The Evolution of Environmental Activism and the Law from 1965 to 2021

“Demonstration London Demo - Free Photo on Pixabay.” Accessed March 24, 2022. https://pixabay.com/photos/demonstration-london-demo-activist-4193109/.

By Rachel Bina

Rachel Bina is a freshman in the Huntsman Program at the University of Pennsylvania studying Business and International Studies with a focus on Russia.

The idea of environmental activism is commonplace in the present-day United States, however, this was not always the case. American environmental activism only truly began in the 1960s, when American citizens started using litigation to advance environmental goals. The 1965 case Scenic Hudson Preservation Conference v. Federal Power Commission is widely recognized as the beginning of environmental law. In this case, the Scenic Hudson Preservation Conference, a citizen group, sued the Federal Power Commision in an attempt to block a planned power plant on Storm King Mountain, New York [1]. The court’s decision supported the citizen group and the power plant was not built.

Since then, a trend of citizen-led environmental litigation has continued with other landmark cases such as the 1972 Supreme Court case Sierra Club v. Morton. Walt Disney Enterprises was attempting to construct a ski resort at Mineral King Valley in California and the environmentalist group the Sierra Club objected to their permit application [2]. Although the Supreme Court rejected the suit, this decision catalyzed further action, and Mineral King Valley was never developed.

This trend of environmental legal activism moved simultaneously along with the more general environmental movement in the United States, which began with the publication of Silent Spring by Rachel Carson in 1962. During that decade, pollution was rampant and there were numerous environmental disasters such as the spontaneous combustion of the Cuyahoga River in Ohio due to the river’s great amount of debris and pollution [3]. As a result of the dire ecological situation exemplified by the Cuyahoga River Fire and the growing push for change, President Nixon signed an executive order to form the Environmental Protection Agency in 1970 to regulate environmental matters, ushering in a new wave of environmental litigation. The EPA regulates many aspects of the environment, such as pollution. In the 2007 Supreme Court case Massachusetts v. The Environmental Protection Agency, Massachusetts and several other states and environmental organizations sued the EPA after the agency denied a petition asking them to regulate pollutants from motor vehicles that contribute to global warming. The Supreme Court ruled that the EPA has the authority to regulate carbon dioxide and other greenhouse gases and must do so if these pollutants are endangering the public [4].

This case is again coming to the forefront of environmental policy because of an upcoming challenge to the ruling. In the case West Virginia v. The Environmental Protection Agency, West Virginia is suing the EPA, alleging that the EPA’s 2015 Clean Power Plan—which was the first national regulation standard of greenhouse gas emissions from power plants—is beyond the authority of the EPA. The case is currently being argued before the Supreme Court, and poses a possible setback to the Biden Administration’s climate agenda. 

One of Biden’s most ambitious goals is his climate agenda, which follows a three pronged approach. By (1) implementing tax incentives for clean energy, (2) imposing tougher regulations for pollution from power plants and automobiles, and (3) having states pass clean energy laws, the Biden Administration hopes to be able to meet their goal of a carbon-neutral nation by 2050.

The enactment of tougher pollution regulations will be done through EPA regulations that impose strict mandates on fuel efficiency and emissions standards for automobiles [5]. In the case, West Virginia is attempting to argue that under non-delegation doctrine, the Constitution does not give Congress the ability to delegate regulatory power to the EPA in the context of regulating pollutants and greenhouse gas emissions [6]. 

If West Virginia wins this case, the regulatory powers of the EPA will be severely limited, and Biden’s climate plan may begin to fall apart. However, at the same time, a ruling in West Virginia’s favor may open up new avenues for litigation to control pollutants. In the case American Electric Power Co., Inc. v. Connecticut, the Supreme Court ruled that private parties cannot sue to curb emissions because this type of action is exclusively delegated to the EPA under the Clean Air Act [7]. However, if the EPA no longer wields the same regulatory powers as before, this decision may change and private parties may start suing companies to force them to curb their emissions instead.
The largest impact of a possible ruling in West Virginia’s favor is a severe limit to the ability of the EPA to regulate environmental matters and force all environmental regulation to move through Congress. As a result, legislation would move extremely slowly and be unable to be implemented efficiently and changed in response to new research. On a grander scale, this ruling would have global ramifications, setting the US back in its attempt to attain global emission goals from the Paris and Glasgow climate summits. Private litigation would once again be able to proceed to sue companies for pollution. However, the possible gains of these suits are miniscule compared to the loss of having the EPA as a regulatory body, and the loss of American credibility in promoting environmental policies internationally.
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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1. “Scenic Hudson Preservation Conference v. Federal Power,” Justia, https://supreme.justia.com/cases/federal/us/407/926/.
2. “Sierra Club v. Morton,” Oyez, https://www.oyez.org/cases/1971/70-34.
3. “Cuyahoga River Fire,” Ohio History Central, http://ohiohistorycentral.org/w/Cuyahoga_River_Fire.
4. “Massachusetts v. Environmental Protection Agency,” Ballotpedia, https://ballotpedia.org/Massachusetts_v._Environmental_Protection_Agency.
5. “Biden Proposes Stronger Than Expected Vehicle Emission Rules (1),” Bloomberg Law, Aug. 5, 2021, https://news.bloomberglaw.com/environment-and-energy/biden-epa-proposes-stronger- than-expected-vehicle-emission-rules.
6. “West Virginia v. Environmental Protection Agency,” Ballotpedia, https://ballotpedia.org/West_Virginia_v._Environmental_Protection_Agency.
7. “American Electric Power Co., Inc. v. Connecticut,” Oyez, https://www.oyez.org/cases/2010/10-174.