590L
LEGAL ASPECTS OF THE ENVIRONMENT
The environment has become a concern of the law and
Environmental Law is now a recognized and established legal
discipline.
The body of Environmental Law is growing in response
to the felt needs of society which is beginning to acknowl-
edge that the technological advances of this generation are
destroying the legacy of the past and the capital assets of the
future.
Historic forces forged common law doctrines suited to
a world of endless frontiers, where ruthless exploitation of
natural resources was a manifestation of the desperate need
to subdue all nature as the means of survival in the wilder-
ness of a new world. Such survival techniques are no longer
appropriate on an earth whose life support systems are as
fragile as those in a space capsule.
As natural resources are being utilized at rates unprec-
edented in the history of civilization, and the quality of envi-
ronment deteriorates, there is increasing public demand for
legal aid to the environment. Attorneys are being called upon
to act as public defenders of the environment and the law is
being asked to restore the quality of life.
Environment and the law interface in three significant
areas: Legislation, Administration and Executive action, and
Judicial determination.
There already exists a substantial body of statutory law at
the federal, state and local levels dealing with matters of envi-
ronmental concern, and there has been a perceptible evolution
of ecologically sophisticated, environmentally responsible,
socially relevant and politically feasible legislation at all opera-
tive levels of government.
Administrative agencies characterized by a combination
of delegated legislative, executive and judicial powers, func-
tions, and responsibilities affect the environment in the fur-
therance of their statutory mission.
The administrative agencies are legislative creations. In
theory, they exist to effect policy established by the elected
legislative representatives of the people. To accomplish this
the legislature ceded rule-making power from its legislative
mandate under the Constitution, the executive ceded a cer-
tain amount of administrative power, and the judiciary cededcertain judicial functions, in particular fact-finding and pre-
liminary hearing. As a result of this tripartite grant of power,
administrative agencies represent not a fourth branch of gov-
ernment as some seem to think, but the foundation of all
practical government operations: Administrative agencies
provide the substantial bulk of bureaucracy.
The judiciary of the United States and that of the several
states furnish the forum for environmental litigation. Such
litigation involves the interpretation of statutes and the adju-
dication of liabilities for damages resulting from nuisance,
negligence, trespass and other traditional common law torts;
as well as general actions seeking declaration of the rights
of the people (in the form of class actions for declaratory
judgment) and equitable relief (injunction, reparations)
based on such ancient common law equitable principles as
the Trust Doctrine and the maxim sic utere to alienam non
laedas —so use your own property as not to injure that of
another. Following the trail blazed by the American Labor
Movement and retracing many of the judicial steps of the
Civil Rights struggle, while seeking judicial vindication of
a fundamental human right, to a salubrious environment,
as one of those rights “so basic and important to our soci-
ety that it would be inconceivable that it is not protected
from unwarranted interference” and is a right retained by
the people of the United States under the Ninth Amendment
of the Constitution of the United States and protected from
disparagement by the actions of the federal government by
operation of the due process and equal protection clauses of
the Fifth Amendment of the Constitution and protected from
disparagement by the actions of any of the several states by
operation of the privileges or immunities, due process and
equal protection clauses of the Fourteenth Amendment of
the Constitution.
Environmental Law and Environmental Litigation became
recognized elements of the Anglo-American legal system in
the Spring of 1966 when a suburban housewife brought an
action on behalf of all the citizens of Suffolk County, New
York seeking equitable relief from a toxic insult to the
community ecosystem; challenging not merely the local mos-
quito control commission still routinely using DDT in anC012_001_r03.indd 590C012_001_r03.indd 590 11/18/2005 10:33:18 AM11/18/2005 10:33:18 AM