Bright, Myron H.

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North Dakota Law Review Volume 53 Number 3 Article 2 1976 Future Case Note: The Economy versus the Environment Myron H. Bright Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Bright, Myron H. (1976) "Future Case Note: The Economy versus the Environment," North Dakota Law Review: Vol. 53 : No. 3 , Article 2. Available at: https://commons.und.edu/ndlr/vol53/iss3/2 This Introduction is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. PREFACEFUTURE CASE NOTE:THE ECONOMY VERSUS THE ENVIRONMENTTHE HONORABLE MYRON H. BRIGHTJUDGE, UNITED STATES COURTOF APPEALS, EIGHTH CIRCUITThis preface is a portion of the commencement address deliveredby Judge Bright at the Chicago-Kent Law School on Sunday, June13, 1976.I know of no law school graduate in recent times who has notexpressed concern for the future-a concern that is not without founda-tion. The recent past has been a period -of enormous social and politicalupheaval in our society. We have witnessed the assassination of ourhighest leaders, the forced resignation of a president and vice pres-ident, the tragic war in Vietnam, the recurrent crises in the Mid-east, oil embargoes, riots in the streets of our major cities, and asoaring crime rate. Today the economy is struggling to recoverfrom the most serious depression we have experienced since thatof the thirties. Once again we find ourselves in troubled times, ec-onomically and socially. Yet given the similarities between the thir-ties and today, I would like to point -out a crucial difference be-tween then and now-a difference which I believe is going to playa large role in shaping the future of young lawyers. That differenceis the newly-emerging concern for the environment and the recog-nition that our resources are not without limit.In proposing solutions for today's problems, we must be cau-tious about prescribing uninhibited economic growth as, a solution.It is clear that we cannot follow the unrestrained expansionist pol-icies of the past. Instead, in each case we are going to have toweigh the costs -of a particular development against the benefits.Lawyers, whether in private practice, industry, or government, aregoing to play an increasing role in helping to make these decisions.In the last few years, the court of which I am a member-the United States Court of Appeals for the Eighth Circuit-as wellas other federal courts, has had to grapple repeatedly with this prob-lem of the economy versus the environment. Since these casesraise issues similar to those you will have to face and decide, Ishould like to discuss a few of the cases and the problems theyportend for the future.One case with which many of you are likely to be familiar isReserve Mining Co. v. United States,1 decided by our courtin March of 1975. Reserve Mining Company is located on the northshore of Lake Superior. It processes huge quantities of low-gradeiron ore, called taconite, into relatively high-grade ore pellets us-able in blast furnaces for the smelting of iron and steel. The remain-ing waste material, called tailings, is dumped into Lake Superiorunder a state permit issued in 1947.Eventually it was discovered that the waste from Reserve's min-ing process contained microscopic particles similar to asbestos usedin building construction. Scientists felt that the emission of theseparticles into the air and into the water of Lake Superior createdboth aesthetic and health problems. The mining company denied thecharges.As often happens, the issue was brought to the court. The scien-tific evidence was extremely complex. In addition, the legal issueswere both novel and difficult. As a result, the trial lasted nine months.The case presented a conflict between two important interestsof our society. On the one hand, the government introduced somescientific evidence of a possible threat to the health of the residentsof the area. On the other hand, the mining company directly em-ployed 3,500 local residents and indirectly supported about 20,000others. In addition, there were the interests of the stockholders andthe national economy as a whole-the iron ore produced by Reserveaccounted for approximately twelve percent of our entire domesticsteel production.The case was further complicated by the difficulty in finding any-one to blame for this situation. The economy-environment problemdeveloped in a most innocent manner. Our court wrote as follows:In retrospect, it must now be painfully clear to all who par-ticipated in the original decision to permit the discharge oftailings into Lake Superior, that such a decision amountedto a monumental environmental mistake. The actors in thatdecision, 25 years ago, included leading citizens and govern-mental officials of Minnesota as well as officials of Reserve,Armco, and Republic Steel. That decision obviously was madein good faith to create jobs, to provide other economic op-portunities in an economically depressed area of northernMinnesota, and to utilize the almost unlimited supply of hith-erto unusable, low-grade, taconite ore found in that area.1. 514 F.2d 492 (8th Cir. 1975).To us there are neither heroes nor villains among the pres-ent participants in this, lawsuit, nor among their predeces-sors in government, business, and society who were once al-lies in encouraging and creating a taconite industry in north-ern Minnesota. Nevertheless, the pollution of Lake Superiormust cease as quickly as feasible under the circumstances.2A case involving a similar conflict between the environment andthe needs of our economy arose that same year in Union ElectricCo. v. Environmental Protection AgencyA In that case, the federalEnvironmental Protection Agency (EPA), under its regulations asapproved by the State of Missouri, directed the Union Electric Com-pany, a public utility serving St. Louis, to cease emitting high levelsof possibly health-harming sulfur dioxide into the air from its coalburning electric generating plant. In essence, the utility contendedthat it could not afford to comply with the EPA regulations andthat the public interests would be best served by not requiring UnionElectric to close its coal burning plants. Our court rejected UnionElectric's contention. We held that the regulations had been promul-gated and adopted without objection and could no longer be reviewedby the courts. That case has recently been affirmed by the UnitedStates Supreme Court.4These two cases were special in that they involved a degree ofdanger to human life itself. Other cases before our court have in-volved not life itself, but things that help make life worth living.For example, in Minnesota Public Interest Research Group v.Butz,5 a nonprofit group sought to have the court prohibit the cut-ting of virgin timber in the Boundary Waters Canoe Area in nor-thern Minnesota.As is often true in the law, the central issue was procedural.The land in the Boundary Waters Area is owned by the government.For many years the government had permitted private industry un-der contract to cut timber in that area. The question presented tous was whether the continued cutting of timber under existing con-tracts required the filing of an Environmental Impact Statement un-der the National Environmental Policy Act of 1969.6 We concludedthat the cutting of virgin timber constituted a major federal actionsignificantly affecting the quality of the human environment. There-fore, we directed that further cutting be postponed until an Environ-mental Impact Statement was filed as required by law.2. Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1972).3. 515 F.2d 206 (8th Cir. 1975).4. 96 S. Ct. 2518 (1976), rehear, denied, 97 S. Ct. 189 (1976).5. 508 F.2d 892 (8th Cir. 1975) (per curiam).6. Pub. L. No. 91-190, 83 Stat. 852 (1969) (codified in 42 U.S.C. §§ 4321-4347 (1970).as amended, (Supp. V 1975)).In another case, Sierra Club v. Froehlke,7 a nonprofit organfza-tion interested in the environment sought to prohibit the construc-tion of various dams in the State of Missouri. The Club's primaryargument was that construction of the dam would flood the caveoccupied by the Indiana bat, an endangered species.The case had potential for raising a really interesting question.I don't know exactly how you balance the value of preserving a spe-cies of bat against the claimed benefits of a series of dams pro-posed in Missouri. Fortunately, we didn't have to decide that issue.A review of the records submitted on appeal demonstrated that thecontinuance of the dam project would have no more than an infini-tesi'mal effect upon the Indiana bat population.Eight years ago when I joined the court, coming directly froma private law practice, environmental cases such as these were prac-tically unheard of and yet today, in the federal courts, the conflictsbetween the demands of the environment and the needs of the econ-omy represent one of the most important challenges of your gener-ation, as well as mine.In particular, a most important and, to the country, crucial en-vironmental-economic conflict has now emerged in the politicalarena. This country faces a serious problem in obtaining adequateenergy supplies. Domestic oil supply has been considerably depleted.At the present time we must import forty percent of our oil. In 1975,this cost our economy something in the vicinity of twenty-seven bil-lion dollars. That is 900 percent over what this country paid for im-ported oil five years ago.8 The cost keeps going up, and our needskeep increasing. The great amount of foreign oil imported representsa drain upon our dometic economy, but we must recognize that theprosperity of this country depends on an adequate supply of energynot only to run our factories but to heat our homes and run our auto-mobiles, buses, trains, farm tractors, and to generate electricity. Be-cause of this, in many ways we are at the immediate mercy of theexporting oil-rich countries. 9In April of 1976, the Fiftieth American Assembly on Nuclear En-ergy reported as follows:The use of rapidly dwindling oil and natural gas for powerproduction is in most cases a wasteful act.The peaceful uses of nuclear power offer us at this timea significant possibility of moving in the direction of a worldwith an improved quality of life for all people. The cost to* mankind of not pursuing the nuclear option could be tragic.107. 534 F.2d 1289 (8th Cir. 1976).8. FEDERAL ENERGY ADMIN., 1976 NATIONAL ENERGY OUTLOOK Xil-xxii (1976).9. Id. at xxi-xxiv.10. FIFTIE~rH AMERICAN ASSEMBLY, NUCLEAR ENERGY 8 (Apr. 22-25, 1976).Yet there is great concern in the expansion of the use of nu-clear energy because of the danger in safely storing nuclear wasteproducts. Citizens have banned together to oppose increasing useof nuclear materials to generate electrical power. An anti-nuclearmovement has spread throughout many areas of the country. Theconcerns of these citizens are genuine and serious. Yet Edward Tel-ler, perhaps the Nation's most distinguished nuclear physicist, haswarned that blocking atomic development in this country could plungethe world into poverty while causing a critical energy shortage.Coal can be substituted for oil and natural gas in some formsof energy production. This country possesses three times more coalreserves than all of the oil reserves in the Middle East." Consider-able resistance has, nevertheless, developed to the exploration ofthese coal lands, particularly through stip mining. The energy issuesfor the most part still remain in the political arena. But the rightsof contending parties will soon be in the courts, and to a great ex-tent, in the federal courts.As a result, lawyers, particularly the younger, well-trained law-yers in environmental law and economics, must assist the courtsin arriving at fair and just decisions in the case of the economy ver-sus the environment. Now and in the future, as in the past, lawyersmust provide leadership and service to this country. Your obligationand your challenge is to serve the public, the courts, your community,and your country.11. FEDERAL ENERGY ADMIN., 811)7-a note 8, at xxi-xxiv.

Future Case Note: The Economy versus the Environment

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Future Case Note: The Economy versus the Environment

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