FEATURE
Law and science team up to preserve environmental aualitv The Environmental Defense Fund, backed by its legal and technical staff, fights environmental degradation William A. Butler Environmental Defense Fund Washington, D. C. 20036
In 1967 the Environmental Defense Fund (EDF), a group of ecologically concerned citizens stressing scientific research and legal action in defense of the environment, was founded to oppose use of DDT in mosquito control on Long Island. On the invitation of other citizen groups whose members were impressed by the success of this blend of scientific and legal expertise, EDF extended its fight against DDT to public hearings in Michigan and Wisconsin. In 1969 EDF expanded its campaign against DDT to the national level, where after five decisions by the U S . Court of Appeals for the District of Columbia and an EPA administrative hearing lasting. seven months, the EPA Administrator finally agreed that given the availability of less toxic substitutes for domestic needs, DDT should be banned for all but a few uses in the U.S. Since that time the organization has grown to a national membership of 37,000 citizens, reflecting a wide variety of concerns but united by an interest in scientifically sound solutions to an extensive number of environmental problems. While EDF headquarters remain in East Setauket, Long Island, it has opened branches in Washington, D.C., and Berkeley, Calif. Current EDF staff includes seven full-time lawyers, five full-time scientists, and two staff economists; EDF enters no legal cases unless its scientists state that there is a significant scientific problem involved and its lawyers advise that this environmental problem may have a legal solution. A great deal of EDF work is done by volunteers through its Scientific Advisory Committee (SAC), a group of about 700 scientists across the country who have offered their assistance within their respective fields of expertise, and its Legal Advisory Committee, a somewhat smaller group of lawyers scattered around the country who have similarly vol30
Environmental Science & Technology
unteered their services. The operation of EDF also depends heavily on countless nonprofessionals who volunteer their services, and the majority of EDF funds come from the contributions of individual citizens. There are various methods by which EDF learns of an environmental problem and makes the decision to lend its legal and scientific assistance. Its staff and membership, the media, scientists, and local citizen groups are all sources of information about potential environmental problems. (Readers can best contact members of SAC by asking one of EDF's offices for scientific information concerning a potential environmental problem, and awaiting either an EDF reply, or a reply direct from a member of SAC who may wish to involve himself personally in the matter.) Once a problem has been isolated, the degree of EDF involvement is determined by the following criteria: the project's importance as a legal or scientific precedent, size of the project, competence of EDF's staff lawyers and scientists to contribute to the solution of the problem, cost of the proposed legal or administrative action, potential allies upon which EDF might rely, alterna-
tives to the project which are available, and the current stage of the project being questioned. Once a staff member or trustee learns of a potential EDF action, he solicits the views of other EDF staff, both legal and scientific, as well as the advice, if necessary, of members of the Scientist and/or Legal Advisory Committees. The action then must be approved by the sevenmember Executive Committee of the Trustees, made up of scientists, lawyers, and an economist, and finally by the Litigation Review Committee, made up of several nationally prominent lawyers. This procedure is followed whether the approval sought is to file an original court or administrative action, to intervene (as a party in support of someone else's action), or to file an amicus curiae brief (supporting ano.ther party with written argument alone). The court suit is only one of the strategies available to EDF staff once they become involved in a given case. EDF also pursues its objectives by submitting scientific petitions to decision-makers or participating in adversary administrative hearings. I n addition, EDF comes to the
aid of local groups by advising them on legal strategy or providing scientific assistance. The Environmental Defense Fund has involved itself in numerous areas of current environmental concern. Major campaigns have been waged in the areas of pest control and water resource management. Other EDF projects have focused on environmental consequences of electric power generation, environmental health. land use, wildlife, and administrative reform. Pesticides and water resources Encouraged by its successes regarding DDT, EDF has continued its initial interest in the misuse of persistent pesticides, representing, among others, the Sierra Club, the National Audubon Society, the National Wildlife Federation, and the lsaak Walton League. EDF's lawyers and scientists petitioned the federal Environmental Protection Agency (EPA) for the cancellation and suspension of the DDT-like pesticides aldrin and dieldrin. While EPA hearings are yet to take place, partial success came when in anticipation of EPA suspensions, the manufacturers of alVolume 7, Number l , January 1973
31
drin and dieldrin voluntarily deregistered the most environmentally hazardous uses of the substances. The Environmental Defense Fund has also spearheaded court and administrative attacks on such persistent and ecologically damaging pesticides as Mirex (used in the fire ant eradication program in the southeastern United States) and the powerful herbicide 2,4,5-T, (the latter on behalf of Ralph Nader). Finally, EDF has submitted a series of scientific petitions to the U.S. Forest Service calling for increased research emphasis on integrated and biological controls for gypsy moths, instead of total reliance on chemical pesticides. Another area of substantial scientific and legal concern for the Environmental Defense Fund has been various ecologically damaging canal, dam, and channelization projects. One of the more dramatic court victories in this area consthted the basis for President Nixon's subsequent 1971 decision that work should cease on the controversial Cross-Florida Barge Canal. The original rationale for the Canal was the need during World War I I for a means of avoiding Nazi U-boats around the Florida Keys. In later years the project became a classic pork barrel. If completed, it would have totally destroyed one of the last wild and scenic rivers in the southeastern United States. Cancellation of the project, whose construction was supported by Florida land developers and the Corps of Army Engineers, constituted the final act in a lengthy and complex series of events initiated by citizen groups opposing
what they felt to be the environmentally damaging and economically unnecessary transformation of a scenic wild river in Florida into a sterile canal. Halting this project well illustrates the potential for interaction between political decision-makers and citizen groups working to preserve the environment. The Environmental Defense Fund became involved in the Barge Canal project in early 1971 at the request of Florida Defenders of the Environment. The two groups joined forces and subsequently obtained a temporary injunction against the Canal in federal court in Washington, D.C. A few days thereafter, the President, with the support of his Council on Environmental Quality, called a permanent halt to the project. Though the timing of the President's action and EDF's court success may have been coincidental, it seems clear that increasing citizen concern and adverse publicity about this environmentally damaging project were of major significance in the President's decision. Other water resource suits have opposed the following environmentally harmful and economically unjustifiable projects: Cache River channelization (Arkansas), Gilham Dam (Arkansas), Tennessee-Tombigbee Waterway (Mississippi), Truman Reservoir (Missouri), Tellico Dam (Tennessee), DuGk River (Tennessee), Oakley Dam (Illinois), Tocks Island Dam (Pennsylvania, New Jersey, and New York), and New Melones Dam (California). For example, EDF has opposed the Truman Reservoir project south-
Examples of Environmental POWERIENERGY Atomic Energy Commission
Four Corners power plants
LAND USE Connecticut Wetlands
TVA strip mining
Falmouth Dam (Kentucky) Consultation with AEC to make their licensing rules more responsive to environmental needs Petition to expand Federal Power Commission jurisdiction over fossil fuel plants and petition to Dept. of Interior to enforce NEPA denied. Appeal filed Connecticut law violated by proposed development of land along Saugatuck River. EDF intervened in support of a local group Suit filed to compel TVA to comply with requirements of NEPA before letting contracts for strip mining
ENVIRONMENTAL HEALTH Petition filed to require Long Island, N.Y., water supply environmental impact statement to be filed regarding relationship of sewage system to the county's water table Sodium nitrite Suit challenging Federal Drug Administration's interference with the public's right to safety data on chemical food additives. Successful WATER RESOURCES Cache River (Arkansas) Channelizationof 232 miles of the free-flowing Cache River and tributaries will destroy wetlands and wildlife habitat. Original motion for injunction denied. Appeal filed
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efense Fu3d cases
Environmental Science & Technology
i.i I G H'.;I 4 f
Valuable woodland and farmland threatened by construction of this project. Project being reconsidered
5-
Century Freeway (California)
Interstate 78 (Pennsylvania)
PESTlC I i2tS Gypsy moth control program
2,4,5,-T (herbicide)
S P E C i A L i:P - . Santa Cruz long-toed salamander (California)
Alaska native claims
Note: List not inclusive
Action to require filing of environmental impact statement before highway construction begins Suit filed to enjoin construction of proposed bypass of Allentown-Bethlehem, Pa.. pending correction of environmental impact statements and public hearings Petition to U.S. Forest Service to provide adequate NEPA requirements for gypsy moth control program Plans to file petition requesting suspension of objectional uses of this herbicide known to have teratogenic effects Request made to Assistant Secretary of Interior to stop plan to rezone last breeding ground of this endangered amphibian for construction of trailer park. Petition to rezone was denied EDF joined other environmentalists to impel Secretary of Interior to set aside a substantial amount of Alaskan land for wilderness areas. 135 million acres were withdrawn for preservation and control
east of Kansas City because it would cover more than 200,000 acres in seven Missouri counties, displace 880 homes, innundate hundreds of nationally significant archaeological and paleontological sites, and destroy the habitat for a rare fish, all without sufficiently offsetting flood control, hydropower, or recreational benefits. Several suits of this type have succeeded in obtaining preliminary injunctions based on inadequate compliance with the environmental impact statement requirements of the National Environmental Policy Act. The Berkeley office of EDF has filed major suits involving water resources in California. One suit protests various aspects of the California Water Plan which includes diverting a large flow from the Sacramento River to the San Joaquin Valley in southern California, thereby eliminating the necessary cleansing action of the Sacramento River's fresh water as it flows into San Francisco Bay. In another suit, EDF argues the need for the San Francisco East Bay Municipal Utilities District, second largest water retailer in the West, to recycle and reclaim water after adequate treatment rather than diverting it from distant rivers and at the same time dumping inadequately treated sewage into the Bay. EDF brought the first successful suit under California's Environmental Policy Act, challenging a proposed dam in San Mateo County for which no environmental impact statement had been filed. In a suit. which could affect all large federal water construction projects in the country, EDF has questioned the artificially low discount rate employed by federal agencies to evaluate the cost/benefit ratio of water resource projects. The discount rate has been a central issue in several of EDF's lawsuits against the Corps of Engineers and TVA projects, since in the time elapsed between a given project's authorization and actual construction, the original discount rate is not updated. While the current cost to the government of borrowing is about IO%, some project evaluations still use 1950 figures of 2%. EDF has sued the Water Resources Council, alleging the discount rates currently permitted by them for purposes of evaluation are arbitrary and capricious, encourage wasteful projects, and produce unrealistic cost/benefit analyses.
Power generation In a wide variety of cases, EDF has sought to minimize the effects of power generation on the human and natural environments. These cases have involved power plant sitings, worker safety, and electric utility rate structures, as well as various forms of environmental pollution. In the most widely publicized of these cases, EDF has opposed the construction of the Trans-Alaska oil pipeline system. In 1970 EDF, together with its coplaintiffs, was successful in getting a court injunction against the building of the pipeline, arguing that the environmental impact statement required for this project was not adequate. Since that time additional work has been done by the oil companies, the government, and EDF's cooperating scientists on seismic and oceanic oil spill problems, as well as on the environmentally preferable Cariadian route. After the Secretary of the Interior issued his final environmental impact statement and permit approving the project, EDF challenged the adequacy of his consideration of the Canadian route alternative. The pipeline case is currently being considered by a panel of all the judges in the U.S. Court of Appeals for the District of Columbia. As a result of the actions of EDF and other environmental organizations, the ultimate resolution of the questions of where and how to build the pipeline, if it is built at all, will be made on the basis of far more comprehensive information than was available when EDF first sought and gained its injunction. Another major suit in the energy field concerns the ef-
fects of the massive Four Corners complex of coal-fired power plants. In addition to the air and water pollution associated with Four Corners, considerable aesthetic damage has resulted from the companion strip mines and transmission lines on adjacent Indian reservations. In its suit EDF has sought a moratorium on further construction o j this complex until a composite environmental impact study has been made. A similar project proposed for Montana and Wyoming, the North Central complex, has been the subject of a recent EDF letter to the Secretary of the Interior. The burgeoning field of nuclear energy is one whose problems have concerned many citizens, and EDF has intervened in several cases on behalf of citizen groups to require either the Atomic Energy Commission (AEC) or the power company involved, or both, to make the necessary environmental, human health, and safety studies required by law prior to the building of these plants. In the case of Consolidated Edison's Indian Point Plant No. 2 on the Hudson River above New York City, EDF is not o g y examining questions of safety,. but it is asking that the power company protect the fisheries industry by devising a mechanism whereby fish fry will not be killed on water intake screens or by thermal pollution. I n addition, EDF has negotiated with AEC for new regulations protecting the occupational safety and health of employees in AEC-licensed nuclear plants. Energy demand as well as production has been of increasing concern to EDF and has been the subject of a staff economic study in Wisconsin investigating the relationship between utility rate structures and the demand for electricity. Conclusions of these studies are currently being used by EDF in landmark rate hearings in Wisconsin to argue for adjustment of rates to discourage unnecessary use of power.
Environmental health Regulation of environmental health hazards has been the subject of numerous EDF campaigns against toxic substances, inadequately tested chemical additives, and excessive noise, as well as air and water pollution. EDF was one of the first environmental organizations to be concerned with leaded gasoline and atmospheric lead pollution. As a result of the activities of several of its scientists, EDF submitted a scientifically based petition to the President which was influential in the President's Executive Order requiring federal vehicles in the future to use nonleaded gasoline where possible. A similar effort in California resulted in the lowering of that state's standard for ambient lead permitted per cubic meter of air. In the same proceedings EDF is urging State officials to regulate lead additives in gasoline. Concern about atmospheric lead has encouraged EDF to enter such court cases as those opposing the proposed Three Sisters Bridge across the Potomac River in Washington, D.C. which, if built, would encourage more automobile commuting and undercut the rationale for mass transit planning in the nation's capital. Lead-base paint and lead in Christmas tree tinsel also pose a considerable threat to children, and these two hazards have been the focus of additional EDF court suits and administrative actions. Concern over health hazards in the food industry led to EDF actions urging regulation of the following dangerous chemicals: DES (diethylstilbestrol), DEP (diethylpyrocarbonate), PCB (polychlorinated biphenyls), and sodium nitrite. The estrogenic cattle fattener DES was the subject of a suit brought by EDF and coplaintiffs because evidence revealed that DES causes cancer in laboratory animals. Due to considerable publicity and congressional inquiry. DES was banned in cattle feed by the Food and Drug Administration (FDA) even before the EDF suit was heard. An EDF petition to the FDA opposing DEP beverVolume 7 , Number 1 , January 1973
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age preservative on the grounds that it was carcinogenic led to a ban on the substance soon after the petition was submitted. Negotiations between EDF and Monsanto Chemical Co. resulted in the release of scientific data on PCB, a persistent chemical used in food packaging. A successful suit against FDA made available to the public toxicological and safety data on the food additive sodium nitrite. EDF has appealed as inadequate recently set federal standards for ambient asbestos in the occupational workplaces, and has sued EPA to compel issuance of emission standards for asbestos. In its campaign against excessive noise, EDF has taken several approaches. In addition to participating in the drafting of federal and local (New York City) noise regulations, EDF supplied scientific data for the case against expansion of Washington (D.C.) National Airport -a project which would increase the number of noisy aircraft within an essentially residential area. As part of a long-standing opposition to supersonic transport, EDF has recently petitioned the Federal Aviation Administration to apply the same noise and pollution standards to the supersonic Concorde as to subsonic jets. Water pollution has been the subject of several attacks in EDF's campaign against environmental health hazards. In the Pacific Northwest, EDF, along with local citizens, was instrumental in getting the ITT-Rayonier plant to cease pumping its environmentally harmful effluent into Puget Sound. At the other end of the country, EDF's petition to the Environmental Protection Agency drew favorable action and created a valuable legal precedent in requiring that an environmental impact study be made public on the effect of a proposed sewage system on the water table of Suffolk County, New York. EDF has used amicus curiae legal briefs to support the community of Akron, Ohio, and the State of Indiana in successfully defending their respective statutes prohibiting the sale of phosphate detergents. A notable example of EDF success on behalf of a citizen group in the area of air pollution abatement occurred in Missoula, Mont., where a suit was filed against the Hoerner-Waldorf Paper Co. complaining of the air pollution caused by its pulp plant. Prior to the litigation's ultimate resolution, the company and the city decided jointly that the city would issue bonds to permit the company to finance pollution abatement equipment, thereby saving the jobs of employees as well as cleaning the air. EDF hopes to be as successful in its suit against the District of Columbia Environmental Services Department, requesting that the Department enforce air pollution standards and thereby prevent the increasingly frequent smog alerts in the nation's capital. Land use planning and wildlife With the aim of promoting wise use of our Nation's remaining open space, EDF has waged the land use battle on many fronts. Highway construction, a source of serious environmental consequences, has been the subject of several EDF suits citing the environmental impact statement requirements of NEPA. In these suits EDF has successfully pressed for impact statements on the Century Freeway in Los Angeles, and is opposing a section of Interstate 78 in eastern Pennsylvania, while demanding on a national level a comprehensive impact statement from the Secretary of Transportation regarding the interstate highway system as a whole. At the same time EDF has opposed a planned New Orleans (La.) Bridge and the proposed Three Sisters Bridge in Washington, D.C. on the grounds that these bridges and their access highways are superfluous and that they are poor substitutes for needed mass transit. In other land use actions, EDF has sought to preserve wetlands along the Saugatuck River in Connecticut, to 34
Environmental Science & Technology
enhance wildlife conservation on federal lands by urging amendment of the grazing privileges administered by the U.S. Departments of Agriculture and the Interior, and to keep intact a wilderness area within Joyce Kilmer Memorial Forest (North Carolina). A suit opposing strip mining practices encouraged by Tennessee Valley AuthoTity coal contracts, although not yet concluded, has already had the effect of strengthening reclamation clauses in contracts signed by TVA and its coal suppliers. EDF has also filed suit to oppose strip mining of sand in a proposed California state park. The more traditional conservationist goal of wildlife protection has been an additional area of vigorous effort by EDF. In a variety of actions, EDF has come to bat for the earth's vanishing species including whales, sea otters, wolves, and migratory birds. In 1971 an EDF petition prompted the Department of the Interior to place all eight species of commercially hunted whales on the Endangered Species List. EDF's legal support of the New York State Endangered Species Act ensured the prohibition of imported products made from threatened animals. Lawyers and scientists from EDF also assisted the Department of the Interior in the preparation of new regulations eliminating predator control programs using poisons on federal lands. Administrative reform A final area of concern to EDF, one which includes in its scope numerous environmental problems, is that of reform of often unresponsive regulatory bodies. Frequently, the EDF successes in this area have evolved as byproducts of other actions. For example, EDF's suit to obtain access to toxicological data on sodium nitrite, a food additive, spurred a major revision of FDA's freedom of information policy. The action made toxicological information, previously withheld as being "trade secrets," more available to outside scientists and the general public. Another suit, whose primary aim was to eliminate a major disincentive to use recycled materials, also resulted in revision of administrative procedure by the Interstate Commerce Commission (ICC). The suit, undertaken with several law students at George Washington University, successfully argued that the ICC must file an environmental impact statement prior to approving a rail freight rate increase on recyclable goods, placing them at a competitive disadvantage with raw materials. Other pending actions urge similar administrative reforms regarding implementation of the National Environmental Policy Act by the Federal Trade Commission, the Federal Power Commission, the Federal Communications Commission, and the Federal Maritime Administration. EDF has offered legal support to the Federal Trade Commission's contention to the court of appeals that it has the power to enforce its rate-making authority by requiring disclosure of gasoline octanes. As the examples above point out, the types of EDF legal and scientific action are many. The federal court suit is just one of them, perhaps illustrated best by the Trans-Alaska pipeline system suit and the DDT suits. However, local and state legal actions, such as that in support of the New York Endangered Species Act, are equally important. So, too, is the mechanism of the scientific petition to the appropriate administrative agency, as illustrated by the gypsy moth petitions aimed at improving the Forest Service's control program for this insect. Adversary administrative hearings, such as those examining the need to ban DDT nationally, are as important as court suits and closely resemble them. Though tax-exempt and therefore unable to lobby, the Environmental Defense Fund frequently does give legal and scientific opinions on proposed legislation when invited to do so by committee chairmen. EDF's scientists are often
called on for specific scientific information by government bodies, such as for details on whale populations. Further, EDF has encouraged citizen groups to take action for themselves, through support of educative mock trials in law schools and by speeches and panel appearances by its lawyers and scientists in schools and civic organizations around the country. Citizen education' efforts also include an internship program in which students, financed by university assistance, receive academic credit for a semester's research in one of EDF's offices. EDF also has a summer internship program for students in law and science. Clearly, EDF has evolved a multidisciplinary approach which cannot be characterized as simply ''legal.'' An increasing number of EDF victories have occurred out of court, often as a resuit of widespread publicity, pressure from the public, or negotiations with decision-makers. In its water resource case involving the Tocks Island Dam, for instance, EDF pursued its objectives without litigation. A team of experts was formed consisting of a water resource engineer, a civil engineer, a biologist, an economist, and a lawyer. They made presentations to the Commissioners of the Departments of Environmental Conservation in New Jersey and in New.York and to a group in Washington consisting of several Assistant Secretaries of the Interior, representatives of the Corps of Engineers, the Council on Environmental Quality, and the Delaware River Basin Commission (DRBC). The EDF team discussed nutrient flow into the reservoir and associated eutrophication problems, the dam's cost/benefit ratio, flood control strategies, and water supply opportunities. Despite heavy pressure from the staff of DRBC and the Corps of Engineers, the Commissioners decided to defer judgment, possibly for several years, until the objections outlined by EDF and others were met.
In another out-of-court victory, EDF sued the U S . Army Corps of Engineers in 1970 in opposition to their plan to dump hazardous nerve gas into the Atlantic Ocean. Because the EDF Suit was not filed until the dumping plan was well under way, the suit was legally unsuccessful. Subsequently, however, the Defense Department promised not to repeat the dumping of such hazardous materials, and Congress has passed legislation making a repetition of the nerve gas incident unlawful. In the future, in and out of court, EDF will continue to champion the areas of the public's interest in their environment which are frequently inadequately represented. Campaigns are now being developed in two additional areas of immediate concern to the majority of the Nation's citizens: the urban environment and the occupational workplace. In addition, EDF hopes to expand to new areas of the country and to encourage emulation by local citizen groups, since it recognizes that EDF and other national groups like it are obviously too small alone to police effectively environmental excesses in our society.
William A. Butler is Washington Counsel for the Environmental Defense Fund. He received his BA from Sfanford, his LLB from Yale Law School, and his PhD in ooliticai science from Harvard. His professional inferesfs center around practicing and teaching environmental law.
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