Transcript Storm King and the Beginning of U.S. Environmental Law

Storm King and the
Beginnings of U.S.
Environmental Law
Alex Wang
International Fund for China’s Environment NGO Forum
Kunming, Yunnan Province, China
November 10, 2005
Storm King Mountain
Storm King:
Presentation Overview
• The Importance of Storm King
• The Storm King Story: A New Approach To
Environmental Advocacy
• The Expansion of Standing: The Dawn Of
U.S. Environmental Litigation
• Conclusions: Implications For China?
The Importance of Storm King
• Standing to Sue for Environmental Interests: The Storm King
case recognized the right to sue for non-economic
interests, such as aesthetic or environmental interests.
Economic damage had been necessary.
• A New Approach to Advocacy: Storm King marked the
beginnings of a new era of environmental advocacy in
the U.S. that combined the use of legal tools with media
outreach, public relations, and government lobbying.
• New environmental groups such as the Natural Resources
Defense Council (NRDC) and the Environmental Defense
Fund formed in Storm King’s wake to use the law to
protect the environment.
The Storm King Story:
A New Approach To
Environmental Advocacy
The Proposed Project
• In the early 1960s, Consolidated Edison (Con Ed) proposed
to build a pumped storage hydroelectric power plant at
Storm King Mountain to meet rapidly expanding power
demand in the New York City region . It would have been
the largest plant of its kind at the time.
• Electricity would be carried by overhead transmission lines
to New York City through several residential counties.
The Growing Conflict
• Some locals, objecting to
the damage the plant
would cause to the natural
and cultural heritage of
the Hudson Highlands,
formed the Scenic Hudson
Preservation Conference
to oppose the project.
• Some residents of the town
in which the project would
be located favored
construction of the plant
because it would lower
their taxes.
The Context
• Rapid Increase in Environmental Awareness: Public
environmental awareness experienced a tremendous
increase at this time.
– Silent Spring was released the same year the Storm King
project was announced.
– Environmentalism was becoming an issue of the middle-class.
• Growing Use of Law for Social Change: The country was
becoming familiar with the use of the courts to promote
social change. At the time, hundreds of lawyers from big
city law firms were volunteering their services to use the
law to promote civil rights.
A New Approach To Environmental
Advocacy
The FPC Hearing
• The Licensing Proceedings: Scenic Hudson intervened in the
licensing proceedings of the Federal Power Commission (FPC)
claiming that the project would cause aesthetic and cultural
injury.
• Con Ed On The Attack: Con Ed attacked Scenic Hudson, calling
its concerns the “self-centered complaints” of “a few local
dreamers.”
• Fisheries At Stake: Scenic Hudson also submitted evidence that
existing power plants were destroying large numbers of fish,
including the commercially-valuable striped bass (60-80% of the
U.S. supply of which came from the Hudson).
• Fisheries Evidence “Irrelevant”: The FPC did not believe it could
consider these environmental factors, and called the fisheries
evidence “irrelevant.”
• Storm King License Approved: The FPC approved the Storm King
license in March 1965.
The Court Case
(Scenic Hudson I)
• Scenic Hudson appealed the FPC’s decision to the Court
of Appeals.
• Courts where traditionally reluctant to overrule agency
decisions because they did not want to involve themselves
in technical matters outside their expertise.
• Scenic Hudson’s Argument: But the lawyer for Scenic
Hudson argued that Con Ed had simply not considered all
the factors the law required it to consider.
• Con Ed’s Argument: Con Ed’s primary argument was that
Scenic Hudson had no standing because it claimed harm
to environmental (and non-economic) interests.
• Holding: The Court held that Scenic Hudson had standing
to sue based on harm to non-economic interests.
The Aftermath
• 15 Years: After Scenic Hudson I, it was another 15 years before
the matter was completely resolved.
• Scenic Hudson II (1971): After Scenic Hudson I, Con Ed carried
out a fisheries study that showed no impact on fish, so the FPC
approved the Storm King project for the second time. Scenic
Hudson sued, but lost. The court said the FPC had followed the
legally required procedures.
• Scenic Hudson III (1974): A new report was released showing that
the original fisheries data upon which the FPC had approved
Storm King was grossly incorrect, understating fish kills by millions.
The court ordered a new hearing to consider the new evidence.
Good scientific evidence was crucial.
• Settlement (At Long Last): The parties came to a negotiated
agreement in December 1980 (“Hudson River Peace Treaty”).
Con Ed gave up its Storm King license and donated land there to
create a park.
The Expansion of Standing:
The Dawn Of U.S.
Environmental Litigation
“In no other political and social movement [in
the U.S.] has litigation played such an important
and dominant role [as in the environmental
movement].”
- David Sive, environmental lawyer and former
counsel to Scenic Hudson.
What is “Standing?”
•
•
•
•
Standing is one of the key doctrines controlling access to
the courts. China is currently considering the expansion of
standing to allow for public interest litigation. In the U.S.
standing requires the following factors to be present:
Injury in Fact: a personal stake in a controversy that
constitutes an injury in fact.
Traceability: the injury is traceable to the action
challenged.
Redressibility: the relief sought can redress (or repair) the
injury.
Zone of Interests: the interest claimed is an interest the
statute is intended to protect.
Role of Environmental NGOs
• U.S. environmental public interest NGOs played a major
role in challenging agency actions and rulemaking.
– The vast majority of early cases challenged
government action.
– Later cases were directed at enforcement against
private actors.
• Without these environmental law NGOs, there would have
been much less judicial oversight over government action
because lawsuits are too costly and time consuming for
most ordinary citizens to bring on their own.
• The infrastructure to support ongoing high-level NGO
participation and to allow NGOs time to build expertise
was crucial to the environmental rights movement.
Pros and Cons of Environmental Public
Interest Litigation
Pros
• Government Accountability: Government agencies
perform better when they know they can be held
accountable by the courts.
• Enforcement Assistance: No government has enough
resources to monitor and enforce all potential violations of
environmental law.
Cons
• Risk of flooding the courts.
• Can be expensive.
• Broader standing can just as easily open the courts to
litigants who are opponents of environmental protection.
Conclusions:
Implications For China?
• Improving Rule of Law: Expanded standing for
environmental NGOs and others to bring environmental
public interest lawsuits can play an important role in
making sure that both government and private actors
comply with environmental laws.
• Developing NGOs: The development of a strong,
sufficiently funded NGO sector is crucial to the
effectiveness of public interest litigation.
• A Part of a Comprehensive Strategy: Legal tools are most
effective when used in conjunction with intelligent media,
and government/public relations strategies.
Thank you.