The Making of Environmental Law

Citation

Lazarus, R. J. (2004). The Making of Environmental Law. University of Chicago Press. (A second edition appeared in 2022.)

Chapter Summary

Context and Argument

Lazarus, who took part in many environmental cases as a litigator for the United States Department of Justice, offers an interpretation of how United States environmental law was made over roughly three decades. The publisher describes it as an account of the legal, political, cultural and scientific factors that shaped, and sometimes hindered, pollution control and natural resource management laws, and as an argument that future environmental law needs a more nuanced understanding of uncertainty and trade-offs. The book has three parts and a conclusion: a framework drawn from the nature of ecological harm, a chronological account from the late 1960s to the 1990s, and a final part on the emerging shape of the field.

Introduction

The introduction sets out the questions the book asks: why modern environmental law emerged when and how it did, and why it has persisted and evolved in the way it has.

Part I: Making Environmental Law

Chapter 1: Time, Space, and Ecological Injury. The first chapter describes the features of ecological harm, notably its spread across space and time, that make it hard for law to address.

Chapter 2: The Implications of Ecological Injury for Environmental Protection Law. It draws out what those features mean for the design of protective law, such as the role of scientific uncertainty and the need for precaution.

Chapter 3: The Challenges for U.S. Lawmaking Institutions and Processes of Environmental Protection Law. The chapter sets the character of ecological harm against the structure of United States lawmaking, to explain why environmental statutes are hard to enact, implement and enforce.

Part II: The Road Taken

Chapter 4: Becoming Environmental Law. The chapter traces the emergence of environmental law as a distinct field in the late 1960s and early 1970s.

Chapter 5: Building a Road: The 1970s. It covers the decade in which the major federal statutes were enacted.

Chapter 6: Expanding the Road: The 1980s. The chapter follows the field through the 1980s, a period of political opposition in which the legal framework was nevertheless extended.

Chapter 7: Maintaining the Road: The 1990s. It looks at how the framework was kept in place and adjusted during the 1990s.

Part III: Environmental Law in the New Millennium

Chapter 8: The Emerging Architecture of U.S. Environmental Law. The chapter takes stock of the field's structure as it stood in the early 2000s.

Chapter 9: Changing Conceptions of Time and Space Redux: Environmental Law's Future Challenges. It returns to the themes of Part I to ask which spatial and temporal challenges the law will face next.

Chapter 10: Environmental Law's Second (and Quite Different) "Republican Moment". The chapter examines the political environment of the early 2000s and its implications for the field.

Conclusion: The Graying of the Green

The conclusion treats environmental law as a field that is maturing, drawing together its history, the lessons of earlier reforms and the challenges facing future lawmakers.

Key Concepts

Part I

• Ecological injury: harm to ecosystems whose extent in space and time distinguishes it from the harms that older legal fields handle.
• Mismatch between harm and institutions: the argument that the character of ecological harm and the design of United States lawmaking institutions pull in different directions.

Part II

• The road metaphor: the framework of the 1970s as a road that later decades built on, widened and maintained.
• Becoming environmental law: the emergence of a distinct body of law from earlier legal categories.

Part III and Conclusion

• Emerging architecture: the structure of the field after three decades of statutes and litigation.
• Republican moment: the book's term for a period of political realignment affecting environmental law, applied here to the early twenty-first century.

Critical Analysis

Strengths

• Accessible and interdisciplinary. Reviewers describe an engaging, readable book that reaches beyond law schools. Craig Thomas in Perspectives on Politics notes its range from ecological theory in the opening chapters to historical, economic and political context, and Douglas Kysar in Political Science Quarterly recommends it as an introduction to environmental law and policy for classroom use.
• Participant's perspective. The publisher highlights the author's experience as a litigator for the Justice Department's Environment and Natural Resources Division, an assistant to the Solicitor General and an adviser to environmental organisations and the Environmental Protection Agency.
• Not a partisan history. Mark van Putten in BioScience praises the book for avoiding explicitly partisan perspectives and a narrow doctrinal focus, and Daniel Farber and Thomas Merrill point to its use of political science, history and constitutional constraints.
• A framework before the chronology. Part I explains the problem the law faces before Part II tells the history, which gives the reader reasons to read the later chapters as responses to that problem.

Limitations

• Not a doctrinal text. Because it is an interpretive history, it does not take the reader statute by statute through the Clean Air Act or the Clean Water Act; a conventional casebook or textbook is still needed for doctrine.
• United States federal focus. The material is American, and students of other legal systems will have to translate the argument.
• Ends in the early 2000s. This edition's account stops with the first years of the new millennium, and the 2022 second edition adds chapters on later developments, including climate change and the shifting role of the courts, which this edition cannot supply.
• Single narrative voice. It advances one author's interpretation of how the field developed, and competing accounts are a necessary complement.

Where It Fits in the Course

The other books on this environmental law list are doctrinal or treaty-based: Bell and colleagues' Environmental Law and Holder and colleagues' Environmental Protection, Law and Policy: Text and Materials address United Kingdom and European Union law, Sands and colleagues' Principles of International Environmental Law is a treatise on the international regime, and Mayer's The International Law on Climate Change is a specialised study of one international field. Lazarus is the only one concerned with how a national system was built.

Read it as a background narrative for the United States, either before the doctrinal texts to see why environmental statutes look as they do, or afterwards for comparison with the United Kingdom, European and international materials.

How to Use This Book

The book assumes no legal training and is suited to undergraduates, general readers and law students beginning environmental law. Read Part I first, because its three chapters supply the vocabulary of ecological injury and the account of lawmaking institutions used throughout. Part II can be read as a narrative; Part III and the conclusion are reflective and most useful once the history is clear.

While reading, keep a timeline of the decades covered and note for each the main political conflict and the legal tools in play. Use the framework in Part I to test later chapters: ask which feature of ecological harm each development responds to. Anyone wanting current coverage should consult the 2022 second edition, which the publisher describes as adding new chapters on developments since the early twenty-first century.