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ENVIRONMENTAL LAW

New Laws and New Roles for the Courts

Debate over environmental protection grew markedly during the 1970s, and much of the struggle occurred in the courts. Congress passed several statutes that gave courts a central role in environmental enforcement. The National Environmental Policy Act of 1970 (NEPA) required the federal government to write an environmental impact statement for all "federal projects with a significant environmental impact." Opponents of a project could go to court to challenge the adequacy of the impact statement. The Clean Air Act amendments of 1970 required the Environmental Protection Agency (EPA) to set health-based standards for local air quality. Areas whose air quality did not meet those standards had to develop plans for meeting them. The Water Pollution Control Act amendments of 1972 imposed similar requirements for water pollution. Standards could be challenged by environmental groups or by companies required to reduce their pollution. As a result, courts became a principal battleground in the struggle over environmental regulation. During the 1970s there were 855 federal lawsuits involving NEPA, 233 involving clean air, and 508 involving clean water.

Environmental Impact Statements and Nuclear Power

The NEPA requirement for environmental impact statements was used extensively to oppose the licensing of nuclear power plants. Environmental groups such as the National Resources Defense Council or the Sierra Club sued the Atomic Energy Commission (AEC), which was responsible for licensing the plants. They claimed that the AEC had not taken adequate consideration of the safety and efficiency of the plants. District courts, located in the area that would be affected by the plant, often upheld the concerns of the environmental groups. The nuclear plant owners then appealed and usually won final approval. In the Vermont Yankee case, the Supreme Court said that the NEPA was a procedural law and could not be used to impose environmental standards on nuclear power plants. The builders of nuclear power plants won the legal issue, but the environmental groups won the war. By the end of the decade builders had mostly given up plans to build more nuclear power plants because the delay and expense of fighting the lawsuits often made them too expensive.

Local Air and Tall Smokestacks

The EPA and the courts also had to deal with questions about how localities avoided meeting the local air-quality standards. One subterfuge was to build tall smokestacks that would reduce the effect of a major pollution source such as a power plant. The tall stacks dispersed the pollution over a much larger area and thus reduced its impact on the local area. Environmentalists complained that this shifted the burden of the pollution to this broader area and sued the EPA to prevent it from approving plans that allowed tall smokestacks. Power companies sued the EPA to allow them to build the smokestacks. Because of these suits the courts rather than the EPA decided the regulations for allowing the use of tall smokestacks, and they placed strong restrictions on the use of smokestacks to disperse air pollution out of the local area.

Water Pollution and Effluent Standards

The EPA was also often caught in the middle of competing lawsuits in their regulation of water pollution. Environmentalists sued for vigorous EPA enforcement of pollution standards regardless of mitigating considerations. Firms having trouble meeting the water-pollution standards sued, claiming that the law only required them to make the "best practicable treatment" and that it was too expensive to eliminate their pollution totally. The courts reviewed the EPA's decisions about "best practicable treatment" sometimes siding with the environmental groups and sometimes with the polluter. The EPA could not develop consistent national standards for its enforcement of water-pollution laws because it could not anticipate how courts would evaluate those standards. On the other hand, environmental groups and polluters were both guaranteed a hearing where they could make their arguments about whether the EPA's restrictions should be made stronger or more lenient.

The Continuing Role of Courts

Courts continue to be at the center of environmental regulation. The environmental and economic interests involved are so important that neither side is willing to give up its ability to challenge regulatory decisions in court. No other issue better illustrates how the structure of American administrative law guarantees that courts are often placed in the position of deciding difficult conflicts in public policy.