Storm King and the Beginnings of U.S. Environmental Law

1. Storm King and the Beginnings of U.S. Environmental Law Alex Wang International Fund for China’s Environment NGO Forum Kunming, Yunnan Province, China November 10, 2005

2. Storm King Mountain

3. Storm King: Presentation Overview • The Importance of Storm King • The Storm King Story: A New Approach To Environmental Advocacy • The Expansion of Standing: The Dawn Of U.S. Environmental Litigation • Conclusions: Implications For China?

4. The Importance of Storm King • Standing to Sue for Environmental Interests: The Storm King case recognized the right to sue for non-economic interests, such as aesthetic or environmental interests. Economic damage had been necessary. • A New Approach to Advocacy: Storm King marked the beginnings of a new era of environmental advocacy in the U.S. that combined the use of legal tools with media outreach, public relations, and government lobbying. • New environmental groups such as the Natural Resources Defense Council (NRDC) and the Environmental Defense Fund formed in Storm King’s wake to use the law to protect the environment.

5. The Storm King Story: A New Approach ToEnvironmental Advocacy

7. The ProposedProject • In the early 1960s, Consolidated Edison (Con Ed) proposed to build a pumped storage hydroelectric power plant at Storm King Mountain to meet rapidly expanding power demand in the New York City region . It would have been the largest plant of its kind at the time. • Electricity would be carried by overhead transmission lines to New York City through several residential counties.

8. The Growing Conflict • Some locals, objecting to the damage the plant would cause to the natural and cultural heritage of the Hudson Highlands, formed the Scenic Hudson Preservation Conference to oppose the project. • Some residents of the town in which the project would be located favored construction of the plant because it would lower their taxes.

10. The Context • Rapid Increase in Environmental Awareness: Public environmental awareness experienced a tremendous increase at this time. • Silent Spring was released the same year the Storm King project was announced. • Environmentalism was becoming an issue of the middle-class. • Growing Use of Law for Social Change: The country was becoming familiar with the use of the courts to promote social change. At the time, hundreds of lawyers from big city law firms were volunteering their services to use the law to promote civil rights.

11. A New Approach To Environmental Advocacy

12. The FPC Hearing • The Licensing Proceedings: Scenic Hudson intervened in the licensing proceedings of the Federal Power Commission (FPC) claiming that the project would cause aesthetic and cultural injury. • Con Ed On The Attack: Con Ed attacked Scenic Hudson, calling its concerns the “self-centered complaints” of “a few local dreamers.” • Fisheries At Stake: Scenic Hudson also submitted evidence that existing power plants were destroying large numbers of fish, including the commercially-valuable striped bass (60-80% of the U.S. supply of which came from the Hudson). • Fisheries Evidence “Irrelevant”: The FPC did not believe it could consider these environmental factors, and called the fisheries evidence “irrelevant.” • Storm King License Approved: The FPC approved the Storm King license in March 1965.

13. The Court Case (Scenic Hudson I) • Scenic Hudson appealed the FPC’s decision to the Court of Appeals. • Courts where traditionally reluctant to overrule agency decisions because they did not want to involve themselves in technical matters outside their expertise. • Scenic Hudson’s Argument: But the lawyer for Scenic Hudson argued that Con Ed had simply not considered all the factors the law required it to consider. • Con Ed’s Argument: Con Ed’s primary argument was that Scenic Hudson had no standing because it claimed harm to environmental (and non-economic) interests. • Holding: The Court held that Scenic Hudson had standing to sue based on harm to non-economic interests.

14. The Aftermath • 15 Years: After Scenic Hudson I, it was another 15 years before the matter was completely resolved. • Scenic Hudson II (1971): After Scenic Hudson I, Con Ed carried out a fisheries study that showed no impact on fish, so the FPC approved the Storm King project for the second time. Scenic Hudson sued, but lost. The court said the FPC had followed the legally required procedures. • Scenic Hudson III (1974): A new report was released showing that the original fisheries data upon which the FPC had approved Storm King was grossly incorrect, understating fish kills by millions. The court ordered a new hearing to consider the new evidence. Good scientific evidence was crucial. • Settlement (At Long Last): The parties came to a negotiated agreement in December 1980 (“Hudson River Peace Treaty”). Con Ed gave up its Storm King license and donated land there to create a park.

15. The Expansion of Standing: The Dawn Of U.S.Environmental Litigation “In no other political and social movement [in the U.S.] has litigation played such an important and dominant role [as in the environmental movement].” - David Sive, environmental lawyer and former counsel to Scenic Hudson.

16. What is “Standing?” Standing is one of the key doctrines controlling access to the courts. China is currently considering the expansion of standing to allow for public interest litigation. In the U.S. standing requires the following factors to be present: • Injury in Fact: a personal stake in a controversy that constitutes an injury in fact. • Traceability: the injury is traceable to the action challenged. • Redressibility: the relief sought can redress (or repair) the injury. • Zone of Interests: the interest claimed is an interest the statute is intended to protect.

17. Role of Environmental NGOs • U.S. environmental public interest NGOs played a major role in challenging agency actions and rulemaking. • The vast majority of early cases challenged government action. • Later cases were directed at enforcement against private actors. • Without these environmental law NGOs, there would have been much less judicial oversight over government action because lawsuits are too costly and time consuming for most ordinary citizens to bring on their own. • The infrastructure to support ongoing high-level NGO participation and to allow NGOs time to build expertise was crucial to the environmental rights movement.

18. Pros and Cons of Environmental Public Interest Litigation Pros • Government Accountability: Government agencies perform better when they know they can be held accountable by the courts. • Enforcement Assistance: No government has enough resources to monitor and enforce all potential violations of environmental law. Cons • Risk of flooding the courts. • Can be expensive. • Broader standing can just as easily open the courts to litigants who are opponents of environmental protection.

19. Conclusions: Implications For China? • Improving Rule of Law: Expanded standing for environmental NGOs and others to bring environmental public interest lawsuits can play an important role in making sure that both government and private actors comply with environmental laws. • Developing NGOs: The development of a strong, sufficiently funded NGO sector is crucial to the effectiveness of public interest litigation. • A Part of a Comprehensive Strategy: Legal tools are most effective when used in conjunction with intelligent media, and government/public relations strategies.

20. Thank you.