CHAPTER 1
In this case, referred to in the text, plaintiffs tried to assert a Constitutional right to a clean
environment.
TANNER V. ARMCO STEEL CORPORATION
United States District Court, S. D. Texas, 340 F. Supp. 532 (1972)
DISTRICT JUDGE NOEL:
Plaintiffs, residents of Harris County, Texas bring this action to recover for injuries
allegedly sustained as a result of the exposure of their persons and their residence to air
pollutants emitted by defendants' petroleum refineries and plants located along the Houston
Ship Channel. It is asserted that plaintiff George W. Tanner, as a proximate result of these
emissions, has suffered pulmonary damage with consequent medical expenses and loss of
income to himself and his family. By way of remedy, it appears from the rather prolix complaint
that plaintiffs pray "to recover their damages from the Defendants, jointly and severally, for their
personal injuries, past and future medical expenses, pain and suffering, loss of services, mental
anguish, loss of support, damages to the homestead and lands of the Tanners, general
damages, punitive (sic) damages and all other damages allowed by law, in the combined
amount of FIVE MILLION DOLLARS."
Plaintiffs next seek solace in the Ninth Amendment, and concede on brief that this is a
pioneering enterprise:
This case is believed to be unique in that counsel for the Tanners is not aware of any
other cases that have sought damages for personal injuries caused by the air pollution in the
United States District Courts based upon the premise that the right to a healthy and clean
environment is at the very foundation of this nation and guaranteed by the laws and Constitution
of the United States. Plaintiffs maintain that their right not to be personally injured by the
actions of the Defendants and their right to non-interference with their privacy and the air that
they breathe are protected by the Ninth Amendment.
Since its promulgation, the Ninth Amendment has lain largely quiescent, its most
ambitious sortie being in the form of a concurrence in Griswold v. Connecticut. The parties
have cited and the Court has found no reported case in which the Ninth Amendment has been
construed to embrace the rights here asserted. Such a construction would be ahistorical and
,would represent essentially a policy decision. In effect, plaintiffs invite this Court to enact a law.
Since our system reserves to the legislative branch the task of legislating, this Court must
decline the invitation. The Ninth Amendment, through its "penumbra" or otherwise, embodies
no legally assertable right to a healthful environment.
Plaintiffs also contend that this action is entertainable by reason of the Fourteenth
Amendment in conjunction with the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its
jurisdictional counterpart, 28 U.S.C. § 1343. . . .
The terms of Section 1983 make plain two elements that are necessary for recovery.
First, the plaintiff must prove that the defendant has deprived him of a right secured by the
"Constitution and laws" of the United States. Second, the plaintiff must show that the defendant
deprived him of this constitutional right "under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory." This second element requires that the plaintiff
show that the defendant acted "under color of law."
. . . Therefore, it is clear that a sufficiently stated claim under Section 1983 must
embrace two elements properly alleged: (1) a constitutional deprivation, and (2) state action.
On brief, all parties have devoted considerable attention to state action, the second requisite.
This Court is persuaded that plaintiffs have not alleged the quantum of state or municipal
regulatory involvement necessary to clothe defendants with the mantle of the State for the
purposes of Section 1983. . . . However, it is unnecessary to dwell upon the point at length.
For, assuming arguendo that state action were present, the fact remains that the first requisite
of a Section 1983 suit--constitutional deprivation--has not been satisfied.
Taking as true all factual allegations in the complaint, plaintiffs have failed to allege a
violation by defendants of any judicially cognizable federal constitutional right which would
entitle them to the relief sought. Once again, the parties have cited and the Court has found no
reported case which persuasively suggests that the Fourteenth Amendment is susceptible to the
interpretation urged. Although there has been something of a boom recently in what Judge
Seals of this Court has described as "grandiose claims of the right of the general populace to
enjoy a decent environment," such claims "have been more successful in theory than in
operation." In view of the dearth of supportive authority, this Court must decline "to embrace the
exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose
birth is distant."
First, there is not a scintilla of persuasive content in the words, origin, or historical setting
of the Fourteenth Amendment to support the assertion that environmental rights were to be
accorded its protection. To perceive such content in the Amendment would be to turn
,somersaults with history. For, as the Congressional sponsor of a proposed federal
environmental amendment recently observed:
We are frank to say that such a provision to the Constitution would have been
meaningless to those attending the Constitutional Convention in Philadelphia almost 200 years
ago. Indeed, this amendment would have been altogether unpersuasive twenty years ago,
although the handwriting was then visible on the wall, if one cared to look for it.
Second, it is apparent that nowhere in the Fourteenth Amendment--or its "incorporated"
amendments--can be found the decisional standards to guide a court in determining whether the
plaintiffs' hypothetical environmental rights have been infringed, and, if so, what remedies are to
be fashioned. Such a task would be difficult enough with the guidance of a statute, but to
undertake it in the complete absence of statutory standards would be simply to ignore the
limitations of judicial decision making.
Third, from an institutional viewpoint, the judicial process, through constitutional
litigation, is peculiarly ill suited to solving problems of environmental control. Because such
problems frequently call for the delicate balancing of competing social interests, as well as the
application of specialized expertise, it would appear that their resolution is best consigned
initially to the legislative and administrative processes. Furthermore, the inevitable trade-off
between economic and ecological values presents a subject matter which is inherently political,
and which is far too serious to relegate to the ad hoc process of "government by lawsuit" in the
midst of a statutory vacuum.
Finally, to the extent that an environmental controversy such as this is presently
justiciable, it is within the province of the law of torts, to wit: nuisance. . . . There would seem
little good reason in law or policy to conjure with the Fourteenth Amendment and Section 1983
for the purpose of producing the wholesale transformation of state tort suits into federal cases.
In any event, if such a result is deemed desirable in order to cope with pollution on a nationwide
scale, then it should be accomplished by Congress through legislation, and not by the courts
through jurisdictional alchemy. Therefore, this Court must follow Guthrie v. Alabama By-
Products, where the Court, in dismissing a similar pollution suit, observed that several bills have
been introduced to challenge conduct alleged to result in environmental pollution. From this,
Chief Judge Lynne of the Northern District of Alabama quite reasonably concluded that:
Though this circumstance may be only faintly persuasive, it does indicate that the
sponsors of these bills believe that the right to maintain such suits in federal court is not
provided by existing legislation. This Court is firmly of the opinion that if plaintiffs are to be
, allowed to bring private damage suits for injuries traditionally local in nature and already
covered by local statutory and common law, additional federal legislation is imperative. Such
authority cannot be found in the existing law.
For the foregoing reasons, this Court holds that no legally enforceable right to a healthful
environment, giving rise to an action for damages, is guaranteed by the Fourteenth Amendment
or any other provision of the Federal Constitution. As the United States Supreme Court recently
observed in rejecting a similarly imaginative constitutional claim, "the Constitution does not
provide judicial remedies for every social and economic ill." . . . It follows, of course, that a
claim under Section 1983 has not been stated and subject matter jurisdiction under 28 U.S.C. §
1343 has not been invoked.
In this case, the Supreme Court considered how a city ordinance controlling solid waste
disposal interfered with interstate commerce.
C & A CARBONE, INC., et al. v. TOWN OF CLARKSTOWN, N.Y.
United States Supreme Court, 511 U.S. 383 (1994).
JUSTICE KENNEDY:
In August 1989, Clarkstown . . . agreed to close its landfill located on Route 303 in West
Nyack and build a new solid waste transfer station on the same site. The station would receive
bulk solid waste and separate recyclable from nonrecyclable items. Recyclable waste would be
baled for shipment to a recycling facility; nonrecyclable waste, to a suitable landfill or incinerator.
A local private contractor agreed to construct the facility and operate it for five years,
after which the town would buy it for one dollar. During those five years, the town guaranteed a
minimum waste flow of 120,000 tons per year, for which the contractor could charge the hauler
a so-called tipping fee of $81 per ton. If the station received less than 120,000 tons in a year,
the town promised to make up the tipping fee deficit. The object of this arrangement was to
amortize the cost of the transfer station: The town would finance its new facility with the income
generated by the tipping fees. . . . The problem, of course, was how to meet the yearly
guarantee. The solution the town adopted was the flow control ordinance here in question,
Local Laws 1990, No. 9 of the Town of Clarkstown. The ordinance requires all nonhazardous
solid waste within the town to be deposited at the Route 303 transfer station.
In this case, referred to in the text, plaintiffs tried to assert a Constitutional right to a clean
environment.
TANNER V. ARMCO STEEL CORPORATION
United States District Court, S. D. Texas, 340 F. Supp. 532 (1972)
DISTRICT JUDGE NOEL:
Plaintiffs, residents of Harris County, Texas bring this action to recover for injuries
allegedly sustained as a result of the exposure of their persons and their residence to air
pollutants emitted by defendants' petroleum refineries and plants located along the Houston
Ship Channel. It is asserted that plaintiff George W. Tanner, as a proximate result of these
emissions, has suffered pulmonary damage with consequent medical expenses and loss of
income to himself and his family. By way of remedy, it appears from the rather prolix complaint
that plaintiffs pray "to recover their damages from the Defendants, jointly and severally, for their
personal injuries, past and future medical expenses, pain and suffering, loss of services, mental
anguish, loss of support, damages to the homestead and lands of the Tanners, general
damages, punitive (sic) damages and all other damages allowed by law, in the combined
amount of FIVE MILLION DOLLARS."
Plaintiffs next seek solace in the Ninth Amendment, and concede on brief that this is a
pioneering enterprise:
This case is believed to be unique in that counsel for the Tanners is not aware of any
other cases that have sought damages for personal injuries caused by the air pollution in the
United States District Courts based upon the premise that the right to a healthy and clean
environment is at the very foundation of this nation and guaranteed by the laws and Constitution
of the United States. Plaintiffs maintain that their right not to be personally injured by the
actions of the Defendants and their right to non-interference with their privacy and the air that
they breathe are protected by the Ninth Amendment.
Since its promulgation, the Ninth Amendment has lain largely quiescent, its most
ambitious sortie being in the form of a concurrence in Griswold v. Connecticut. The parties
have cited and the Court has found no reported case in which the Ninth Amendment has been
construed to embrace the rights here asserted. Such a construction would be ahistorical and
,would represent essentially a policy decision. In effect, plaintiffs invite this Court to enact a law.
Since our system reserves to the legislative branch the task of legislating, this Court must
decline the invitation. The Ninth Amendment, through its "penumbra" or otherwise, embodies
no legally assertable right to a healthful environment.
Plaintiffs also contend that this action is entertainable by reason of the Fourteenth
Amendment in conjunction with the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its
jurisdictional counterpart, 28 U.S.C. § 1343. . . .
The terms of Section 1983 make plain two elements that are necessary for recovery.
First, the plaintiff must prove that the defendant has deprived him of a right secured by the
"Constitution and laws" of the United States. Second, the plaintiff must show that the defendant
deprived him of this constitutional right "under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory." This second element requires that the plaintiff
show that the defendant acted "under color of law."
. . . Therefore, it is clear that a sufficiently stated claim under Section 1983 must
embrace two elements properly alleged: (1) a constitutional deprivation, and (2) state action.
On brief, all parties have devoted considerable attention to state action, the second requisite.
This Court is persuaded that plaintiffs have not alleged the quantum of state or municipal
regulatory involvement necessary to clothe defendants with the mantle of the State for the
purposes of Section 1983. . . . However, it is unnecessary to dwell upon the point at length.
For, assuming arguendo that state action were present, the fact remains that the first requisite
of a Section 1983 suit--constitutional deprivation--has not been satisfied.
Taking as true all factual allegations in the complaint, plaintiffs have failed to allege a
violation by defendants of any judicially cognizable federal constitutional right which would
entitle them to the relief sought. Once again, the parties have cited and the Court has found no
reported case which persuasively suggests that the Fourteenth Amendment is susceptible to the
interpretation urged. Although there has been something of a boom recently in what Judge
Seals of this Court has described as "grandiose claims of the right of the general populace to
enjoy a decent environment," such claims "have been more successful in theory than in
operation." In view of the dearth of supportive authority, this Court must decline "to embrace the
exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose
birth is distant."
First, there is not a scintilla of persuasive content in the words, origin, or historical setting
of the Fourteenth Amendment to support the assertion that environmental rights were to be
accorded its protection. To perceive such content in the Amendment would be to turn
,somersaults with history. For, as the Congressional sponsor of a proposed federal
environmental amendment recently observed:
We are frank to say that such a provision to the Constitution would have been
meaningless to those attending the Constitutional Convention in Philadelphia almost 200 years
ago. Indeed, this amendment would have been altogether unpersuasive twenty years ago,
although the handwriting was then visible on the wall, if one cared to look for it.
Second, it is apparent that nowhere in the Fourteenth Amendment--or its "incorporated"
amendments--can be found the decisional standards to guide a court in determining whether the
plaintiffs' hypothetical environmental rights have been infringed, and, if so, what remedies are to
be fashioned. Such a task would be difficult enough with the guidance of a statute, but to
undertake it in the complete absence of statutory standards would be simply to ignore the
limitations of judicial decision making.
Third, from an institutional viewpoint, the judicial process, through constitutional
litigation, is peculiarly ill suited to solving problems of environmental control. Because such
problems frequently call for the delicate balancing of competing social interests, as well as the
application of specialized expertise, it would appear that their resolution is best consigned
initially to the legislative and administrative processes. Furthermore, the inevitable trade-off
between economic and ecological values presents a subject matter which is inherently political,
and which is far too serious to relegate to the ad hoc process of "government by lawsuit" in the
midst of a statutory vacuum.
Finally, to the extent that an environmental controversy such as this is presently
justiciable, it is within the province of the law of torts, to wit: nuisance. . . . There would seem
little good reason in law or policy to conjure with the Fourteenth Amendment and Section 1983
for the purpose of producing the wholesale transformation of state tort suits into federal cases.
In any event, if such a result is deemed desirable in order to cope with pollution on a nationwide
scale, then it should be accomplished by Congress through legislation, and not by the courts
through jurisdictional alchemy. Therefore, this Court must follow Guthrie v. Alabama By-
Products, where the Court, in dismissing a similar pollution suit, observed that several bills have
been introduced to challenge conduct alleged to result in environmental pollution. From this,
Chief Judge Lynne of the Northern District of Alabama quite reasonably concluded that:
Though this circumstance may be only faintly persuasive, it does indicate that the
sponsors of these bills believe that the right to maintain such suits in federal court is not
provided by existing legislation. This Court is firmly of the opinion that if plaintiffs are to be
, allowed to bring private damage suits for injuries traditionally local in nature and already
covered by local statutory and common law, additional federal legislation is imperative. Such
authority cannot be found in the existing law.
For the foregoing reasons, this Court holds that no legally enforceable right to a healthful
environment, giving rise to an action for damages, is guaranteed by the Fourteenth Amendment
or any other provision of the Federal Constitution. As the United States Supreme Court recently
observed in rejecting a similarly imaginative constitutional claim, "the Constitution does not
provide judicial remedies for every social and economic ill." . . . It follows, of course, that a
claim under Section 1983 has not been stated and subject matter jurisdiction under 28 U.S.C. §
1343 has not been invoked.
In this case, the Supreme Court considered how a city ordinance controlling solid waste
disposal interfered with interstate commerce.
C & A CARBONE, INC., et al. v. TOWN OF CLARKSTOWN, N.Y.
United States Supreme Court, 511 U.S. 383 (1994).
JUSTICE KENNEDY:
In August 1989, Clarkstown . . . agreed to close its landfill located on Route 303 in West
Nyack and build a new solid waste transfer station on the same site. The station would receive
bulk solid waste and separate recyclable from nonrecyclable items. Recyclable waste would be
baled for shipment to a recycling facility; nonrecyclable waste, to a suitable landfill or incinerator.
A local private contractor agreed to construct the facility and operate it for five years,
after which the town would buy it for one dollar. During those five years, the town guaranteed a
minimum waste flow of 120,000 tons per year, for which the contractor could charge the hauler
a so-called tipping fee of $81 per ton. If the station received less than 120,000 tons in a year,
the town promised to make up the tipping fee deficit. The object of this arrangement was to
amortize the cost of the transfer station: The town would finance its new facility with the income
generated by the tipping fees. . . . The problem, of course, was how to meet the yearly
guarantee. The solution the town adopted was the flow control ordinance here in question,
Local Laws 1990, No. 9 of the Town of Clarkstown. The ordinance requires all nonhazardous
solid waste within the town to be deposited at the Route 303 transfer station.
