The Making of Environmental Law
Wednesday, May 4, 2005
Professor, Georgetown University Law School
RFF First Wednesday Seminar
Panel discussion with Richard Lazarus, professor, Georgetown University Law School, on the history of and prospects for environmental law. Lazarus is the author of The Making of Environmental Law (2004), which looks at the legal, political, cultural and scientific factors that shaped - and sometimes hindered - their evolution.
Jonathan Wiener, the William R. and Thomas L. Perkins Professor of Law at Duke Law School, joins Mr. Lazarus in offering additional perspectives on environmental law. Ruth Greenspan Bell, Resident Scholar at Resources for the Future, moderates the discussion.
Video of this First Wednesday Seminar and commentary on the speakers' remarks follow below.
Ruth Greenspan Bell
Resident Scholar, Resources for the Future
William R. and Thomas L. Perkins Professor of Law, Duke Law School
Question and Answer
Environmental Law: The Little Movement that Could
"In theory, environmental law should never have happened," began Richard Lazarus, professor of law at Georgetown University, to his audience at a May 4 RFF First Wednesday seminar on the history of the subject. The challenges of passing radically, redistributive laws for disparate interests, combined with a lack of political return, both in the marketplace and at the ballot box, he went on, should have kept it from happening- yet it did. His comments were drawn from his new book, The Making of Environmental Law, which looks at the legal, political, cultural and scientific factors that shaped--and sometimes hindered--their evolution.
Because it is defined by the very problem it seeks to address--where, when, how fast, and whether ecosystems should be transformed--environmental law is necessarily complex, dynamic, and interdependent. However, Lazarus explained, the ecosystems and human activity affected by this branch of law are also complex and dynamic--and all three components affect one another.
Because people have different ideas about how the environmental world should be managed, making appropriate and fair laws proves challenging. When changes are made to an ecosystem by the mandates of law, Lazarus noted, it is difficult to measure their impact--in large part because the results of actions taken are spread out over enormous time and space distances. Moreover, making reliable measurements of the impact of legal judgments is critical to formulating beneficial policies in the future.
In many ways, Lazarus continued, environmental law also goes against the guidelines set for the establishment of laws in the Constitution. Ecosystems cross boundaries, and therefore require broad regulations, which promote federal oversight and policing--powers the federal government does not have. States can enforce the laws, but the federal government can only authorize and appropriate funds for them. The resulting conflicts come from clashes between law-making institutions on different levels, as well as between branches of legislation, and intersections with other branches of law.
In laying out an historical perspective on support for, enactment of, and resistance to environmental law at the federal level, Lazarus noted that presidents since the 1970s have struggled to promote environmental policies in the absence of any notable political benefit for backing such measures. Nixon once said of environmental policy, "It has to be done, but is not worth a damn," Lazarus said.
While members of Congress from both sides of the aisle once could agree on natural resource and pollution control policy issues, like the creation of Superfund in the early 1980s, growing partisanship in the legislative branch makes any environmental action taken up today difficult to pass, Lazarus said. Although the "legal friction" created by environmental issues is arguably necessary to create change, the courts today are skeptical, seeing this friction as a problem rather than the result of a complex issue needing careful consideration and overarching action.
Despite these challenges, environmental law not only continues to exist, but to thrive, Lazarus stated. This as a potentially historic moment in the field, he said, with a lot to celebrate and the architecture firmly in place to accomplish even more. However, the challenges he outlined are compounded by a loss of some vitality in the movement and an increased ambiguity in defining goals.
In the discussion following Lazarus's remarks, Jonathan Wiener, the William R. and Thomas L. Perkins Professor of Law at Duke Law School, noted that people tend to care about effects from a distance. In order to move environmental law forward, he said, proponents must demonstrate a combination of broad appeal and public benefit while dealing with the wishes of special interests. He encouraged greater use of economic incentive instruments to determine and quantify costs and benefits, while both speakers urged organizations conducting objective studies