The Making of Environmental Law

Citation

Lazarus, R. J. (2014). The Making of Environmental Law. University of Chicago Press.

Chapter Summary

Introduction

The introduction recounts the personal and professional experiences of Richard J. Lazarus, who, as a student and practitioner, witnessed the development of environmental law. Lazarus reflects on the persistence and resilience of environmental law despite numerous challenges and political opposition over the decades.

Part I: Making Environmental Law

Chapter 1: Time, Space, and Ecological Injury

• Discusses the complexity and dynamism of the Earth’s ecosystem, emphasizing the challenges these characteristics pose for environmental law. It explores the interlocking chemical cycles and the spatial and temporal dimensions of ecological injury.

Chapter 2: The Implications of Ecological Injury for Environmental Protection Law

• Examines how the features of ecological injury—complexity, scientific uncertainty, dynamism, precaution, and controversy—affect environmental lawmaking. The chapter delves into the inherent difficulties in crafting laws that address the multifaceted nature of ecological damage.

Chapter 3: The Challenges for U.S. Lawmaking Institutions and Processes of Environmental Protection Law

• Analyzes the mismatch between the complex nature of ecological injury and the structure of U.S. lawmaking institutions. The chapter discusses how these institutional challenges complicate the enactment, implementation, and enforcement of effective environmental laws.

Part II: The Road Taken

Chapter 4: Becoming Environmental Law

• Traces the emergence of environmental law in the United States during the late 1960s and early 1970s. The chapter highlights key events, such as the first Earth Day in 1970, the establishment of the Environmental Protection Agency (EPA), and the passage of foundational environmental statutes like the National Environmental Policy Act (NEPA).

Chapter 5: Building a Road: The 1970s

• Focuses on the legislative and regulatory advancements of the 1970s, a decade marked by significant environmental activism and lawmaking. Key statutes such as the Clean Air Act, the Clean Water Act, and the Endangered Species Act were enacted during this period.

Chapter 6: Expanding the Road: The 1980s

• Discusses the challenges and expansions of environmental law in the 1980s. Despite political opposition from the Reagan administration, environmental laws were not only maintained but also expanded through new amendments and regulations.

Chapter 7: Maintaining the Road: The 1990s

• Reviews the environmental law developments of the 1990s, including the strengthening of existing laws and the introduction of new regulatory frameworks. The chapter examines the role of public participation and the increasing importance of environmental justice.

Part III: Environmental Law in the New Millennium

Chapter 8: The Emerging Architecture of U.S. Environmental Law

• Analyzes the evolving structure of U.S. environmental law in the early 21st century. The chapter highlights the integration of environmental considerations into various legal areas and the increasing role of international environmental law.

Chapter 9: Changing Conceptions of Time and Space Redux: Environmental Law’s Future Challenges

• Explores future challenges for environmental law, particularly the need to adapt to new scientific understandings and the changing spatial and temporal scales of environmental issues.

Chapter 10: Environmental Law’s Second (and Quite Different) “Republican Moment”

• Discusses the political dynamics and challenges facing environmental law in the contemporary era. The chapter reflects on the influence of political ideologies and the potential for new directions in environmental policy.

Conclusion: The Graying of the Green

• Reflects on the maturation and ongoing evolution of environmental law, considering both its past successes and future prospects. Lazarus emphasizes the need for continued vigilance and innovation in the face of emerging environmental challenges.

Key Concepts

1. Ecological Injury

• Complexity: Ecological systems are intricate, with numerous interdependent components. This complexity makes predicting the outcomes of environmental harm difficult.
• Dynamism: Environmental systems are constantly changing, influenced by natural processes and human activities. This dynamism requires laws that can adapt to evolving conditions.
• Scientific Uncertainty: Many environmental issues involve uncertain science, complicating the creation of effective laws. Precautionary principles are often employed to address this uncertainty.
• Spatial and Temporal Dimensions: Ecological injuries can have widespread impacts across large geographic areas and extended time periods, challenging conventional legal frameworks that are more immediate and localized.

2. Development of Environmental Law

• Historical Context: Environmental law emerged in response to the increasing visibility of environmental degradation in the 1960s and 1970s. Key events, like the first Earth Day and the publication of Rachel Carson’s Silent Spring, galvanized public support.
• Legislative Milestones: Significant laws such as the National Environmental Policy Act (NEPA), the Clean Air Act, and the Clean Water Act laid the foundation for modern environmental protection in the U.S.

3. Institutional Challenges

• Fragmentation: U.S. environmental law is characterized by a fragmented approach, with multiple agencies and levels of government involved in regulation and enforcement. This can lead to inconsistencies and overlap.
• Political Influences: Environmental law is heavily influenced by political dynamics. Shifts in political power can lead to changes in regulatory priorities and enforcement rigor.

4. Evolution of Environmental Law

• 1970s: The foundational decade saw the establishment of the EPA and the enactment of key statutes. The environmental movement’s momentum drove significant regulatory advancements.
• 1980s: Despite political opposition from the Reagan administration, environmental laws were expanded and enforced through amendments and new regulations.
• 1990s: This decade focused on strengthening existing laws and introducing new frameworks, emphasizing public participation and environmental justice.

5. Environmental Justice

• Definition: Environmental justice ensures fair treatment and meaningful involvement of all people in environmental decision-making. It addresses the disproportionate impact of environmental harms on marginalized communities.
• Implementation: Laws and policies have increasingly incorporated environmental justice principles, seeking to remedy historical inequities and prevent future disparities.

6. Regulatory Approaches

• Command-and-Control: Traditional regulatory approach where government sets specific limits and controls. Effective in achieving clear, enforceable standards but can be inflexible.
• Market-Based Mechanisms: Tools like cap-and-trade programs and pollution taxes create economic incentives for reducing environmental harm. These mechanisms can be more efficient but may face implementation challenges.

7. Public Participation

• Importance: Public involvement is crucial for democratic legitimacy and effectiveness in environmental law. It enhances transparency and accountability.
• Mechanisms: Laws like NEPA require public participation in the environmental review process, ensuring that community concerns are considered in decision-making.

8. International Environmental Law

• Global Cooperation: Environmental issues often cross national boundaries, necessitating international cooperation. Treaties like the Paris Agreement exemplify global efforts to address climate change.
• Influence on Domestic Law: International agreements and norms increasingly influence national environmental policies, promoting harmonization and higher standards.

9. Adaptation and Future Challenges

• Climate Change: One of the most pressing challenges, requiring laws to mitigate emissions and adapt to impacts. Climate change law is evolving rapidly, with significant international and national efforts.
• Technological Advances: New technologies can both pose environmental risks and offer solutions. Legal frameworks must adapt to regulate emerging technologies effectively.

10. Second “Republican Moment”

• Political Dynamics: Reflects on the contemporary political landscape and its implications for environmental law. The term refers to significant shifts in political support and opposition to environmental regulations.
• Future Directions: The need for bipartisan support and innovative policy solutions to address ongoing and emerging environmental challenges.

Critical Analysis

1. Ecological Injury

• Complexity and Legal Frameworks: The intricate nature of ecological systems poses significant challenges for the legal frameworks designed to protect them. Laws must account for a wide range of interdependent factors, which can be difficult to predict and manage. This complexity often requires a multidisciplinary approach, incorporating scientific expertise into legal decision-making.
  • Example: The regulation of endocrine-disrupting chemicals involves understanding their subtle and varied effects on wildlife and human health. Effective legal frameworks must be flexible enough to incorporate new scientific findings as they emerge.
• Dynamism and Adaptability: Environmental laws need to be dynamic and adaptable to address the ever-changing nature of ecological systems. Static legal provisions may quickly become outdated as environmental conditions evolve.
  • Example: Climate change legislation must be regularly updated to reflect the latest scientific understanding and the increasing urgency of mitigation and adaptation measures. The difficulty lies in creating legal mechanisms that can respond swiftly and effectively to new information and changing circumstances.
• Scientific Uncertainty and the Precautionary Principle: Scientific uncertainty is a pervasive issue in environmental law. The precautionary principle provides a valuable tool for addressing this uncertainty, allowing regulators to take preventive action in the face of incomplete evidence. However, its application can be controversial, with critics arguing that it may lead to overregulation and stifle innovation.
  • Example: The EU’s application of the precautionary principle in banning certain pesticides illustrates the tension between precautionary measures and economic interests. Balancing these competing priorities is a continual challenge for policymakers.
• Spatial and Temporal Dimensions: The widespread and long-lasting effects of ecological injury require legal frameworks that can address impacts across large geographic areas and extended time periods. This often necessitates coordination among multiple jurisdictions and long-term planning.
  • Example: The management of transboundary air pollution requires international cooperation to ensure that emissions from one country do not adversely affect the air quality in neighboring countries. Legal agreements like the Convention on Long-Range Transboundary Air Pollution facilitate such coordination.

2. Development of Environmental Law

• Historical Context and Public Awareness: The emergence of environmental law in the 1960s and 1970s was driven by a growing public awareness of environmental issues. High-profile events and publications, such as the Cuyahoga River fire and Silent Spring, played pivotal roles in mobilizing public support for environmental protection.
  • Example: The establishment of the Environmental Protection Agency (EPA) and the passage of landmark legislation like NEPA were direct responses to public demand for greater environmental oversight. These early successes underscore the importance of public engagement in driving legislative action.
• Legislative Milestones and Their Impact: The foundational environmental statutes enacted in the 1970s laid the groundwork for modern environmental protection. These laws introduced key regulatory frameworks and set ambitious goals for air and water quality, species protection, and pollution control.
  • Example: The Clean Air Act and Clean Water Act have been instrumental in significantly reducing pollution levels in the United States. Their success demonstrates the effectiveness of comprehensive regulatory approaches in achieving environmental goals.

3. Institutional Challenges

• Fragmentation and Coordination: The fragmented nature of U.S. environmental law, with multiple agencies and levels of government involved, can lead to inefficiencies and inconsistencies. Effective coordination is essential to ensure that regulations are enforced uniformly and comprehensively.
  • Example: The interplay between federal and state regulations can create challenges for businesses that operate across state lines. Harmonizing these regulations while respecting state autonomy remains a complex task.
• Political Influences and Policy Shifts: Environmental law is highly susceptible to political influences, with changes in administration often leading to shifts in regulatory priorities and enforcement practices. This can create uncertainty for regulated entities and undermine long-term environmental protection efforts.
  • Example: The differing approaches to environmental regulation under the Obama and Trump administrations highlight the impact of political dynamics on environmental law. These shifts can lead to regulatory rollbacks or the introduction of new policies, affecting the stability and predictability of the regulatory landscape.

4. Evolution of Environmental Law

• 1970s: Establishing Foundations: The 1970s were a period of significant legislative activity, with the establishment of the EPA and the enactment of key environmental statutes. This era laid the foundation for modern environmental law and demonstrated the effectiveness of comprehensive regulatory approaches.
  • Example: The creation of the EPA centralized environmental oversight and enforcement, providing a coordinated approach to addressing environmental issues.
• 1980s: Expansion and Resistance: Despite political opposition from the Reagan administration, environmental laws were expanded and strengthened through amendments and new regulations. This period highlighted the resilience of environmental law and the continued public support for environmental protection.
  • Example: The amendments to the Clean Air Act in 1990 introduced new regulatory measures to address acid rain, urban air pollution, and toxic air emissions, illustrating the adaptability of environmental law in response to emerging issues.
• 1990s: Strengthening and Innovation: The 1990s focused on strengthening existing laws and introducing innovative regulatory frameworks. Public participation and environmental justice became increasingly important, reflecting a broader understanding of the social dimensions of environmental protection.
  • Example: The Environmental Justice Executive Order 12898, issued by President Clinton, emphasized the need to address environmental disparities affecting minority and low-income communities. This policy shift highlighted the importance of integrating social equity into environmental law.

5. Environmental Justice

• Definition and Significance: Environmental justice addresses the disproportionate impact of environmental harm on marginalized communities. It seeks to ensure fair treatment and meaningful involvement in environmental decision-making.
  • Example: The Flint water crisis is a stark example of environmental injustice, where predominantly low-income and minority residents were exposed to lead-contaminated water. This case underscores the need for policies that protect vulnerable populations and ensure equitable access to clean water and a healthy environment.
• Challenges in Implementation: Achieving environmental justice requires systemic changes and sustained political will. Marginalized communities often lack the resources and influence to advocate effectively for their rights, making it essential for legal frameworks to incorporate robust protections and participatory mechanisms.
  • Example: The inclusion of environmental justice provisions in environmental impact assessments ensures that the potential impacts on vulnerable communities are considered and addressed in decision-making processes.

6. Regulatory Approaches

• Command-and-Control: Traditional regulatory approaches provide clear standards and enforcement mechanisms but can be inflexible and stifle innovation. Balancing the need for clear regulations with the flexibility to adapt to new technologies and practices is a continual challenge.
  • Example: The success of the Clean Air Act in reducing emissions demonstrates the effectiveness of command-and-control approaches. However, adapting these regulations to address new sources of pollution, such as greenhouse gases, requires ongoing adjustments and updates.
• Market-Based Mechanisms: Tools like cap-and-trade programs and pollution taxes create economic incentives for reducing environmental harm. These mechanisms can be more efficient but may face challenges in implementation and enforcement.
  • Example: The EU Emissions Trading System (ETS) has been successful in reducing greenhouse gas emissions by providing a market-based approach to regulation. However, ensuring the integrity of the carbon market and addressing issues like permit allocation and market manipulation remain challenges.

7. Public Participation

• Importance and Benefits: Public participation enhances the legitimacy and effectiveness of environmental law. It ensures that community concerns are considered, promoting transparency and accountability in decision-making processes.
  • Example: The public involvement requirements under NEPA have led to more informed and balanced decision-making, incorporating diverse perspectives into the environmental review process.
• Mechanisms for Inclusion: Laws like NEPA require public participation in the environmental review process, ensuring that community concerns are considered. Effective mechanisms for inclusion are essential for achieving meaningful public involvement.
  • Example: Public hearings, comment periods, and citizen advisory boards are common mechanisms for facilitating public participation. Ensuring that these processes are accessible and inclusive is crucial for their success.

8. International Environmental Law

• Global Cooperation and Challenges: Environmental issues often cross national boundaries, necessitating international cooperation. Treaties like the Paris Agreement exemplify global efforts to address climate change, but achieving consensus and compliance among diverse countries remains challenging.
  • Example: The Paris Agreement represents a significant step in global climate action, with countries committing to nationally determined contributions (NDCs) to reduce greenhouse gas emissions. However, the agreement’s reliance on voluntary commitments and the lack of strong enforcement mechanisms pose challenges for achieving its goals.
• Influence on Domestic Law: International agreements and norms increasingly influence national environmental policies, promoting harmonization and higher standards. The integration of international environmental law into domestic frameworks is essential for addressing global environmental challenges.
  • Example: The incorporation of international environmental standards into national laws, such as the EU’s adoption of the Kyoto Protocol targets, demonstrates the interplay between global agreements and domestic policies.

9. Adaptation and Future Challenges

• Climate Change and Legal Responses: Climate change is one of the most pressing environmental challenges, requiring laws to mitigate emissions and adapt to impacts. Legal frameworks must evolve to address the complexities and urgency of climate change.
  • Example: The UK’s Climate Change Act 2008 sets legally binding carbon budgets to reduce greenhouse gas emissions, illustrating a proactive legislative approach to climate change. The act’s success depends on continuous monitoring, reporting, and policy adjustments.
• Technological Advances and Regulation: New technologies can both pose environmental risks and offer solutions. Legal frameworks must adapt to effectively regulate emerging technologies while encouraging innovation.
  • Example: The regulation of genetically modified organisms (GMOs) and nanotechnology presents unique challenges, requiring laws to address potential risks while supporting scientific and technological advancements.

10. Second “Republican Moment”

• Political Dynamics and Environmental Law: The contemporary political landscape significantly impacts environmental law. The “Republican moment” refers to significant shifts in political support and opposition to environmental regulations, influencing the direction of policy and enforcement.
  • Example: The fluctuation in regulatory priorities under different administrations, such as the rollback of environmental protections during the Trump administration and the subsequent reinstatement and expansion under the Biden administration, highlights the impact of political dynamics on environmental law.
• Future Directions and Bipartisan Support: Achieving bipartisan support for environmental policies is essential for their stability and effectiveness. Innovative policy solutions that address both environmental and economic concerns can help bridge political divides.
  • Example: Policies that promote clean energy jobs and economic growth alongside environmental protection, such as the Green New Deal proposals, aim to garner broad political support by addressing multiple objectives.

Real-World Applications and Examples

1. Complexity and Legal Frameworks

• Case Example: The Clean Air Act (CAA)
• The CAA exemplifies the complexity of environmental regulation. It addresses a wide range of pollutants and sources, requiring detailed scientific and technical standards. The act’s success in reducing air pollution demonstrates how comprehensive legal frameworks can manage complex environmental issues. However, the ongoing need for updates and amendments highlights the challenges of keeping pace with scientific and technological advancements.

2. Dynamism and Adaptability

• Case Example: The Montreal Protocol
• The Montreal Protocol on Substances that Deplete the Ozone Layer is a landmark international treaty that has been highly successful in reducing the production and consumption of ozone-depleting substances. Its adaptability, with regular updates and amendments based on new scientific data, illustrates the importance of flexible legal frameworks in addressing dynamic environmental challenges.

3. Scientific Uncertainty and the Precautionary Principle

• Case Example: Glyphosate Regulation
• The regulation of glyphosate, a widely used herbicide, showcases the application of the precautionary principle. Despite scientific debates about its safety, several countries and the EU have imposed restrictions or bans on glyphosate to prevent potential harm. This precautionary approach aims to protect public health and the environment in the face of scientific uncertainty.

4. Spatial and Temporal Dimensions

• Case Example: The Kyoto Protocol and Paris Agreement
• Both the Kyoto Protocol and the Paris Agreement address the global and long-term nature of climate change. These international treaties require countries to commit to emission reduction targets and implement national policies to achieve them. The agreements recognize the spatial and temporal scales of climate change, necessitating coordinated global action and long-term commitments.

5. Historical Context and Public Awareness

• Case Example: The Environmental Movement of the 1960s and 1970s
• The environmental movement, spurred by events like the Cuyahoga River fire and the publication of Silent Spring, led to significant public awareness and legislative action. The establishment of Earth Day and the creation of the EPA were direct results of this increased awareness, demonstrating the power of public mobilization in shaping environmental policy.

6. Legislative Milestones and Their Impact

• Case Example: The Endangered Species Act (ESA)
• The ESA is a cornerstone of U.S. environmental law, providing comprehensive protection for threatened and endangered species. Its impact is evident in the recovery of species like the bald eagle and gray wolf. The act’s stringent protections and recovery plans illustrate the effectiveness of strong legislative measures in achieving conservation goals.

7. Fragmentation and Coordination

• Case Example: The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
• Commonly known as Superfund, CERCLA addresses the cleanup of hazardous waste sites. The act involves multiple agencies, including the EPA and state governments, requiring coordinated efforts to manage site remediation. This coordination is essential for addressing the fragmented nature of environmental regulation and ensuring effective cleanup operations.

8. Political Influences and Policy Shifts

• Case Example: Regulatory Rollbacks and Reinstatements
• The shifting regulatory landscape under different U.S. administrations highlights the impact of political dynamics on environmental law. For instance, the rollback of the Clean Power Plan under the Trump administration and the subsequent reinstatement of stricter climate policies under the Biden administration demonstrate how political changes can influence environmental regulation and enforcement.

9. 1970s: Establishing Foundations

• Case Example: The National Environmental Policy Act (NEPA)
• NEPA, enacted in 1970, established the framework for environmental impact assessments (EIAs). The act requires federal agencies to evaluate the environmental effects of their proposed actions and involve the public in the decision-making process. NEPA’s procedural requirements have led to more informed and transparent environmental decision-making.

10. 1980s: Expansion and Resistance

• Case Example: The Hazardous and Solid Waste Amendments (HSWA) to RCRA
• Despite the Reagan administration’s deregulatory stance, the 1984 HSWA significantly expanded the Resource Conservation and Recovery Act (RCRA), introducing stricter controls on hazardous waste management. This expansion highlights the resilience of environmental law even in the face of political resistance.

11. 1990s: Strengthening and Innovation

• Case Example: The Environmental Justice Executive Order 12898
• Issued by President Clinton in 1994, this executive order aimed to address environmental justice by directing federal agencies to consider the environmental and health effects of their actions on minority and low-income populations. The order strengthened the focus on social equity in environmental law, promoting inclusive decision-making processes.

12. Environmental Justice

• Case Example: Standing Rock Sioux Tribe vs. Dakota Access Pipeline
• The opposition of the Standing Rock Sioux Tribe to the construction of the Dakota Access Pipeline underscores the importance of environmental justice. The tribe argued that the pipeline threatened their water supply and sacred lands. The legal and public support for their cause highlights the increasing recognition of environmental justice in addressing the concerns of marginalized communities.

13. Command-and-Control Regulation

• Case Example: The Clean Water Act (CWA)
• The CWA employs a command-and-control approach, setting stringent water quality standards and requiring permits for discharges into navigable waters. This regulatory framework has been effective in reducing water pollution and protecting aquatic ecosystems, demonstrating the efficacy of clear and enforceable standards.

14. Market-Based Mechanisms

• Case Example: The Acid Rain Program
• Implemented under the Clean Air Act Amendments of 1990, the Acid Rain Program used a cap-and-trade system to reduce sulfur dioxide (SO2) and nitrogen oxides (NOx) emissions. The program successfully decreased acid rain, illustrating the potential of market-based mechanisms to achieve environmental goals efficiently.

15. Public Participation

• Case Example: NEPA Public Comment Process
• NEPA’s requirement for public participation in the EIA process ensures that community concerns are considered in federal decision-making. Public comments have led to significant changes in project proposals, reflecting the influence of public involvement in shaping environmentally sound decisions.

16. International Environmental Law

• Case Example: The Convention on Biological Diversity (CBD)
• The CBD is an international treaty aimed at conserving biological diversity, promoting sustainable use of its components, and ensuring fair sharing of benefits from genetic resources. The treaty influences national biodiversity policies and fosters international cooperation, demonstrating the role of global agreements in addressing environmental challenges.

17. Climate Change and Legal Responses

• Case Example: California’s Cap-and-Trade Program
• California’s cap-and-trade program, part of the state’s comprehensive climate strategy, sets a cap on greenhouse gas emissions and allows businesses to trade emission allowances. The program has contributed to significant emission reductions and serves as a model for other regions, highlighting the effectiveness of legal responses to climate change.

18. Technological Advances and Regulation

• Case Example: Regulation of Hydraulic Fracturing (Fracking)
• The regulation of fracking illustrates the challenges of managing new technologies. While fracking has revolutionized energy production, it has also raised environmental and public health concerns. Regulatory frameworks must adapt to address these risks while balancing economic benefits and technological innovation.

19. Political Dynamics and Environmental Law

• Case Example: The Clean Power Plan vs. The Affordable Clean Energy Rule
• The Clean Power Plan, introduced under the Obama administration, aimed to reduce carbon emissions from power plants. It was replaced by the less stringent Affordable Clean Energy (ACE) rule under the Trump administration. The subsequent legal battles and policy reversals highlight the influence of political dynamics on environmental regulation and the importance of stable, bipartisan support for long-term environmental goals.

In conclusion, The Making of Environmental Law by Richard J. Lazarus provides a detailed examination of the development, challenges, and future directions of environmental law. The real-world applications and examples illustrate how the concepts and principles discussed in the book are implemented in practice, highlighting the complexities and dynamism of environmental issues and the ongoing efforts to create effective and adaptive legal frameworks.