Environmental procedures, viewed from the past

Ross Sandler

Ross Sandler

Environmental litigation from more than 40 years ago has been revisited in a new book by Robert Lifset, Power on the Hudson: Storm King Mountain and the Emergence of Modern American Environmentalism (U. of Pittsburgh Press 2014). The book portrays a time when environmental law was new and polluters were really polluters.

Robert Lifset is a history professor at the University of Oklahoma. He describes cases I, with others, handled between 1970 and 1972 as an Assistant United States Attorney in Manhattan. In those cases we successfully sued companies discharging into the Hudson River in violation of the Refuse Act of 1899, the only federal pollution statute then available. At the time EPA did not exist, the Corps of Engineers was the only federal anti-water-pollution agency, and industrial polluters were many. Lifset quotes me as saying that the indictments were rough justice, since the only defense was possession of a Corps permit, but the Corps had never issued permits. Lifset points out that the Refuse Act prosecutions led directly to the passage of the Clean Water Act of 1972.

Subsequently, in 1973 while working at the Natural Resources Defense Council, I sued two Hudson River utilities on behalf of NRDC. The complaints, like others at the time, alleged that withdrawals of cooling water from the Hudson River by power plants injured fish and other biota. Cooling water cases ultimately involved all of the power plants on the Hudson from New York City to Albany, including the Indian Point nuclear plants. In the 1970s, the EPA consolidated all of the Hudson River cooling water cases. Between 1978 and 1980 I participated in a mediated negotiation led by Russell Train, a former EPA Administrator. The resulting comprehensive agreement reduced water withdrawals by the largest power plants during the spring striped bass spawning season. The New York Times called the settlement, which ended fifteen years of litigation, “A Peace Treaty for the Hudson.” Lifset cites the agreement, which still governs Hudson River cooling water withdrawals, as establishing the value of negotiated settlements.

Today, State and City environmental review procedures are taken for granted and mostly discussed in terms of delay and procedural correctness. Lifset reminds his readers that the battles out of which they grew were both serious and consequential, and that the absence of such procedures often produced worse decisions.

Ross Sandler

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