The Courts and the Rule of Law: Primary Forces in Advancing Environmental Protection

Friday, August 9, 2019

Fifty years ago, on June 22, 1969, the Cuyahoga River of Ohio burst into flame. Although it was not the first time an oil slick burned on the heavily polluted river, the event is often credited as one of the key environmental crises that galvanized the American public to recognize that pollution and other environmental damage were not just local problems, but required national attention.

In response, in less than a decade, a bipartisan Congress enacted sweeping pollution control laws, including the Clean Air Act and Clean Water Act, overhauled the management regimes for the nation’s public lands through the National Forest Management Act and the Federal Land Policy and Management Act, and acknowledged the imperative to protect and preserve wildlife, particularly species in danger of extinction in the Endangered Species Act and marine mammals in the Marine Mammal Protection Act. In this remarkable legislative effort, Congress established the federal regulatory infrastructure that remains the architecture of environmental protection today. It also expressly replaced the prevailing view that the environment was a free good and dumping ground, with the principle that private entities cannot damage natural resources and harm the health and well-being of the public.

A significant feature of many of these statutes is the provision authorizing citizens to bring lawsuits to contest violations and challenge the lack of agency enforcement of statutory provisions. Congress’ stated rationale for including citizen suits was the failure of the states to address pollution and environmental damage in a timely and effective way. One remedy for this problem was to engage members of public as “private attorneys general” to compel appropriate action.

Citizen suits are not the sole recourse available to citizens to redress grievances about environmental harms. In 1972, the U.S. Supreme Court ruled in Sierra Club v. Morton that injury to a person’s environmental interests gives rise to standing for judicial review under Article III of the U.S. Constitution.

Moreover, even in the absence of a statutory citizen suit provision, the Administrative Procedure Act’s waiver of sovereign immunity allows members of the public to challenge agency actions unlawfully withheld or unreasonably delayed, or those which are arbitrary and capricious or made without observance of procedures required by law.

ELI 50th anniversary logoAlthough these tools were available for use by affected citizens, they could not by themselves produce improvement in the environment. The essential key to the rapid advancement of environmental protection that began in the 1970s was a responsive and engaged judiciary. Perhaps, the best example is Judge Skelly Wright of the District of Columbia Court of Appeals. In Calvert Cliffs Coordinating Committee v. AEC, one of first decisions on the application of the National Environmental Policy Act, Judge Wright put considerable flesh on the bones of this barely two-page law that directed all federal agencies to consider the potential consequences of their actions before taking them, a revolutionary idea that made environmental protection part of every agency’s mission.

Prophetically, the judge noted that the Calvert Cliffs case and others raising environmental issues were “only the beginning of what promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment. Several recently enacted statutes attest to the commitment of the Government to control, at long last, the destructive engine of material ‘progress.’ But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role. . . .”

Judge Wright’s prediction was correct. In the years following the Calvert Cliffs decision, the courts have, indeed, entertained a flood of litigation resulting in the creation of a robust body of environmental law and significant improvement in the nation’s air and water quality. The courts have assured that “important legislative purposes are not lost in the vast hallways of the federal bureaucracy,” to quote Judge Wright, but have become a reality on the ground, in the water, and in the air.

Taken together, the decisions constitute an environmental rule of law, an expression of principles basic to a just society and a livable planet. This rule of law declares that a clean and healthy environment is a right shared by all and safeguarded by government. The right transcends political changes and, as Prof. Robert Percival emphasized in an insightful article on environmental law in the 21st century, “can’t be cast asunder by any administration, no matter how much antipathy they harbor toward environmental protection measures.”

Climate change is the overarching environmental crisis of our time. The environmental rule of law is central to our ability as a society to address it. Just as Judge Wright declared in Calvert Cliffs that the government must keep its commitment to protect the environment, Judge Ann Aiken of the District of Oregon ruled in Juliana v. United States, the atmospheric trust litigation brought on behalf of young plaintiffs, that government has a duty to hold certain natural resources in trust for present and future generations. Judge Aiken exercised her “reasoned judgment” to conclude “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

Until government fully acknowledges its obligation to take the necessary steps to halt climate change, litigation offers the most effective strategy for confronting the actors responsible and reinforcing the bedrock tenets of the rule of environmental law. This is particularly evident in my part of the country where environmental groups like the Western Environmental Law Center are bringing cases to prevent the Trump Administration from ravaging public lands and accelerating climate change in its reckless pursuit of its energy-dominance agenda. In the last two years, the Administration has lost a dozen cases in court on climate change issues alone, with additional defeats on challenges to other important environmental concerns. These decisions are a testament to the strength of the law and to the commitment of the judiciary to its implementation. Without the courts and the environmental rule of law, in the years ahead, it will not just be a river that burns.