50 Years Ago: Environmental Law in 1973
Five many years back, the country was within the midst of unprecedented environmental ferment.
1973 was on the crest of the environmental surge that swept america half a century ago. Within the previous three years, Congress had passed NEPA, the Clean Air Act, and the Clean Water Act. The primary EPA Administrator took office in 1971. Continuing the legislative wave, 1973 saw the passage of the Endangered Species Act (ESA. And the 12 months also saw some major judicial decisions.
Like today, 1973 was a time of political turmoil. The bitterly divisive Vietnam War was winding to an end, and far of the news that 12 months was dominated by the Watergate scandal that ultimately brought down President Nixon. One subject stood outside the political turmoil: environmental law. In an EPA survey, 85% of the general public thought pollution was an enormous problem.
The passage of the ESA highlights the extent of the national consensus over the environment. It’s a controversial law today, nevertheless it passed the Senate unanimously and the House by a 355-4 margin. In signing the bill into law, President Nixon said: “Nothing is more priceless and more worthy of preservation than the wealthy array of animal life with which our country has been blessed. It’s a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms an important a part of the heritage all of us share as Americans.” He congratulated Congress for “taking this vital step toward protecting a heritage which we hold in trust to countless future generations of our fellow residents. “
Two judicial decisions that 12 months also stand out as noteworthy. In United States v. Students Difficult Regulatory Agency Procedures (SCRAP I), the Supreme Court took a really generous view of standing. The plaintiffs were difficult a routine rate increase for railroad transportation of scrap metals. They alleged that the two.5% rate increase would decrease recycling, which in turn would lead to more litter within the parks that they used.
The opinion was written by Justice Potter Stewart, a moderate Republican. The Court found it irrelevant that just about everyone within the country can be impacted by the speed increase: “To disclaim standing to individuals who’re in truth, injured just because many others are also injured, would mean that essentially the most injurious and widespread Government actions could possibly be questioned by no one. We cannot accept that conclusion.” Furthermore, although causation was indirect and the effect prone to be very small, the plaintiffs had still managed to allege “a particular and perceptible harm,” which was sufficient to maintain their lawsuit alive. Today’s environmental lawyers can only dream of receiving such a sympathetic reception to their claims of standing.
In one other notable case, the D.C. Circuit rebuffed EPA’s effort to delay a compliance deadline within the Clean Air Act on the bottom that compliance wouldn’t be feasible (because it probably was not). The case is one among dozens titled Natural Resource Defense Council v. EPA. Ruling just nine days after oral argument, the court insisted on strict compliance with the deadlines except where the statute itself provided an escape hatch.
The court found that “the Administrator [of EPA] acted in the perfect of religion in attempting to comply with the difficult responsibilities imposed on him by Congress.” But he didn’t “conform to the strict requirements of the Clean Air Act of 1970 in permitting several states to delay.” The “combined effect of those illegal actions,” the court said, “has been to interfere with the congressional purpose of accomplishing clean air by a date certain, May 31, 1975, subject only to certain limited and well-defined statutory extensions.” This judicial willingness to implement environmental law as written is way less in evidence today, as shown by the recent ruling in West Virginia v. EPA.
What are the teachings to be drawn from this transformation from the environmental “golden age” to the much messier present? One is that political polarization has claimed many victims, even on what was once issues that unified all Americans. That polarization was accelerated as an unintended side-effect of one other 1973 Supreme Court decision, Roe v. Wade.
Even aside from polarization, it soon became clear after the early Seventies that environmental transformation can be harder, slower, and costlier than Congress had assumed. Because the challenges became more apparent, it also became clearer who the economic losers can be.
In a less polarized world, we can be having a far more rational and nuanced discussion of environmental policy today. But we’d still be faced with the intense disputes concerning the role of presidency and with resistance from those would bear the heaviest costs from environmental change. As with youth generally, environmental law can look back fondly on the innocence of its youth, but there isn’t a escape from the necessity to confront the far messier realities of the current.
