First published 1996 by Westview Press
Published 2018 by Routledge
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Library of Congress Cataloging-in-Publication Data
Hoban, Thomas More.
Green justice : the environment and the courts / Thomas More Hoban and Richard Oliver Brooks.2nd ed.
p. cm.
Includes bibliographical references and index.
ISBN 0-8133-2602-8 (hc)ISBN 0-8133-2603-6 (pb)
1. Environmental lawUnited StatesCases. 2. PollutionLaw and legislationUnited StatesCases. I. Brooks, Richard Oliver.
II. Title.
KF3775.A7H63 1996
344.73'046dc20
[347.30446] 96-19731
CIP
ISBN 13: 978-0-8133-2603-0 (pbk)
In the nine years since Green Justice first appeared, the field we have come to identify as environmental law has taken a number of twists and turns, few of which were foreseen by the authors or, so far as they know, by anyone else. Although this edition attempts to account for many of these changes, it continues to emphasize what we believed then and continue to believe to be paramount, not only for the study of environmental law but for common-law based jurisprudence in general: Despite the immediacy and crush of daily events, closely reasoned analyses of the difficulties and conflicts arising from environmental conflicts, as embodied in major cases or key decisions such as we present here, provide a stabilizing core around which the swirl of daily events takes place, and against which those events must be evaluated. We believed then, and believe even more strongly now, that this is true not only for legal specialists and scholars but for an educated populace as well. Thus this casebook.
Delimiting and naming any abstraction is difficult; it is all but impossible with interdisciplinary studies such as environmental law. Throughout Green Justice we make the point that the field that we identify as environmental law is only tangentially related to the scientific studies of the environment. Law is a social, not a scientific, discipline. It deals primarily with behavior and values, depending at least as much upon the essentially political way in which our society chooses whether to incorporate or to ignore those scientific studies as upon the studies themselves. A full understanding of the mechanisms by which our society chooses just which environmental values it will pursue and seek to implement through its environmental statutes and judicial decisions (preserving the ozone layer and the rainforests; saving whales, wolves, dolphins, and owls) and those no less environmental issues with which it deals, if at all, in other ways (domestic violence, poverty, joblessness, occupational hazards, and urban decay) becomes a study not only in ecology and toxicology but in philosophy, cultural history, sociology, educational policy, journalism, political science, lobbying, aesthetics, and theology.
Our society as a whole, reflecting both its collective and its conflicting values, incorporates some scientific knowledge into policies and expresses those policies in its laws at the same time it ignores others. At times, perhaps for years, even decades, we might appear to favor environmental issues over competing ones; at times the opposite seems true. The directions in which scientific study may grow in coming generations (toward the Hubbell Space Telescope, away from the Superconducting Supercollider; toward the biological control of pests, away from traditional pesticides) is in significant part determined by the discoveries made as the result of scientific studies, which were themselves the consequences of political decisions made by legislators as they wrestled with seemingly unrelated issues of the tax code and with appropriations decisions decades ago. Directly or indirectly, perhaps even the tax code should be considered an environmental law. Funding for this generations research projectsthose projects that underpin the next generations environmental (or anti-environmental, for that matter) positions is determined in large measure by whether research is underwritten by the government. Without direct or indirect government funding of environmental studies in the 1970s, there would be far fewer scientific studies to serve as the basis for calls in the 1990s for (as well as opposition to) the reintroduction of wolves into Yellowstone and Idaho, the banning of chlorofluorocarbons, or the encouraging of recycling.
The broad assumptions with which the authors approached the first edition of Green Justice have not changed in the intervening nine years. Both authors continue to see the edifice of our legal system first and foremost as constructed upon a bedrock of common-law decisions and principles overlaid with a later statutory system that attempts to correct the deficiencies of the earlier one; this hybrid evolved to correct the inequities that may arise from the strict application of common-law principles to the problems created by an evolving society. Not surprisingly, at least in retrospect, as the hybrid corrected the earlier deficiencies, it created a host of new inequities, occasionally even more than it had hoped to resolve.
In the authors opinion, the action continues to be in the resolution of these continual conflicts: Cases are where the inequities surface. Rich man, poor man, beggar man, thief; individual, partnership, corporation, utility; environmentalist, developer: People and the organizations to which they belong go to court when they believe theyve been wronged. Legal briefs and arguments are no more or less than a collection of highly formalized, almost ritualized, statements and arguments often made during the last stages of a conflict. All that remains is what we present here: a summing up by a judge, once the parties have done their best to enunciate their positions. The judges decision will typically repeat the best arguments made by each side and explain just how muchif anyof which pie each is going to get, and why. The cases are fascinating in themselves. What is this plaintiff griping about (to complain, of course, is the root word of plaintiff)? What rational basis can he or she have for maintaining this position? How can that defendant conceivably believe that what he or she has done is defensible? Then again, maybe it is not only defensible, but admirable, if looked at from another angle. With the arguments marshaled by both parties looking so strong, how can the judge decide either way? Did the judge really decide this case, or was he or she enunciating principles that, although never stated in the arguments by either side, were assumed by all parties to be the most significant? Was the judge more concerned about how the decision would look in fifteen years than with the individuals and arguments actually before the court? If so, is this necessarily either right or wrong? It is no coincidence that courtroom dramas have consistently provided, generation after generation, some of our most compelling movies. Strip all the principles, all the jurisprudence, all the high-minded posturing away from a hard-fought case and youve got magnificent drama, opera on a grand scale, farce for the ages.
