The Making of Environmental Law

By Richard J. Lazarus

An updated and passionate second edition of a foundational book.
 
How did environmental law first emerge in the United States? Why has it evolved in the ways that it has? And what are the unique challenges inherent to environmental lawmaking in general and in the United States in particular?  
 
Since its first edition, The Making of Environmental Law has been foundational to our understanding of these questions. For the second edition, Richard J. Lazarus returns to his landmark book and takes stock of developments over the last two decades. Drawing on many years of experience on the frontlines of legal and policy battles, Lazarus provides a theoretical overview of the challenges that environmental protection poses for lawmaking, related to both the distinctive features of US lawmaking institutions and the spatial and temporal dimensions of ecological change. The book explains why environmental law emerged in the manner and form that it did in the 1970s and traces how it developed over sequent decades through key laws and controversies. New chapters, composing more than half of the second edition, examine a host of recent developments. These include how Congress dropped out of environmental lawmaking in the early twenty-first century; the shifting role of the judiciary; long-overdue efforts to provide environmental justice to disadvantaged communities; and the destabilization of environmental law that has resulted from the election of Presidents with dramatically clashing environmental policies. 
 
As the nation’s partisan divide has grown deeper and the challenge of climate change has dramatically raised the perceived stakes for opposing interests, environmental law is facing its greatest challenges yet. This book is essential reading for understanding where we have been and what challenges and opportunities lie ahead.  

• Language: English
• Publisher: University of Chicago Press
• Release date: Feb 15, 2023
• ISBN: 9780226695594

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Cover Page for The Making of Environmental Law

The Making of Environmental Law

The Making of Environmental Law

Second Edition

Richard J. Lazarus

The University of Chicago Press

CHICAGO LONDON

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2004, 2023 by The University of Chicago

All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637.

Published 2023

Printed in the United States of America

32 31 30 29 28 27 26 25 24 23     1 2 3 4 5

ISBN-13: 978-0-226-82153-5 (cloth)

ISBN-13: 978-0-226-69545-7 (paper)

ISBN-13: 978-0-226-69559-4 (e-book)

DOI: https://doi.org/10.7208/chicago/9780226695594.001.0001

Library of Congress Cataloging-in-Publication Data

Names: Lazarus, Richard J., author.

Title: The making of environmental law / Richard J. Lazarus.

Description: Second edition. | Chicago ; London : The University of Chicago Press, 2023. | Includes bibliographical references and index.

Identifiers: LCCN 2022007620 | ISBN 9780226821535 (cloth) | ISBN 9780226695457 (paperback) | ISBN 9780226695594 (ebook)

Subjects: LCSH: Environmental law—United States. | Environmental law—United States—History. | Environmental protection—United States. | Environmental protection—United States—History.

Classification: LCC KF3817 .L398 2023 | DDC 344.7304/6—dc23/eng/20220428

LC record available at https://lccn.loc.gov/2022007620

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

To Jeannie, Sam & Jesse and

In celebration of M&M and D&D

Contents

Acknowledgments

Introduction

Part I: Making Environmental Law

1  Time, Space, and Ecological Injury

2  The Implications of Ecological Injury for Environmental Protection Law

3  The Challenges for US Lawmaking Institutions and Processes of Environmental Protection Law

Part II: The Road First Taken—The Twentieth Century

4  Becoming Environmental Law

5  Building a Road: The 1970s

6  Expanding the Road: The 1980s

7  Maintaining the Road: The 1990s

Part III: A Road Disrupted—The Twenty-First Century

8  The Super Wicked Problem of Climate Change

9  The George W. Bush Administration: Redrawing the Battle Lines

10  The Obama Administration: Getting to Paris

11  The Trump Administration: Swinging the Meat Ax

Part IV: Looking Back and Going Forward

12  Convergence and Building Blocks within Environmental Law

13  The Next Fifty Years

Notes

Index

Acknowledgments

This book is the result of years of thinking about environmental law. The book’s content necessarily reflects discussions that I have enjoyed and immensely benefited from in different stages over four decades of my career, including those with law school classmates and faculty at Harvard in the 1970s; with colleagues at the Department of Justice in both the Environment and Natural Resources Division and the Solicitor General’s Office in the 1980s; and with faculty and students at Indiana University, Washington University, Georgetown University, and Harvard University. The book also harmonizes, modifies, and builds on some ideas expressed in a variety of discrete areas of environmental law in several of my prior publications, including The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 Law & Contemp. Probs. 311 (1991); Pursuing ‘Environmental Justice’: The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787 (1993); Shifting Paradigms of Tort and Property in the Transformation of Natural Resources Law, in Trends in Natural Resources Law and Policy (L. MacDonnell & S. Bates eds., 1993); Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 Geo. L.J. 2407 (1995); ‘Environmental Racism! That’s What It Is,’ U. Ill. L. Rev. 255 (2000); Restoring What’s Environmental about Environmental Law in the Supreme Court, 47 UCLA L. Rev. 703 (2000); The Greening of America and the Graying of Environmental Law: Reflections on Environmental Law’s First Three Decades in the United States, 20 Va. Envtl. L.J. 75 (2001); A Different Kind of ‘Republican Moment’ in Environmental Law, 97 Minn. L. Rev. 999 (2003); Congressional Descent: The Demise of Deliberative Democracy in Environmental Law, 94 Geo. L.J. 619 (2006); Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 Cornell L. Rev. 1153 (2009); The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek behind the Curtains, 100 Geo. L.J. 1507 (2012); Senator Edmund Muskie’s Enduring Legacy in the Courts, 67 Me. L. Rev. 240 (2015); Judicial Missteps: Legislative Dysfunction and the Public Trust Doctrine: Can Two Wrongs Make It Right?, 45 Envtl. L. Rev. 1139 (2016); The Super Wicked Problem of Donald Trump, 74 Vanderbilt L. Rev. 1811 (2020); The Rule of Five—Making Climate History at the Supreme Court (2020); and Stewart’s Paradoxes of Liberty, Integrity, and Fraternity: Sobering Lessons from COVID-19 for Environmental Law, 29 N.Y.U. Envtl. L.J. 543 (2021).

I am especially indebted to those giants in the legal academy whose early environmental law scholarship played a significant role in shaping modern environmental law in the United States. Three such scholars, Joe Sax, Bill Rodgers, and Dan Tarlock, were kind enough to comment on a draft manuscript of the first edition and to offer significant ideas for its improvement. A fourth, Oliver Houck, and I coedited the book Environmental Law Stories. Oliver’s passion and eloquence for environmental law is without peer. As is well known by many at both the Department of Justice and the Department of the Interior, no wiser environmental advisor exists than Anne Shields, who also generously provided extensive comments on an early draft. Chris Schroeder, an environmental law scholar of enormous intellectual breadth, similarly provided comments on the first edition that made me rethink portions of the draft, all to its betterment. I was also fortunate that two outstanding environmental law practitioners and scholars, Sean Donahue and Amanda Cohen Leiter, read early drafts of that edition and offered insightful critiques. The book is far better as a result of all these reviews, as it is from workshop presentations at the law schools at Georgetown University, Harvard University, Stanford University, University of Georgia, Tulane University, and Widener University.

I was serving on the law school faculty of Georgetown University when I published the first edition and remain grateful to then Dean Judith Areen, who generously provided me with summer research support for this project, and my faculty colleagues there—especially Mark Tushnet, Peter Byrne, Hope Babcock, Edie Brown Weiss, Lois Schiffer, Mike Seidman, and Dan Ernst—offered me wise counsel when I first commenced the project. The Wilson Center, where I served as a fellow, provided me with an academic year away from law teaching in 1999–2000 that allowed me to conduct the necessary preliminary research in a collegial environment surrounded by gifted scholars from a variety of academic disciplines and nations. Numerous law students at Georgetown contributed invaluable research assistance for this book, including Michael Doherty, Carrie Jenks, Kate Mayer, Kelly Moser, Dan Eisenberg, and Ramy Sivasubramanian. Michael Doherty, in particular, performed yeoman’s work in preparing the graphs of congressional voting reproduced in chapter 7. Georgetown law student and in-house editor John Showalter repeatedly lent his extraordinary talents to the drafting process. I remain grateful to John Tryneski of the University of Chicago Press for his early and consistent support for the project, for securing outstanding anonymous peer reviews of drafts, which improved the book’s quality, and for bringing such skilled individuals as Leslie Keros and Ashley Cave of the Press to the final stages of the first edition’s preparation and production. The first edition also benefited from David Bemelmans, who performed a masterly and thoughtful edit of the final product, and from Martin White, who skillfully assisted in the preparation of the index.

I joined the Harvard Law School faculty in 2011, where I have prepared this second edition with the wonderful support of my dean and friend, John Manning. I have had the benefit here too of several outstanding student research assistants, including Gabe Doble, Grant Glovin, and James Pollack, all Harvard Law School Class of 2020; Jason Bell, Ben Miller-Gootnick, and Matthew Morris, all Harvard Law School Class of 2021; Lia Cattaneo and Amy Couture, both Class of 2022; and Andrew Slottje, Class of 2023, in preparing this second edition. Madeline Kane, also from the Class of 2021, provided not only excellent research but the added gift of terrific editorial assistance, which has improved significantly the readability of this second edition. Her distinct contributions to part III of this book were far beyond that of even the most outstanding student research assistance, extending to initial writing. The discussion in chapter 10 of the Flint, Michigan, water crisis, including its systemic roots, is based on an outstanding seminar paper Madeline authored. My enormously talented faculty assistant, Melinda Eakin, is, as always, without peer as a copy editor, identifying and correcting typographical and formatting errors throughout. The University of Chicago’s editorial team, especially Sara Doskow and Elizabeth Ellingboe, skillfully championed the second edition through the final stages of production, and Enid Zafran crafted a terrific index.

I have also greatly benefited from the clear-eyed thinking of my treasured Harvard faculty colleague Jody Freeman. Jody joins Georgetown’s Peter Byrne, Hope Babcock, and Edie Brown Weiss as the finest professional colleagues with whom I have had the joy of working. Faculty colleagues at other schools who contributed significantly to my thinking and made terrific suggestions that informed this second edition include Ann Carlson, Jonathan Cannon, Ricky Revesz, Rob Glicksman, Tom McGarity, Jim Salzman, Rob Verchick, Catherine O’Neill, Bob Percival, John Echeverria, Michael Gerrard, Maxine Lipeles, Zyg Plater, Tom McGarity, Dan Farber, Bill Buzbee, Dave Owen, Robin Craig, Rick Reibstein, Irma Russell, Gerald Torres, Michael Vandenbergh, Sarah Light, Nadia Ahmad, Jonathan Wiener, and David Westbrook. The Justice Department’s own environmental law wizard, Andy Mergen, years ago my student, has become my important teacher over the years.

Finally, my own family played no small role in the book’s production, including both the first and this second edition. My two sons, Jesse and Sam; Sam’s wife, Molly; my wife, Jeannie Austin; my brother, Billy; my sister Twiggy (aka Mary Ann) and my late sister Barby; and my parents, Betty and David Lazarus, served as a constant source of inspiration. Billy is himself a spectacular environmental lawyer, serving as an assistant chief in the Appellate Section of the Environment and Natural Resources Division at the US Justice Department, where he has worked for now almost forty years. Twiggy is a highly gifted architect who has done pathbreaking work on green architecture. Jeannie, who is also an outstanding lawyer, wonderful writer, former EPA economist, global human rights attorney, and gifted artist, was an invaluable sounding board beginning when I first contemplated writing this book. A kind, supportive, and patient partner, she made this book possible.

Introduction

In the fall of 1975, I worked evenings as a bartender while completing my senior year at the University of Illinois at Urbana-Champaign. I was pursuing degrees in chemistry and economics in anticipation of enrolling in law school the following year, with the ultimate aim of becoming an environmental lawyer. I well remember a conversation I had one evening with a customer who turned out to be a high-ranking corporate officer for the only major private manufacturing facility in the community—a food-processing plant owned by Kraft Industries that produced cheese. Upon learning of my plans to become an environmental lawyer, he gamely responded that environmental law was a mere fad—a flash in the pan that offered no meaningful future career opportunities. At the time, I silently labeled him a fool: a businessman clearly lacking any appreciation of the compelling nature of the environmental threats and resulting political forces then driving the emergence and spread of environmental law. Now, with the benefit of more than forty-five years of hindsight, I realize that there was far more force to his intuition than my own youthful self-assuredness allowed me then to perceive.

I understood the events of those years—from the inauguration of Earth Day in April 1970; the creation of legal institutions, such as the President’s Council on Environmental Quality and the US Environmental Protection Agency (EPA), also in 1970; to the passage of federal statutes, such as the National Environmental Policy Act of 1969, the Clean Air Act of 1970, and the Federal Water Pollution Control Act Amendments of 1972—to be the inevitable product of irreversible social and political forces emanating from the environmental protest movements of the 1960s. Yet I failed to foresee the headwinds. As a twenty-one-year-old, I was not surprisingly unappreciative of the relative youth of events, institutions, and laws then in existence for fewer than five years. I also lacked any comprehension of how extraordinary it was for such laws to have been enacted in light of their enormously radical redistributive thrust and the inherently and deliberately conservative nature of the nation’s lawmaking institutions. Nor could I predict the strength and tenacity of the efforts that would soon unrelentingly attack the redistributive impact of new environmental protection laws.

But what is even more remarkable than my youthful impertinence is that my intuition, notwithstanding its thin basis, turned out to be correct. Environmental law in the United States has been surprisingly persistent—almost stubbornly so. It has not proved to be a flash in the pan. In fact, the opposite has occurred.

Environmental law’s obituary in the United States has been written repeatedly during the past five decades in response to a series of powerful, seemingly overwhelming efforts to reverse course. Not long after initially embracing environmentalism, establishing the EPA, and promoting early environmental legislation, President Richard Nixon became one of environmental protection law’s sharpest critics. Nixon, like his successors Presidents Gerald Ford and Jimmy Carter, saw the energy crisis of the mid-1970s as reason for significant retreat from the overly ambitious environmental laws enacted earlier in the decade, which had made costlier the extraction and combustion of domestic coal. Nixon advised his cabinet to [g]et off the environmental kick.¹ In 1980 presidential candidate Ronald Reagan campaigned successfully on a platform openly hostile to federal environmental protection regulations, and upon taking office he immediately sought to reduce substantially their scope and reach. In its final years, the George H. W. Bush administration similarly took specific aim at environmental protection, with the Council on Competitiveness headed by Vice President Dan Quayle singling out environmental laws as a target for its regulatory reform efforts.

Yet, notwithstanding the focused efforts of those several presidential administrations in the 1970s, 1980s, and early 1990s to cut back on environmental protection restrictions, just the opposite happened. With strong congressional backing, the laws become more, not less, demanding. With stubbornly bipartisan support, Congress passed a series of new laws that not only imposed more stringent pollution control and natural resource conservation requirements, but also reduced the discretion of the executive branch to undermine those protections. Environmental protections grew tougher, despite constant pressure to deregulate.

This pattern repeated itself during three more whipsawing presidential administrations. During Bill Clinton’s presidency in the 1990s, the Contract with America promoted by Speaker of the House of Representatives Newt Gingrich and the 104th Congress was deliberately designed to cut back on environmental laws by reducing federal budgets used for their implementation, by relaxing requirements that states implement environmental controls, by permitting industry to emit higher levels of pollution, and by compensating property owners for reductions in property value resulting from environmental restrictions. But none of that legislation passed. Nor was the administration of George W. Bush, which at the outset seemed poised to resurrect the deregulatory environmental agenda of the Reagan administration, any more successful. Bush cutbacks were mostly either rejected by the courts or fell short of completion by the time the Bush presidency came to a close in January 2009.

During President Barack Obama’s two terms, moreover, environmental law rebounded in response to the deregulatory efforts of the Bush administration. To be sure, the Obama administration, like the immediately preceding Clinton and Bush administrations, failed to secure congressional passage of long-overdue environmental legislation. But, for eight years, Obama environmental appointees filled the lawmaking gap left by Congress, embracing a muscular approach to executive branch power to adopt new environmental protection rules. The upshot was new regulations aimed at reducing air and water pollution, lowering greenhouse gas emissions, decreasing the nation’s reliance on fossil fuels, and protecting natural resources of exceptional value.

The Trump administration’s response to the Obama administration’s environmental lawmaking efforts was no less potentially historic and underscored that environmental law remains as politically divisive as ever. Upon taking office in January 2017, President Donald Trump personally championed environmental deregulation to a far greater extent than any prior president. His administration embraced a scorched-earth approach on significant federal environmental protection legal requirements. During the Trump administration, executive branch agencies targeted for rollbacks almost every single important environmental protection rule of the previous four decades no matter how widely settled and accepted, including by many in the business community that had come themselves to rely on those rules.

But that is also why the early end of the Trump administration and the arrival of the Biden administration, which promised on its very first day to reverse all the Trump environmental rollbacks, provide such a proper occasion both to revisit modern environmental law’s history and, almost twenty years after the publication of the first edition of the book, to reassess its future. Notwithstanding the Trump administration’s efforts, a snapshot comparison of our nation’s environmental laws in January 1970 with those today reveals a dramatically changed legal landscape in favor of greater environmental protection. In 1970 there was only a smattering of emerging state environmental laws and even fewer at the federal level, which lacked any pollution control agency. Today there are comprehensive and stringent pollution control and natural resource management laws—and corresponding agencies responsible for their implementation and enforcement—in the federal government, all fifty state governments, and an increasing number of tribal authorities.

In 1970 a few national environmental public interest groups were emerging. Now membership in those organizations has swelled to millions, and the organizations have been joined by thousands of grassroots efforts around the country. Environmental education has become a standard part of the curriculum in many schools, and an environmental technology industry, worth a reported $345 billion, employs approximately 1.6 million workers.²

Meanwhile, environmental law’s emergence during the past half century has triggered a broader evolutionary process in the law. The significance of environmental law is not confined to the environmental protection laws themselves or to their most obvious regulating institutions, such as the EPA. Those laws and legal institutions are just the most recognizable expression of the legal transformation. Rather, the teachings and values of environmentalism have infused one intersecting category of legal rules after another, reshaping the nation’s laws in response to the public’s demand for environmental protection. Areas of the law as diverse as administrative, bankruptcy, civil rights, corporate, criminal, free speech, insurance, property, securities, tax, and tort law continue to evolve in response to the public’s environmental protection goals.

The results of this extraordinary transformation of our nation’s laws are both palpable and positive. Few would dispute the contention that our air, water, and land are far cleaner today than they would have been absent such legal reform. In many respects, the quality of the natural environment in the United States is better on an absolute scale than it was over five decades ago, notwithstanding the tremendous increases in economic activity during the same period. The air we breathe in many urban areas is far healthier than before. According to a recent EPA report, aggregate emissions of the six principal air pollutants monitored since 1970 have decreased by 77 percent, while energy consumption has increased by 48 percent, vehicular miles traveled by 195 percent, and gross domestic product by 285 percent. Waterways that were no better than open sewers once again support healthy aquatic ecosystems suitable for recreation. Two-thirds of the nation’s surveyed waters are currently safe for fishing and swimming, compared to half that number in the early 1970s. Waste disposal, especially the disposal of hazardous wastes, is closely regulated, and the inactive and abandoned waste dumps that serve as the legacy of past inattention are being cleaned up.³

No doubt the significant gaps in the coverage, implementation, and enforcement of existing laws leave much work undone and some resources misdirected and unduly fragmented in their focus. Environmental injustice, as reflected in the disproportionate pollution inflicted upon communities of color and low-income communities in the United States, remains a persistent, serious problem that the newly elected Biden administration has promised to make a first priority. More than 129 million Americans still live in areas where pollution levels exceed national ambient air quality standards, and, because of largely unregulated sources of water pollution, much of the nation’s waterways and drinking water fail to meet water quality standards. Yet the far worse environmental catastrophes experienced by many other industrialized nations offer compelling testimony to what environmental law has spared the United States overall. As a former EPA administrator fairly boasted, there is no more significant success story in the realm of public policy in recent history than US environmental regulation. Millions of American lives have been saved, the public health of tens of millions more has been safeguarded, and the quality of the natural environment has been protected from potentially catastrophic degradation.⁴

How environmental law first emerged, why it has since evolved in the way that it has, and what challenges it presently faces make for a fascinating and revealing story, which this book seeks to tell. In telling that story I show how the effort to fashion pollution control laws confronts special problems, both because of the nature of pollution itself and the known means of pollution control, and because of our nation’s varied processes for lawmaking and the ways those processes relate to important cultural norms. Many of these challenges relate to the varied, complex, and uncertain spatial and temporal dimensions of pollution itself, factors that resist simple redress.

The purpose of this book is to describe these challenges, relate them to actual events that occurred during the past five decades, and discuss what lessons can be gleaned from those decades to meet those same challenges today and in the future. The book is, accordingly, divided into four parts.

Part I, consisting of three chapters, provides a theoretical overview of the challenges presented by environmental protection for lawmaking. The first two chapters describe the relevant physical features of the natural environment and its transformation by humankind, with emphasis on their spatial and temporal dimensions that especially challenge the fashioning of legal rules. The third chapter analyzes in greater detail how these features relate to the structure of US lawmaking institutions in federal, state, and tribal sovereign authorities and within all three branches of government.

Part II is more explanatory in nature. It relates the more theoretical analytic framework regarding the nature of environmental lawmaking developed in part I to the actual events surrounding modern environmental law’s evolution during the final three decades of the twentieth century. The first chapter in part II describes in detail why environmental law emerged in the manner and form that it did in the 1970s. The next three chapters of part II describe and analyze events and public attitudes in the 1970s, 1980s, and 1990s. For each decade there is a discussion of both the laws enacted and the major controversies, all expressly linked to the theoretical discussion set out in part I.

Part III describes the highly disrupted nature of environmental law’s evolution during the first two decades of the twenty-first century. Its opening chapter seeks to explain how the nation’s ongoing struggle to address climate change, while orders of magnitude greater in difficulty than other environmental threats we have faced, is very much rooted in the same theoretical challenges described in part I of the book. The next three chapters describe how environmental law has been whiplashed during the twenty-first century by the dramatically shifting policy priorities of the Bush, Obama, and Trump administrations, especially as they related to addressing climate change.

Finally, part IV both looks back at modern environmental law’s first fifty years and looks forward to its next fifty. The first chapter reviews the emerging architecture of environmental law, as it has evolved over the past five decades. What began in the 1970s and 1980s as a quickly stitched quilt of legislative and regulatory responses has begun to resemble a coherent new field of law addressing pollution control and natural and energy resources management issues. The challenges of the next fifty years, however, are more daunting than ever. The true measure of environmental law’s success will be its ability to address the most important and hardest issue of our times—climate change—while meeting the essential demands of environmental justice.

By reviewing the first several decades of modern environmental protection law in the United States, I hope we find not a description of environmental law’s life cycle, but rather a useful history of what will naturally become over time environmental law’s early years. It remains for future lawyers and scholars to carry forward the stewardship of environmental law in response to the world they find and to tell their own story in due course.

Part I: Making Environmental Law

Law is inherently contextual: its content invariably depends on its subject matter. Legal substance must be responsive to the character of the conduct or activity it purports to govern. The focus of some areas of law is itself a legal construction. This is so, for example, with civil procedure, evidence, federal courts, legislation, and both administrative and corporate law. These are all areas of the law largely internal to the legal system. Many other areas of law, however, must be primarily responsive to fixed factors, wholly external to the law itself, that determine the character of the problems and associated human activity that the law seeks to govern. Family law must, for example, respond to certain biological and sociological facts. Telecommunications law must similarly reflect the principles of physics implicated by the electromagnetic spectrum and by various telecommunications technologies.

Environmental law falls largely into the latter, external, category. Its touchstone is ecological injury caused by human activity. Broadly stated, environmental law regulates human activity in order to limit ecological impacts that threaten public health and biodiversity. Its premise is not that any human transformation of the ecosystem should be per se unlawful. Environmental law’s objective is far more nuanced. It accepts, in light of the laws of thermodynamics, that ecological transformation is both unavoidable and very often desirable, yet seeks to influence the kind, degree, and pace of those transformations resulting from human activity.

Environmental protection law is, however, intrinsically difficult to make in the first instance and can be just as difficult to maintain over time. That is because the law’s two most basic ingredients—its problems and solutions—are fundamentally incompatible. Specifically, the features of the ecological injuries, that is, those problems that environmental protection law intends to solve, are ill-suited to the structure and character of lawmaking institutions in the United States. Most revealing of this mismatch, the spatial and temporal horizons of ecological injury contrast sharply with those of lawmaking institutions—a topic discussed at length below. As a result, it is exceedingly difficult to enact, implement, and enforce needed environmental laws. Moreover, over the longer term, these laws invariably become sources of great controversy and resistance, generating a destructive cycle of public distrust of law and of lawmaking institutions.

The notion that environmental lawmaking presents unique institutional and social challenges, especially for Western legal traditions, is not new. Based on just such generalized concerns, many commentators prophesied fifty years ago that environmentalism would inevitably lead to enormous political upheaval in the United States. Some predicted that only a fascist state could meet the challenges of effectively regulating environmental pollution. According to William Ophuls in the initial edition of his darkly foreboding Ecology and the Politics of Scarcity, published in 1977, [t]he golden age of individualism, liberty and democracy is all but over. Garrett Hardin, author of the widely influential essay The Tragedy of the Commons, from 1968, similarly argued for a world government that is sovereign in reproduction matters and went on to claim that injustice is preferable to total ruin. Still others, while less pessimistic about democracy’s capacity to embrace the necessary legal regime, were confident that only a Green Party could accomplish such revolutionary strides.¹

None of these now seemingly extreme prophecies, of course, has yet been realized. But that is not because they overstated the substantial difficulties associated with environmental lawmaking. Rather, the fact that these predictions have so far fallen short highlights the US legal system’s capacity for reform and evolution, although as described in this book’s closing chapter, climate change is currently testing that capacity anew.

To illuminate the challenges that environmental lawmaking must overcome, this part of the book proceeds in three chapters. The first two separately discuss the two basic components of environmental law: the features of the ecological injuries that environmental protection law seeks to address and the implications of these features for environmental protection law. The final chapter of this part analyzes the inherent mismatch between these characteristics and US lawmaking institutions, and describes the resulting challenges to adopting, implementing, and enforcing environmental law.

One

Time, Space, and Ecological Injury

Laws exist to solve problems. Environmental law, then, must be responsive to the types of problems it seeks to address: generally, the physical causes and effects of environmental degradation. Humans have attempted to solve such problems for centuries. Concerns regarding human environmental impact have only recently intensified enough to produce a comprehensive legal regime, but they were sufficient to spawn meaningful scientific research by the eighteenth and nineteenth centuries. At that time, scientists concerned about the ecosystems of various islands exploited by trading companies began to study their potential for irreversible damage. An especially prescient contribution was British scientist J. Spottswood Wilson’s 1859 paper on what he described as The General and Gradual Desiccation of the Earth and Atmosphere by changing proportions of oxygen and carbonic acid in the atmosphere.¹

Without question, however, George Perkins Marsh broke new ground with his classic work Man and Nature: Or, Physical Geography as Modified by Human Action. Published in 1864, it represented the earliest known comprehensive scientific examination of human environmental degradation. Marsh’s explicit purpose was to point out the dangers of imprudence and the necessity of caution in all operations which, on a large scale, interfere with the spontaneous arrangements of the organic or the inorganic world. That thesis, which succinctly declares the importance of objective scientific information, the propriety of adhering to a precautionary principle, and the potentially exponential nature of large-scale ecological threats, is as relevant to questions of environmental law in contemporary times as it was to the scientific debate in Marsh’s day.²

While environmental law’s overarching rationale may be both concise and enduring, its precise terms cannot. Instead, its terms are intricate and susceptible to constant change. The reason is clear: environmental law cannot be a simple matter, because the objects of its concern—the ecosystem and the human activities causing its degradation—are themselves not simple. Environmental law is necessarily almost as complex and dynamic as the ecosystem it seeks to protect.

The Earth’s Ecosystem: Complex and Dynamic

Ecologists typically describe Earth’s ecosystem as having two fundamental features. The first is its sheer complexity; the second is its dynamic nature. For that reason, it should not be surprising that Earth’s ecosystem defies a precise unitary or static description. For some purposes, the global ecosystem is often conceptualized as atmosphere, biosphere, hydrosphere (aquatic systems), and lithosphere (the solid portion of Earth, including the outer surface and the solid interior of the planet). For others, the more traditional classification has been to distinguish between air, water, land, plants, and animals. A mixed approach contends that there are seven different types of ecological systems: vegetation cover, animal populations, soil, waters, geomorphology (creation of landforms), atmosphere, and climate.³ But these models are oversimplified.

A sharply contrasting and more accurate image is revealed by focusing on the critically important chemical cycles that interlock various aspects of the ecosystem, resisting the traditionally understood boundaries between them. Whether basic chemical elements (e.g., carbon, hydrogen, sulfur, and nitrogen) or compounds (e.g., water), the constitutive components of life perpetually cycle through virtually all Earth’s ecological systems in exceedingly complex and dynamic interrelationships. These geochemical cycles bind the entire global ecosystem together over space and time. To alter them is to trigger far-reaching spatial and temporal spillover effects. Ecological sustainability thus depends on myriad, intricate chemical cycles, from the widely known carbon and water cycles to countless others of equal importance.⁴

Sulfur, for example, is found in the atmosphere, hydrosphere, lithosphere, and biosphere, but sulfur’s predominant chemical compound differs considerably in each place. The vast majority of Earth’s sulfur exists as inorganic metal sulfides and sulfates in rocks in the lithosphere, which consists of a solid shell of soil and rocks at Earth’s surface extending to a depth of fifty kilometers. But sulfur in the soil layer immediately at Earth’s surface, known as the pedosphere, is generally found in organic compounds, as is atmospheric sulfur, predominantly as carbonyl sulfide.⁵ Sulfur flows between Earth’s crust, atmosphere, and oceans, mobilized by both natural and human causes. The former includes volcanic emissions, biological decay, sea spray, and the weathering of rocks and soils. Human influences in the flow of sulfur include fossil fuel combustion, metal smelting, sulfur mining, and agricultural activities. Both the natural and human sources of sulfur flow are, accordingly, nonuniform in terms of both their spatial and temporal dimensions. They depend on events that predominate in only some parts of the planet and only at certain times.⁶

Soil illustrates how a chemical cycle like sulfur’s is highly susceptible to spillover effects. Seemingly static to most people, soil is understood by those expert in its science to be an ever-changing zone of interaction at the elusive boundary of the biosphere and geosphere. The various gaseous, liquid, and solid chemical compounds found within any given soil system at any one moment in time, as well as its particular micro-, meso-, and macrobiota, reflect the unique blending of continuous atmospheric, hydrospheric, biologic, and geologic processes occurring there.⁷

Earth’s soil system serves several essential ecological functions: it not only supports life, both plant and animal, but also provides the physical locus for necessary interactions of the carbon, nitrogen, sulfur, and oxygen cycles. The soil system further serves a primary function in regulating the chemical composition of the atmosphere and hydrosphere. Soil, through its respiration, engages in a constant exchange of gases, including methane, ammonia, hydrogen sulfide, and nitrogen oxides, with the lower atmosphere. Finally, soil serves as an important repository for the energy and valuable minerals found within organic matter, allowing for the natural recycling of dead plants and animals. A change to any of these processes produces profound ecological reverberations.⁸

Earth’s climate is another, and perhaps the most obvious, example of how chemical cycles interact to establish exceedingly complex and dynamic ecosystems. Climate is the product of five interwoven ecological subsystems: the atmosphere, oceans, cryosphere (consisting of ice and snow), vegetation, and land. As with soil, changes in one part of the climatic system at a given time or place can create ripple effects. Again, such effects may be far removed or quite localized—both spatially and temporally. These patterns obscure the precise cause and effect of climatic changes, making long-term predictions exceedingly difficult. As one prominent academic expert has noted, If you were going to pick a planet to model, this is the last planet you would choose.⁹

As with the sulfur cycle, there are both natural and human sources of climatic change. Natural sources are either external or internal. Examples of external sources include changes in solar output or in the tilt of Earth’s axis—either one of which may significantly affect the amount of solar radiation in the atmosphere. Internal sources of climatic change include naturally occurring feedback loops between different parts of the system, such as between the atmosphere and the polar ice caps, in which a change in one can prompt a responsive shift in the other with potentially countervailing climatic impacts. Human influences on climatic change include industrial emissions of carbon dioxide and other chemical compounds that promote atmospheric warming through the so-called greenhouse effect, deforestation that reduces consumption of carbon dioxide, and use of aerosols that may affect the balance of solar radiation in the atmosphere.¹⁰

This picture of the natural environment and its complex array of interlocking ecological systems sharply contrasts with the once dominant, but now antiquated, notion of nature as dependent on a static equilibrium. Nature is not at all static, but is constantly changing. As aptly described by one ecologist, nature is only a shimmer of populations in space and time. Hence, transformation or change cannot itself be dubbed either natural or nonnatural, or for that matter always be labeled good or bad. The absence of such a fixed natural baseline, of course, makes it far more difficult to isolate human sources of ecological change, let alone to determine which ones should be permitted, restricted, or even promoted. Aldo Leopold’s famous maxim that [a] thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community and wrong when it tends otherwise is wonderfully evocative but, as Leopold himself understood, inapposite as a touchstone for the formation of ecosystem management. Ecosystems are dynamic in space and time. Effective ecosystem management must, accordingly, constantly reconcile nature’s spatial and temporal scales with those of humankind, including the latter’s often far more limited planning horizons.¹¹

The Transformation of Earth

Environmental law’s challenge is to regulate, where possible, the process of ecological transformation. This means regulating not only the extent of transformation but, just as importantly, its geographic location and its pace. Human impact along the latter two dimensions—the spatial and temporal scales of ecological change—has accelerated. We have traveled far beyond merely scratching the surface of the planet’s ecosystem. Today we are altering the fundamental flows of chemicals and energy that sustain life, and no ecosystem on earth’s surface is free of pervasive human influence. The twentieth and twenty-first centuries have witnessed a dramatic escalation of humankind’s footprint on the natural environment in virtually every aspect of the planet’s ecosystem: atmosphere, hydrosphere, and biosphere.¹²

In spatial terms, the scale of our impact is global. Humankind has transformed 50 percent of the land surface, already increased carbon dioxide levels by 40 percent, and used 50 percent of the fresh water supplies currently available. More than 20 percent of Earth’s surface is now given over to agricultural, urban, or industrial uses. In 2015, 33 percent of recognized marine fisheries were being overfished, and 60 percent were already being fully exploited. Worldwide, an estimated 25 percent of all animal and plant species are currently threatened with extinction.¹³

Here again, the effects of human activity on the soil, the sulfur cycle, and the climate illustrate our global ecological impact. Humans have precipitated significant soil losses due to irrigation, desertification, agriculture, and settlement and road construction. The Dust Bowl storm of May 1934 is nothing more than an extreme example of this trend. Tough economic times in the aftermath of the Great Depression resulted in too-rapid cultivation of farmlands in the Great Plains. The exposed soil, together with unseasonably dry, hot air, produced an ecological disaster: a massive storm that spread approximately 300 million tons of dirt over fifteen hundred miles. The desertification of China and western Africa has reproduced the same effect. Immense clouds of dust (sometimes binding with toxic industrial pollutants) from China have caused schools to be closed, flights to be canceled, and local health clinics to be filled in South Korea. Plumes of dust from both China and Africa have traveled thousands of miles through the jet stream to reach the western United States. Land degradation is a global problem: worldwide, approximately 430 million hectares (seven times the size of Texas) have been irreversibly degraded. It is also, quite literally, right in our backyards: the United States would need a millennium to regenerate the topsoil it has lost over the last century alone.¹⁴

Human activity has similarly affected the sulfur cycle. Consumption of fossil fuel, metal smelting, and other activities have been so pervasive that global fluxes of sulfur induced by humans and those from nature are of comparable magnitude. Moreover, because many of those human activities are concentrated in certain heavily industrialized locations, the local contribution of sulfur flow from human activities can substantially exceed the level generated by nature.¹⁵

Finally, while considerable political controversy continues to surround theories of climate change, the modern increase in [carbon dioxide] presents the clearest and best documented significant human alteration of the Earth system. An overwhelming consensus now exists within the climate research community that human influence has warmed the atmosphere, ocean and land, and it has done so at a rate that is unprecedented in at least the last 2000 years. Some uncertainty remains as to its precise past and future impacts, but climate change has doubtless affected human health and biodiversity. Scientists anticipate it will bring a multiplicity of wide-ranging repercussions in the future—some of them potentially catastrophic.¹⁶

The reach of human activities on the natural environment is not exclusively global. Environmental problems can be localized. Extremely low concentrations of trace pollutants in the biosphere, between one part per billion and one part per million, present serious environmental threats in discrete geographic locations. This pollution is the result of many industrial processes, including mining, waste incineration, and fuel combustion. Worldwide, human contributions to lead, arsenic, cadmium, and mercury contamination in the biosphere now dwarf the levels of these elements attributable to natural releases. The vast organic chemical industry unleashes new, often quite persistent, chemical compounds that accumulate in many localized hot spots. And, at least as unsettling, there is virtually no place on the globe, from the most remote polar ice cap to the bottom of the oceans, where evidence of such contamination cannot be found.¹⁷

Whether global or local in nature, discerning the cause and effect of ecological transformation is daunting. The underlying interactions can elude ready observation, because they occur either over huge spatial dimensions or, conversely, only microscopically. Further, a single phenomenon often has multiple, diffuse causes that stem from a variety of environmental media with unanticipated and undetected synergistic results. For this reason, sometimes even the best-intentioned curative efforts go tragically awry. Such was the result of the classic intervention in Borneo in the 1960s, when public health workers sought to control mosquito-borne malaria by spraying village huts with the insecticide DDT. The resulting chain of events unwittingly caused even worse consequences for all. The local lizard population was decimated after eating DDT-contaminated food, leading to decreases in the local cat population that was dependent on lizards as a dietary mainstay. The scarcity of cats led to a population explosion of caterpillars and rats that the cats had previously kept in check, with the caterpillars destroying the thatched roofs and the rats propagating disease within the village.¹⁸

But it is not simply the spatial scale of ecological transformation that challenges environmental lawmakers. Its temporal dimension, including the pace of the transformative process, is equally formidable. Lifeforms can adapt to ecological change, at least to some extent—that, after all, is the evolutionary process. But time is required for adaptation, and the accelerating pace of ecological transformation increasingly precludes that possibility for plant and animal species, as well as for the microbiota underpinning all life on Earth.

Irreversible effects are one obvious result of the increased pace of change. Such effects may take the form of the extinction of a species, the depletion of a fossil fuel resource, or the destruction of a unique land formation. Even flow resources, which are theoretically renewable to the extent that their supplies may be replenished by natural processes, can become irretrievably lost when the pace of their consumption outstrips the potential for their replenishment.

The now-looming cataclysmic collapses threatening various overexploited aquatic ecosystems are emblematic of the problem. Technological advances in commercial fishing techniques have decimated fishing grounds that not long ago were considered too abundant to be threatened. The rapid destruction of wetlands risks destroying an essential ecological link between land and water ecosystems, both as a place of interaction and redistribution and as an important buffer protecting one system from the excesses of the other. The Black Sea, once the source of prodigious supplies of sturgeon, mackerel, and anchovies and boasting of popular beach resorts, is suffering from an ecological collapse caused by pollution originating from at least six different nations. As described by one Russian biologist, Even if we stopped all the pollution as if by magic, it would be impossible to go back to the 1950s. Nature has its own laws.¹⁹

Another feature of the temporal dimension of ecological injury is its inherently threshold character. One cannot safely assume a predictable linear correspondence between cause and effect. Just a little more pollution or a little more natural resource extraction does not necessarily lead to just a little more environmental harm or a little less available resource. A catastrophic consequence may instead result.²⁰ In a chemistry lab, the chemical reaction sought may not occur unless two chemicals are mixed in the requisite physical states and concentrations. The same dependencies exist in the natural world—producing all or nothing cause-and-effect relationships. Coral reefs, for instance, can suffer fatal ecological collapses in response to tiny incremental changes in temperature or in the concentrations of toxic contaminants. Likewise, ocean warming up to 26 degrees Celsius has no discernible effect on hurricane development, but once that limit is breached, there is a nonlinear increase in hurricane formation. Global warming’s link to greater hurricane frequency and severity has become plain since the first edition of this book was published in 2004. According to a recent report by the European Academies’ Science Advisory Council, storms have doubled in frequency since 1980. Hurricanes such as Katrina and Harvey, followed almost immediately by Maria, are just a few of the storms that have pummeled cities in the past two decades.²¹

Human population and technology promote a tendency toward exponential impacts. Increases in human population are themselves exponential and place proportionate pressures on the ecosystem. Technological innovation, while creating opportunities for increased resource efficiencies, also creates the potential for even greater resource exploitation and further advances in human health and welfare, and thus increased population. The resulting increases in the scale of human interaction with the ecosystem place the sustainability of the latter at greater risk absent self-imposed limits.

The impact of even a level rate of consumption may, at least for a nonrenewable resource, become exponential over time as the proportion of the resource remaining unexploited shrinks. A decrease of two units is only 2 percent when there is a starting level of one hundred units. When, however, there are only ten units to start with, that same two units now represents 20 percent of the available resource. So too even seemingly small increases in rates of consumption or pollution may in relatively short order reach extraordinarily high levels. An increase of merely 3.5 percent a year, whether in the ability to exploit a resource or in the demand for its production, leads to a doubling of consumption every twenty years. The early effects of such an exponential trend are thereby naturally disguised for the first several iterations. No matter how small the starting point, however, it does not take long before a simple function of doubling produces overwhelming consequences.²²

Actual human transformation of Earth’s ecosystem has followed just such trends. World human population did not reach its first billion until about 217 years ago, but to reach the next succeeding billions