Chapter 25
“Sue the Bastards!” and Environmental Justice
Whitney Young, Reverend Martin Luther King, Jr., Walter Reuther, and Pastor Eugene Carson Blake in the lobby of the Lincoln Memorial, August 23, 1963, during the March on Washington for Jobs and Freedom.
Paul Slade / Paris-Match / Getty Images
I
As an ecological thinker, Martin Luther King, Jr., understood that people of color were exposed to environmental hazards in the workplace and neighborhoods in far greater numbers than their white counterparts. Black children in Baltimore were getting sick from lead paint. Rats carrying hantaviruses roamed Harlem. Discarded tires in Chicano communities in Los Angeles were breeding grounds for disease-carrying mosquitoes. Toxic disposal sites were being located in poor, rural communities in Alabama and Louisiana. Dilapidated apartments in Chicago were infested with triatomine bugs that carried Chagas disease. In California alone, more than sixteen thousand pesticides had been registered, with the net effect being that Mexican-American agricultural workers were getting seriously Gases such as carbon monoxide (CO), sulfur dioxide nitrogen dioxide and ozone were all being studied by multiple federal bureaus for their deleterious effects on the air quality near industrial sources. “The cities,” King complained in 1967, “are gasping in polluted air and enduring contaminated
To King, environmental justice, intertwined with social justice and human rights, was part of a “revolution of values,” including civil rights, freedom from urban blight, and nuclear disarmament, “forcing America to face all its interrelated Regularly, King preached that a deeper attachment to the natural world would be necessary for the American dream to be fulfilled. Drawing from Thoreau and Schweitzer, King emphasized the need to respect all of God’s living creatures. “Although God is beyond nature he is also immanent in it,” he wrote. “Probably many of us who have been so urbanized and modernized need at times to get back to the simple rural life and commune with nature.... We fail to find God because we are too conditioned to seeing man-made skyscrapers, electric lights, aeroplanes, and There wasn’t anything mystical about his views. Martin and Coretta Scott King had four children and like all parents, they wanted their children to grow up with safe water to drink, healthy air to breathe, and birdsongs to enjoy. Joining forces with the Kings on environmental justice issues were the National Farm Workers Association (NFWA), led by Cesar Chavez, and Walter Reuther of the United Auto Workers.
Between 1966 and 1968, with Democrats controlling the presidency and both chambers of Congress, forty separate proposals relating to environmental policy and protection were The 90th and 91st Congresses passed such enlightened public safety legislation as the National Traffic and Motor Vehicle Safety Act, the Fair Packaging and Labeling Act, the Federal Hazardous Substances Act, the Wholesome Meat Act, the Natural Gas Pipeline Safety Act, the Flammable Fabrics Act Amendment, the Child Protection Act, and the Hazardous Materials Transportation None of those was entirely an environmental law, but all had the same underpinning in the Great Society’s conviction that regulation is a federal responsibility. Helping to bring public consciousness to the blizzard of laws was the National Wildlife Federation, which in 1966 produced its first documentary film, At War with
Regardless of the quantity of the Great Society’s forward-thinking legislation, new environmental protection laws, to the dismay of Barry Commoner and Norman Cousins, tended to be focused on the regulation of end results rather than prevention. Although LBJ collected a large wall full of signing pens that are now displayed at his presidential library and museum in Austin, there was no overriding office—like the later Environmental Protection Agency (EPA)—to monitor and enforce compliance in the late 1960s. Everything of consequence pertaining to environmental health was done piecemeal and without proper federal coordination. Interagency cooperation was scant. Dangerous environmental practices could survive in the cracks of inadequate state laws and also of state and local governments unable or unwilling to enact or enforce regulations.
And for all of LBJ’s voting and civil rights accomplishments in 1964 and 1965, Black and Latino neighborhoods were still receiving the brunt of industrial pollution run amok. Far too frequently, pollution attacked citizens who lived in what King called “islands of poverty”: the poor quarters of cities, the bottomlands of rural villages, the smog-thick zones where environmental quality was sacrificed in the interest of corporate
The city of Fort Myers, Florida, for example, purchased a large block in the historically Black community of Dunbar in 1962 under the ruse that the acreage would be used for a development called “Home-a-rama.” The city instead buried waste from its water treatment facility in the site’s ponds and surrounding scrubland. Unbeknownst to Dunbar residents, more than twenty-five thousand cubic yards of sludge from the water treatment plant was poured into pits in the tract. Not until 2007 did residents discover the residue, which contained elevated levels of arsenic that were toxic and had very possibly made generations of citizens ill. According to Harriet A. Washington in A Terrible Thing to Waste: Environmental Racism and Its Assault on the American “The site bore no identifying signs, was unfenced and was surrounded by African American families whose numbers soon grew explosively in a building Fort Myers wasn’t unique. Most American cities in the 1960s protected white neighborhoods from the levels of toxic exposure that communities of color were forced to endure. Poor parts of Atlanta, Detroit, and Cleveland didn’t even have municipal sewage treatment plants.
Such environmental racism was vividly illustrated on May 8, 1967, when an eleven-year-old African American boy named Victor George drowned in a garbage-laden pond at the Holmes Road Land Fill in Houston, That the tragedy occurred in Houston was no surprise; the Bayou City was notorious for irresponsibly disposing waste in Mexican American and African American wards. “In place of NIMBY (Not in My Back Yard) politics, Houston practiced a PIBBY (Place in Blacks’ Back Yard) policy,” the esteemed sociologist Robert D. Bullard observed. “Government and private industry targeted Houston’s black neighborhoods for landfills, incinerators, garbage dumps, and garbage transfer The bayous, or “bi-yohs” as locals called them, were treated as end points for raw sewage. Houston’s African American communities, the largest in the South, still had open sewers and unpaved roads when Johnson was president. Only after the Clean Water Act of 1972 was passed was Houston compelled to regulate its untreated sewage and garbage that, as the esteemed sociologist Stephen L. Klineberg noted, “was discharged daily for decades into the Houston had no serious zoning laws to protect residents—notably Black and Latino ones—from the dumping of toxic industrial effluents and plain old rubbish in their wards.
Holmes Road was in the poor Black neighborhood of Sunnyside. Victor George had gone to the landfill, which was next to a park, to see if any objects had been left there. Seeing a piece of Styrofoam in a hole full of water, he tried to retrieve it, fell into the hole, and drowned. Victor George’s death shocked students at Texas Southern University, a Historically Black College. They staged a sit-in at the dump entrance and demanded its immediate closure. Houston police arrested dozens of the young protesters, which only increased the students’ zeal to achieve social and environmental justice. Rallies to free the TSU students erupted throughout the surrounding Third Ward, and police responded by blockading all roads leading into and out of the university and ordering the campus closed. After dusk, police invaded, inciting the students to throw bottles, shoes, and rocks at them. Believing that the barrage of flying debris came from a male dormitory, police surrounded the building and exchanged gunfire with students inside. The police fired some four thousand rounds into the dorm and then stormed the building. Nearly five hundred pajama-clad students were arrested, and police paraded them out of the building with their hands behind their necks. Once outside, they were ordered to lie facedown on the pavement.
Remarkably, no students were killed in the TSU incident, which became known as the Houston riot. However, one officer, rookie Louis Kuba, lost his life to gunfire. TSU students Douglas Waller, Floyd Nichols, Charles Freeman, John Parker, and Trazawell Franklin, Jr., were arrested and charged with Kuba’s murder. (Waller and Nichols had not even been on campus during the deadly incident. Waller, in fact, was already in jail on felonies related to the landfill protests.)
The charges against the TSU Five were dismissed after three years on the basis of wrongful arrest. Ultimately, authorities concluded that Officer Kuba had been killed by a ricocheting police bullet. But the root causes of both the initial protests and the police’s disproportionate response remained: environmental racism, which allowed municipalities and industry to dump waste in Black and Latino neighborhoods without fear of pushback.
By 1967, grim public health reports on economically poor communities were widespread. In Detroit, the United Auto Workers, boldly led by Walter Reuther, entered the fray to support poor Michigan communities being adversely affected by pollution. The UAW sponsored the Down River Anti-Pollution League to protect the towns of Wyandotte, Lincoln Park, and River Rouge from the ravages of dirty air and poisoned water. To launch the effort, the UAW held public forums, which documented a host of effects from asthma to eye irritation and from peeling paint to blighted playgrounds. Social workers were brought in to help communities deal with environmental
II
Scoop Jackson perceived that despite progress in many directions, the federal government’s environmental protection efforts lacked cohesion. He came to believe that if his Senate staff drew up a comprehensive National Environmental Policy bill, LBJ would sign it into Unlike Muskie or Nelson, Jackson was a Cold War foreign policy hawk who supported Johnson’s elongated Vietnam War strategy. On environmental issues, however, he remained the most effective preservationist on Capitol Hill. After becoming chairman of the Committee on Interior and Insular Affairs in 1963, he had a hand in every key conservation law passed during the Johnson presidency and beyond. His chief ally was John Saylor, the Pennsylvania Republican, who was still the ranking member of the same committee in the House.
Jackson and Saylor plotted conservation strategies weekly. One of their goals in 1967 was to establish two giant national parks, North Cascades and Redwood, before the 1968 presidential election. LBJ was on board for them. But besides the new federal parks, the bipartisan Jackson-Saylor team explored how to streamline national environmental policy. Jackson asked his top aide, William Van Ness, Jr., to develop a framework for regulating air and water pollution that would establish a holistic federal approach to environmental stewardship for decades to come.
Born to a blue-collar Montana family in 1938, Van Ness spent most of his childhood in Washington’s Puget Sound region and graduated from the University of Washington School of Law, where he earned praise as articles editor on the Washington Law Van Ness was intending to pursue a doctorate at Yale Law School when Senator Jackson’s office approached him, saying it needed an energetic lawyer to serve as the Interior Committee’s special counsel. After interviewing with Jackson, whom he later described as “a hell of a nice man, with an open mind, and full of common sense,” Van Ness decided to move his family to Washington, DC. As a favor of Jackson, Bill Douglas personally swore Van Ness into the Bar Association of the District of Columbia as a precursor to his new
For nearly two centuries, the federal government had embarked on engineering projects with one priority: accommodating the nation’s expansion, mainly for the sake of economic growth. The environment was a relatively new consideration, one that didn’t appeal to the Army Corps of Engineers, the Bureau of Reclamation, or the new Department of Transportation, established in 1967. Adding to the confusion was the fact that departments and bureaus didn’t communicate their high-ticket construction plans to one another; every bureau was a fiefdom unto itself. Jackson and Van Ness saw the helter-skelter pattern all over the country but nowhere as ominously as in Florida’s Everglades ecosystem. The “river of grass,” in Marjory Stoneman Douglas’s words, was threatened by two arms of the federal government; frustration was audible in Van Ness’s voice even fifty years later, when he recalled the situation. “In Florida, we had the Everglades National Park, which was a big area, very popular to visit. There was also a plan by the airline industry to build a super jetport in the Everglades, covering part of the Everglades National Park, because it was above water, it was flat, it would be cheap to do.... And at the same time, the State of Florida was trying to dry up a lot of land around the Everglades, building dikes and canals, because this was very valuable agricultural land. So you had different Federal agencies—Transportation pushing the airport, and Corps of Engineers pushing this water project and trying to dry up the Everglades and the Interior Department wanting to protect the
As Van Ness discovered, the agencies were untethered, and because of that, the Everglades biosphere was in grave peril. He said, “They didn’t talk to anybody, they weren’t required to put a document together that detailed what their projected plans were, no requirement that they consult with any of the other agencies. That was the heart of the problem. We saw this repeatedly involving land
Van Ness and Senator Jackson conceived a law that would open to scrutiny—and coordination—any government project that would affect the environment. Jackson secured the services of Lynton Keith Caldwell, a professor at Indiana University, with a long-term commitment to environmental issues; officially, he would serve as a consultant to the Interior Department. In practical terms, Caldwell and Van Ness spent most of their time in 1967 and 1968 pulling together the National Environmental Policy bill. Its overweening goal was to coordinate and enforce planning, cooperation, and transparency where America’s natural resources were concerned. The term they invented was environmental
Caldwell, who retired from academia in 1986, recalled that there was little resistance to the bill. Disappointingly, however, nonprofits such as the National Audubon Society and National Wildlife Federation ignored the pending legislation. In a 2003 interview, he said, “This may surprise you, but environmental organizations were not in on it all. As I recall, the only one who attended [our] hearing was the Sierra Club. Others were invited but simply didn’t appear. When we were trying to develop the strategies to use we approached different organizations and visited quite a few. The problem was, once again, there was no sense of a unified approach at that time. Many of them wanted to follow their own agendas, pursue their own
Even with bipartisan support, the bill needed to be handled carefully in its journey through Congress. Saylor turned to Representative John Dingell to do a lot of the heavy lifting; Jackson recruited Frank Church, whose love of western rivers was legendary. Van Ness and Caldwell were wary of two groups that made the path complicated. Caldwell said, “Opposition came from those scientists who objected to Rachel Carson’s findings (in Silent on the toxicity of some chemicals. And concepts were different then. Perhaps the greatest opposition came from ‘conservationists’ who were very opposed to the ‘preservationists.’ The conservationists, who held a more utilitarian, ‘wise use’ concept of resources, were afraid the nation would get into worse shape if greater restrictions were
Privately, LBJ was encouraging Jackson to move swiftly on the National Environmental Policy bill. Despite having signed historic Great Society anti-pollution legislation, made the Wilderness Act a reality, and established five national seashores and lakeshores, the president was even less well regarded among environmental activists in 1967 than before as his relentless prosecution of the Vietnam War continued to escalate. It was up to two forward-thinking people from the state of Washington—Jackson and Van Ness—to iron out the legal construct of the National Environmental Policy bill.
III
Always on the march, Bill Douglas continued to promote the federal government’s constitutional right to protect natural resources such as Pacific Northwest salmon runs. He addressed it in his 1967 opinion in Udall v. Federal Power which determined whether to allow construction of the High Mountain Sheep Dam on the Snake River (in Hells Canyon). “That determination can be made only after an exploration of all issues related to the ‘public interest,’” Douglas wrote, “including future power demand and supply, alternate sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes and the protection of
The environment was elevated to the Supreme Court with Douglas’s advocacy in Udall v. “Douglas’s intervention signaled the judiciary’s heightened concern for environmental considerations,” the historian Paul Sabin noted, “its skepticism toward agency planning, and its openness to the lawyers who sought to represent environmental claims in Around the time Douglas wrote that opinion, he took Senator Robert F. Kennedy’s children salmon fishing in the Puget Sound area.
By 1967, Douglas, who had distanced himself from the Johnson administration on Vietnam, had become a “green” institution to himself and the self-appointed watchdog of Washington State’s public lands. Warring with extraction companies was his idea of golf or tennis—a fun sport. When the Kennecott Copper Company announced plans to extract copper from an area near Image Lake in the Glacier Peak Wilderness Area, he objected loudly. Glorious from any point of view, the serrated crests and needle peaks were in danger of being forever desecrated by a mining operation. The Forest Service had instituted the Glacier Peak preserve, at about a half million acres, in 1960. It was not far from the proposed North Cascades National Park; in the same mountain range, in fact. Leading an environmental protest near the proposed Kennecott mine site that year, Douglas vehemently fought to keep the Suiattle Valley sacred. “We must not turn everything into dollars, let’s save something for the spiritual side of life,” he told the 150 people who attended the camp-in to save the Scoop Jackson used his influence to stop the mine, at least temporarily, in late 1967. At about the same time, LBJ, feeling the heat from Douglas and Jackson, urged Congress to establish the North Cascades National Park on approximately 250,000 acres east of Seattle. That, however, was only half the acreage Douglas and the North Cascades Conservation Council wanted.
Douglas’s disenchantment with LBJ continued to grow, with the Vietnam War as the justice’s primary beef. But Douglas was also alienated by the White House’s refusal to declare nuclear power detrimental to the environment. By 1967, fourteen nuclear power stations were generating electricity in the United States, and more were planned or under Douglas understood the energy benefits of nuclear power but nevertheless believed that without an acceptable way to dispose of the waste, the plants would put citizens at high risk of exposure to radiation.
A more personal complaint that Douglas had with LBJ was the president’s approach to enjoying the natural world. To Douglas, the immaculate khaki suits Johnson wore while overseeing his cattle ranch were vulgar; the fashion statement smacked of a drugstore cowboy. Douglas visited the LBJ Ranch and was appalled by the intrusions of mechanized contraptions on nature outings. Not realizing, perhaps, that the Buddhist-inspired Douglas thought of rivers as divine entities, Johnson tried to impress him by driving his floating 1962 Amphicar, the only mass-produced civilian amphibious automobile, into the Pedernales On another occasion, the president invited Douglas to go boating on the Colorado River reservoir, Lake Lyndon B. Johnson (commonly called Lake LBJ), which was opened in 1965, to honor the president. “We went out in a speedboat going sixty miles an hour while Secret Service men nervously rubbed suntan lotion on his exposed skin,” Douglas recalled. “He would direct the boat around one buoy and head for another, all the while screaming for more speed. Finally, we slowed down and I left the speedster for the patrol boat, giving my place to one of his favorite blondes. As I rejoined Lady Bird I asked, ‘What is Lyndon doing when he’s not going sixty miles an hour in a speedboat?’ ‘Going six hundred miles an hour in an airplane,’ was her
By contrast, Douglas thought that Senator Robert F. Kennedy, who had learned the art of fly-fishing in Washington State as his pupil, had it right. During the Johnson years, RFK embraced river ecology as his top conservation policy concern. Douglas took a “paternal pride,” as his wife, Cathy, put it, in the fact that little Bobby had become a wilderness On Memorial Day 1967, RFK participated in the Hudson River’s White Water Derby, earning third place in his class. RFK used the kayaking weekend to raise public awareness about both the Wild and Scenic River bill and the saving of Storm King in the public battle with Con A month later, working with the mountaineer Jim Whittaker, RFK organized a white-water rafting trip down the Colorado River through Grand Canyon National Park for his family and
Udall helped RFK set up a family visit to Utah’s Rainbow Bridge National Monument before the raft “The Kennedys had hiked a short trail from the Lake Powell docks in Rainbow Bridge Canyon to the national monument,” Udall recalled. “I wanted him to see that if the dams near the Grand Canyon were built, it wouldn’t devastate the national park as Brower had His tactic backfired; RFK turned against the Marble Canyon and Bridge Canyon Dams and wasn’t impressed by Lake Powell, probably because Douglas had soured him on man-made reservoirs.
Senator Robert F. Kennedy and his family and friends bounce along peacefully during a part of a four-day rubber raft trip down the Grand Canyon on the Colorado River.
Bettmann / Getty Images
“The Grand Canyon outing was one of our last family river trips,” daughter Kerry Kennedy realized. “I was seven years old. Going down the Colorado we heard this screeching from up a cliff. We looked with binoculars and it was a little dog in distress. Daddy left the boat and climbed the cliff, which seemed like the Empire State Building. He snatched the little dog and brought her down to us. He handed her to me as a gift. ‘You take care of her, Kerry,’ he said. I burst with excitement. We called her Rocky, the ‘rockhound.’ Cut to a few days later, a couple claimed that Rocky was their dog. They took him back from me. I was on the plane crying when daddy came back with a covered cardboard box in his hands. It was Rocky, my pet. He bought the dog from the couple. She lived with us at Hickory Hill and gave birth to
Stewart and Lee Udall completed their own Grand Canyon rafting trip shortly after the Kennedy excursion. That was no coincidence. With mounting opposition from western development interests to his reversal regarding the Grand Canyon area dams, he desired the same kind of warmhearted press that Kennedy’s trip had received. Mo Udall led his own trip on the Colorado that summer, but he still favored the two Bureau of Reclamation dams near the Grand Canyon and hoped to convince the nine members of the House Interior Committee who went with him on the trip to
IV
By 1967, Charles Wurster of the State University of New York at Stony Brook remained frustrated that half a decade after Silent Spring had exposed the hazards of DDT, the pesticide was still legal in all fifty states. Four years earlier, he had helped prove that DDT was responsible for bird deaths on the Dartmouth campus, leading the town of Hanover to ban its use.
One evening, he received a phone call from an attorney, Victor Yannacone, Jr., of Long Island. He was handling his wife’s lawsuit against the Mosquito Control Commission (MCC) for contaminating Yaphank Lake with DDT, causing a fish kill. “Vic wanted to know if I knew anything about the effects of DDT, would I support his lawsuit, and did I know any other scientists who would do likewise,” Wurster recalled. “I said yes, yes, and
Yannacone later recalled the atmosphere of the time: “Everyone had given up hope.... Rachel Carson had been Stalinized out of science and ‘better living through chemistry’ was the watchword of On June 6, 1966, he filed the first case in the “DDT wars” in the Suffolk County Supreme Court in Riverhead, Long Island, before Judge D. Ormonde Ritchie. At the time, the practice of “environmental law” was embryonic. It was Yannacone, in fact, who coined the phrase, and first Newsday and then the New York Times ran with
Anti-DDT strategy sessions were held with the Yannacones, Wurster, and a group that included George Woodwell, the senior ecologist at Brookhaven National Laboratory; Robert Smolker, a colleague of Wurster in the biological sciences department at Stony Brook; and Arthur Cooley, a high school biology teacher and naturalist. The war room for the Suffolk County DDT litigation was the second floor of an old house in the town of Patchogue where Yannacone maintained a law office. It emerged as the nursery of the new environmental law movement, which adopted Yannacone’s battle cry, “Sue the bastards!” On August 14, 1966, just a short while after Yannacone filed papers, Judge Ritchie issued a temporary injunction enjoining the MCC from further use of DDT.
The day after the court injunction was issued, a fumigation truck rumbled down Yannacone’s street in Patchogue and sprayed his lawn with DDT. “Vic rushed out with a paper towel, which he immediately brought to me in Stony Brook for analysis,” Wurster recalled. “Yes, it was DDT! Vic charged off to Riverhead, filing a motion claiming contempt of court. The judge was irate, and the Commission lost more credibility. They claimed they were just emptying their trucks. I guess they didn’t know what else to do with it, and the driver didn’t realize he had picked the wrong yard on the wrong
The Suffolk trial was held in late November 1966, presided over by Judge Jack Stanislaw, who had to look up the word ecology in a dictionary before entering the Riverhead courtroom. The Yannacone-Wurster group enlisted top scientists as witnesses, submitted an appendix to their suit containing a hundred academic papers documenting DDT’s deadly effect on wildlife, and presented evidence that the herbicide had concentrated in food chains, poisoned osprey and eagles, and destroyed salt marshes in Suffolk County. By contrast, the MCC had no biologists speak on its behalf and stuck to the defense that the anti-DDT scientists had only circ*mstantial evidence that the pesticide was killing birds and fish. Stanislaw extended the temporary injunction through late 1967. Eventually, the courts ruled against Yannacone, but by then, the case had inspired change. The hiatus alone forced MCC to look beyond DDT; it adopted instead the insecticide Sevin. “We didn’t know it then, but DDT was never to be used again on Long Island,” Wurster recalled. “In 1967 it was prohibited by the Suffolk County Board of Supervisors and by the Town of Huntington, and by 1971 DDT was banned in New York
Yannacone’s class action suit of late 1966 was a watershed moment in US environmental history. Though he and his fellow plaintiffs ultimately lost, their strategy of filing lawsuits against government at all levels proved to be effective, especially when all else failed. At the time, Yannacone said, such suits were considered “just this side of bomb throwing,” something you didn’t do “in polite The Suffolk County suit changed the calculus and encouraged other citizen groups to sue in the name of environmental protection and public health.
Inspired by Yannacone’s efforts, the National Audubon Society established a new defense fund focused on bringing anti-pesticide and anti-insecticide cases to court. On September 30, 1967, in a presentation at the society’s convention in Atlantic City, Yannacone explained that his environmental strategy was modeled on the civil rights movement and in particular on the Legal Defense Fund of the National Association for the Advancement of Colored People. “The time has come for you who are committed to the preservation of our environment to... enter the courtroom to protect our natural resources,” he said. “... Experience has shown that litigation seems to be the only civilized way to secure immediate consideration of such basic human rights. Litigation seems to be the only way to focus the attention of our legislators on the basic problems of human existence. The major social changes which have made the United States of America a finer place in which to live have all had their roots in fundamental constitutional
The social questions that Yannacone posed in Atlantic City were profound:
What can you do when a municipality decides that the highest and best use of a mighty river is the city sewer? What can you do when timber and paper companies cut down entire forests of Redwoods and other exotic species in order to “reforest” the area with fast-growing pulpwood trees?
It is time to assert your basic rights as citizens. Rights guaranteed by the Constitution and derived from Magna Carta. It is time to establish once and for all time that our natural resources are held in trust by each generation for the benefit, use and enjoyment of the next. Today, while there is still time, you must knock on the door of courthouses throughout this nation and seek equitable protection for the environment. You must assert the fundamental doctrine of equity jurisprudence—a doctrine as old as the Talmud or the New Testament or the Roman Law—a doctrine as old as
Yannacone’s hard-hitting Atlantic City speech declared war on corporate polluters but his “Sue the bastards!” approach proved to be too radical for the National Audubon Society. Its general counsel, the Wall Street lawyer Donald C. Hays, worried that wealthy donors would revolt. Disappointed by Audubon’s lack of backbone, the Yannacones realized that they would have to create an organization themselves to take environmental issues to
So it was that on October 6, 1967, the pugnacious “Long Island Ten”—the Yannacones, Charles Wurster, H. Lewis Batts, Jr., Robert Burnap, Dennis Puleston, Robert Smolker, Anthony Taormina, George Woodwell, and Arthur Cooley—met at Brookhaven National Laboratory to incorporate the Environmental Defense Fund (EDF) as a not-for-profit public benefit membership corporation in the state of New Those ten committed activists were determined to finish the work that Silent Spring had started. From its humble start, EDF would grow into one of the largest and most important environmental advocacy groups in the United States, with an eventual membership of 1.5 million.
In autumn 1967, the EDF flexed its legal muscle in western Michigan, where Fremont, Muskegon, Lansing, and other towns were using DDT and dieldrin to combat invasive Japanese beetles. Nobody there seemed to remember the Great Mississippi Fish Kill of 1963 or any of the other lessons that had so concerned Rachel Carson. EDF sued the Michigan Department of Agriculture on behalf of plaintiffs in nine affected municipalities. “Our complaint not only detailed the harmful effects of dieldrin and DDT to wildlife but also offered harmless yet effective alternative pest control strategies,” Wurster wrote. “We had learned that battles are easier to win when alternatives are The court handed EDF a defeat, dismissing the case, but once again, the legal pressure alone brought results: the Michigan Department of Agriculture and various municipalities together decided to find alternatives to DDT. And the cooperative Extension Service of Michigan State University withheld its statewide reconciliations of DDT for its
The EDF’s next target was Wisconsin, a state that had become a hotbed of environmental activism in the Kennedy and Johnson years. Partnering with local environmentalists, EDF began collecting data to prove that DDT was contaminating the state’s meat, eggs, milk, and other dairy products, leading to a nearly six-month-long hearing in the State Assembly that culminated in a statewide ban. EDF was helped financially in Wisconsin by the National Audubon Society’s Rachel Carson Fund.
The EDF’s well-publicized and ultimately effective work in New York, Michigan, and Wisconsin during its first year led to a surge in environmental legal activism across the United States, just as the phrase “environmental law” became part of America’s lexicon as a result of the Suffolk DDT case. “Sue the Bastards” was a rallying cry on college campuses. Prior to 1967, there had been no environmental law movement or any significant support for environmental litigation until the conclusion of the DDT Wars and the subsequent enactment of the National Environmental Policy Act in 1970. The original two-volume edition of Environmental Rights and Remedies (1972) became the first environmental law treatise.
The Natural Resources Defense Council, formed in 1970, the Sierra Club Legal Defense Fund, established in 1971, and other “green” groups were soon established to join the fight against polluters in the courts. “A court of equity is the only place to take effective action against polluters,” said Yannacone. “Only in a courtroom can a scientist present his evidence, free from harassment by politicians. And only in a courtroom can bureaucratic hogwash be tested in the crucible of Wurster put the mission in even more aggressive terms: “Conservationists are a nice, placid, quiet, law-abiding group of citizens, some of the best we’ve got, but they have a way of talking to themselves in a closed ecosystem. They are legally weak, scientifically naive and politically impotent. They lack an offense. EDF isn’t content to do things in the usual, slow way with limited accomplishment. We want to do more faster, even if we have to crack a few
Though Yannacone believed that litigation was the most effective way to protect general human and civil rights, Ralph Nader believed that launching consumer protection attacks on defective products and manufacturing pollution excesses was the most viable way to effect change. He was gearing up to expand beyond his initial focus on automotive safety and take on Fortune 500 corporations. He argued that the free enterprise system would survive only if corporations were held responsible for public health and environmental stewardship. “The question is not whether we can build a car that won’t pollute the air,” he told the New York Times Magazine in 1967, “the question is whether we can overcome the resistance of the auto industry and the oil industry to get it By 1968, Nader built the ad hoc organization Nader’s Raiders into a national youth force for consumer protection.
Out in Central California’s agricultural valleys, Cesar Chavez was building an impressive national following. His NFWA had scored a major victory in 1966, securing the first genuine collective bargaining agreement for farmworkers in the continental United States. When Chavez called for a boycott of table grapes from a certain California grower, millions of American consumers complied. Around the same time, the California Department of Public Health’s Bureau of Occupational Health published a pamphlet titled “Occupational Disease in California Attributed to Pesticides and Other Agricultural Chemicals,” which documented 1,347 cases of human sickness caused by pesticides and insecticides in California the previous year, mainly among the state’s Building on the NFWA’s newfound strength, Chavez sought contracts that required employers to provide toilets, hand-washing facilities, and clothing protective against pesticide exposure and to refrain from spraying pesticides while workers were in the field.
Martin Luther King, Jr., in a 1966 telegram, told Chavez that “our separate struggles are really The pesticide issue soon became an important part of the NFWA’s protests and boycotts, transforming Chavez into a national leader for environmental justice. He tried to negotiate contracts that required agribusiness companies to test farmworkers for pesticide exposure on a regular basis. “The real problem is that the workers don’t even know how dangerous this stuff is,” he told Steven V. Roberts of the New York “They call it dust or spray, but we call it poison. It’s a subtle death, like quicksand. You don’t know what’s happening until it’s too
By that point, it was clear to leaders such as Nader, Chavez, Wurster, and Yannacone that the federal agencies set up to protect health and the environment, especially the Department of Health, Education, and Welfare (now Health and Human Services), had failed in their missions. Thousands of industrial chemicals commonly found in consumer products had never been tested; and then, it was done only after a chemical was discovered to be The standard of scientific proof provided by the chemical companies was insanely low. By the time they pulled a chemical from the market, people had already died unnecessarily. Years before the term toxic dump was in the public parlance, places like the Stringfellow Acid Pits (to be designated a Superfund hazardous waste site in 1980) near Santa Monica, California, a vast cauldron of heavy metals, solvents, DDT, and hydrochloric acid, were contaminating local
Another environmental concern was that the Atomic Energy Commission (AEC) was routinely testing nuclear weapons underground in various locations, with nearly two hundred tests in Nevada alone. Another took place at Amchitka Island in Alaska’s Aleutian chain. Udall was drawn into the issue of nuclear proliferation when the village council of Point Hope, Alaska, wrote and pleaded for his help in preventing Project Chariot—a proposed AEC detonation to construct an artificial port—from contaminating the caribou and game birds upon which the people depended for sustenance. Udall announced that he wanted to review AEC’s scientific studies and then advise them if he saw unpreventable adverse effects from the detonation. The AEC, however, canceled Project Chariot before Udall had further comment.
All of America’s underground nuclear testing took place between August 1963 and December 1967. According to the lawyers pursuing a case against the AEC, radioactive gases had seeped to the surface as a result of all those detonations, and 33 percent of them had vented radioactivity into the Wasn’t that prohibited by the Limited Nuclear Test Ban Treaty? During one Nevada test of nuclear space rockets, in fact, levels of air contaminants along Route 95 between Reno and Las Vegas temporarily rose to two hundred thousand times their normal level. Explosions weren’t the only source of poisons. Around Rocky Flats near Denver, Colorado, where warheads destined to be used in Vietnam were manufactured, public-minded scientists proved that serious amounts of plutonium had escaped the plant. “‘Sue the bastards!’ was spreading out of Long Island to the Southwest,” recalled Stewart Udall. “I didn’t pay enough attention to this because I was preoccupied getting Redwood and North Cascades National Parks created. Going after AEC seemed
V
Bill and Cathy Douglas spent the Supreme Court’s 1967 summer recess at their forest cabin in Goose Prairie, Washington. Together they hiked the nearby forests and rode horses stabled at the Double K Mountain Ranch. As Douglas told Bobby and Ethel Kennedy, it was blissful until the Air Force began testing supersonic aircraft over the eastern slopes of the Cascade Range, producing shattering sonic booms that disturbed local residents and frightened the local “In that pristine quiet, the sound was really magnified,” Cathy Douglas recalled. “Bill kept saying there had to be a way for parts of America to be protected as solitude
Indignant, protective of his right to peace and quiet, and worried about the effect on area residents, Douglas fired off a sharply worded letter to Defense Secretary Robert S. McNamara, the mastermind behind the US bombing in Vietnam, requesting that the test flights avoid the Goose Prairie area. “The sonic boom is having disastrous consequences in the valley,” he complained. “We are accustomed to having pictures knocked off our walls. Our neighbor lost many rocks from his chimney. One day last week a horse wrangler riding on American Ridge was nearly killed being thrown violently into a tree. The next day Mrs. Douglas and I were up Thunder Creek, and happily not in a part of the trail that had a precipitous drop-off. A sonic boom sent our horses about two feet in the air, and three feet sideways.” There was no need, he argued, to disturb the central Washington backcountry when the “nearby Pacific Ocean should offer plenty of space for maneuvering.... I write you because local objections go unnoticed. Your Air Force people out this way are very
Twelve days later, the unimpressed McNamara advised Douglas that the sonic booms would continue. Jittery horses and loose bricks were simply the price Americans had to pay for defeating communism in Southeast Asia. Furious at McNamara’s casual dismissal, Douglas went for the jugular in his response on July 28: “The victims of this callous federal program for which you claim responsibility are so helpless that I am arranging to put your letter in the public file so that their attorneys will have the benefit of your confession of responsibility. I assure you, Mr. Secretary, that your ‘villagers’ here are not as voiceless and impotent as your ‘villagers’ in
Going over McNamara’s head, determined to “ban the boom,” Douglas wrote to President Johnson on August 12, mocking the defense secretary and predicting that locals would file
A Supreme Court justice threatening a president with lawsuits was no laughing matter. Johnson tried to placate Douglas but in the end was obliged to support McNamara’s assertion that ending supersonic tests in the Pacific Northwest airspace would be “impractical” and potentially even “perilous” for the US war More successful was Senator Church of Idaho, who used one of Douglas’s arguments about avalanche risk to convince the Pentagon to suspend wintertime supersonic flights over the Sun Valley ski resorts. But that wasn’t the broad win that Douglas
LBJ’s refusal to intervene soured Douglas on LBJ’s New Conservation. Bolstering his efforts, Douglas joined forces with David Brower of the Sierra Club to protest noise pollution in America. Describing high-decibel aircraft clamor as “an increasing scourge of urban life and country life,” he blamed it for causing sleep deprivation, hearing loss, and environmental damage. He railed against airports such as New York City’s John F. Kennedy International Airport, where air traffic, he said, was forcing nearby schools to institute “jet pauses” that deprived students of an hour of education every day. Estimating that 40 million Americans were exposed to potentially hazardous noise, he encouraged people to sue the companies and military operations responsible, and he called on Congress to pass a Noise Control Bill to establish limits and standards.
On the subject of sonic booms, not only Douglas but a growing number of Americans were disgusted by the federal government’s massive funding to develop a supersonic passenger plane by 1970. President Kennedy had initiated the project in 1963, and eventually it was assigned to Boeing. The cost to the government topped $1 billion, but it was regarded, even by Kennedy, as a challenge similar to that of the NASA moonshot, but for the airline industry. Simultaneously, a partnership of British Airways and the French aeronautics firm Aérospatiale also sought to put a supersonic transport (SST) into the air. A competition between the Americans and the Europeans ensued.
Douglas deemed supersonic passenger planes unnecessary as well as harmful. Senator William Proxmire of Wisconsin, a Democrat, agreed and held hearings on the environmental effects of the Boeing SST. Building on Sierra Club fact sheets, a new group called Citizens League Against the Sonic Boom emphasized the inefficient fuel consumption of such planes. It also charged that SSTs would damage the ozone shield and indirectly cause an uptick in skin cancer. An anti-SST coalition of sixteen environmental groups was established, led by the Sierra Club. One Brower-inspired newspaper ad described the new plane in blunt terms:
BREAKS WINDOWS, CRACKS WALLS,
STAMPEDES CATTLE, AND WILL
HASTEN THE END OF THE
AMERICAN WILDERNESS.
That effort helped kill the American SST effort, though it was a taxpayer revolt that ultimately led to its
Another project, described by some as an Army Corps of Engineers boondoggle, came to Douglas’s attention in 1967. When residents of the area surrounding the Red River in east-central Kentucky realized that construction work was about to begin on a dam there, they hastily organized a Cumberland County chapter of the Sierra Club to protest it. Such a dam would flood the paradisiacal Red River Gorge, with its unusual profusion of native plants, natural arches, waterfalls, and birds in every season. The dam had been authorized in 1962, but many locals didn’t see any real need for it—except as an excuse to spend millions of dollars of government money in the notoriously impoverished eastern Appalachians. Among the members of the increasingly desperate group were Carroll Tichenor, a horse breeder; Oscar H. Geralds, Jr., an attorney; and Wendell Berry, the agrarian When the group had nowhere left to turn, it sent a letter to Douglas, the patron saint of free-flowing
Douglas didn’t respond to the letter, though. And so the Kentuckians sent him a pretty postcard of Red River Gorge, figuring that if he just saw the place, he wouldn’t ignore the preservation cause. That proved to be the lucky charm. Douglas wrote a postcard in return, offering to lead a hike along the Red River, with one proviso: the group would have to pay his airfare. That was his way of ensuring that the protesters were as committed as they expected him to be. In truth, paying alimony to three ex-wives, he was always hard pressed for money.
On November 18, 1967, Bill and Cathy Douglas led a hike along the Red River Gorge (which was in the boundary of the Daniel Boone National Forest) for a lively contingent of around six hundred conservation-minded citizens from Boy Scouts to reporters from the New York and The Douglas protest met a counterprotest of Kentuckians carrying not only placards that read “Sierra Club Go Home” and “DAM the Gorge,” but loaded guns. The undeterred Douglas proclaimed the quiet, lonely dells and tree-rich ravines “one of the great untamed beauty spots in the country which we must do all we can to That wasn’t hyperbole; Douglas was right that the gorgeous Kentucky landscape deserved to be a national park. Wendell Berry, in The Unforeseen Wilderness: Red River would write eloquently about the “poplars and hemlocks of a startling girth and height” that brought relief from the trash found along the riverbanks of the Red
“This was the first public hike I’d been on,” Cathy Douglas Stone recalled. “Everybody was clamoring around. But when I laid eyes on the gorge, I knew we were in the right to raise our activist voices. This landscape was very much worth saving. Nobody who visits it could say otherwise. I felt proud that we were saving just a geographically beautiful
After the hike, in a speech on November 19 at the Phoenix Hotel in Lexington, Douglas denounced the Army Corps of Engineers as “public enemy number one,” an agency “obsessed with building dams” that tore apart all the interconnected webs of river valley life. In front of an enthusiastic audience, he explained why he was constantly protesting: “You only win a few of these battles. The tide is running very strong against the little areas of wilderness we have left. You must be willful if there are to be any alcoves of solitude The Bill and Cathy Douglas ramble in Kentucky led to a new study of the dam project, a different site for construction, and an overall delay of about a decade. After further protests, the idea of flooding the Red River Gorge was scrapped.
Soon after the Kentucky protest, Douglas made an appointment to see LBJ about stopping the construction of the Oakley Dam near Decatur, Illinois, part of the $120 million Sangamon River Project. The dam had the bipartisan support of three senators: Charles Percy, a Republican from Illinois; Everett Dirksen, a Republican from Illinois; and Paul Douglas, the Democrat from The justice was disturbed that the proposed reservoir would flood the historic village of Allerton Park. Holding “Wild Bill’s” memo, LBJ asked the justice his thoughts about North Vietnam and the United States entering peace negotiations. Not mincing words, Douglas told the president that he opposed everything about his administration’s Vietnam policy, that the only recourse was to call the war a mistake and withdraw US troops. The war was costing taxpayers $2.5 billion a month, had killed thousands of young Americans, had ripped society to shreds, and had damaged US relationships with NATO allies around the world. “When I was finished,” Douglas recalled, “he crumpled the memo I had given him without reading it and put it in his pocket.”
Douglas’s fundamental disagreement with his old friend Johnson was that the Texas politician thought every person had a price. Because Johnson believed in raw politics, he viewed the new breed of environmentalists with suspicion; Douglas thought of them as profiles in courage. How do you make a deal with activists who want to punish Fortune 200 companies or the Army Corps of Engineers without any thought of making a personal profit? By contrast, Senator Ed Muskie was using the issue of smog to advance his political stature, and that made sense to Johnson. The Environmental Defense Fund lawyers, who were paid to harness the power of the courtroom, also fit into the president’s worldview. To LBJ, the Sierra Club under Brower was a fundraising gambit; that was understandable. He preferred anything or anyone with whom it was possible to negotiate. That wasn’t Bill Douglas. By 1967, their friendship had deteriorated, neither man really caring.
On Christmas Day 1967, at Ebenezer Baptist Church in Atlanta, Martin Luther King, Jr., delivered a prophetic sermon laden with environmental justice overtones. Echoing Albert Schweitzer, he linked the natural world to the promise of Christ not fully realized. Interconnectedness, he knew, was what ecology was all about. Just as from the 1950s onward he had protested for nuclear disarmament, he had likewise joined the vanguard of the new ecological consciousness sweeping the land. “It really boils down to this: that all life is interrelated,” he preached to the holiday congregation. “We are all caught in an inescapable network of mutuality, tied into a single garment of destiny. Whatever affects one directly, affects all indirectly. We are made to live together because of the interrelated structure of That, of course, was an eloquent definition of ecology.
