Is there a sea change in environmental law? What problems
deserve national and local attention? What sort of proof is required to trigger
action, and to what degree?
Beginning in the 1970s, there was a revolution in environmental
law, ushered in by Earth Day and the National Environmental Policy Act (1969).
Federal, state, and local legislation swept the country. The Environmental
Protection Agency (EPA) came into being. Maryland established departments of
Natural Resources (DNR) and Environment (MDE). The General Assembly passed
many laws, such as the Wetlands Act (1970) and the Chesapeake Bay Critical
Areas Act (1985). Public interest groups became a force. The business community
at times fought against the rising tide, but eventually made adjustments, as
corporations established in-house departments and major law firms helped them
navigate the regulatory byways.
The federal government played a leading role, but the courts
were also in the forefront. In cases such as Calvert Cliffs Coordinating
Committee v. Atomic Energy Commission (1971), the federal courts recognized
the dynamic and evolving concerns for environmental protection, “… so
that important legislative purposes are not lost or misdirected in the hallways
of the federal bureaucracy.” The Maryland Court of Appeals played its
part. In upholding the Wetlands Act, the unanimous Court wrote in Potomac
Sand & Gravel Co. v. Governor (1972), “The current trend is for
courts to consider the preservation of natural resources as a valid exercise
of the police power.” Later, Judge Harry Cole said in the Annapolis
Waterfront Co. case (1979) that the local authorities “… could
consider the environmental effects of the proposed construction.”
The revolution took off in President Richard Nixon’s
administration, survived the oil crisis of the middle-1970s, continued under
Jimmy Carter, made it through the bumps of the Ronald Reagan years, seemed
to get a second wind under George H. W. Bush, and generally progressed under
Bill Clinton. But, as Professor Richard Lazarus of Georgetown Law School shows
in his remarkable new book, The Making of Environmental Law (2004),
the movement faces its stiffest challenge yet in the administration of George
W. Bush. Ironically, the States, once viewed as bastions of provincialism,
seem ready to take the lead. They see many impacts close at hand.
An April 2005 Associated Press report entitled “Ten
States Sue EPA Over Loose Mercury Rules” is illustrative. The introduction
says: “Wisconsin has joined a list of states suing the federal government’s
policies, challenging new regulations they say fail to protect children and
expectant mothers from dangers posed by mercury emissions.”
Professor Lazarus’ book sheds light on the dynamic
nature of the environment and the difficulties posed by the temporal and spatial
dimensions and interrelationships of environmental issues. They are complex.
They can occur gradually. The effects may be long-term and uncertain before
they emerge. There is no magic wand or mathematical solution. Judgment is involved.
Who should one believe? It is sobering to read J.R. McNeill’s
environmental history of the twentieth century in Something New Under the
Sun (2000). Professor McNeill, also of Georgetown, provides in graphic
detail the story and data to demonstrate that the last century witnessed unprecedented
environmental impacts, especially involving energy-use and effects on the earth,
atmosphere, hydrosphere and biosphere. He also documents the unintended and
unforeseen adverse environmental effects of many major innovations and spurs
to growth, such as the fertilizers described in Rachel Carson’s Silent
Yet, the current federal government momentum is to minimize
the seriousness of potential environmental impacts, especially where there
are political and economic forces to weigh or balance against controls.
In his book, Lazarus suggests yet another pattern. In recent
environmental cases, the Supreme Court has granted many petitions for review
filed by parties representing business and property interests, but not by environmental
groups. Lazarus notes the tendency in recent decisions towards a much narrower
reading of environmental protection requirements, in contrast to the broader
regard of earlier days.
Times are changing. What direction will environmental law
take? The game is still afoot and the stakes are high, but this gives all branches
and levels of government here in Maryland a wonderful opportunity to go forward
with direction, leadership and momentum.
Peter Max Zimmerman, People’s Counsel for Baltimore County, is a member
of the MSBA Environmental Law Section Council and active in appellate practice.
He taught environmental law at the Johns Hopkins School of Hygiene and Public
Health and Towson University.