Book Beat; 90

We're talking about defending the environment a strategy for Citizen Action which is a book by Professor Joseph Sachs of the University of Michigan Law School. It's published by cannot and will be back with Lester Sachs in just a moment. This is book B. Each week introducing you to leading authors and critic this program is made possible in part by the National Book Committee and the American Booksellers Association. Your host is Robert Crumb a daily columnist for The Chicago Tribune and a contributing editor of book world the Sunday Literary Supplement of the Chicago Tribune and The Washington Post. Professor you're the author of a model law which was passed last August I think in Michigan by the Michigan state legislature. What was the intent of that law. Well its purpose was really twofold. One was to assure that any citizen could come into court and make a claim that the environment was being adversely affected. And if he could make proof of that be entitled to get a judicial order stopping that kind of conduct. This

is contrasted with the traditional situation where only public officials could come in and defend the environment on behalf of the ordinary citizen. So it's first purpose was to give access to the courts. And the second was to recognize that there is in every citizen a right to a decent environment and that environmental rights are held in trust by the government and that that's a trust that can be enforced just like a private trust that somebody has money. Well for many years as you point out it was the court's almost invariable action if a citizen came in to. Say well you know as the body which you are suing have they looked into this and have they made a decision on their own and if the answer was yes I'd say one week I'm sorry but. We have to root for them. You have no right really to come in and oppose what a governmental body is doing right. That in effect was the answer wasn't it. Yes it was. The courts were very deferential to public agencies feeling that they didn't really have any role and indeed that the citizens didn't have any role

the notion was the legislatures have given this job to some regulatory agency and everybody else ought to keep their nose out of it. And I think a few dramatic cases and an increasing concern about the environment has turned that situation around the courts are really much more receptive today than anybody including people like me thought they would be half a dozen years ago. Tell us about I guess it was at hunting creek was that the name but yes one thing that's very beautiful Tell us about that. Well it it's a nice story. Hunting Creek is a little river that runs into the Potomac near Alexandria almost in the shadow of the Capitol in Washington and. A developer a real estate developer had bought a small tract of land right on the edge of the river that he wanted to use to build some large high rise apartment houses. But in order to make this economically worthwhile he had to. Fill in some of the very shallow shore land. This

meant in essence building a peninsula right out into the middle of the Potomac in an area that had considerable value for fish and wildlife and so forth. And they had to go to the Department of Interior to get their views about this and the staff people said don't build it the Potomac taken about all it can stand. But through a long series of political maneuverings officials in the Interior Department were persuaded I guess I should say to withdraw their opposition. This took the intervention of some very powerful influential congressman including Senator Birch by yes including Senator Birch by Senator Jackson who is the chairman of the Senate Interior Committee was also involved. And the purpose of that story the reason I tell the story in the book is to indicate how in a little case it doesn't have a great deal of public attention enormous political pressure is can be brought

to bear on environmental decision making because while it seems a little case from your point or my point of view from the developers perspective millions of dollars in potential profits are riding on that decision whether he'll get a little permit from the Corps of Engineers to do some filling so it's kind of an unequal battle. And. My point the reason I use the story is there's got to be some tools developed whereby citizens who are concerned about the environment can in a sense equalize their position with the kind of political power and economic power that developers and people in that situation have. Well that had a happy ending because it was touch and go for a while looked at the developer even had the word to go ahead and then court action was taken and he was halted and finally this whole thing was reversed and the the option given him to buy the land was taken away from him.

Yes at least as of today the story has a happy ending. But as one of the people that in Alexandria said about this money taken away its money can always wait and I wouldn't be surprised if a few years from now that permit application is revived again. And this is a nother example of the eternal vigilance problem. The citizens down there have to keep their eye on that. When I've been a great many of those who want the country and the one that is now I guess at least from the viewpoint of the ecologist the most menacing is that big wind up in Alaska. Yes the proposal for the oil pipeline to whatever the name of the town is on the DS on the on the ocean right. This is a proposal to build a pipeline to carry on oil seven hundred fifty miles although not tomorrow. How do oil through coal country seven hundred fifty miles literally splitting the state of Alaska north to south. Now that's of course a really big case that's a

billion or two billion dollar kind of project. And I think that's a good example of how far we've come as far as citizen action is concerned a year or so ago the interior department was already to go ahead with that project although it was quite clear that adequate studies had not been made. Nobody really knew how to build the pipeline or what the adverse consequences were going to be. And a few small citizen groups came into a court and said to the judge. Look we're entitled to have rational decision making rational decision making means that that pipeline ought not to be built until we know what the consequences are and are prepared on the basis of that to know whether we want to go ahead or not go ahead. And Congress has passed a basic policy statute that says something to that effect. And you want to enforce that law and the judge and forced to join the pipeline and it's as a result of that lawsuit that this issue has been thrown back into the

hands of the Interior Department and other public agencies and and may ultimately get thrown into the lap of the Congress. Well the objectors point it out among other things that if there were a break in the pipeline and of course with a line that at length with how many 12 cut offs or six cut offs or something so that would be a major flood of oil if it ever broke. Yes indeed. And it doesn't break down the oil itself doesn't break down in cold weather so there would be there for heaven knows how long. That's right it's like slowly I guess. It's like spilling some syrup in your deep freeze. It will just stay there for a long time and as people pointed out in that case every mile of that pipeline carried twice as much oil as was spilled at Santa Barbara. So that gives you some idea of the magnitude of this thing. I'm glad you jumped out of Santa Barbara because that was a pretty flagrant violation of everybody's rights out there it seemed to me there were there were citizen complaints which were completely ignored.

Yes yes well Santa Barbara in a sense is an example of the way things used to be even though it wasn't very long ago. As you may recall the people in that community were worried about this oil leasing and they complained about it and they made a lot of noise to the Interior Department which had responsibility for leasing and what they got back was the usual publicity release pap. Everything's alright. I think I quote somewhere in the book An Interior Department official saying that the oil rigs are full proof even as you say instead of the quakes nothing can happen. Well you want to wreck. That's right even if that's right even in the case of earthquake or a ship running into it. Well you know when you're a person of no great technical expertise living in a community in the highest officials in the government agency tell you that. What do you tend to believe them. At least you tend to be reassured and I think that's what's happening. That is to say the confidence that people used to have

in these agencies is just broken down because they know that they can't rely uniformly on these kinds of things that are being told. That's one of the reasons that these cases are going into the courtroom. Well when they when they put out poisoned food to kill a coyote's and kill everything else too. You do tend to lose a little faith and the planet seems to me what was the good one in which the judge were sort of highly intelligent It was a Texas Eastern oil I think and New Jersey wildlife that swamp land bit. Yes that's true. That's another interesting case. Here is some. Local people owned a wildlife refuge and a gas company wanted to put a pipeline in there were a nonprofit group. That's right the people along the refuge it was privately owned but available for public use. And as I say this gas company want to put a pipeline across the refuge and these people came into court and said that they thought that the route that had been

chosen would be very highly destructive. They wanted another route. Now I use this case to exemplify how ordinary judges this was just a commonplace judge sitting in a town in New Jersey how judges like this being professional decision makers can really pull the issue together and in a sense arbitrate a decent sort of resolution of the case. If you listen to the evidence for a few days and listen to one side and the other and one day he said Now look if I understand it what you people are really complaining about is that when these companies come in to build these pipelines they just bring in the bulldozer and rip the place apart. And then say the devil with it. And what really needs to be done is to give some assurance that this thing will be built in a careful way even though it might cost a little more. And in essence that was what the case was about and he said to the gas company I'm not going to let you go across this land unless I have assurances from you that you will build this

and maintain it in a careful way and restore it as closely as can be done to the condition that it was in before. So you put a little squeeze on them and they could do it. And as I understand it they have done it made them avoid the big trees and he made them put humans on the piles of dirt so it wouldn't wash away and right it was a whole long. I mean he he in essence sat up on the bench and wrote a contract pick that professor's brains as to what should be done your mess he did. Yes he did. It was a nice case. Very very impressive example of judicial intelligence. It was a smart judge. Yes although he's one of the reasons I use the cases he's not one of our handful of famous judges. Just an ordinary following and you know in doing the work to put this book together I spent a lot of time running around from court to court in one state after another. And I must say I was surprised at how frequently you ran into Judges often in rural counties in out-of-the-way States who were

just very good at listening to an an argument for a few days listening to some testimony and then saying now look isn't this what you folks are really fighting about and isn't there really an intelligent answer to this. Some rural Solomons. Yes that's right. Well you are much more hopeful I gather now than you were a few years ago. Excuse me. Yeah. About the outcome of the suits that people now may file in many places. Oh yes in a couple of senses. First as I said a few minutes ago the courts have really opened up to the citizen I think over this sort of technical hurdle. Second I think when when you come in with these cases we now have some experience that you can get an intelligent resolution of them and maybe a quick injunction if something is right and quick action I mean that's another point of course is to rip away this enormous labyrinth kind of administrative process that drags three things out for years. If you can

demonstrate that you need immediate relief you can get it. And the third thing and in some ways the most important thing because obviously you don't want to end up taking every case to court. Well that would just make the whole system break down. These cases are having what I like to think of as a rippling effect like the ripples in the pond you come in and sue an agency that's been fat and lazy for years and years and demonstrate in front of a court how are they have been failing to do their job. And that begins to have an effect on them in their other cases. Once they know that somebody is looking over their shoulder and at some affective action can be taken again taken against them they tend to shape up a little bit and that's healthy. Well a Timberland case in which a plot of Timberland that was being considered as a possible. National Wilderness and would be set aside and that nobody could cut over it. Was suddenly going to be cut

over because it was at the forest. Which did it which department is that this is the US Department of Agriculture that writer was going to let some lumber company. Cut it down before the Congress had time to act. Yes that's that's an example I use because it is a demonstration I think of the persistence of bureaucratic habits. The Forest Service had been operating in a certain way as far as harvesting commercial timber in the forests they managed for years and years. They put a road in and they sell the timber off to a commercial company and they've been doing this for a long time and nothing illegal about it. That was their traditional function. Then in 64 the Congress passed the wilderness at and that. Legally and theoretically was supposed to change the game as far as bringing wilderness values to bear as an important issue what this case demonstrated was that the Old Forest Service just plugged the law in doing the same thing in

68 that they've been doing in 58 and not a blessed thing it changed. And that was what got the judge outraged and that's what induced him to issue an order saying by golly Congress passed a statute they want to have a look at these things and the fact that you've been lumbering along in the same old way for 20 years doesn't mean a thing. You people are going to face up to the fact that there are some new laws. And not if I have to shake your bureaucratic neck. I'm going to do it. And he did it and he overruled another judge to do it too because I'm a lower court had refused to issue an injunction. I think maybe you've got a couple cases. I think so but maybe. There were some other cases of this kind where the judges hadn't acted. And so you're right in saying that it was in a sense a precedent shattering case. Now that case one of which Congress they told Congress hurry up and settle this because we're getting tired of all these injunction attempts.

Oh yes that's right. That was another case in the same state a similar kind of case but it was another timber case. Yes and also a case involving the so-called florist sent fossil beds. You may be thinking of that or that or that was all this that was that came out well. Yes that was a really amazing case to this was not a government agency but a private developer who had bought up lands and private ownership which contained extremely valuable ancient fossil beds and was threatening to develop them for residential purposes unless someone would come in and buy him out at a very healthy profit paid a hundred fifty an acre willing to sell it for 385 or so that's right after two or three weeks. Yeah kind of profit I suppose everybody like to make. And in that case they went in and got an injunction and said you hold off until the Congress has a chance to decide whether it's willing to buy up these lands. But the judge who ruled said I don't know that I can you know why are these people entitled to do what they

wish with their own private holdings and the lawyer who is very smart said look if you dug up a copy. The original copy of the United States Constitution and we're going to use it to clean up a mess on the floor. You could be stopped couldn't you with a gesture there yes that's right and there should be a judge yes that's right. Well you know this is one of the things that's happening in these cases is that lawyers and judges are beginning to cut through some of the legal listed technicalities and just bring some common sense back into the system. And one of the things that we've argued about in trying to get laws like this Michigan law passed is that you know for 500 years the legal system basically operated on the basis of the common sense of the common law the equity powers fairness ought to be done. And they were bound up by these 500 page long statutes and some of that added to that what ought to be done ought to be within the powers of the

court to do is beginning to come back in here. There's a serious problem. There is a reasonable way to resolve it. By George let's get it resolved. It seems to me to be a desirable goal. Don't you say in your book that the. The legal theory that access to rivers and public waterways and things of that sort for the citizen go back to Roman times that the Romans had laws about this. Yes indeed. You know this is one of the delightful things about being a lawyer is that you can dig around in the dust and find some things that are germane to contemporary times. This is the old doctrine of the so-called public trusts which has roots in the Roman law and in the very old common law of England. That said the common properties the air the sea shore the oceans are held in trust by the government and they have an obligation to hold them and to manage them for the benefit of the general public not to give them away to a bunch of real estate operators.

It isn't quite with the Romans that so many were left of that main idea. Well another important cation there and again but this was decided more or less on a fluke not on a fluke but on a very minor point of law that really wasn't intended to be used that way was the Hudson River expressway which was originally planned to go to Nelson Rockefeller's a state within 200 yards of his house or something and he managed to put a stop to that and then they were going to take it right down the shore line. Yes that's right. This is one of the less glorious moments in the Rockefeller regime I think they the Rockefeller family was responsible for moving this plan over from the original route that would have gone through their houses and they were then going to build the highway right along the shoreline of the Hudson which would have meant millions of cubic yards of fill. And this of course raises serious ecological problems. Citizens group organize they brought a lawsuit

and then the question was what law is being violated. Well it wasn't very clear but the lawyer there being a smart fellow dug up an old statute that everybody had forgotten about 1898 or 1889 or something. Yes that's right. Back in that era. And it's said that before you could build a dike. On a navigable waterway you had to get the consent of Congress. Well the Corps of Engineers been building dikes for years without ever getting the consent of Congress. But they came in to court said to the judge that's what the law says you're here to inforce the law. They've been telling us this is a dyke and they've been saying it for so you tell them they can't build it until they go back to Congress. Well that was a fluke. I think you're right. But everything worked out for the best because I think in essence this was what was needed that is. This is one of the techniques you recall I talk about the so-called re man ding to the legislature sometimes going into court and saying look here's a serious

policy problem. This agency ought not to be making large national policy decisions. Let's slow things down. Let's hold off for a while if there's no emergency. Send it back to the legislature and see what they want to do and hope maybe we can get a little public attention focused on this. So it was the right result but for a very odd reason. And is that still alive by the way. It's a legally dead for the moment. That case went up to the Supreme Court and they did not review it they let the lower court decision stand in others it will take an act of Congress apparently to revive the expressway. That's right and the only real question is whether the people in New York state the governor and others want to build the highway think they can blast this through the Congress. Well when you do your sequel to this book Don't forget the Volo blog right near here which was apparently going to be developed as a real estate thing in the state finally took it over. Yes I'm not familiar with that case in detail but

I do remember hearing the beautiful beautiful natural in its natural state the way it was hundreds years ago apparently. And there was an awful squawk about it and finally the state stepped in and said OK you know we'll exercise our right of eminent domain and we'll take this oath which they did. If citizens groups now wish to file suits and want advice how do they get it. Do they write you with the University of Michigan Law School. I get a fair amount of the letters now. Fortunately one of the things that's happening is the development of these so-called public interest law firms. There are a number of such groups some of them have Foundation funding which have been organized principally to serve environmental groups and other sort of consumer groups. And you find them in some of the big cities Chicago New York Washington and so forth. And this is proliferating. Obviously it's not as extensive of a development as it ought to be. But that's that's one one source for people. Another of course are the

organizations whose interest is environmental protection Sierra Club praised Sierra Club the Environmental Defense Fund National Audubon and friends of the earth friends of the earth the Isaac Walton League. I want to make a whole list because I'm here to forget someone. But these organizations as you know have been growing by leaps and bounds in recent years and hopefully one ought to say that people ought to knock on the door of their state agencies who the taxpayers are supporting to do this job of protection and lean on their state representative on them and lean on their state attorney general. And sometimes you'll get results out of them was the funny one about the governor who filed suit a Republican governor in a Democratic Congress. I mean Democratic legislature. Yes this was this was in the state of New Jersey. This was an attempt. So they said to. Give away very valuable shorelines to private owners you know Beach lands of a kind that ought to be viewed as being held in

public trust. The governor didn't they put this on a ballot for people to vote on. But the governor said that it was worded in such a confusing way that the people in the state wouldn't realize that they were being asked whether they wanted to give away the land. And so he went into court is a very unusual thing the governor in essence suing the legislature in a court room to get that provision taken off the ballot or at least fixed up. Well they settled that one out of court fortunately. But for the imaginative person there are many avenues open. How many states have made inquiries about Michigan's model law the one that you drafted for the state legislature. About 20 states have actually introduced the bill I have in addition to the bill being and in the Congress right now introduced by Senator Hart and Senator McGovern and Congressman Udall of Arizona. Of course some bills get introduced but don't get active attention. There are three or four

states right now that are giving the law quite active attention. I was just down recently to testify on behalf of Bill in Texas Maryland New Jersey Minnesota or some other states that are giving active attention. So I think we'll get it adopted in a few other places and I hope. History will vindicate those over the years and that a lot of states will have laws like that. I don't see the passage of the law in Michigan obviously must give great heart to the citizens groups and also give them a much increased stature when they get to court. Oh no doubt about it we've had just in the first six months since the bill was enacted 10 or 12 cases and very gratifying results in the court room. And you know among other things we shouldn't view these just as technical achievements. They give citizen groups a kind of focus for their organizing ability or their organizing needs and a kind of channel for their energies and frustrations

and a useful kind of channels. So you know you've got to build some institutional foundations under this thing so you don't just have a kind of chaotic frustration goodwill if you want to advice on how to save your environmental court. All right Professor Joseph sax of the University of Michigan whom we've just been talking it's a X by the way. His book is defending the environment a strategy for citizen action. And it is a fascinating collection of case histories of people going to court and won and helped save the environment and Bob Crowley from the Chicago Tribune thanks for being with us I hope to see you again next week and Professor Fred good to see you and I'm really glad you wrote the book. Book B has been made possible by a grant from the Corporation for Public Broadcasting. This is the national educational radio network.