Maryland Bar Bulletin
Publications : Bar Bulletin : June 2005

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 Bar Bulletin Focus

Enviromental Law    

Sea Change in Environmental Law
By Peter Max Zimmerman

Is there a sea change in environmental law? What problems deserve national and local attention? What sort of proof is required to trigger action, and to what degree?

Beginning in the 1970s, there was a revolution in environmental law, ushered in by Earth Day and the National Environmental Policy Act (1969). Federal, state, and local legislation swept the country. The Environmental Protection Agency (EPA) came into being. Maryland established departments of Natural Resources (DNR) and Environment (MDE). The General Assembly passed many laws, such as the Wetlands Act (1970) and the Chesapeake Bay Critical Areas Act (1985). Public interest groups became a force. The business community at times fought against the rising tide, but eventually made adjustments, as corporations established in-house departments and major law firms helped them navigate the regulatory byways.

The federal government played a leading role, but the courts were also in the forefront. In cases such as Calvert Cliffs Coordinating Committee v. Atomic Energy Commission (1971), the federal courts recognized the dynamic and evolving concerns for environmental protection, “… so that important legislative purposes are not lost or misdirected in the hallways of the federal bureaucracy.” The Maryland Court of Appeals played its part. In upholding the Wetlands Act, the unanimous Court wrote in Potomac Sand & Gravel Co. v. Governor (1972), “The current trend is for courts to consider the preservation of natural resources as a valid exercise of the police power.” Later, Judge Harry Cole said in the Annapolis Waterfront Co. case (1979) that the local authorities “… could consider the environmental effects of the proposed construction.”

The revolution took off in President Richard Nixon’s administration, survived the oil crisis of the middle-1970s, continued under Jimmy Carter, made it through the bumps of the Ronald Reagan years, seemed to get a second wind under George H. W. Bush, and generally progressed under Bill Clinton. But, as Professor Richard Lazarus of Georgetown Law School shows in his remarkable new book, The Making of Environmental Law (2004), the movement faces its stiffest challenge yet in the administration of George W. Bush. Ironically, the States, once viewed as bastions of provincialism, seem ready to take the lead. They see many impacts close at hand.

An April 2005 Associated Press report entitled “Ten States Sue EPA Over Loose Mercury Rules” is illustrative. The introduction says: “Wisconsin has joined a list of states suing the federal government’s policies, challenging new regulations they say fail to protect children and expectant mothers from dangers posed by mercury emissions.”

Professor Lazarus’ book sheds light on the dynamic nature of the environment and the difficulties posed by the temporal and spatial dimensions and interrelationships of environmental issues. They are complex. They can occur gradually. The effects may be long-term and uncertain before they emerge. There is no magic wand or mathematical solution. Judgment is involved.

Who should one believe? It is sobering to read J.R. McNeill’s environmental history of the twentieth century in Something New Under the Sun (2000). Professor McNeill, also of Georgetown, provides in graphic detail the story and data to demonstrate that the last century witnessed unprecedented environmental impacts, especially involving energy-use and effects on the earth, atmosphere, hydrosphere and biosphere. He also documents the unintended and unforeseen adverse environmental effects of many major innovations and spurs to growth, such as the fertilizers described in Rachel Carson’s Silent Spring (1962).

Yet, the current federal government momentum is to minimize the seriousness of potential environmental impacts, especially where there are political and economic forces to weigh or balance against controls.

In his book, Lazarus suggests yet another pattern. In recent environmental cases, the Supreme Court has granted many petitions for review filed by parties representing business and property interests, but not by environmental groups. Lazarus notes the tendency in recent decisions towards a much narrower reading of environmental protection requirements, in contrast to the broader regard of earlier days.

Times are changing. What direction will environmental law take? The game is still afoot and the stakes are high, but this gives all branches and levels of government here in Maryland a wonderful opportunity to go forward with direction, leadership and momentum.

Peter Max Zimmerman, People’s Counsel for Baltimore County, is a member of the MSBA Environmental Law Section Council and active in appellate practice. He taught environmental law at the Johns Hopkins School of Hygiene and Public Health and Towson University.
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Publications : Bar Bulletin: June, 2005

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