
ment comparatively just.”
From the small place which equity jurisprudence occu-

pies in his arrangement, he would scarcely seem to have
realized its true position in the law of England.
Bentham accuses him of being the enemy of all reform,
and the unscrupulous champion of every form of profes-
sional chicanery. Austin says that he truckled to the sinister
influences and mischievous prejudices of power, and that he
flattered the overweening conceit of the English in their own
institutions. “He displays much ingenuity in giving a plau-
sible form to common prejudices and fallacies ”
For more than a century the opinion of that one man has
stood in the way of a proper disciplined application of a fun-
damental principle of equity jurisprudence, “equity will not
suffer a wrong without a remedy.”
Just what happened at the time of Blackstone? It was
obvious that Blackstone set himself to the task of codify-
ing the laws of England, but in the process of attempting to
build a logical and consistent body of legal principles he lost
the basic insight of the Anglo-American system of jurispru-
dence, the common law.
The common law grew with civilization and the practices
and customs of society. As the oppressed peasants obtained
certain remedies during the Middle Ages, these remedies
became a part of the common law. That is why the Anglo-
American legal system depends on case law or precedent
rather than elaborate codes promulgated by a legislature or
king. A system of administering justice based on precedent
rather than stature is inherently more flexible and capable
of meeting the needs of society because the court is free to
© 2006 by Taylor & Francis Group, LLC
606 LEGAL ASPECTS OF THE ENVIRONMENT

interpret the law with reference to, and by analogy with,
part cases of similar import, though not precisely identical.
There is no doubt that Blackstone did a reasonable job
of tidying-up the law, but in his attempt to make of law an
axiomatic science little different from geometry, he lost the
essential elements of equity jurisprudence, particularly the
rule that for every injury there must be a legal remedy.
Blackstone’s justification for striking the principle that
for every injury there must be a legal remedy from the law
of England arose from his belief that the King could do no
wrong. Reasoning that failure to provide an adequate legal
remedy for an injury was wrong, and that the King could do
no wrong, it was obvious that there was no need for a rule of
law providing a remedy for every wrong, because the King
had obviously provided the remedy, since the King could
do no wrong and failure to provide a remedy for an injury
would be wrong. This perfectly circular argument has been
exposed by many legal scholars, yet it still appears in deci-
sions of courts that should know better.
Consider for a moment the ideological basis for
establishing American independence. The founding fathers
of this country were asserting the fundamental equitable
principle that no wrong should exist without an adequate
legal remedy. They did not deny the right of George III
to tax his American colonies, they asserted that certain
taxes were the wrong taxes, at the wrong time and for
the wrong purposes. Taxation without representation was
wrong. In other words, the King could, in fact, under cer-
tain circumstances, do wrong, and the equitable rule of law
that no wrong should exist without a legal remedy was a

fundamental human right.
Environmental Law is a mixture of the new and the old.
Affirming the timeless principles of equity jurisprudence
and asserting the unenumerated rights reserved to the people
by the Ninth Amendment of the Constitution and protected
by the equal protection and due process clauses of the Fifth
Amendment and the privileges or immunities, due process
and equal protection clauses of the Fourteenth Amendment of
the Constitution, the law is newly applying these established
principles and traditional legal procedures directly to the
environmental crises threatening the Biosphere.
The basic element of environmental jurisprudence is
recognition by our courts that the people have an absolute
right to a salubrious environment as one of the “fundamen-
tal and inherent rights with which all humans are endowed
even though no specific mention is made of them in either
the national or state constitutions ” The inherent human
freedoms with which mankind is endowed are “antecedent
to all earthly governments’ rights that cannot be repealed
or restrained by human laws, rights derived from the Great
Legislator of the Universe.”
[ Colorado Anti-Discrimination Com. v. Case, 151 Colo.
235, 380 P. 2d 34 (1962).]
The words of Lord Atkin in an English case are compel-
ling: “When those ghosts of the past stand in the path of jus-
tice, clanking their medieval chains, the proper course for the
judge is to pass through them undeterred The common law
does not go on the theory that a case of first impression pres-
ents a problem of legislative as opposed to judicial power.”
[ United Australia, Ltd. v. Barclay Bank, Ltd. (1940) 4

All En. 20, (1941) A C 1, 29.]
“The law will protect a flower or a vine as well as an
oak ; [Such] damages are irreparable too, because the
trees and vines cannot be replaced.”
[ Campbell v. Seaman, 63 NY 568 (1978).]
The above historical treatment presented an overview
of the fundamental arguments of Environmental Law. Some
examples of recent legislative activity are discussed below
by the editors.
The Clean Air Act Amendments of 1990 were the latest of
a series which also include those of 1970 and 1977. They deal
with the broad reduction of emissions from acid rain precur-
sors (i.e., reductions of 10 million tons/yr and 2 million tons/yr
in SO
x
and NO
x
emissions, respectively within 10 years) and
air toxic emissions from industrial sources including over
170 species not previously listed. The American Electric
Power Company said of the CAA amendments, “probably
the most complex piece of legislation we’ve seen in the last
40 years.”
Pursuant to the 1990 CAA requirements, Maximum
Achievable Control Technology (MACT) regulations for
many sources emitting hazardous air pollutants (HAP’s)
have been promulgated and are being enforced. Also new
NAAQS limits have been established for particulate matter
less than 2.5 micron diameter. These regulations and their
enforcement are discussed in the article by C.V Mathai and

Elliott, E.D., EM , pp. 25–34, May 2002. The U.S. Supreme
court may be called upon to settle some lawsuits brought
forth by a coalition of states, local governments and environ-
mental groups in the enforcement of EPA regulations, such
as New Source Review (NSR) provisions—Smith, D.C.,”
US Climate Change Legislation,” Refocus, pp. 16–19, Apr/
May (2004) and Barcott, Bruce, “Changing all the Rules”,
New York Times Magazine, pp. 38–78, Apr. 4, 2004. Also
in the global arena, an administration’s failure to confront
climate change by its rejection of the Kyoto agreement, may
be the subject of a lawsuit before an international tribunal
(Strauss, A., The legal Option: Suing the United States in
International Forums for Global Warming Emissions,”
Environmental Law Reporter, 33, 108185 (2002). David
Grossman argues that there may be good reason to shift
the costs of damages caused by fossil fuel companies that
have received economic benefits of activities that negatively
impact the environment (Grosssman, David A., “Warming up
to a not so radical idea: Tort-based climate change litigation,”
Columbia Journal of Environmental Law 28, 1 (2003).
REFERENCES
Detailed treatment of the material contained in this article, including
generally:
Environmental Protection and the Law, The Trust Doctrine, The Ninth
Amendment; Nuisance and Other Common Law Remedies; Envi-
ronmental Legislation; Environmental Toxicants; Radiation; Water
© 2006 by Taylor & Francis Group, LLC
LEGAL ASPECTS OF THE ENVIRONMENT 607
Pollution; Air Pollution; Noise; Visual Pollution; Solid Waste; Land
Use and Natural Resource Management; Environmental Litigation and

Administrative Agencies and the Environment, will be found in the trea-
tise Environment Rights and Remedies by Victor John Yannacone, Jr.,
Bernard S. Cohen, Steven Gebauer Davison (1971). Lawyers Coopera-
tive Publishing Company, Rochester, New York/Bancroft Whitney Co.,
San Francisco, California.
Current material in the nature of news accounts, federal, state and signifi-
cant local legislation as promulgated, and texts of the decisions of courts
and selected administrative agencies, is published weekly by the Bureau
of National Affairs, Washington, D.C., in their service Environment
Reporter.
VICTOR J. YANNACONE, JR.
Yannacone and Yannacone
LAKES: see AQUATIC PRIMARY PRODUCTION, WATER—FRESH
© 2006 by Taylor & Francis Group, LLC
LEGAL ASPECTS: see also ENVIRONMENTAL LAW