A Near Decade of Garrison Lectures Jeffrey G

Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 1-1-2002 A Generational History of Environmental Law and Its Grand Themes: A Near Decade of Garrison Lectures Jeffrey G. Miller Elisabeth Haub School of Law at Pace University, [email protected] Follow this and additional works at: http://digitalcommons.pace.edu/lawfaculty Part of the Environmental Law Commons Recommended Citation Jeffrey G. Miller, A Generational History of Environmental Law and Its Grand Themes: A Near Decade of Garrison Lectures, 19 Pace Envtl. L. Rev. 501 (2002), http://digitalcommons.pace.edu/lawfaculty/245/. This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. Garrison Summary A Generational History of Environmental Law and Its Grand Themes: A Near Decade of Garrison Lectures I have been privileged to hear, enjoy and learn from the talks of each of our Garrison Lecturers during the last eight years, as well as our discussions with them here today. In preparation for my duties as a summarizer, I studied their talks, printed in our Pace Environmental Law Review. I was delighted to find that the body of their commentary is far more than the sum of its parts. Together our lecturers take us on a grand journey through the history of modern environmental law, its heroes and villains, its ac- complishments and its weaknesses. Together they sound all the grand themes of environmental law. Together they remind us where we have been and where we must go. It is no surprise their talks have been edifying and provocative, after all, they are pre- eminent environmental law scholars and environmental law ac- tors of the first order. I suppose it should not have surprised me to see how much more weight their talks carried in the aggregate than separately, for environmental law is not the product of a few individuals, but of many environmental lawyers working in con- cert across the country and in successive decades. It continues to develop as a product of what is now a small army of environmental lawyers, many of them students of our lecturers and of our pro- gram here at Pace Law School. * Professor of Law and Associate Dean for Environmental Studies, Pace Univer- sity School of Law, White Plains, New York. Seven distinguished Garrison Lecturers have given presentations at Pace over the years. On February 21, 2002, they gath- ered at Pace to hear the presentation of the eighth and to discuss as a group the state of environmental law. James Gustave Speth, Dean of the Yale School of Forestry, led the discussion. This paper expands on my oral summary of their talks and of that discussion. I am grateful to Michelle Land, for her wise suggestions and editorial assistance. Heinonline -- 19 Pace Envtl. L. Rev. 501 2001-2002 502 PACE ENVIRONMENTAL LAW REVIEW Wol. 19 Our lecturers complimented New York, reminding us of the importance of the state in the creation and history of environmental law. The Adirondacks Preserve, with its "forever wild" talis- man, led the way to large-scale preservation of natural areas.l Teddy Roosevelt, a New Yorker, made our national parks, national monuments and natural forests b10ssom.~ More recently, the Scenic Hudson3 litigation, pioneered by Lloyd Garrison and completed by our first Garrison Lecturer, David SiveY4demon- strated that environmentalists could use litigation to prevent harmful development and preserve natural areas. David Sive, of course, was a recent colleague of ours at Pace Law School for several years. Not long after Scenic Hudson, the Natural Resources Defense Council (NRDC) and the Environmental Defense Fund (EDF) were born in New York City, with David Sive as one of NRDC's original board members and Gustave Speth, our modera- tor today, as one of its founding members. Additionally, we should never forget the role of the quintessential New York enterprise- the national media. The New Yorker magazine first published Rachel Carson's Silent Spring, the clarion wake-up call that her- alded the modern environmental movement. The New York Times has been a constant reminder that environmental problems de- mand solutions. Without the New York Times, no one would have heard of Love Canal, and without Love Canal, there would be no Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).5 New York's contribution to environmental protection, however, is but an historic footnote unless New Yorkers today continue a leadership role. We at Pace Law School hope we are continuing that tradition of leadership by training lawyers here and around the world, to build and develop environmental law in the twenty first century. 1. N.Y. CONST.art. XIV, 5 1. The Forest Preserve, the state owned land in the Catskill and Adirondack State Parks, is to be kept "forever wild." Id. 2. See generally EDMUNDMORRIS, THEODORE REX (2001). 3. Lloyd Gamson represented the environmentalists in the landmark Scenic Hudson Preservation Conference v. Federal Power Comm'n, 354 F.2d 608 (2d Cir. 1965). David Sive represented them in follow-up litigation, Scenic Hudson Preserva- tion Conference v. Calloway, 499 F.2d 127 (2d Cir. 19741, in which he established that the power company could not proceed with dumping rocks and debris into the Hudson while building a pump storage unit at Storm King, without a permit under the Clean Water Act, 33 U.S.C. $3 1251-1387 (1994). 4. David Sive, The Litigation Process in the Development of Environmental Law, 13 PACEENVTL. L. REV. 1 (1995). 5. 42 U.S.C. $5 9601-9675 (1994) amended by Pub. L. No. 107-118, 115 Stat. 2356 (2002). Heinonline -- 19 Pace Envtl. L. Rev. 502 2001-2002 20021 A NEAR DECADE OF GARRISON LECTURES 503 Of course, New York's role is only part of the entire picture in the development of environmental law. The Garrison Lectures provide valuable insight into the national evolution of environmental law as well. Prof. William Rodgers described environmental law using a geologic metaphor emphasizing complexity, layering, anomalies, box canyons, and gradual erosion.6 Several other lecturers hinted at a biological metaphor, emphasizing its generational aspech7 I like the biological metaphor better, with its complexity, constant evolution and very human failings. After all, the law and its component fields-like the biosphere with its component ecosystems and species-is a complex adaptive system; a living system that adapts to changing conditions and con- tinually evolves.8 In biological systems, we cannot exist and thrive without parents. David Sive is often called the parent of environmental law because of his pioneering role, after Lloyd Gar- rison, as a litigator in Scenic Hudson, as well as his founding role in and stewardship of the Environmental Law Institute (ELI), NRDC, and the American Law Institute-American Bar Associa- tion (ALIIABA) environmental law programs. More accurately, however, he is but one of the parents of environmental law. Prof. Richard Lazarusg tells us that Professors Joseph Sax,lo William Rodgers, and Oliver Houck,ll also are all among the founding generation of environmental lawyers.12 Parenting, by definition, involves participation in the creation of new life. Scenic Hudson was a creative and defining moment for the new field of environmental law. Lloyd Garrison and later, 6. William H. Rodgers, Jr., Defeating Environmental Law: The Geology of Legal Advantage, 15 PACEENVTL. L. REV. 1 (1997). 7. Richard Lazarus tells us that David Sive, Joseph Sax and Oliver Houck were in the first generation of environmental lawyers and that he is among the first of the second generation. Richard Lazarus, Thirty Years of Environmental Protection Law in the Supreme Court, 17 PACEENVTL. L. REV.1,2 (1999). A. Dan Tarlock's talk, The Future of Environmental 'Rule of Law' Litigation, 17 PACEENVTL. L. REV.237 (20001, is, among other things, an examination of several generations of environmental law. His identification of the different generations is somewhat different than suggested in this paper. 8. Jeffrey G. Miller, Evolutionary Statutory Interpretation: Mr. Justice Scalia Meets Darwin, 20 PACEL. REV.409 (2000). 9. Richard J. Lazarus, Thirty Years of Environmental Protection Law in the Su- preme Court, 17 PACE ENVTL.L. REV.1 (1999). 10. Joseph L Sax, Using Property Rights to Attach Environmental Protection, 14 PACEENVTL. L. REV. 1 (1996). 11. Oliver Houck, Environmental Law and the General Welfare, 16 PACE ENVTL. L. REV. 1 (1998). 12. Lazarus, supra note 9, at 2. Heinonline -- 19 Pace Envtl. L. Rev. 503 2001-2002 504 PACE ENVIRONMENTAL LAW REVIEW [Vol. 19 David Sive, convinced judges to suddenly discover that the envi- ronment and environmental values were part of the public welfare protected in many statutes. They breathed new life into old laws, stopping Consolidated Edison's plans to build a pump storage unit on Storm King Mountain that would ruin one of the most beauti- ful and celebrated landscapes on the east coast-our Hudson Highlands. Prof. Dan Tarlock13 comments that this was a para- digm environmentalist lawsuit, the beginning of what he calls environmental 'Rule of Law' litigation.14- First, the court acknowledged the unprecedented standing of a group of citizens to protect aesthetic values.15 Second, the court found that a statute enacted before widespread environmental concern could and should be read to give the implementing agency authority to con- sider aesthetic values in its decisions and therefore that it was mandated to do so. Finally, the result was a remand.l6 The vic- tory was procedural, but the result was sufficient delay to mobilize popular and political forces to stop the project.

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