Courts and the Environment

As concern for environmental quality has mounted, a corresponding impatience has developed with respect to the efficacy of administrative agencies and procedures to deal with environmental problems. This is aptly reflected in the following comment by former Attorney General Ramsey Clark in his June testimony on the proposed Environmental Protection Act of 1970:

"There isn't any single symptom that better expresses the frustrations of modern life than the powerlessness of people to affect things of vital importance to them. You can't sue. You have got to live with it. . . If the park that you sit in is being leveled by bulldozers, you can't do anything. We can't go on like that. People have to have the power through legal process to affect things that are important to them."

Until quite recently, problems involving common property resources and corresponding widespread nuisances, such as water pollution, air pollution, the impacts of the dissemination of long-lived pesticides, and the destruction of unique natural and/or historic areas, were not considered litigable, except by an individual who had suffered direct damages different from those suffered by the general public. Only then would the courts consider the problem under the "public nuisance" doctrine, first established in England more than 400 years ago. If the individual was simply a member of the public, he could not go to court no matter how extensive the damages. "Class" suits had no standing. In many of a growing number of court actions involving environmental issues that were initiated in the last few years the question of "legal standing" has had to be adjudicated prior to considerations of the substance, and action was normally based upon violation of a specific statute or provision.

A shift in legal thinking and practice is currently in the making. On 27 July 1970 the Governor of Michigan signed a measure which provides that any and every citizen, simply by virtue of his status as a member of the public, has a "standing" in court on questions regarding environmental quality. He can bring suits against government agencies, industries, and private citizens to force reconsideration of decisions on such problems. At least two suits were filed on 1 October, the day the law took effect, and the defendant's response in one of them assures that the constitutionality of the new law will be tested. Similar bills have been introduced into legislatures in at least five other states—Colorado, Massachusetts, New Mexico, Pennsylvania, and Tennessee—as well as in the U.S. Congress (the aforementioned Environmental Protection Act).

The legal theory providing a basis for these laws is the "public trust" doctrine, whose origins are found in Roman law. This doctrine holds that certain common property resources (today we would count among them air mantle; water courses; the "coastal" or marginal areas of oceans, bays, lakes; and unique natural wonders) are held by the government in trusteeship for the general public. According to Joseph Sax, author of the Michigan law, writing in 3 October Saturday Review, the idea of public trusteeship rests upon three related principles:

First, that certain interests—such as the air and the sea—have a such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership; second, that these interests partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status; and third, that it is a principal purpose of government to promote the interests of the general public rather than to redistribute public goods from broad public to restricted private benefit."

Of course, simply providing the public with recourse to the courts will not, by itself, solve our environmental quality problems nor can it take the place of other necessary activities. Day-to-day management of environmental quality—of open spaces and recreation areas, of transportation networks—will continue to involve data collection, research, planning, regulation, legislative standard setting, enforcement, and related activities both public and private. But broadening the role of the courts provides an additional tool for the management of environmental quality.