Reflections on the role of the courts in environmental law.

Thank you, your honors, and may it please your courts. I am truly honored to have the opportunity to come before you today, not as a litigant in a specific matter, but rather as a litigant in general, pleading the cause of cooperation and common sense in our common purpose of construing and applying our nation's federal environmental laws.

To establish my standing at the outset, let me state that the Environment and Natural Resources Division at the Department of Justice and the U.S. Attorneys' Offices throughout the nation have cases in virtually every federal district court and each court of appeals. So I have injury-in-fact. As for the zone of interest, I am a professor of environmental law at Georgetown University Law Center, where for the past ten years my colleague, Professor Nancy Firestone, and I have tried to unravel the mysteries of some of the environmental statutes you are learning about in this course. As to redressability, each of you will have to judge.

The Federal Judicial Center and the Northwestern School of Law of Lewis and Clark College are to be commended for presenting this outstanding seminar. Moreover, each of you is to be commended for coming here, and for talking the time to learn how these laws -- not always models of clarity -- actually fit together and work, so that your decisions will be informed and wiser.

I can see from the agenda that you will be spending considerable time and effort on individual statutes and programs. You have already covered the National Environmental Policy Act (NEPA),(1) the environmental statute where anyone can play, and the Clean Water Act,(2) the intermediate course in pollution law. You still have coming what I tell my students are the "major leagues" in hard statutes: the Resource Conservation and Recovery Act (RCRA),(3) the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund),(4) and the Clean Air Act.(5) I am pleased that you are covering some of the laws governing natural resources and wildlife as well.

Today, I would like to pull back from the individual programs, and address several issues that cut across all areas of environmental protection. Because I cannot pass up the opportunity, I will have some suggestions for you along the way as well. So fasten your seat belts.

When Justice Department attorneys enter our federal courtrooms to litigate our nation's environmental docket, we often pass by a statue of Lady Justice: her scales of justice signifying that all relevant facts and law will be considered and weighed; her sword symbolizing the power and authority of the law, its ability to protect those who cannot protect themselves, and its ideal of delivering swift and sure justice; and her blindfold signifying that all who come before her will be treated in like manner, without regard to race, creed, or economic class. You may have a picture or statue of her in your own courtrooms.

I would like to use Lady Justice as my framework for sharing with you some reflections on the role of the judiciary, your role, in protecting our environment.

The Scales of Justice

Let us start with the scales of justice. This is the symbol that most directly reflects the judicial process itself, the application of the law to the record evidence. As you know far better than I, judicial decision making is much more complex than simply following a formula or constructing a syllogism. In his classic treatise, The Nature of the Judicial Process,(6) Justice Benjamin Cardozo describes the "mental background" that every judge brings to the decision-making process.(7) Cardozo reminds us that statutes and rules and precedents "do not render the judge superfluous, nor ... [the judge's] work perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided."(8) What Cardozo calls the judge's "mental background" plays a critical role in filling these gaps, resolving these ambiguities, and otherwise assisting the court in achieving a just and rational result.

Your very presence here today is an acknowledgment that the judicial process requires more than a cold read of the applicable law from the U.S. Code. You are here to expand your "mental background" through thoughtful reflection and discussion of cutting-edge issues in environmental law. I would like to invite you to add four specific facts to your mental background to aid your decisions in environmental cases.

First, every judge who is called on to decide an environmental law case should recognize that our environmental laws, by and large, are working. Our progress in protecting the environment over the past twenty-five years is truly an American success story. Unfortunately, this success story is very much an untold story.

The commentator Mark Shields has pointed out that, oddly enough, many politicians do not want to take credit for this success.(9) The liberals are reluctant to acknowledge that many of the landmark environmental laws were signed by Republican Presidents.(10) And many conservatives don't want to admit that government -- good government, government done right -- can produce tremendous benefits for the American people.(11)

Let us look at some facts. Our air today is much cleaner than it was twenty-five years ago, due primarily to the federal Clean Air Act. Since 1970, lead emissions have dropped by ninety-eight percent; emmisions of fine soot, a cause of respiratory disease, have fallen seventy-nine percent; emissions of carbon monoxide, a killer poison, have declined twenty-eight percent; emissions of volatile organic compounds, a precursor of groundlevel ozone and smog, have fallen twenty-five percent; and emissions of sulfur dioxide, which leads to acid rain, have dropped forty-one percent.(12) We achieved these improvements notwithstanding a significant increase in population, a doubling of our gross domestic product, and huge increases in vehicle miles traveled.(13)

Our lakes, rivers, and drinking water are much cleaner, thanks in large measure to the federal Clean Water Act and Safe Drinking Water Act.(14) In 1972, only a third of our nation's water bodies were safe for fishing and swimming.(15) Today, almost two-thirds are safe.(16) Lake Erie, once declared dead, is now teeming with fish. The Hudson River in New York, the Potomac in our nation's capital, the Grand Calumet in northern Illinois, Boston Harbor, Chesapeake Bay, Commencement Bay here in the Pacific Northwest, and so many other rivers and bays across the country are on the mend, and getting cleaner every year. The Clean Water Act has helped to cut the annual net loss of wetlands from almost 458,000 acres per year prior to the mid-1970s to fewer than 90,000 acres in recent years.(17)

Our exposure to toxic wastes continues to fall as hundreds of Superfund sites across the country are being cleaned Up.(18) The global phaseout of chlorofluorocarbons, which deplete the protective stratospheric ozone layer, is well ahead of schedule.(19) We also have pulled several species back from the edge of extinction, including the bald eagle, the peregrine falcon, the red wolf, and the California condor.(20)

Our environmental laws have not only been effective; they have been cost effective. To cite but one example, EPA recently completed a draft cost-benefit analysis of the Clean Air Act.(21) The analysis must undergo further review and refinement, but preliminary reports are that the Clean Air Act has yielded monetary benefits that far outweigh the Costs.(22) According to the draft report, the total estimated monetized benefits of the Act from 1970 to 1990 fall within a range of $10.5 trillion to $40.6 trillion, with a central estimate of $23 trillion in benefits.(23) This compares to total costs of compliance during these years of roughly $523 billion.(24) In other words, the benefits are about forty-five times the estimated costs.(25) Forty-five times! Not a bad return on investment.

Few other areas of domestic policy can hold a candle to the success that has been achieved in the environmental policy realm. Needless to say, if our efforts to reduce drug use, improve education, reduce poverty, and tackle other challenges were this successful, our country would be much better off.

The federal courts have played a critical role in this success. In their book Green Justice,(26) Thomas Hoban and Richard Brooks describe how Judge Skelly Wright breathed life into NEPA in 16 Landmark 1971 Calvert Cliffs' decision.(27) The authors explain how Judge Wright ensured that an environmental impact statement under NEPA "was not to be merely pro forma, not to be simply lip service by an advocacy agency, a sop to environmentalists that was stapled to a sheaf of papers shuffled within an agency."(28) Instead, by requiring the agency to carefully consider the results of its NEPA analysis, Judge Wright established NEPA "as the cornerstone of all federal environmental legislation."(29) (I am proud to say that I was a law clerk on the D.C. Circuit, though not to Judge Wright, the year that seminal decision came down.)

In the same vein, Judge Patricia Wald of the D.C. Circuit has observed:

Without a strong infusion of judicial hospitality, however ... [our

environmental] laws -- even backed by expert and enthusiastic

advocacy -- would not

have gone very far toward the "greening of America." There had to be

access to

the courts for vigorous enforcement and resolution of exactly what the new

[environmental] statutes required from the executive and from private

parties.(30)

In addition to Judge Wright's decision in Calvert Cliffs', Judge Wald singles out Judge Harold Leventhal in the D.C. Circuit and Judge James Oakes in the Second Circuit as having been particularly instrumental in the progressive development of our environmental laws.(31) And, I might add, many U.S. District Court judges have made similar contributions to our environment, sometimes by Friday night injunctions.

Despite our success, we still have a long way to go. About 80 million people still live in counties where the air fails to meet the national air quality standards.(32) According to a 1994 EPA survey, more than a third of our nation's lakes arid rivers are still not fully fishable and swimmable.(33) There are also emerging challenges, such as global climate change, and the so-called "endocrine disrupters," which made national news earlier this year.(34) And of course, we could go backward; our gains to date will only hold through the eternal vigilance that has been called the price of liberty.

These continuing challenges bring me to the second fact that should be added to our mental background: namely, that the American people want more environmental protection. Poll after poll demonstrates that environmental protection is a core community value.(35) A keen appreciation of the natural world is deeply ingrained in the American people. By better than three to one, the American people believe either that our environmental laws do not go far enough (forty-five percent) or that they strike the right balance in protecting the environment (twenty-eight percent), as opposed to those who say they go too far (nineteen percent).(36) Let me stress that the public is calling not just for more environmental protection, but also for a greater role for the government in setting environmental controls and regulations.

Furthermore, two-thirds of Americans oppose oil drilling in Alaska.(37) Almost eighty percent want to know about toxics in our air and water, even when the cost of compiling this data is passed on to the consumer.(38) Most Americans favor retaining the strong protections in the Endangered Species Act.(39) Most also favor charging higher fees for use of public lands by mining, timber, and ranching interests.(40)

The third fact we need to incorporate into our mental background is that many of our basic environmental statutes are tremendously complex. Listen, for example, to this description by Professor John Mark Stensvaag of the 1990 amendments to the Clean Air Act: "The enormity of the 1990 amendments beggars description. The prior Act ... was widely recognized to be a remarkably complicated, unapproachable piece of legislation .... [Through the 1990 amendments], Congress has essentially tripled the length of the prior Act and geometrically increased its complexity."(41)

Nor is the legislative history always helpful in explicating the meaning of our environmental laws. For instance, the original Superfund statute -- also known as CERCLA -- has little contemporaneous legislative history because it was enacted as a compromise among three competing bills after very limited debate.(42) In 1980, a lame duck Congress hurriedly assembled and passed the bill that ultimately became law.(43) Congress acted with very limited discussion, under a suspension of the rules, with no allowance for amendments.(44) Federal courts have characterized various portions of CERCLA's legislative history as "unusually riddled by self-serving and contradictory statements,"(45) and "a sparse and unreliable guide to the statute's meaning."(46) Of course, the quality of the legislative history depends on the provision; many provisions do have clear meaning and clearly expressed legislative intent. Even with the best written environmental statute, however, the complex and technical nature of environmental policy, coupled with Congress's tendency to write detailed and prescriptive laws in this area, has sometimes led to exceedingly complicated environmental laws and regulations.

Furthermore, just so you do not rest on your laurels after this course is over, almost every year, we have new environmental laws to be read, construed, analyzed, and applied. This past year Congress enacted the Food Quality Protection Act,(47) Which establishes a more logical and consistent framework for protection against food contamination and pesticides. Congress also passed new amendments to the Safe Drinking Water Act that provide better approaches to prevent drinking water contamination, better information for consumers, new funding for states and communities, and provisions for the use of better science and risk assessment.(48) There are also recent ground-breaking environmental provisions in the Agricultural Market Transition Act,(49) also known as the Farm Bill. These provisions offer new incentives for farmers to protect wetlands, reduce soil erosion, improve water quality, protect wildlife habitats, and work toward other conservation and environmental benefits. Congress also reauthorized the Magnuson Act(50) that affects fishing. Therefore, you will have a full plate of new statutes. At the moment my briefcase is better-informed than I am about these provisions -- I have carried them around for some weeks -- but, to be sure, you will see some of them in your courtrooms soon.

We need to recognize that it takes a genuine effort to grapple with the meaning of most of these laws. You are to be commended for getting a head start by attending this Seminar. But how does the complexity of our environmental laws affect the judicial process? How should it affect the scales of justice? The Supreme Court has correctly answered these questions in a single word: deference. As stated in the landmark Chevron decision,(51) unless the Congress has used legislative language that speaks unambiguously to the precise issue before the court, a court should generally defer to the interpretation of the agency charged with administering the act.(52) This deference derives from a recognition that the resolution of ambiguities in statutory interpretation often involves a policy determination that is best resolved by the implementing agency.(53)

Now, I recognize that my saying deference is like that old line that some characterize as an oxymoron: I am from the government and I am here to help you. I am from the Environment Division so I must argue Chevron deference. But you are here without robe, so let me be more candid: you are entitled to say that "I am not a rubber stamp." My own view is that the role of judges, or of courts, is to patrol the borders of the law to be sure that the agency stays within those borders. To do that most effectively -- in other words, to apply Chevron deference well -- judges really have to understand the statutes they are applying, and not just the single section in the case, but the whole framework of the statute. This course is a great first step, but as I have mentioned, keeping up in this area of the law is a challenge. I would therefore like to propose that you consider conducting an experiment in your courtrooms. The next time you have a case with an environmental statute new to you, invite the lawyers in to give you a seminar on the structure of that law. No robes, no court reporters, no posturing -- just a description of the way the statute operates and how the pieces fit together. Much like this course.

My guess is that it will challenge the lawyers and be good for them. I had litigated environmental cases for years before I taught, and it was the teaching that forced me to think through and understand the entire statutory schemes. If you try this, I would appreciate knowing how the experiment works. And certainly, the approach will inform your exercise of deference and help assure that you are not a rubber stamp.

The fourth and final background fact is that each of you is a person as well as a judge. You live and work and use and enjoy our environment. You breathe the air, drink the water, swim and fish in the rivers, use paper made from trees of our national forests, eat sheep or cattle that grazed on public lands, live in our cities with hazardous waste sites, and, I hope, gain vigor and spiritual renewal from our National Parks and public lands and wildlife. This is a beautiful land. And your own experience with our environment is a background fact that will inform your decisions.

This is another place where, since you are off the bench here, I will make a suggestion. Take a site visit, at least occasionally, to the sites that come before you in your cases. In cooking, they say "Il faut mettre les mains aux pate": you have to poke around in the pate. That principle applies as well to the environment.

So these four facts -- that the environmental laws work, that Americans want stronger environmental protection, that the environmental statutes are complex and often call for courts to defer to agencies, and that you live in the environment as well -- are, in my view, essential components of the mental background needed to decide cases under our environmental statutes. These facts are not dispositive. But if they become part of our mental background, in the words of Justice Cardozo, they can give "coherence and direction to thought and action" in the judicial process.(54) They are not a thumb on the scales of justice, but instead part of the background principles, the gravity that allows the scales to work in the first place.

The Sword

The other symbol being held by Lady Justice, the sword, represents two ideals. First, the sword stands for the ideal of a swift and sure result. It has become cliche to say that justice delayed is justice denied, but it is undeniably true. Our burgeoning federal docket has too often become an obstacle in the search for justice. In Janet Reno's Justice Department, we are revolutionizing our efforts to hasten the administration of justice through the use of Alternative Dispute Resolution (ADR). In 1995, after consultation with departmental components and client agencies, the Attorney General issued a departmental directive to increase the use of ADR.(55) I came to the Justice Department as a convert, having been trained in the excellent program nm by the federal courts in the District of Columbia, and now, with the great encouragement of the Attorney General, I am an ardent ADR advocate.

As you know, ADR is generally understood to mean the use of a non-party professional in a process intended to achieve resolution of a dispute. An ADR process may be court-ordered or voluntary, and a court official or an outside neutral party may serve to facilitate the process. ADR can include early neutral evaluation, mediation, arbitration, or summary jury trial.(56)

You cannot be on the bench today without knowing about ADR, so I am going to focus on how we can help each other promote its use. ADR is often especially useful in settling many of the complex, multiparty cases in the Environment Division, because it can provide a quicker, cheaper, and more comprehensive resolution to cases that otherwise consume enormous time and resources. Often, the sooner a resolution is reached, the sooner environmental contamination may be remedied.

In the Environment Division, we are trying to establish a new culture through a combination of leadership, training, ADR contacts in each section, case reporting, and success stories. Between May and August of 1996, the Environment Division successfully resolved seven cases through the use of ADR, and it pursued ongoing ADR efforts in eighty other cases. Twenty-two additional cases were also identified as having potential for ADR. While I would love to talk about some of our successes, in the interests of time I will say only that they cover cases under many statutes, in both trial and appellate courts, and both simple and complex cases.

Let me rather take this opportunity to enlist your assistance in our continuing efforts to use ADR to streamline litigation. Judges can act as mediators, enlist colleague judges or the private bar as mediators, set up a program for early neutral evaluation using experienced counsel in the community, and set realistic deadlines that encourage settlement. We have found that in this area, mediators with experience in the field of environmental law work better, that lawyers seem better able to persuade their clients with such mediators, and that having an open mind is important. We would like to work with you in this area to find creative ways to avoid lengthy and expensive litigation.

The second ideal represented by the sword of Lady Justice is the power and protection provided by the law, and the assurance of punishment for those who violate the law. An effective and credible environmental enforcement program is absolutely essential to environmental protection. You, obviously, are key players in that program.

Many of our enforcement actions directly and immediately reduce the amount of pollution being produced and released into the environment. Just as important, polluters have an incentive to prevent pollution only when they realize that wrongful pollution win result in sure, swift, and severe punishment. Enforcement is also essential because it levels the playing field in business. Without enforcement, those who do not obey the law save the cost of compliance, putting those who are corporate good citizens at a competitive disadvantage.

It is my job to ensure that we at the Justice Department do everything we can to assure a level playing field. Some people believe that if you are big enough and have enough money, the environmental laws do not apply to you, and you need not comply. Others think that environmental crime is not real crime, and that it does not have victims. Let me shatter those myths with a few examples that show the importance of enforcement to environmental protection. I win draw only from public facts in these cases.

We recently settled a case with the General Motors Corporation (GM).(57) We alleged that GM had installed "defeat devices" in close to a half million Cadillacs since 1990(58) in violation of the Clean Air Act.(59) We believe these defeat devices overwhelmed each vehicle's catalytic converter and emissions control system, causing carbon monoxide emissions up to three times the legal disease.(60) We estimate that these Cadillacs have been responsible for the illegal emission of 100,000 tons of carbon monoxide,(61) which can cause impairment of vision, learning ability, and work capacity.(62) Carbon monoxide is especially threatening to people suffering from cardiovascular disease.(63) Under the settlement, GM developed a new computer chip,(64) and is recalling the cars to install it.(65) It is paying an $11 million fine, and will spend up to $8.5 million to offset the pollution caused by its violations.(66) The case will fix the pollution, and also, we hope, deter violations like this in the future.

I also want to stress the importance of the criminal provisions in our pollution laws. From my discussions with industry, I can tell you that the possibility of criminal enforcement greatly enhances their compliance efforts.

Over the years, many companies have become excellent corporate citizens that do a fine job of complying with the environmental laws. But there are still many companies that just do not get it. And these are not just marginal companies or fly-by-night operators. Too often we see sophisticated businesses that engage in truly terrible conduct. I will cite two examples.

First, take our case against Consolidated Railroad Corporation (Conrail). In 1995, Conrail pled guilty to six felony water pollution violations and agreed to pay a $2.5 million fine for the discharge of oil and grease into the Charles River.(67) The violations stretched over a fifteen year period and involved discharge permit violations, unpermitted discharges, failure to file discharge monitoring reports, and discharges of harmful quantities of oil. In other words, the offenses were egregious. Conrail is now required to establish and maintain an effective environmental compliance program, retain an independent environmental consultant approved by the government, and report to the court on a quarterly basis during a five-year probationary period regarding environmental matters.(68)

Another example of a sophisticated company that just did not get it, and engaged in egregious conduct, is the case of Consolidated Edison (Con Ed) in New York City.(69) An explosion in a Con Ed steam manhole released two hundred pounds of asbestos. Con Ed quickly learned of the explosion and that it had released the asbestos into the environment. It was required to report the incident immediately to protect the public. Con Ed did not, and assured everyone there was no asbestos. The corporation and an assistant vice president were convicted. Con Ed was sentenced to the maximum fine of $2 million and to three years probation under the supervision of a court-appointed monitor. At the sentencing, the judge stated:

One of the things I found disturbing here was the sense that there were

people at Con Edison, who testified at the trial, who clearly knew and who

should have been jumping up and down saying, there is asbestos here, we

know it. It was obvious they didn't say it because ... they didn't think

that was

the corporate culture .... I do think there was a sense here, at certain

levels

within this company, that you had better not tell the bad news.(70)

The fundamental goal of our environmental crimes program is to send the message that the kind of conduct that Conrail and Con Ed engaged in cannot and will not be tolerated. Companies and individuals who engage in this kind of behavior will pay a heavy price. These are not technical violations. The common thread found in all our criminal cases is truly culpable conduct. That is a key factor we look for in deciding whether to pursue a matter as a criminal case. I want to stress that point, because one of the criticisms we sometimes hear about the government's environmental crimes program is that well-meaning people are being unfairly prosecuted for so-called "technical" violations. That is simply not the case. These cases involve conduct that anyone with a conscience should recognize as wrong. You, collectively, as judges, know it, but you cannot believe everything you read in the newspapers. In a wetlands case, where a defendant tried to portray himself in the press as a victim, the judge in the case emphasized that the defendant was a common criminal, and that it would be 'hard to visualize a more stubborn violation of the laws designed to protect the environment."(71)

The Blindfold

The final symbol associated with Lady Justice is the blindfold. The blindfold symbolizes the ideal of administering equal justice to everyone who comes to our courts, regardless of race, creed, or economic class. This ideal of impartiality bisects environmental policy in two ways.

First, we confront the question of Environmental Justice, which focuses on whether minorities and low-income people bear a disproportionate burden of exposure to environmental harms and any resulting health effects.(72) In the past ten to fifteen years, this issue has crystallized a grass-roots movement that combines civil rights issues with environmental issues, with a goal of achieving "environmental justice" or "environmental equity," which is understood to mean the fair distribution of environmental risks and protection from environmental harms.

Evidence on the extent of the problem of environmental justice still needs to be collected and examined, but several studies suggest that minority and low-income communities bear a disproportionate share of the nation's air, water, and waste problems.(73) Yet the quest for environmental justice, for neutrality and impartiality in environmental decision making, transcends statistical analyses of disproportionate impact. It involves raising sensitivity to these issues and achieving fairness, openness, and public participation in the decision-making process.

In 1994 President Clinton signed Executive Order 12,898,(74) adding the achievement of environmental justice to each federal agency's mission.(75) Each federal agency must design a strategy to address "disproportionately high and adverse human health or environmental effects" on minority and low-income populations.(76) The Executive Order also applies to Native American communities and American Indian tribes.(77)

In the Environment Division, the practical advice we are giving to attorneys is to be sensitive to the communities that are involved in their cases. The identification of potential environmental justice issues is very important in determining how our enforcement efforts are working in minority and low-income communities, and whether they are comparable to the enforcement efforts in other commodities. We encourage attorneys litigating cases to meet with the public to inform the affected communities about the progress of the lawsuit, and to solicit their comments and input in shaping a settlement. We try to be sensitive to cultural differences and language barriers. We encourage attorneys to explore possible Supplemental Enforcement Projects with the involvement of the affected community. We look at penalties to be sure they are as substantial in minority communities as in other communities, and that cleanups are as effective.(78)

Judges, of course, have an important role in all this. For example, consent decrees in pollution cases are subject to notice and comment, and the courts can help assure that the affected public is welcomed in that process. We have brought the Department of Justice Community Relations Service and EPA's community experts into communities to help ease tensions and bring people together. I am not aware of any cases where judges have invited these experienced people in to help; maybe you want to consider it, subject to their resource limits. And courts, too, can consider environmental justice in assessing penalties and in awarding relief.

A second aspect of Lady Justice's blindfold of fairness is access to the courts. I came of age as a lawyer in the 1960s, when the view was that we should channel dissent from the streets to the courtroom. There is continuing merit to that approach, although I might add that we can now channel dissent not only from the streets, but also from the dump sites, forests, and rangelands. To do so, however, courts have to let people into the courtroom. The law of standing is getting thicker and thicker, and Judge Patricia Wald, in her thoughtful Environmental Law Reporter article, says lumpier as well.(79) In the 1970s the government used to challenge litigants' standing in virtually every case, and, I might add, it often lost. The approach in our Division now is to raise the legal issue of standing where appropriate. Judges berate us on all sides for this approach: some criticize us for raising it at all, and others, wrongfully, accuse us of never raising standing. For a conscientious government lawyer, this is a difficult dilemma. For the public, and as a matter of policy, it makes little sense to force dispute resolution back to the streets and forests and rangelands when a party has enough interest in a case to meet a reasonable standard.

A recent example is the lawsuit our Division brought against Nye County, Nevada, on the county supremacy issue.(80) Throughout the West the Sagebrush Rebellion was reigniting, and counties were passing ordinances declaring that they, not the federal government, owned the public lands. We developed a strategy that included a legal test, in court, of the counties' theories. Many in the West agreed that the court was a fair forum, and we kept peace through the summer of 1995 in large part because we had channeled the dispute from the range to a court, a dispute that some judges may have rejected for lack of standing. This is an area of the law that serves as a gate to the halls of justice, and we may need to work together to reexamine it.

Before we leave Lady Justice behind, I would like to say a brief word+ about her whole being, and about respect for our courts, or lack thereof, which is an important problem now in our country. I recently spoke to a group of state Attorneys General, and said we have a common problem: the public does not believe that the government can do good. We as a nation must overcome that perception. These state Attorneys General pointed out that the public equally disrespects our system of justice, and we have to get over that as well if we are to thrive as a nation. Lady Justice should engender respect. In common, we work for institutions of our government -- our courts, our executive branch, and, others, for our legislatures -- that have come to be disrespected. We must collectively find solutions to this problem.

Conclusion

In closing, I would like to thank you once again for the opportunity to be here with you today and to speak to you without your robes. I would like to leave you with one last thought on the role of judicial decision making in the development of environmental law. It consists of words of wisdom from Judge Jack Weinstein, although, again, I am indebted to Judge Wald's writings for bringing it to my attention. In a recent article concerning massive tort litigation, Judge Weinstein observed:

The judge cannot focus narrowly on the facts before the court, declining to

take into account the relationship of those facts to the social realities beyond

the courthouse door .... A judge does not "legislate from the bench" simply

because he or she considers the broadest implications of his or her decisions in

such a case. Judges not only may take such a view; they must.(81)

In the field of environmental law, consideration of the broadest implications of a decision is sometimes called "Seventh Generation" decision making. Seventh Generation thinking refers to a time-honored tradition among Native Americans, particularly the Iroquois, of testing every decision against its effects seven generations down the line. It requires us to consider the future. It asks that we take into account not only our children and our grandchildren, but their children and so on, for seven generations. I do not know if Judge Weinstein consulted the Iroquois when he wrote about the need to consider the broadest possible implications of a judicial decision, but at the very least, he shares with the Iroquois the wisdom that comes from taking the long view.

I applaud your efforts to become more familiar with our environmental laws. I would welcome continuation of a dialogue without robe. I invite you to consider the Seventh Generation in the environmental cases that come before you for your deliberation. Thank you.

(1) National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. [sub-sections] 4321-4370d (1994).

(2) Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. [sub-sections] 1251-1387 (1994).

(3) Resource Conservation and Recovery Act (RCRA), 42 U.S.C. [sub-sections] 6901-6992k (1994).

(4) Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. [sub-sections] 9601-9675 (1994).

(5) Clean Air Act, 42 U.S.C. [sub-sections] 7401-7671q (1994).

(6) Benjamin N. Cardozo, The Nature of the Judicial Process (1921).

(7) Id. at 13.

(8) Id. at 14.

(9) Mark Shields, Conspiracy of Silence Speaks Ill, Rocky Mountain News, Feb. 22, 1994, at 27A.

(10) Id.

(11) Id. Mr. Shields begins his column with his typical good humor: What follows is a Washington expose so shocking you may want to send the children to another room. In spite of the fact that both Democrats and Republicans have silently conspired to keep the truth from the American people, here's the real story: Over the past quarter-century, as a direct consequence of the leadership and effective policies of the U.S. government, the air we breathe, the water we drink and in which we fish, and the whole environment we will leave to our children are all cleaner, healthier and safer than they were before the feds got involved. Id. at 27A. Mr. Shields continues: The conservatives could not bring themselves to admit that the federal government had succeeded in changing things very much for the better and that federal regulation had worked and not killed the economy. Simultaneously, liberals could not acknowledge that such major progress had actually occurred under GOP administrations, which were supposed instead to condone the rape of the land and the poisoning of the air in the name of corporate profits. Id.; see also William Reilly, Environmental Protection: Is the Public Willing to Pay?, 21 EPA J. 15 (1995).

(12) U.S. Envtl. Protection Agency National Air Quality and Emissions Trends Report, 1995, at 1, 2 fig.1-2 (1996) [hereinafter 1995 National Air Quality Report] (on file with authors).

(13) "Since 1970, total U.S. population increased 28 percent, VMT [vehicle miles traveled] increased 116 percent, and the gross domestic product increased 99 percent ..." Id. at. 1, 3 fig.1-2, 1-3, 14.

(14) Safe Drinking Water Act (SDWA), 42 U.S.C. [sub-sections] 300f to 300j-26 (1994).

(15) Attack on Clean Air, Water Laws Crashes into the Facts, USA Today, Nov. 9, 1995, at 12A.

(16) Id.; U.S. Envtl. Protection Agency, National Water Quality Inventory: 1994 Report To Congress 48 (1995) [hereinafter 1994 NWQI Report] (on Me with authors) (reporting that 64% of surveyed rivers and 63% of surveyed lake acres have good water quality).

(17) 1994 NWQI Report, Supra note 16, at 86.

(18) According to the Environmental Protection Agency: The 400th cleanup under Superfund -- the national effort to clean up toxic waste sites -- means that more than 25 percent of the worst toxic waste sites in the United States have been cleaned up to protect public health and the environment in communities across the nation. EPA estimates that 70 million Americans -- including more than 10 million children -- live within four miles of a toxic waste site. U.S. Envtl. Protection Agency, Press Advisory, EPA Administrator Cites 400th Superfund Cleanup near Erie, PA., as Sign of Progress in Speeding Cleanups, Oct. 15, 1996, available in 1996 WL 589961.

(19) Jessica Matthews, Clean Sweeps: Two Success Stories for the Environment, Wash. Post, Dec. 18, 1995, at A23, cited in Patricia M. Wald, Environmental Postcards From the Edge: The Year That Was and the Year That Might Be, 26 Envtl. L. Rep. (Envtl. L. Inst.) 10,182 (Apr. 1996).

(20) Mollie Beattie, Remarks to Natural Resources Council of America: `The Missing Connection,' 29 Land & Water L Rev. 407, 410 (1993). See generally Fish & Wildlife Service, U.S. Dep't of the Interior, Endangered & Threatened Species Recovery Program (1992).

(21) U.S. Envtl. Protection Agency, The Benefits and Costs of the Clean Air Act 1970-1990 (draft 1996) (on file with authors).

(22) Id. at abstract, xi-xxiv. Clean Air Act compliance for cars, factories, and other air emission sources in 1990 cost about $20 billion, while benefits in 1990 totaled at least $400 billion in avoided hospital costs, lost workdays, reduced productivity, and other costs of polluted air. Id.

(23) Id. at abstract, xxii.

(24) Id.

(25) Id.

(26) Thomas More Hoban & Richard Oliver Brooks, Green Justice: The Environment and the Courts 60-62 (1987).

(27) Calvert Cliffs' Coordinating Comm., Inc. v. United States Atomic Energy Comm'n, 449 F.2d 1109 (D.C. Cir. 1971).

(28) Hoban & Brooks, supra note 26, at 62.

(29) Id.

(30) Wald, supra note 19, at 10,182, 10,183.

(31) Id.

(32) 1995 National Air Quality Report, supra note 12, at 2.

(33) 1994 NWQI Report, supra note 16, at 1 ("As of 1994, about 40% of the Nation's surveyed rivers, lakes, and estuaries are too polluted for basic uses, such as fishing and swimming.").

(34) Chemicals' link to Hormonal Problems Unclear, Wash. Post, Mar. 14, 1997, at A18; Frank Clifford, Pollution Found to Harm Fish in Lake Mead, LA. Times, Nov. 19, 1996, at A1

(35) See Rena I. Steinzor, Unfunded Environmental Mandates and the "New (New) Federalism": Devolution, Revolution, or Reform?, 81 Minn. L Rev. 97, 146 & nn. 169-70, 147 & n. 171 (1996) (discussing various nationwide polls).

(36) Roper/Starch Poll, National Envtl. Educ. and Training Found., Report Card: Environmental Attitudes and Knowledge in America 31 (Dec. 1996) (on file with authors). When one examines the polling data on specific issues, the gap is even more striking. Seventy-three percent feel efforts to curb water pollution have not gone far enough. Id. at 33. Nineteen percent feel the right balance has been struck, and only four percent feel efforts have gone too far. Id. For air pollution, 64% say not far enough, 24% say the balance is about right, and only 8% say too far. Id. Fifty percent of Americans feel protection of wild or natural areas has not gone far enough, 34% feel we've struck a proper balance, and 10% feel protection has gone too far. Id. Finally, 47% say wetlands regulation has not gone far enough, 28% say regulation is about right at present, and 15% feel regulation should be reduced. Id.

(37) Wald, Supra note 19, at 10,182.

(38) Id.

(39) Bill Line, What Voters Say About the Environment Today, 21 EPA J. 17 (1995) (stating that "fifty-seven percent favor maintaining the strong provisions of the Endangered Species Act"). For a detailed presentation of those provisions, see the Endangered Species Act, 16 U.S.C. [sub-sections] 1531-1544 (1994).

(40) Line, supra note 39, at 17 (stating that 63% favor imposition of a "fair market fee").

(41) John Mark Stensvaag, Clean Air Act 1990 Amendments Law and Practice 1-3 (1991).

(42) Frank P. Grad, A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability ("Superfund") Act of 1980, 8 Colum. J. Envtl. L. 1, 1-2 (1982); see also Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F.2d 801, 806-07 (9th Cir. 1989) (discussing CERCLA's legislative history).

(43) Grad, supra note 42, at 2.

(44) Id.

(45) United States v. Wade, 577 F. Supp. 1326, 1331 (E.D. P& 1983).

(46) Artesian Water Co. v. Government of New Castle County, 851 F.2d 643, 648 (3d Cir. 1988).

(47) Food Quality Protection Act of 1996, Pub. L. No. 104-170, 110 Stat. 1489.

(48) Safe Drinking Water Act Amendments of 1996, Pub. L. No. 104-182, 110 Stat. 1613.

(49) Federal Agriculture Improvement and Reform Act of 1996, Pub. L. No. 104-127, 110 Stat. 888.

(50) Magnuson Fishery Conservation and Management Act, Pub. L. No. 104-297, 110 Stat. 3559 (1996).

(51) Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

(52) Id. at 842-45.

(53) Pauley v. Bethenergy Mines, Inc., 501 U.S. 680,696 (1991); Chevron, 467 U.S. at 842-45.

(54) Cardozo, supra note 6, at 12.

(55) U.S. Dep't of Justice, OBD 1160.1, Order: Promoting the Broader Appropriate Use of Alternative Dispute Resolution Techniques (Apr. 1995) (on file with authors).

(56) See Lois J. Schiffer & Robin L. Juni Alternative Dispute Resolution in the Department of justice, 11 Nat. Resources & Env't 11 (1996).

(57) United States v. General Motors Corp., No. 1:95-CV-02215 (EGS) (D.D.C. 1995) (Consent Decree) (on file with authors); see also Jan C. Greenburg, GM Will Pay $45 Million for Pollution; Illegal Devices on Cadillacs, Chi. Trib., Dec. 1, 1995, at 12 (reporting on the outcome of the settlement).

(58) General Motors Corp., No. 1:95-CV-02215, at 9.

(59) Id. at 4; see Greenburg, supra note 57, at 12.

(60) Greenburg, supra note 57, at 12.

(61) Id.

(62) 136 Cong. Rec. H2517 (1990) (discussing the health effects of carbon monoxide).

(63) Samara F. Swanston, Race, Gender, Age, and Disproportionate Impact: What Can We Do About the Failure to Protect the Most Vulnerable?, 21 Fordham Urb. L.J. 577, 589 (1994).

(64) United States v. General Motors Corp., No. 1:95-CV-02215 (EGS) (D.D.C. 1995) (Consent Decree) (on file with authors).

(65) Greenburg, supra note 57, at 12.

(66) Id.

(67) Matthew Wald, Conrail Says it Polluted River and Will Pay $2.5 Million fine, N.Y. Times, July 25, 1995, at A8; Conrail Pleads Guilty to Charles River Discharges; To Pay $2.5 Million, Hazardous Waste Bus., Sep. 20, 1995, at 4.

(68) Conrail Receives $2.5 Million Fine for Boston Pollution, N.Y. Times, Oct. 24, 1995, at A18.

(69) Frances McMorris, Con Ed Pleads Guilty to Giving False Information in Asbestos Blast, Wall St. J., Nov. 1, 1994, at B10; Michael Gerrard & Deborah Goldberg, Corporate Probation: The Con Edison Sentence, 213 N.Y. L.J. 3 (1995).

(70) Gerrard & Goldberg, supra note 69, at 3 (citing transcript of sentencing proceedings held Apr. 21, 1995).

(71) Man Sentenced to Jail for Dumping on Wetlands, Evening News (Harrisburg, Pa.), July 14, 1989, at B3; see also R. Stewart, Assistant Attorney General, U.S. Dep't of Justice, Letter to the Editors, Wall St. J., Feb. 14, 1990, at A15 (emphasizing the degree of noncompliance exhibited by the accused).

(72) U.S. Dep't of Justice, Guidance Concerning Environmental Justice 1 (Jan. 9, 1995) (on file with authors) (addressing the environmental justice mission mandated by Executive Order No. 12,898, infra note 74).

(73) Id. at 1 n. 1.

(74) Exec. Order No. 12,898, 3 C.F.R. 859 (1994), reprinted in 42 U.S.C. [section] 4321 (1994), amended by Exec. Order No. 12,948, 3 C.F.R. 321 (1995).

(75) Id.

(76) Id.

(77) Id.

(78) U.S. Dep't of Justice, Environmental Justice Strategy, attached to Letter from Janet Reno, Attorney General, to Carol Browner, Administrator of the EPA (Apr. 10, 1995) (on file with authors).

(79) Wald, supra note 19, at 10,185-86.

(80) United States v. Nye County, Nevada, 920 F. Supp. 1108 (D. Nev. 1996).

(81) Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. Rev. 469, 540-41 (1994) (footnote omitted).