Developments in Environmental Law: What to Watch

Hon. James L. Oakes

The author is a judge on the U.S. Court of Appeals for the Second Circuit. This Dialogue is based on a speech the author delivered at a meeting of the American Law Institute-American Bar Association in Washington, D.C., on February 15, 1995.

[25 ELR 10308]

Has environmental law come of age? I think the answer, overall, may be yes. In many senses it has done so; we have made a transition from classic judicial review of administrative action in which environmental advocates such as David Sive, in cases such as the Scenic Hudson or Storm King Mountain case,¹ more or less successfully sought to expand and deepen that review. The purpose was essentially to have the concept of what was in the "public interest" broadened to include environmental matters.

The litigation thus engendered — following upon similar developments in the civil rights movement — served to help raise the public consciousness, as did a whole lot of publicized events, such as the oil spill at Santa Barbara and the Cuyahoga River's bursting into flames, and, perhaps most important, some powerfully persuasive penmanship, commencing of course with Rachel Carson's Silent Spring — appearing first excerpted in the New Yorker magazine in 1962 and focusing on the poisoning of the Earth by chemical pesticides. Earth Day, April 22, 1970, was perhaps a watershed in terms of citizen response.

This public reaction, fueled by environmental litigation had, as of January 1, 1970, resulted in the enactment of the National Environmental Policy Act, applying Scenic Hudson across the board to federal governmental action. The Council on Environmental Quality was quickly followed by the Clean Air Act of 1970 and the creation of the U.S. Environmental Protection Agency in the same year. The Federal Water Pollution Control Act; the Federal Insecticide, Fungicide, and Rodenticide Act; the Coastal Zone Management Act; and the Marine Mammal Protection Act followed in 1972. The Endangered Species Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Federal Land Policy and Management Act, and the National Forest Management Act soon followed, with 1980 seeing the 100-million acre Alaska National Interest Lands Conservation Act and that bugaboo of the 1990s, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or Superfund. With these acts, the courts opened to environmentalism as a value. New concepts of citizen suits and standing, coupled with public interest group participation, and, for a while, the payment of successful plaintiffs' attorneys fees, heralded the high tide of the environmental movement. The environmental revolution had come, and with it a proliferation of cases on both administrative and judicial levels interpreting, analyzing, and refining these various regulatory laws, which my friend Bill Futrell of the Environmental Law Institute, among others, has called "command and control" laws.

The state of environmental law — with the focus mostly on after-the-fact conduct, manufacturing, "point sources," and pollution generally — has become, viewed from this judicial perspective, fragmented. As I see it, much of the law as presently constituted looks toward the disposal of hazardous waste rather than the use of hazardous products, toward the recovery phase of waters rather than the withdrawal phase, toward damages from toxic torts rather than their prevention. Regulatory law is where we are at, and it is not an altogether pretty sight. In a number of people's views, for example, CERCLA retroactive, joint, several, and often absolute liability has a good deal of our national product being spent on transactional costs (including attorneys fees) in determining who has to pay for hazardous waste cleanup, what insurance precedes what in terms of coverage, and how clean is clean. All too little thought has perhaps been given to the proposed use of a site, whether as a playground or a parking site. Some proposed amendments will perhaps help solve some of these knotty issues; others, it may be argued, will gut the Act. It is small wonder that individuals, even communities, may be somewhat resentful of governmental interference. Lead paint in an 1820 house occupied by senior citizens is treated like lead paint in a 1920s-built daycare center. I, for one — protective as I want to be of the environment in Vermont or on Martha's Vineyard where we have long had a second home — am appalled by the sight of brown police cars — in Massachusetts, not yet Vermont — labeled "Environmental Police."

It is not surprising that there has been — as there is in all states of human affairs — a counter-revolution, an environmental counter-revolution, as it were. This has not just taken the form of opposition to regulation, as in Reagan's "getting govenment off the backs" of the people. We have seen, commencing in the 1980s and reflected, ultimately, in judicial decisionmaking, whether by strict statutory construction or otherwise, a view of environmental laws as an interference with the free-market system. Indiscriminate drilling, strip-mining, slash-cut timber harvesting, and the [25 ELR 10309] sale of public lands have become to large groups of Americans "consummations devoutly to be wished." A pamphlet I received recently from the Foundation for Research on Economics and the Environment, arguing emphatically against Vice President Al Gore's message in Earth in the Balance, maintains that "[p]olitical management and ecological sustainability are inherently incompatible, largely because national politicians must appeal to organized interests for their contributions. They naturally favor their constituents over the long term public interest." A piece in the same pamphlet argues, in connection with public lands, for example, that we should

make grazing permits marketable (i.e., saleable) to people other than ranchers and for use other than livestock grazing, [because] this would allow ranchers to recognize value in streams and uplands other than water and feed for livestock. It would also give sportsmen and recreationists a chance to do something more substantial than attending federal land-planning sessions. They could acquire grazing permits and set aside sanctuaries for wildlife and cowpie-free hiking trails. Most of all, marketable permits would enable environmentalists to practice the land ethic they preach.

The bottom line of the Foundation's pamphlet is summed up in the following sentence: "The positive power of property rights has been ignored, denigrated and eroded by many well meaning people in the environmental movement."

We are, I suggest, at a new — heretofore rather subtle — stage of environmental litigation, one that is perhaps more major than that of the last decade: The stage of takings litigation and, I may say, legislation, in now explicit, overt, and direct concern for property rights. The takings litigation was foreshadowed by Chief Justice Rehnquist's introduction, in the Kaiser Aetna case,² of the concept of "investment backed expectations," something to which he had alluded in dissent in Penn Central³ when he referred to the "uniquely felt" "multimillion dollar loss" that he considered a taking there. The concept of "investment backed expectations" was in direct contrast to the traditional analysis set forth in Justice Brennan's opinion in, for example, Andrus v. Allard,⁴ that

loss of future profits — unaccompanied by any physical property restriction — provides a slender reed upon which to rest a takings claim. Prediction of profitability is essentially a matter of reasoned speculation that courts are not especially competent to perform. Further, perhaps because of its very uncertainty, the interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests.⁵

But "investment backed expectations" are now where the Court, as suggested in First English⁶ and then fleshed out in Lucas v. South Carolina Coastal Council,⁷ has taken us in terms of supposed "regulatory" takings, i.e., regulations of land use for environmental protection purposes. In Lucas the Court, in Justice Scalia's opinion relegating police-power regulatory use cases of the past — Hadacheck,⁸ Goldblatt,⁹ and Mugler¹⁰ — to lesser status, did so not on the basis that they were "noxious use" cases but on the basis that they did not involve "an allegation that the regulation wholly eliminated the value of the claimant's land,"¹¹ citing Chief Justice Rehnquist's dissent in Keystone¹² for the proposition. The Scalia opinion added: "Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with."¹³

But then footnote 7 of the opinion somewhat ingenuously says (and this is where the constitutional litigation battleground is likely to be — in defining what constitutes a "total taking"):¹⁴

Regrettably, the rhetorical force of our "deprivation of all economically feasible use" rule is greater than its precision, since the rule does not make clear the "property interest" against which the loss of value is to be measured. When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole.¹⁵

And footnote, 8, in meeting Justice Stevens' logical objection to the 95 percent losing landowner recovering nothing and the 100 percent losing landowner recovering full value, says, pointedly:

This analysis errs in its assumption that the landowner whose deprivation is one step short of complete is not entitled to compensation. Such an owner might not be able to claim the benefit of our categorical formulation, but, as we have acknowledged time and again, "[t]he economic impact of the regulation on the claimant and . . . the extent to which the regulation has interfered with distinct investment-backed expectations" are keenly relevant to takings analysis generally.¹⁶

What, then, is a "total taking" for constitutional purposes — 100 percent, 95 percent, 90 percent, 85 percent? What environmental laws hang in the balance? I had always thought, with my friend Norman Williams of the Vermont Law School, that "there are certain kinds of environmentally sensitive land where any kind of development is likely to have undesirable results — as, for example, flood plains, [25 ELR 10310] wetlands, steep slopes, unstable beaches, etc. Insofar as legally possible, development on such land should be discouraged or severely restricted."¹⁷ But to restrict such development is to run into the claim of a constitutional taking, and as I see lawsuits unfolding by wealthy landowners or developers against communities, regional commissions, or the like, I foresee, by virtue of legal costs engendered, a reluctance by the latter to enact any new regulations or a willingness on their part to retreat from environmental stands previously taken by way of, as Justice Scalia reminded us in footnote 17 of Lucas, electing "to rescind [the] regulation and thereby avoid having to pay compensation for a permanent deprivation."¹⁸

Well, why is this old judge so worried about Lucas and constitutional takings (even if the Endangered Species Act (ESA) is up for grabs in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt¹⁹ and the Court held in Dolan v. City of Tigard²⁰ that a condition imposed upon the grant of a permit to expand a store and parking lot required a dedication of land for floodplain protection and pathway purposes must meet a "rough proportionality" test to avoid being an uncompensated taking, perhaps heralding a return to Lochner's economic substantive due process)? I had first supposed that Lucas and this line of thinking could probably be contained by the new evolving composition of the Court. But then I read H.R. 9²¹ of the 104th Congress, the "Job Creation and Wage Enhancement Act of 1995," as it calls itself, introduced by some allies of the new Speaker of the House. I am not just talking about risk assessment, the effect of unfunded mandates, or regulatory moratoriums or budgets. I point particularly to Title IX thereof.

Title IX provides for compensation of private-property owners for federal agency (or federally sponsored state agency) actions infringing or depriving property rights with a resultant "reduction in the value of the property equal to ten percent or more."²² While exceptions are made for local zoning and nuisance law violations, as well as for actions addressing serious and imminent health and safety threats or the federal navigational servitude, the proposed legislation is so broad that the covered agency action includes denial or conditioning of a permit and issuance of a cease-and-desist order, as well as a statement under ESA § 7(b)(3)²³ and commencement of a civil or criminal proceeding arising out of failure to secure a permit.

CERCLA lawyers who might be put out of business if Superfund is substantially repealed need not worry. They need only hope for passage of Title IX. As the commentator Anthony Lewis pointed out, let the National Marine Fisheries Service close much of Georges Bank to cod, haddock, and flounder fishing as it did in December or parts of the Pacific to Cohoes salmon fishing, the commercial fishermen can apply for compensation. The possibilities are endless, mind-blowing. Not only the national environmental movement but much of local and regional land use planning is at risk with proposed Title IX. Do you want to mine in the national parks, cut sequoias in the Muir Preserve? Be the guest of Title IX. Theodore Roosevelt and Gifford Pinchot, Republicans both, have just turned over in their graves.

If the problems in the United States will not keep environmental lawyers occupied for the rest of their lives, now that I have mentioned the seas, let us look under and over them for a glimpse of the future. Here we are perforce looking not just at protection of our national heritage but at international "sustainable development," a term or buzz word that means many things but also, by use of the word "sustainable," implies impact upon world survival. Underseas we are not talking just of whales and dolphins, though their survival has human connotations going back beyond the origins of Greek mythology, nor are we talking just of the East and West Coast fisheries, though their depletion serves once again to remind us that all life — at least when viewed as a resource — is finite. Nor are we speaking only of minerals, chemicals, and other treasures of the deep seas or underseas. Rather, we are talking, I think, of the interrelationship between and among all life and all nature on this planet. We are thinking of ozone layers, rain forest deforestation, Chernobyls, and much more.

I have been neither to East Europe nor to the Far East. As a person with a chronic lung condition, on the several occasions when I may have had the opportunity to go I have declined. Leave aside the unhealthy long airline flight. My friends who have come back from certain places have, many times, come back with respiratory illnesses. My wife is two-for-two on her last two trips — one to East Europe and one, where I did accompany her, to Florence and Tuscany. I have to say that I was appalled by the air pollution from gasoline fumesin Florence. It was as bad as New York City before the Clean Air Act took hold. And the Arno — full of silt as if it were the Midwest in the 1930's. And small wonder! The gorgeous hills of southeast Tuscany plowed and furrowed, not even in contours, for the planting of corn! Unbelievable! I gather this little experience is not unique and that out there — especially in Russia where one of the world's greatest lakes is now the most arid of seas, but also in the People's Republic, in Central and East Africa, in short, wherever one goes — we are on or over the brink of ecological disaster.

We in the United States as world leaders, and U.S. lawyers as the most knowledgeable and skilled members of the trade, must take the lead in meeting what I daresay is the biggest challenge to be faced in the first years of the next century: How to meet world economic needs equitably while safeguarding human life, habitat, and natural heritage for the future. Fortunately, a lot of starts have been made in the right direction, and environmental lawyers should give a tithe of their time now, annually, or in lump sum in the future, to the cause of world sustainable development.

[25 ELR 10311]

The June 1992 United Nations Conference on Environment and Development at Rio de Janeiro heralded the rise of new international environmental law. Agenda 21, the Rio blueprint document, and the other Earth Summit declarations have apparently set the joint goal of human economic development and nature's self-renewal as a critical beginning, even while, no doubt, falling short in terms of specific committments from many participants, not the least of which was the United States. But a beginning was made, not only with Agenda 21 but also with the Global Warming and Biodiversity Conventions, the Statements of Principles in respect to forests and coordination of economic and environmental concerns, and the pledge from industrialized nations of about $ 6 billion per year toward new aid for green projects in the Third World. It is up to environmental lawyers — in large part — to help build the "Road from Rio," as the New York Times editorial of June 15, 1992, put it.

And the way to do that, I think, lies primarily in § 3 of Agenda 21, "Strengthening the Role of Major Groups," as demonstrated, for example, in the U.S. Agency for International Development/World Resources Institute document New Partnerships in the Americas, released to and for the Summit of the Americas last year. The reliance on nongovernmental organizations (NGOs), which have largely been responsible for the entire environmental movement (after all, in Scenic Hudson the plaintiff was an NGO), is encouraging, even heart-warming, since governments perforce will drag their feet. Critically, as I suggested back in 1977,²⁴ these groups combine to have a multidisciplinary approach; similar long-range goals, though differing specific short-term objectives; and a viewpoint based on scientific, factual illumination rather than demagogic obfuscation of areas of difficulty.

As the World Resources Institute has said — and we are happy to have a Vermonter, Jonathan Lash, as its president — a global "association revolution" is afoot. In April of this year I see the U.N. Centre for Human Settlements and Dubai Municipality are organizing an International Conference looking toward the Habitat II City Summit to be held in Istanbul in June 1996. The Association of the Bar of the City of New York has a Committee on International Law, which has explored the issue "Should Environmental Laws be Harmonized?" answering the broad question with qualifications and under conditions but at least exploring the question.

We have seen, with only a few ripples in the United States, huge waves made internationally in the realm of international human rights law, including numerous treaties and an international court with some enforcement powers or capability. Can international environment powers or capability. Can international environmental law be far behind? It must not be; with the help of environmental lawyers, it will not be.

1. Scenic Hudson Preservation Conference v. Federal Power Comm'n, 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965).

2. Kaiser Aetna v. United States, 444 U.S. 164, 175, 10 ELR 20042, 20045 (1979).

3. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 147, 8 ELR 20528, 20539 (1978) (Rehnquist, J., dissenting).

4. 444 U.S. 51, 9 ELR 20791 (1979).

5. Id. at 66, 9 ELR at 20794-95.

6. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314-22, 17 ELR 20787, 20789-91 (1987).

7. 112 S. Ct. 2886, 22 ELR 21104 (1992).

8. Hadacheck v. Sebastian, 239 U.S. 394 (1915).

9. Goldblatt v. Hempstead, 369 U.S. 590 (1962).

10. Mugler v. Kansas, 123 U.S. 623 (1887).

11. Lucas, 112 S. Ct. at 2899, 22 ELR at 21110.

12. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 513-14, 17 ELR 20440, 20451 (1987) (Rehnquist, C.J., dissenting).

13. Lucas, 112 S. Ct. at 2899, 22 ELR at 21110.

14. Id. at 2901, 22 ELR at 21111.

15. Id. at 2894 n.7, 22 ELR at 21107 n.7.

16. Id. at 2895 n.8, 22 ELR at 21108 n.8.

17. Norman Williams, A Narrow Escape? (Part 1), 16 ZONING & PLAN. L. REP. 113, 117 (1993).

18. 112 S. Ct. at 2901 n.17, 22 ELR at 21111 n.17 (citing First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 321, 17 ELR 20787, 20791 (1987)).

19. 17 F.3d 1463, 24 ELR 20680 (D.C. Cir.), reh'g en banc denied, 30 F.3d 190, 24 ELR 21470 (D.C. Cir. 1994) (Act prohibits only destruction of the animal, not its habitat). The case is currently before the Supreme Court. Babbitt v. Sweet Homes Chapter of Communities for a Great Oregon, No. 94-859 (U.S. federal petitioners' brief filed Feb. 21, 1995).

20. 114 S. Ct. 2309, 24 ELR 21083 (1994).

21. 104th Cong., 1st Sess. (1995).

22. Id. § 9002(a)(2)(B).

23. 16 U.S.C. § 1536(b)(3), ELR STAT. ESA § 7(b)(3).

24. James L. Oakes, The Judicial Role in Environmental Law, 52 N.Y.U. L. REV. 498, 517 (1977).