This post was originally published on Legal Planet. Reprinted with permission.
There are U.S. Supreme Court cases going back a century or more dealing with what we would now consider environmental issues, such as preserving nature or air pollution. But when did the Court start seeing filthy rivers and smoky cities as embodiments of the same problem, despite their striking physical differences? And when did it start thinking of “wilderness” as a good thing rather than a failure to use available resources?
It was only once that shift was made that we could begin to think of contaminated rivers, smog, and clearcutting as part of the same body of law. In other words, it was only then that we could think in terms of “environmental law” rather than distinct bodies of rules governing a scattering of different situations.
I began with a Westlaw search for the term “air pollution.” The earliest opinion I found was Huron Portland Cement Co. v. City of Detroit. This 1960 case involved the application of Detroit’s air pollution ordinance to a ship docked there. The ship owner argued that the ordinance was preempted by federal boiler safety regulations and interfered with interstate commerce. Justice Potter Stewart’s majority opinion emphasized that, unlike the federal safety regulations, “the sole aim of the Detroit ordinance is the elimination of air pollution to protect the health and enhance the cleanliness of the local community.” Interestingly, Justice William O. Douglas, who often championed environmental causes, dissented on the ground that the ordinance infringed the ship’s federal license.
The first use of the term “water pollution” came later, in a 1967 dissent from denial of certiorari in Snohomish County v. Seattle Disposal Co. This was basically an Indian law case, dealing with the application of a county landfill regulation to non-Indian owners of land inside a reservation. The state court had held that the ordinance could not apply within the reservation. Justice Douglas, however, saw possible merit in the argument that “the immunity of Indian lands to a state ‘encumbrance’ cannot frustrate state programs to check air and water pollution.” He thought the Court should consider whether a state should be able to prevent sewage dumped on Indians’ lands from draining into streams which flow into water supplies outside Indian lands.”
Douglas wrote the majority opinion, however, in the Court’s first reference to “wilderness” as something worthy of preservation. Udall v. Federal Power Commission, a 1967 case, involved the proposed construction of a dam on the Snake River. The Court ruled that the Commission had failed to consider key issues, “including future power demand and supply, alternate sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish [salmon] for commercial and recreational purposes, and the protection of wildlife.” This was three years after Congress had passed the Wilderness Act, so the Court was lagging Congress.
The Court had begun to pay more attention to environmental issues in other ways during the 1960s, such as a series of cases creatively expanding federal jurisdiction over water pollution under an 1899 statute that primarily dealt with obstacles to navigation. The 1960s were also Congress’s first forays into issues like air and water pollution, wilderness protection, and endangered species. These developments set the stage for the blossoming of federal environmental law with the passage of the National Environmental Policy Act (NEPA), the Clean Air Act, the Clean Water Act, and other major legislation in the decade that followed.
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Daniel Farber | January 10, 2023
There are U.S. Supreme Court cases going back a century or more dealing with what we would now consider environmental issues, such as preserving nature or air pollution. But when did the Court start seeing filthy rivers and smoky cities as embodiments of the same problem, despite their striking physical differences? And when did it start thinking of “wilderness” as a good thing rather than a failure to use available resources?
Daniel Farber | January 5, 2023
Last year, Congress took its first big step into climate policy by passing blockbuster spending measures. Nonetheless, many states are ahead of the feds in climate policy. There were important developments in a multitude of states.
Allison Stevens | January 4, 2023
Greetings from sunny San Diego, where the Center for Progressive Reform is gathering alongside the annual Association of American Law Schools conference to celebrate 20 years of impact and explore legal and policy changes that would secure a more sustainable climate and a more just transition to clean energy. Also at the top of our agenda: celebrating our invaluable Member Scholars.
Daniel Farber | January 3, 2023
Here we are, starting another year. Last year turned out to have some major environmental developments. The most notable were the U.S. Supreme Court’s ruling in the West Virginia v. EPA case, striking down the Clean Power Plan, and the passage of the Inflation Reduction Act, with its huge economic incentives for clean energy. Here’s a quick rundown of what 2023 might hold in store.
Robert L. Glicksman | January 3, 2023
In August, with relatively little fanfare, President Biden signed into law the Inflation Reduction Act. While the act’s provisions do indeed have the potential to reduce inflation, it also represents the most significant measure Congress has ever adopted to combat climate change. The act’s measures to mitigate climate change have attracted some attention in the press, but what has been largely missing has been an analysis of its potential to deliver important protections against the myriad adverse public health consequences that scientists have linked to climate change.
Catalina Gonzalez, Katlyn Schmitt | December 15, 2022
In 2021, President Joe Biden created the Justice40 Initiative, which directs at least 40 percent of federal investments in climate, energy, transit, workforce, infrastructure, and environment-related programs to “disadvantaged communities.” The benefits are far-reaching and range from reduced air pollution and greenhouse gas emissions, lower energy burdens (the share households spend on electric and other energy bills), improved public transportation, and the creation of clean energy jobs and training opportunities, among others.
Karen Sokol | December 14, 2022
Climate-driven geophysical shifts are driving geopolitical shifts that are putting increasing pressure on international law and global governance. The recent landmark decision to establish an international “loss and damage” fund offers a glimpse into the challenges and opportunities presented by these ongoing disruptions.
Catalina Gonzalez | December 13, 2022
After a year and a half of work, the California Air Resources Board (CARB) is poised to vote on an updated statewide climate plan. The final draft of the plan incorporates ambitious targets for achieving carbon neutrality by 2045, which were updated in September to reflect new legislation and Governor Gavin Newsom’s push for stronger action.
Allison Stevens | December 9, 2022
Gentle giant. These two words appear over and over again in tributes to the late Rep. Donald McEachin, who died on November 28 from complications from cancer. He was 61. The Virginia Democrat indeed stood tall in the halls of Congress, where he served constituents in and south of Richmond. But he was a giant in the figurative sense of the word, too, particularly when it came to racial equity and environmental justice — issues he championed over two decades in political office.