"The Law and the Environment:" The Council on Environmental Quality Summarizes Developments In Environmental Law in 1971

This month ELR is publishing in Articles and Notes at 1 ELR 50057 a chapter on the law and the environment taken from the second annual report of the Council on Environmental Quality. See Environmental Quality: The Second Annual Report of the Council on Environmental Quality, Government Printing Office (August, 1971) Chap. 5.

The chapter provides a current summary of several important, evolving developments in environmental law and brings ELR subscribers up-to-date on a wide range of legal issues, especially the judicial implementation of NEPA. It also pulls together and interrelates many of the cases which have appeared in ELR's Litigation section. It discusses some of the statutory and other material which will appear in ELR before the end of Volume Year I. (Recall that before the end of Volume Year I ELR will have included an array of materials which serve as a "principal reference volume" of long-term use to subscribers.) Finally, the chapter constitutes a semi-official statement of the Administration's views on environmental law, at least to the extent that such a position is expressed by the President's Council on Environmental Quality. ELR will comment only on the Council's treatment of NEPA and on its view of the role of citizen's litigation.

The Council's Report is at its best on the judicial implementation of the National Environmental Policy Act (NEPA). Not long after that statute went into effect several observers made hopeful predictions of its eventual impact on environmental law. (See e.g., R. Peterson, An Analysis of Title I of the National Environmental Policy Act of 1969, 1 ELR 50035). When read in light of these early predictions the chapter logs significant progress along the lines explored and advocated by those who were convinced that NEPA was an effective tool in protecting the environment. The Council cites four cases as authority for the proposition that the courts will turn 102(2)(C) environmental impact statements back to the agencies which prepared them for further study if the statements do not adequately respond to the five statutory criteria. (See footnote 16, 1 ELR 50057.) Although the Council does not clearly isolate for detailed analysis the issue of whether NEPA sets out substantive environmental duties which might be imposed through administrative and judicial interpretation of § 101 and § 102(1), nevertheless it cites Zabel v. Tabb, 1 ELR 20023, and Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 1 ELR 20346, (see discussion, supra, in this month's Comments) for the proposition that § 102(1) "arms Federal agencies with the authority and duty to exercise their powers to promote environmental ends." 1 ELR 50057. From this statement it is not far to the conclusion that § 101 of NEPA mimposes substantive duties upon agencies to protect the environment, which, we suggest, is the proper view of federal agencies' duties under NEPA. See Peterson, 1 ELR 50035. See especially the Calvert Cliffs opinion at 1 ELR 20346, 20347, and the Comment this month on that opinion, supra.

As a policy statement the chapter shows two sides. First, it is possible for attorneys to cite the Council's chapter in their moving papers or otherwise to show in the Council's words, the "unprecedented development" of environmental law in the past year and a half. In fact, the Council's second annual report highlights two areas judged by it to be especially important: environmental law and environmental economics. See the Report, pp. xxiii-xxiv.

Citizens in environmental suits have: stopped construction of a road and oil pipeline across the Alaska wilderness, pending thorough environmental studies; prompted cancellation proceedings against the pesticide DDT; halted construction of an expressway on the banks of the Hudson River; shielded wildlife habitats in Texas and Arizona from development; suspended construction of a Corps of Engineers dam in Arkansas until NEPA was complied with; postponed highway encroachment on Overton Park in Memphis, Tenn., pending review of its necessity; and protected parts of the National Forests until it was decided whether they should be saved as wilderness areas. In this litigation, the courts have broadened the concept of a citizen's right to bring suit and the scope of court review of administrative actions.

A less dramatic development — but perhaps of more long-term significance — has been the trend in government toward tighter systems of environmental regulation. There has come with it a greater Federal recognition of the breadth of the areas needing protection. Already the progress indicates that development of the law may be as important to environmental quality as it has been, for example, to civil rights. 1 ELR 50057.

But at the same time that the Council catalogues and discusses the burgeoning successes of citizens' lawsuits, it appears to doubt the wisdom of expanding their use.

[1 ELR 10140]

What is unique about current citizen environmental litigation is that the considerable resources, nationwide attention, and judicial receptivity accorded it have created, in effect, an "environmental ombudsman" for the Nation. Rather than creating a new public officer to challenge official actions on environmental issues publicly, citizen groups are now doing it themselves — and are being effective. Legal developments have fostered this, and the environment has stirred widespread public support as an issue. No other country has yet experienced this development. In the United States, the process will lead to the most rigorous probing of the environmental impacts of government action and private action subject to governmental regulation.

The attention now given citizen litigation should not, however, be allowed to overshadow the need for systematic administrative action. Nor should it upstage the strides taken by the Federal Government in controlling the environmental impact of its own actions and in improving the regulation of pollution. Nor can litigation be a substitute for legislative authority to deal with the basic problems of air and water quality and land use.

There are serious limits to what citizen litigation can do. The courts, deciding only the particular cases that reach them, are not in a position to develop coordinated policies or to provide consistent implementation. Insulated from the elective process, they are not equipped to develop standards responsive to public preferences when values conflict.

Ultimately, government, to which NEPA and the other environmental protection legislation assign clear responsibility, must supply the responsive and systematic action needed for effective environmental management. … 1 ELR 50064.

The problem with the Council's view, as expressed above, is that it is self-contradictory. It attempts to criticize citizens' suits for not being responsive to public preferences because they use the forum most "insulated from the electoral process," the courts, for the resolution of environmental conflicts. The Council urges instead that the administrative process is better suited to resolve public preferences when values conflict. Yet the Counsil shows very clearly that the failure of the administrative agencies to satisfy the public's need for better decision-making, to the point that public interest "environmental ombudsmen" are needed, has lead to a decided public preference for citizens' suits, the success of which can hardly be credited to a judiciary which has somehow insulated itself from the electorate so that judges can work their pro-environmental will.

The view expressed by the Council above helps explain why in discussing "citizen suit legislation" the chapter does not mention the seven or more current federal bills, the most well-known of which is perhaps the Hart-McGovern Bill (S.1032), which if enacted would empower the federal district courts to develop federal case law which as it grows would define in increasing detail a federal "common law" of the environment. Currently, Michigan, Minnesota and Indiana have similar statutes. At least 20 states are considering Michigan-style legislation. See Summary and Comments, 1 ELR 10079. The chapter criticizes the approach embodied in these statutes and the federal bill by arguing that they place authority in the branch of government most insulated from the legislative process. It does not discuss the advantages of this approach, such as the superior ability of the judiciary, founded in long experience, to balance equities in a fair, practical manner. The pros and cons of legislation such as the Hart-McGovern proposal will be weighed in a subsequent Comment.

All in all the Council's chapter provides a thorough, accurate summing up of the progress of environmental law to date. Attorneys and citizens alike will find it an exceedingly useful source of information and ideas.