Taking Back Eden: Eight Environmental Cases that Changed the Worldby Oliver A. Houck
Taking Back Eden is the gripping tale of an idea—that ordinary people have the right to go to court to defend their environment—told through the stories of lawsuits brought in eight countries around the world. Starting in the United States in the l960’s, this idea is now traveling the planet, with impacts not just on imperiled environments/i>… See more details below
Taking Back Eden is the gripping tale of an idea—that ordinary people have the right to go to court to defend their environment—told through the stories of lawsuits brought in eight countries around the world. Starting in the United States in the l960’s, this idea is now traveling the planet, with impacts not just on imperiled environments but on systems of justice and democracy. It has brought people back into the question of governing the quality of their lives. Author Oliver Houck describes the sites under contention in their place and time, the people who rose up, their lawyers, strategies, obstacles, setbacks and victories.
Written for general readers, students, and lawyers alike, Taking Back Eden tells the stories of a lone fisherman intent on protecting the Hudson River, a Philippine lawyer boarding illegal logging ships from the air, the Cree Indian Nation battling for its hunting grounds, and a civil rights attorney who set out to save the Taj Mahal. The cases turn on Shinto and Hindu religions, dictatorships in Greece and Chile, regime changes in Russia, and on a remarkable set of judges who saw a crisis and stepped up to meet it in similar ways. Spontaneously, without communication among each other, their protagonists created a new brand of law and hope for a more sustainable world.
"Interesting and well-written book."
"Oliver Houck is a most unusual law professor: he writes with wit and even humor but also great brilliance and compassion. Read him and learn."
"Taking Back Eden is a must read for any who want to best understand the world of law and nature."
"This modest volume poignantly reminds the reader that environmental policy change is achieved not merely by amassing scientific evidence or lobbying for new laws, but by protest that eventually finds its way into courts of law...very useful and readable volume... recommended."
"A great read, and a highly instructive one. No one but Professor Houck could tell so well this story of environmental litigation's path across the globe. Individually, these turning points in environmental history are fascinating and inspiring; collectively, they reveal patterns of great significance."
"Who would have guessed that one of the most fascinating books of the year would be a discussion of environmental lawsuits from around the world? Oliver Houck uses this scaffolding to offer a stimulating flood of insights about cultures as diverse as Russia, Japan, and India, explaining how a handful of landmark cases have fundamentally changed the way the nations operate. As a bonus, Taking Back Eden is gracefully written, and it's stocked with some of the most interesting characters you will find in non-fiction."
"This book could only have been written by environmental law's greatest story tellera synthesis of opportunity, courage, slapdash enthusiasma relentless pursuit of good law by well motivated people."
"Oliver Houck, lawyer, teacher and writer, is graced with poetic imagination, a love of history, and a knack for winning environmental lawsuits. These inspirational stories show us how ordinary citizens and their lawyers can change the world."
"Taking Back Eden is a must read for any who want to best understand the world of law and nature."
"This modest volume poisnantly reminds the reader that environmental policy change is achieved not merely by amassing scientific evidence or lobbying for new laws, but by protest that eventually finds its way into courts of law...very useful and readable volume... recommended."
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Read an Excerpt
Taking Back Eden
Eight Environmental Cases that Changed the World
By Oliver Houck
ISLAND PRESSCopyright © 2010 Oliver A. Houck
All rights reserved.
To those who know it, the Hudson River is the most beautiful, messed up, productive, ignored, and surprising piece of water on the face of the earth. There is no other river quite like it, and for some persons, myself included, no other river will do. The Hudson is the river.
Robert Boyle, Founder, Hudson River Fisherman's Association
IN THE EARLY 1960s, Consolidated Edison of New York City, the most powerful utility company in America, announced its intention to build the world's largest pump storage power plant on Storm King Mountain. It would run into opposition from residents who loved the Hudson River Highlands, and from others for whom fishing the Hudson River was a reason to live. That those two parties got together at all was something of an only-in-America miracle. That they could win was unthinkable.
THE HUDSON River rises in the northern Adirondacks and runs more than three hundred miles to the island of Manhattan and the sea. Halfway through this journey it emerges from the mountains near Albany, already level with the ocean, creating a 150- mile estuary above New York Harbor and one of the great inland waterways of the world. For two centuries, the Hudson marked the route of commerce for the American colonies and their principal line of defense. British and American armies would fight, fortify, and attack the length of it, and the very mention of Hudson River names—White Plains, Saratoga, Ticonderoga, and the treason of Benedict Arnold at West Point—is to recount much of the Revolutionary War. Dutch family dynasties as imposing as the Van Cortlands and the Schuylers settled along the Hudson and marked society with their order. In 1825, the Erie Canal finally connected the Hudson to the Great Lakes and Ohio, routing trade through New York City to every continent on the globe. There are larger rivers in America than this one, but none was so present at its birth.
There has always been more to the Hudson, however, than commerce. Ninety miles below Albany it sweeps by Storm King Mountain, guarding the entrance to the Hudson Highlands and one of the most spectacular vistas in the world. Here the river twists through a series of wide gorges flanked by bluffs and ridges that turn green in summer and gold and red with fall, backed by rolling country as far as the eye can see. Early European travelers recorded the scene in wonder. To the German globe-trotter Baedeker, it was "grander and more inspiring than the Rhine." It gave birth to its own movement in painting, whose lead artists, Cole and Church, made raw nature the principal of the play. Humans, where they appeared at all, were tiny and off to the side, marveling at the scenery as if they were seeing the life hereafter.
Marvel they did. The celebrated British actress Fanny Kemble, visiting the Hudson Highlands in the 1830s, wrote in her diary of "the shadow of a huge mountain, frowning over the height on which I stood." "Suddenly," she continued, "a shadow moved down its steep sunny side, threw a deep blackness over the sparkling river, and then climbed the opposite mountain on the far side," followed by a blaze of noonday sun. "I could have stretched out my arms and shouted aloud—I could have fallen on my knees and worshipped—I could have committed any extravagance that ecstasy could suggest." She was seeing Storm King.
The experience was sublime. The Hudson's first explorers, quartered with shipmates who rarely bathed and on ships that reeked with their own wastes, were overcome by the scent of nature that Verrazano called an "exhale" of the "sweetest odors." An early Dutch traveler to Manhattan described encountering "such a sweet smell in the air that we stood still, because we did not know what it was we were meeting." They were not simply seeing the Garden, they were in the Garden, and it seems more than coincidence that this region would produce America's first book on gardening and its foremost landscape architect, Frederick Law Olmsted, whose basic operating principle was that of the Hudson River painters: the more natural the landscape, the better.
All of this, then, was in the genes and the mindset of those who went into the lists to oppose the power plant on Storm King Mountain. They had little law behind them, and they faced a daunting adversary.
* * *
The Cornwall Hydroelectric Project: Power and Beauty for Tomorrow!
[Consolidated Edison brochure for Storm King power plant]
THE CON ED PROPOSAL was, to its managers, logical and benign. The company supplied electricity for the New York City region, and faced soaring demands from residential growth, air conditioning, and rate schedules that charged less per unit the more one used, a recipe for consumption. Proud to provide the power that heated, cooled, and illuminated this giant megalopolis, Con Ed named its headquarters building in downtown Manhattan the Tower of Light. Rather than build a new coal plant or run the gauntlet of approvals for a new nuclear reactor, the company's answer was a pumped storage facility on Storm King Mountain.
The mechanism was simple. The company would take power from the grid at times of low demand, pump water from the river, and push it two miles up a tunnel to a storage reservoir on the mountaintop. At peak demand the stored water would rush back down the tunnel to a powerhouse that converted the force to electricity. Three kilowatts of juice from conventional plants would be needed to provide only two kilowatts from Storm King, but the three were cheap and the two were worth real money. To Con Ed's engineers, the Hudson Highlands were an ideal location for pump storage power, and Storm King on size alone was the pick of the litter.
They anticipated little opposition. Here was a project that produced no pollution and no risk of nuclear meltdown, and it increased service for its voracious customer base. The only regulatory obstacle was the Federal Power Commission, which licensed these kinds of plants, but over the years the Commission had become indistinguishable from the utilities it was supposed to supervise. The attitude was deferential. "We're dealing with top officials in industry," a federal official said of his agency's lackluster enforcement record, "you just don't treat these people like that." The trigger for the fight to come was a sketch by a Con Ed employee of the project that showed Storm King Mountain with a bite out of one side to house an enormous powerhouse, and transmission lines spreading like tentacles from the scene. It was a perfectly sensible engineering drawing. One look at it was all it took to push Hudson Highland residents, already nervous about rumors of the proposal, over the edge.
The residents didn't see what they were in for either. It just grew. A handful of neighbors banded together as the Scenic Hudson Preservation Conference and did what they knew how to do: they hired a public relations firm. They had the means. The Highlands had harbored some of the iconic families in America, J. Pierpont Morgan, Jay Gould, William Averell Harriman, John Jacob Astor and Cornelius Vanderbilt, and John J. Rockefeller. Have we left anyone out? Before long Scenic Hudson and Con Ed began trading slogans, taunt for taunt. The company literature would announce, "Dig We Must!," and Scenic Hudson would reply, "Dig They Must Not!" The public relations firm took shots at Con Ed, in the words of Fortune magazine, "the company everyone loved to hate," which in turn labeled its critics "misinformed bird watchers, nature fakers, land grabbers and militant adversaries of progress." One opponent rose at a public hearing to declare himself a bird watcher but that all he saw from Con Ed was "buzzards and vultures." Insults, however, only travel so far.
Scenic Hudson also hired a lawyer. They chose well, a former federal power commissioner named Dale Doty who had since represented the utilities themselves before the agency. Doty was credible. His problem was that, as deep as the social connections and financial resources of his clients might be, they had very little law on their side. The Commission was authorized to approve power projects, which Congress had already determined to be important to the development of the country, whenever, "in its judgment," it found them to be "in the public interest" for commerce, water power, and "other beneficial purposes." A more deferential, do-whatever-you-want standard would be hard to imagine. To be sure, Congress had since added language about considering recreational interests, but that was about it. Congress had not spoken at all to the question of whether Scenic Hudson or any other citizens could even participate in Commission proceedings, much less appeal the agency's decision to a court of law.
At bottom, all that Doty and his clients had was that they didn't like the look of the Storm King project, which had some emotional appeal but very small legs. Then they received a gift from God.
* * *
I think no American river per mile is deeper in history, art, and perhaps literature than the Hudson, and some of its varied richness shows in the lore of the toponyms thereabouts. The river itself has been, to name a few, Cahohatatea, Shattemuck, Muh- heakunnuk, Mahicanittuck, Mohegan, Grande Rivière, Angoleme, Rio San Antonio, Rio de Gomez, Rio de Montaigne, Norumbega, Manhattan, Mauritius, River of the Prince, Nassau, Grotte, Noordt, River of the Mountains, and (even today) the North. Along its banks no name is richer than Storm King, which Henry Hudson knew as Klinkersberg but Dutch settlers called Butter Hill, a description the local nineteenth-century "dude poet" N. P. Willis found not at all befitting its dominance of the lower river. He, according to one journalist, "bestowed in cold blood" the name of Storm King.
William Least Heat-Moon
THERE IS another Hudson River with its own set of legends. It is a 13,500 square mile nursery supporting shad, sturgeon, herring, alewives, blue crab, and menhaden, the commercial catch of the Atlantic seaboard. As in all estuaries, this zone of fresh water and salt, stoked with nutrients upstream and mixed by the tides, makes for some of the richest production on Earth. What was different about the Hudson estuary was that the zone stretched so far inland, bringing to the Highlands ocean creatures as rare as electric moonfish and Caribbean sea horses, and exporting trophy catches as far away as Maine and the Carolinas. The Hudson had been a fishery for millennia. Dutch explorers found middens of discarded oyster shells twelve feet deep. As one traveler noted of the Indian tribes along the river, "famine they do not fear."
This is before we come to the striped bass, a fish with the body of a bomb shell, the stamina of a boxer, and a staggering abundance. The Indians caught them in purse seines woven from the stems of marsh plants and weighted down with stones. It was said to be their favorite for taste and for the reputation they carried, as reported by the observant Dutch, for making "their women lascivious." When the men returned from fishing, the report continued, they gave this particular species to the women, "who look for them anxiously." While one does not find reports today of fishermen dropping dead stripers on longing wives, their ardor for this fish, in this place, has scarcely diminished. Many a Northeastern home holds striped bass widows, she alone with a book or the television, he out on some rocks or a deserted beach, it may be raining, trying to catch a big one, the prize.
The striped bass connection to Storm King was made by a freelance writer named Robert Boyle who set out to cover the Hudson for Sports Illustrated magazine.
Not much was expected here. New York Harbor was widely regarded as a cesspool from which sea life had long been extinguished. To Boyle's surprise, he discovered fish. He also discovered commercial fishermen as far south as the George Washington Bridge. Better magazine copy yet, he found anglers in downtown Manhattan, fishing for stripers at the outfalls of sewers to the river. They talked nostalgically about the big runs at Seventy-Second Street that would attract up to forty men with rods at a time. They changed Boyle's life.
Before long Boyle was writing pieces on commercial fishers operating a few hundred feet from Sing Sing prison and holding their catch alive in abandoned mine pits. He uncovered a disheartening string of illegal dumps and toxic discharges that were poisoning the river. He dug out data on fish numbers and productivity, particularly at the mouth of the Hudson Highlands at Storm King Mountain. Boyle had heard about the power plant and the opposition to it, and he had a few concerns of his own. Among other things Con Ed's pumps were going to pull some six billion gallons of water out of the Hudson a day. A lot of fish would enter those tubes and never return.
In early 1964, ready for action, Boyle walked into the offices of Scenic Hudson. A former Marine, he was gruff, passionate, and loaded with facts. The group had no idea, he said, who the real losers were in this deal: the fishermen. The staff heard him out, jaws dropping, at the end of which one rose to her feet with a gleeful smile: "They're going to kill the fish! They're going to kill the fish!" It was, Boyle said later, like "Churchill hearing that Pearl Harbor had been bombed." Scenic Hudson had a second front, and an entirely new army to carry it.
* * *
SCENIC HUDSON needed all the help it could get. The hearings before the Federal Power Commission had not gone well. Con Ed objected to Scenic Hudson being present in the first place, an argument that the Commission rejected in all probability because the group's counsel, Dale Doty, had been one of their own. In these and subsequent proceedings, Doty would emphasize the aesthetic force of Storm King. A Yale University witness described the mountain as rising "like a Brown Bear out of the river, a dome of living granite, swelling with animal power," and went on to parallels in Greek mythology. To Con Ed's attorney, this line of testimony was as irrelevant as Scenic Hudson's very presence in the hearings. "Why waste time hearing people tell us this is an historic area?" he asked. Nonetheless, Scenic Hudson's witnesses were allowed to testify. The area was historic and it was beautiful. For whatever that meant.
In May 1965, the Commission did what everyone expected and approved the license. The benefits were tangible. The notion of beauty was classically the opposite, and seemed here to be only slightly impaired. Indeed, Con Ed produced a landscape architect of its own who testified that the size of the storage reservoir on top of Storm King would be an adornment to the mountain because "any large lake is handsomer than a small lake." As for the fishery, such issues were up to fish experts, and the company had hired one to claim that the effects would be minimal, particularly with the screens Con Ed promised to install to keep fish out of the tunnel. The decision did not even seem to be a close call.
So Scenic Hudson turned to the political arena. It motivated a committee of the state legislature to hold its own hearings on the matter. At which point Boyle made an amazing discovery. The winter months that year had been hard, and fish seeking warmer water had come to the huge intake structures of Con Ed's Indian Point Nuclear Reactor, only fifteen miles below Storm King. To deflect the fish from their pumps, the company had put in screens similar to those proposed at the Storm King plant, which turned out to be killing machines. Boyle had heard rumors of fish kills at Indian Point and went down to investigate. He was given photos of tons of dead fish piled up and shoveled out of the way in an effort to keep the plant's intakes open. Worse yet, there were striped bass in those rotting piles, the king fish of the Atlantic Seaboard. Armed with reports and photographs, Boyle and the newly formed Hudson River Fisherman's Association asked the Commission to reopen its hearings. Their request was denied, but their evidence in the record provided one more arrow on appeal.
No sooner had the Commission approved the license than Scenic Hudson, who knew the approval was coming, appealed to federal circuit in New York City. A wealthy patron of the Highlands offered to fund the appeal on the condition that it be handled by a lawyer in whom he had great confidence, Lloyd K. Garrison, a founding partner of one of the City's silk stocking law firms. Garrison had strong record in civil service. He was a leader in public education and often represented clients at odds with the US government. He had defended Robert Oppenheimer before the Atomic Energy Commission and Congress. He was also, according to a junior associate who would go on to handle the Storm King case after him for more than a decade, one of the most brilliant writers in the field. The case would ride in on a lion. It would also ride in on a law brief that took a very bold position.
Excerpted from Taking Back Eden by Oliver Houck. Copyright © 2010 Oliver A. Houck. Excerpted by permission of ISLAND PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author
Oliver Houck is professor of law at Tulane University, where he has received several teaching awards. In 2005, he received the Distinguished Achievement Award from the Environmental Section of the American Bar Association. He is author of a book on the Clean Water Act, editor of Environmental Law Stories, and wrote the foreword to Biodiversity and the Law.
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