Reflections on the role of the courts in environmental law.

• Author: Schiffer, Lois J.

Thank you, your honors, and may it please your courts. I am truly honored to have the opportunity to come before you today, not as a litigant in a specific matter, but rather as a litigant in general, pleading the cause of cooperation and common sense in our common purpose of construing and applying our nation's federal environmental laws.

To establish my standing at the outset, let me state that the Environment and Natural Resources Division at the Department of Justice and the U.S. Attorneys' Offices throughout the nation have cases in virtually every federal district court and each court of appeals. So I have injury-in-fact. As for the zone of interest, I am a professor of environmental law at Georgetown University Law Center, where for the past ten years my colleague, Professor Nancy Firestone, and I have tried to unravel the mysteries of some of the environmental statutes you are learning about in this course. As to redressability, each of you will have to judge.

The Federal Judicial Center and the Northwestern School of Law of Lewis and Clark College are to be commended for presenting this outstanding seminar. Moreover, each of you is to be commended for coming here, and for talking the time to learn how these laws -- not always models of clarity -- actually fit together and work, so that your decisions will be informed and wiser.

I can see from the agenda that you will be spending considerable time and effort on individual statutes and programs. You have already covered the National Environmental Policy Act (NEPA),(1) the environmental statute where anyone can play, and the Clean Water Act,(2) the intermediate course in pollution law. You still have coming what I tell my students are the "major leagues" in hard statutes: the Resource Conservation and Recovery Act (RCRA),(3) the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund),(4) and the Clean Air Act.(5) I am pleased that you are covering some of the laws governing natural resources and wildlife as well.

Today, I would like to pull back from the individual programs, and address several issues that cut across all areas of environmental protection. Because I cannot pass up the opportunity, I will have some suggestions for you along the way as well. So fasten your seat belts.

When Justice Department attorneys enter our federal courtrooms to litigate our nation's environmental docket, we often pass by a statue of Lady Justice: her scales of justice signifying that all relevant facts and law will be considered and weighed; her sword symbolizing the power and authority of the law, its ability to protect those who cannot protect themselves, and its ideal of delivering swift and sure justice; and her blindfold signifying that all who come before her will be treated in like manner, without regard to race, creed, or economic class. You may have a picture or statue of her in your own courtrooms.

I would like to use Lady Justice as my framework for sharing with you some reflections on the role of the judiciary, your role, in protecting our environment.

The Scales of Justice

Let us start with the scales of justice. This is the symbol that most directly reflects the judicial process itself, the application of the law to the record evidence. As you know far better than I, judicial decision making is much more complex than simply following a formula or constructing a syllogism. In his classic treatise, The Nature of the Judicial Process,(6) Justice Benjamin Cardozo describes the "mental background" that every judge brings to the decision-making process.(7) Cardozo reminds us that statutes and rules and precedents "do not render the judge superfluous, nor ... [the judge's] work perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided."(8) What Cardozo calls the judge's "mental background" plays a critical role in filling these gaps, resolving these ambiguities, and otherwise assisting the court in achieving a just and rational result.

Your very presence here today is an acknowledgment that the judicial process requires more than a cold read of the applicable law from the U.S. Code. You are here to expand your "mental background" through thoughtful reflection and discussion of cutting-edge issues in environmental law. I would like to invite you to add four specific facts to your mental background to aid your decisions in environmental cases.

First, every judge who is called on to decide an environmental law case should recognize that our environmental laws, by and large, are working. Our progress in protecting the environment over the past twenty-five years is truly an American success story. Unfortunately, this success story is very much an untold story.

The commentator Mark Shields has pointed out that, oddly enough, many politicians do not want to take credit for this success.(9) The liberals are reluctant to acknowledge that many of the landmark environmental laws were signed by Republican Presidents.(10) And many conservatives don't want to admit that government -- good government, government done right -- can produce tremendous benefits for the American people.(11)

Let us look at some facts. Our air today is much cleaner than it was twenty-five years ago, due primarily to the federal Clean Air Act. Since 1970, lead emissions have dropped by ninety-eight percent; emmisions of fine soot, a cause of respiratory disease, have fallen seventy-nine percent; emissions of carbon monoxide, a killer poison, have declined twenty-eight percent; emissions of volatile organic compounds, a precursor of groundlevel ozone and smog, have fallen twenty-five percent; and emissions of sulfur dioxide, which leads to acid rain, have dropped forty-one percent.(12) We achieved these improvements notwithstanding a significant increase in population, a doubling of our gross domestic product, and huge increases in vehicle miles traveled.(13)

Our lakes, rivers, and drinking water are much cleaner, thanks in large measure to the federal Clean Water Act and Safe Drinking Water Act.(14) In 1972, only a third of our nation's water bodies were safe for fishing and swimming.(15) Today, almost two-thirds are safe.(16) Lake Erie, once declared dead, is now teeming with fish. The Hudson River in New York, the Potomac in our nation's capital, the Grand Calumet in northern Illinois, Boston Harbor, Chesapeake Bay, Commencement Bay here in the Pacific Northwest, and so many other rivers and bays across the country are on the mend, and getting cleaner every year. The Clean Water Act has helped to cut the annual net loss of wetlands from almost 458,000 acres per year prior to the mid-1970s to fewer than 90,000 acres in recent years.(17)

Our exposure to toxic wastes continues to fall as hundreds of Superfund sites across the country are being cleaned Up.(18) The global phaseout of chlorofluorocarbons, which deplete the protective stratospheric ozone layer, is well ahead of schedule.(19) We also have pulled several species back from the edge of extinction, including the bald eagle, the peregrine falcon, the red wolf, and the California condor.(20)

Our environmental laws have not only been effective; they have been cost effective. To cite but one example, EPA recently completed a draft cost-benefit analysis of the Clean Air Act.(21) The analysis must undergo further review and refinement, but preliminary reports are that the Clean Air Act has yielded monetary benefits that far outweigh the Costs.(22) According to the draft report, the total estimated monetized benefits of the Act from 1970 to 1990 fall within a range of $10.5 trillion to $40.6 trillion, with a central estimate of $23 trillion in benefits.(23) This compares to total costs of compliance during these years of roughly $523 billion.(24) In other words, the benefits are about forty-five times the estimated costs.(25) Forty-five times! Not a bad return on investment.

Few other areas of domestic policy can hold a candle to the success that has been achieved in the environmental policy realm. Needless to say, if our efforts to reduce drug use, improve education, reduce poverty, and tackle other challenges were this successful, our country would be much better off.

The federal courts have played a critical role in this success. In their book Green Justice,(26) Thomas Hoban and Richard Brooks describe how Judge Skelly Wright breathed life into NEPA in 16 Landmark 1971 Calvert Cliffs' decision.(27) The authors explain how Judge Wright ensured that an environmental impact statement under NEPA "was not to be merely pro forma, not to be simply lip service by an advocacy agency, a sop to environmentalists that was stapled to a sheaf of papers shuffled within an agency."(28) Instead, by requiring the agency to carefully consider the results of its NEPA analysis, Judge Wright established NEPA "as the cornerstone of all federal environmental legislation."(29) (I am proud to say that I was a law clerk on the D.C. Circuit, though not to Judge Wright, the year that seminal decision came down.)

In the same vein, Judge Patricia Wald of the D.C. Circuit has observed:

Without a strong infusion of judicial hospitality, however ... [our

environmental] laws -- even backed by expert and enthusiastic

advocacy -- would not

have gone very far toward the "greening of America." There had to be

access to

the courts for vigorous enforcement and resolution of exactly what the new

[environmental] statutes required from the executive and from private

parties.(30)

In addition to Judge Wright's decision in Calvert Cliffs', Judge Wald singles out Judge Harold Leventhal in the D.C. Circuit and Judge James Oakes in the Second Circuit as having been particularly instrumental in the progressive development of our environmental laws.(31) And, I might add, many U.S. District Court judges have made similar contributions to our...