The Making of Enviornmental Law.

Vol. 15 No.3 (March 2005), pp.195-199

THE MAKING OF ENVIRONMENTAL LAW, by Richard J. Lazarus. Chicago: University of Chicago Press, 2004. 312pp. Cloth $35.00 / £24.50. ISBN: 226-47037-7.

Reviewed by Thomas W. Church, Department of Political Science, University at Albany/State University of New York. Email: TChurch@Albany.edu .

THE MAKING OF ENVIRONMENTAL LAW provides a short, highly readable history of the enactment and subsequent implementation of the major federal environmental statutes in the United States, together with speculation on the reasons for the particular path taken by environmental law in this country, and analysis of key issues that the author believes will face environmental lawyers in the future. Lazarus is a law professor (at Georgetown University Law Center) whose career has included stints in the Environmental and Natural Resources Division of the Justice Department, the solicitor general’s office, and participation on the advisory boards of several major environmental organizations. Unsurprisingly, in light of this background, Lazarus approaches his subject matter as a committed environmental lawyer, a perspective that may help explain both the strengths and some of the limitations of the book.

The book is divided into three parts: the first purports to set out a “theoretical, analytic framework” (p.xv) for the subsequent analysis; the second describes the enactment and implementation of the major environmental statutes from the 1970s through the 1990s; and the third part contains the author’s speculations on the future.

The first part, the shortest, describes the unique place of environmental law in the legal firmament—the extraordinary complexity of the scientific issues underlying the relationship of humankind to the environment, and the uncertainty and inherent political difficulty involved in efforts to change this relationship through the legal and political systems. Central to this discussion is what Lazarus calls the spatial and temporal dimensions of environmental problems: that the impact of pollution and other aspects of human effects on the environment extend over broad stretches of space and time, increasing the uncertainty involved in any planned response, and making such efforts both scientifically and politically problematic.

The heart of the book is Part Two, made up of four chapters summarizing the advance of environmental legislation and policy from its modern origins in the 1960s to the end of the twentieth century. These chapters provide a short history of the major environmental legislation passed and implemented in the recent past in the United States. Along the way, the author develops a number of intriguing themes. For example, he discusses the role of information disclosure, pioneered in the National Environmental Policy Act (NEPA); according to Lazarus, this aspect of NEPA has had a more important legacy than the “bold [*196] declarations of policy” found elsewhere in the statute.

Lazarus also provides an insightful – if necessarily limited – discussion of the special role of courts in environmental law. (Interestingly, perhaps because of Lazarus’ primary experience as a litigator, the role the Environmental Protection Agency [EPA] and administrative action is not prominent in this discussion.) The judicial role in environmental policy was originally strongly facilitative, and frequently involved the courts in expanding federal power and pressing EPA to exercise more regulatory control over environmental harms. More recently, an increasingly conservative judiciary has moved in the opposite direction. Lazarus emphasizes the potentially revolutionary doctrinal shifts in environmental policy that may follow the Supreme Court’s recent tendency to reign in federal authority under the Commerce Clause—nearly all federal environmental legislation is constitutionally grounded in the commerce power. In other policy areas – in several cases reminiscent of the pre-New Deal Supreme Court – the justices have invalidated statutes on the grounds that the activity under review is insufficiently related to commerce. As Lazarus suggests, a number of environmental statutes, such as those addressing climate change, biodiversity, endangered species, and wetlands, are at best tangentially directed to commercial relationships and thus are potential targets for judicial nullification. The Court’s expansion of the constitutional requirement of just compensation for governmental “takings” of private property to the realm of regulations that have the effect of diminishing the value of property could also portend another major shift in the scope of environmental regulation.

Part Three of the book contains the author’s ruminations on “environmental law in the new millennium.” The first chapter in this section provides an insightful analysis of what he sees as an emerging “convergence” in the tools and directions of environmental law across different statutory frameworks. This chapter also includes a brief discussion of the complex question of policy design – the appropriate role of criminal sanctions in environmental regulation, for example, and the respective strengths and weaknesses of performance versus design versus other forms of environmental standards. (In light of Lazarus’ experience, I would have liked to see a more extended discussion of these important issues.) The next chapter considers some of the challenges likely to face environmental law in the future, both in terms of unaddressed problems (such as the impact of modern agriculture on the environment) and economic and social developments that may undermine support for stringent environmental controls (such as “the increased cognitive severance of consumers between environmental cause and effect” (p.220).

The final chapter – where Lazarus’ “green” orientation is most in evidence – is a vigorous condemnation of the environmental record of the current Bush Administration. The book ends with a postscript (entitled “the Graying of the Green”) that laments the passing from the scene of the first generation of environmental activists, with their “unbridled youthfulness and uncompromising focus” (p.254). I was reminded of Justice Harry Blackmun’s [*197] funerary pronouncements in PLANNED PARENTHOOD v. CASEY on the uncertain future of abortion rights. (“I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light” (at 922)).

General readers looking for a fairly short, readable account of the development of environmental law in the United States will find THE MAKING OF ENVIRONMENTAL LAW to be a welcome addition to their library. Were the book available in paperback, it would be good choice for introductory courses in environmental policy. But while there are a number of useful insights throughout this volume, it may disappoint serious students of environmental law and policy.

Most particularly, I do not believe Lazarus delivers on his basic promise to explain “How environmental law first emerged, [and] why it has since evolved in the way that it has” (p.xv). Given the book’s title, this is a serious deficiency. There is certainly a description of the passage of the major environmental legislation in the 1970s and early 1980s, and a discussion of major changes through the 1990s. There is a promise that the “theoretical, analytical framework” (p.xv) set out in the first part of the book will provide guidance in answering the latter question: WHY did environmental law develop as it did? Unfortunately, the framework set out in Part One would be more useful in explaining a failure of environmental law to see the light of day, rather than its largely successful enactment and implementation.

Central to Lazarus’ conceptual analysis in Part One is his assertion of the uniquely difficult problems addressed by environmental law: “Ecosystems are dynamic in space and time and 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” (p.8). The resulting complexities hinder effective legal responses. Lawmakers must face the interconnectedness of nature and of human effects upon it, in the context of substantial scientific uncertainty, in a dynamic, ever changing natural world. Further, there are unavoidable tradeoffs in environmental legislation: “The ecological injury to be redressed almost always involves actions that benefit some in one place or at one time, while causing harm to others at another place or another time” (p.26). And finally, “the Constitution’s preference for decentralized, fragmented, and incremental lawmaking” renders the American political system “especially ill-suited for environmental law” (p.30).

Yet a legal revolution took place in the 1970s and early 1980s in environmental policy. These gains withstood assaults from unfriendly Presidents, and a Republican Congress in the mid-1990s bent on wholesale revisions in the entire corpus of American environmental law. The question-in-chief is why these potentially revolutionary statutes were passed, implemented, and preserved over three decades in light of the many factors arrayed against them. As Lazarus states, “Given the enormous institutional and organizational obstacles to environmental law’s creation described in part I, dispassionate rational choice [*198] analysis would seem to lead ineluctably to the conclusion that no government would ever adopt such enormously redistributive legislation, especially when surrounded by tremendous scientific uncertainty” (p.47).

Lazarus, then, is forced to explain the success of environmental legislation in terms unrelated to the framework he set out in the first part of the book. We are to understand the burst of legislative activity in the 1970s, and its preservation and augmentation in subsequent years, in terms of the hearty “historical roots” of environmental law, and strong public support for protecting the environment. These factors may very well have influenced the course of environmental law in the final decades of the last century, but it is difficult to see why they were necessarily determinative in overcoming so many structural and political impediments, and Lazarus offers no evidence for this assertion. It goes without saying that many policy initiatives have historical roots and public support – gun control comes immediately to mind. But such policies frequently fail to move from popular idea to statutory enactment, let alone to anything approaching the string of legislative and administrative successes of the environmental movement over its three-decade-long history.

Rather than accept Lazarus’ conceptualization of the singularity of environmental policy, I would argue that environmental policy – while surely high on all these dimensions – is neither uniquely complex and uncertain, nor uniquely controversial. At a minimum, it shares more with other policy domains than Lazarus suggests. The substantive uncertainties and complexities, and the political controversies, involved in directing the fiscal and monetary policy of a massive economy, for example, is surely similar in complexity, uncertainty, and political controversy. Trade policy involves major imponderables and political constraints. Even policy areas as prosaic as product safety or occupational safety and health raise analogous – if somewhat less profound and perplexing – issues of “temporal and spatial” complexity, scientific uncertainty, and political controversy.

Rather than posit environmental law and policy as somehow sui generis, a student of the history of environmental legislation and its subsequent implementation could learn much from broader studies of policy formulation and implementation in other policy domains. Among the former, John Kingdon’s (1995) seminal discussion of “policy streams” would be relevant here: triggering events (the burning of the Cayahoga River in Cleveland, for example, or the discovery of toxic chemicals under the Love Canal neighborhood outside of Buffalo) open “policy windows” in which existing ideas that have been circulating over time in the policy community come to the fore and are ultimately enacted (as with the Clean Water Act and the Superfund legislation).

The peculiarly tortuous path of implementation of environmental legislation could be informed by Pressman and Wildavsky’s concept of “the complexity of joint action,” by Kagan’s discussion of “adversarial legalism,” (surely one of the definitional elements of environmental policy in this country) and by studies (such as Sparrow, 2003) of the implementation [*199] problems peculiar to regulatory programs, nearly all of which share the underlying political problem set out by Lazarus as the special province of environmental regulation: dispersed and uncertain future benefits being set against the certain and politically concentrated costs to the regulated population.

In the final analysis, Lazarus may have taken on an overly ambitious task – explaining why the vast amalgam of American environmental law originated and developed as it did. Indeed, the various pieces of environmental legislation, while sharing common elements, involved quite different legal, scientific, and political complexities, and had distinctive life histories. Thus the effort to explain – even to describe – their origins and development over thirty years goes substantially beyond what could be accomplished in a book of 300 (or perhaps even 3000) pages. Lazarus is clearly a committed environmentalist and a thoughtful observer of key developments in environmental law in the United States. Viewed as a more modest undertaking, one aimed at raising important issues and pointing out potential problems in the ongoing project of environmental protection, there is much to learn from THE MAKING OF ENVIRONMENTAL LAW.

REFERENCES:

Kagan, Robert. 2003. ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW. Cambridge: Harvard University Press.

Kingdon, John. 1995. AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES (2nd ed). New York: Addison-Wesley.

Pressman, Jeffrey and Aaron Wildavsky. 1984. IMPLEMENTATION (3rd ed). Berkeley: University of California Press.

Sparrow, Malcolm. 2000. REGULATORY CRAFT. Washington: Brookings Institution Press.

CASE REFERENCE:

PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).

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