606 LEGAL ASPECTS OF THE ENVIRONMENT
interpret the law with reference to, and by analogy with,
part cases of similar import, though not precisely identical.
There is no doubt that Blackstone did a reasonable job
of tidying-up the law, but in his attempt to make of law an
axiomatic science little different from geometry, he lost the
essential elements of equity jurisprudence, particularly the
rule that for every injury there must be a legal remedy.
Blackstone’s justification for striking the principle that
for every injury there must be a legal remedy from the law
of England arose from his belief that the King could do no
wrong. Reasoning that failure to provide an adequate legal
remedy for an injury was wrong, and that the King could do
no wrong, it was obvious that there was no need for a rule of
law providing a remedy for every wrong, because the King
had obviously provided the remedy, since the King could
do no wrong and failure to provide a remedy for an injury
would be wrong. This perfectly circular argument has been
exposed by many legal scholars, yet it still appears in deci-
sions of courts that should know better.
Consider for a moment the ideological basis for
establishing American independence. The founding fathers
of this country were asserting the fundamental equitable
principle that no wrong should exist without an adequate
legal remedy. They did not deny the right of George III
to tax his American colonies, they asserted that certain
taxes were the wrong taxes, at the wrong time and for
the wrong purposes. Taxation without representation was
wrong. In other words, the King could, in fact, under cer-
tain circumstances, do wrong, and the equitable rule of law
that no wrong should exist without a legal remedy was a
fundamental human right.
Environmental Law is a mixture of the new and the old.
Affirming the timeless principles of equity jurisprudence
and asserting the unenumerated rights reserved to the people
by the Ninth Amendment of the Constitution and protected
by the equal protection and due process clauses of the Fifth
Amendment and the privileges or immunities, due process
and equal protection clauses of the Fourteenth Amendment of
the Constitution, the law is newly applying these established
principles and traditional legal procedures directly to the
environmental crises threatening the Biosphere.
The basic element of environmental jurisprudence is
recognition by our courts that the people have an absolute
right to a salubrious environment as one of the “fundamen-
tal and inherent rights with which all humans are endowed
even though no specific mention is made of them in either
the national or state constitutions... .” The inherent human
freedoms with which mankind is endowed are “antecedent
to all earthly governments’ rights that cannot be repealed
or restrained by human laws, rights derived from the Great
Legislator of the Universe.”
[Colorado Anti-Discrimination Com. v. Case, 151 Colo.
235, 380 P. 2d 34 (1962).]
The words of Lord Atkin in an English case are compel-
ling: “When those ghosts of the past stand in the path of jus-
tice, clanking their medieval chains, the proper course for the
judge is to pass through them undeterred.... The common lawdoes not go on the theory that a case of first impression pres-
ents a problem of legislative as opposed to judicial power.”
[United Australia, Ltd. v. Barclay Bank, Ltd. (1940) 4
All En. 20, (1941) A C 1, 29.]
“The law will protect a flower or a vine as well as an
oak...; [Such] damages are irreparable too, because the
trees and vines cannot be replaced.”
[Campbell v. Seaman, 63 NY 568 (1978).]
The above historical treatment presented an overview
of the fundamental arguments of Environmental Law. Some
examples of recent legislative activity are discussed below
by the editors.
The Clean Air Act Amendments of 1990 were the latest of
a series which also include those of 1970 and 1977. They deal
with the broad reduction of emissions from acid rain precur-
sors (i.e., reductions of 10 million tons/yr and 2 million tons/yr
in SOx and NO x emissions, respectively within 10 years) and
air toxic emissions from industrial sources including over
170 species not previously listed. The American Electric
Power Company said of the CAA amendments, “probably
the most complex piece of legislation we’ve seen in the last
40 years.”
Pursuant to the 1990 CAA requirements, Maximum
Achievable Control Technology (MACT) regulations for
many sources emitting hazardous air pollutants (HAP’s)
have been promulgated and are being enforced. Also new
NAAQS limits have been established for particulate matter
less than 2.5 micron diameter. These regulations and their
enforcement are discussed in the article by C.V Mathai and
Elliott, E.D., EM , pp. 25–34, May 2002. The U.S. Supreme
court may be called upon to settle some lawsuits brought
forth by a coalition of states, local governments and environ-
mental groups in the enforcement of EPA regulations, such
as New Source Review (NSR) provisions—Smith, D.C.,”
US Climate Change Legislation,” Refocus, pp. 16–19, Apr/
May (2004) and Barcott, Bruce, “Changing all the Rules”,
New York Times Magazine, pp. 38–78, Apr. 4, 2004. Also
in the global arena, an administration’s failure to confront
climate change by its rejection of the Kyoto agreement, may
be the subject of a lawsuit before an international tribunal
(Strauss, A., The legal Option: Suing the United States in
International Forums for Global Warming Emissions,”
Environmental Law Reporter, 33 , 108185 (2002). David
Grossman argues that there may be good reason to shift
the costs of damages caused by fossil fuel companies that
have received economic benefits of activities that negatively
impact the environment (Grosssman, David A., “Warming up
to a not so radical idea: Tort-based climate change litigation,”
Columbia Journal of Environmental Law 28 , 1 (2003).REFERENCESDetailed treatment of the material contained in this article, including
generally:
Environmental Protection and the Law, The Trust Doctrine, The Ninth
Amendment; Nuisance and Other Common Law Remedies; Envi-
ronmental Legislation; Environmental Toxicants; Radiation; WaterC012_001_r03.indd 606C012_001_r03.indd 606 11/18/2005 10:33:20 AM11/18/2005 10:33:20 AM