In Section 9 of the Federal Water Pollution Control Act Amendments, Congress authorized a study of the feasibility of establishing an environmental court which would have exclusive jurisdiction over environmental matters. This mandate was devoid of any hint as to the shape and functions of the proposed court, and made no attempt to define the contours of an "environmental issue". An examination of the legislative history of the Act is no more helpful in illuminating the Congressional intent. The study was carried out by the Land and Natural Resources Division of the Justice Department which, because of the absence of concrete guidelines and of a definition of an environmental issue in the statute, was given the responsibility for transforming the broad, abstract mandate into concrete form. Unfortunately, the study itself, although it does present guidelines for the court, never defines an environmental issue; and the lack of such a definition remains a central problem in understanding and analyzing the findings of the report.
The remainder of this article will deal with the results of that study, summarizing the methods employed as well as the specific findings. Since the study does not recommend a separate environmental court as a solution, an alternative approach aimed at sharpening the contours of environmental law through education of the judiciary will be discussed briefly. It is not the aim of this article to present a full-blown conceptual alternative to the idea of an environmental court, but rather to suggest further areas for consideration.
George P. Smith II, The Environment and the Judiciary: A Need for Co-Operation or Reform, 3 B.C. ENVTL. AFF. L. REV. 627 (1974).