"Sue the Bastards"

In an effort to awake the citizenry to a shockingly neglected issue, environmentalists long cried out shrilly from any podium they could find. Now that they have succeeded in arousing the public conscience, the defense of the environment calls for a calmer and more constructive approach. That strategy has led increasing numbers of environmentalists to seek redress in the courts.

In the vanguard of this new attack is a national coalition of 60 lawyers and 700 scientists called the Environmental Defense Fund. Financed mainly by $10-a-year dues from 25,000 supporters, E.D.F. operates out of East Setauket, N.Y., and has branches in Washington, D.C., and Berkeley, Calif. Its philosophy is summarized by William Butler, a lawyer in the Washington office: "Environmentalists have cried wolf too often. We don't make a legal move unless scientists are sure of their ground."

Strategic Momentum. E.D.F. had its scattergun start on Long Island in 1967. In its first case, a fiery lawyer named Victor J. Yannacone Jr. went to court to stop the Suffolk County mosquito control commission from dousing marshlands with DDT. Rather than alleging personal damages, he sued in the name of all the people of the U.S. and "generations yet unborn." Even though the court ducked the issue and declared it a problem for the state legislature, the mosquito commission was sufficiently impressed by expert testimony presented in court to quit using DDT.

Yannacone's (and E.D.F.'s) unofficial motto was: "Sue the bastards." Backed up by an articulate biologist, Charles Wurster, who was his perennial best witness. Yannacone launched fierce and well-documented attacks on DDT in Michigan and Wisconsin; eventually both states banned most uses of the chemical. Later, he haled into court a Hoerner Waldorf paper plant in Montana for polluting the air; the resulting publicity embarrassed the company into installing antipollution devices before the litigation could run its course.

When Yannacone left to concentrate on his own law practice in 1969, E.D.F. hired two bright young lawyers to replace him. Roderick Cameron, then 30, fresh from a clerkship on the District of Columbia Court of Appeals, became E.D.F.'s executive director. Edward Lee Rodgers, 38, took over as E.D.F.'s general counsel. Instead of trying to sue every polluter, they carefully picked cases that would create legal precedents.

No Immunity. One result was that E.D.F.'s cases helped to win new "standing" in court for private citizens, allowing them to sue in most parts of the U.S. even if they did not have a direct personal stake in the outcome. The legal power of concerned citizens was further strengthened when Congress passed the National Environmental Policy Act of 1969, which requires all federal agencies to describe the environmental effects of any federally assisted new project. Citizens with environmental complaints may now sue erring federal agencies, which no longer can use the old defense of "sovereign immunity."

In the past E.D.F. has opposed noise pollution by the SST and fought for environmental safeguards on the trans-Alaska pipeline. Now the group has 43 suits in the courts or under consideration, concentrating in two general areas:

PESTICIDE ABUSE. Instead of advocating a ban on all pesticides, E.D.F. approves limited spraying of some farm poisons, plus full deployment of the pest's natural enemies. E.D.F. scientists do not oppose using DDT abroad in areas where the clear and present danger of malaria overrides all other considerations. But they do oppose it in the U.S., where malaria is not a problem and DDT's secondary effects are well documented. To block DDT, the group brought actions against the Health, Education and Welfare and Agriculture departments. The court passed the complaint to the federal Environmental Protection Agency, which in turn asked a panel of independent scientists to study the problem. Last month the panel reported that while DDT does not pose "an imminent hazard to human health," it does harm the environment, and thus should be phased out as soon as possible. In view of this report, the court has ordered the EPA to explain why DDT should not be banned as E.D.F. urges.

NEEDLESS PROJECTS. Starting with its battle against the Cross-Florida Barge Canal, which President Nixon himself stopped (TIME, Feb. 1), E.D.F. has brought seven major suits against federal construction projects. Most of them are designed to halt dams proposed by the U.S. Army Corps of Engineers. As the environmental lawyers and their scientific advisers see it, none of the projects are needed for water control, agriculture or any other practical purpose--and all would destroy valuable ecological balances. So far, the courts have tended to agree. Last February a federal court enjoined the Army Engineers from damming the Cossatot River in Arkansas. In a recent decision, Federal District Judge John L. Smith concurred with E.D.F.'s arguments and issued a preliminary injunction halting all work on a proposed waterway linking the Tennessee River to the Tombigbee.

E.D.F.'s next logical step is to hire a specialist to measure public health hazards. One of his first targets will be the effect of airborne contaminants, like lead from auto exhausts, on human health. Says Rod Cameron: "We are trying to make ecological considerations as important a part of any long-range scheme as economics. With the courts' help, we must perfect the art of the possible."

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