The Making of Environmental Law

The Making of Environmental Law

by Richard J. Lazarus

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The unprecedented expansion in environmental regulation over the past thirty years—at all levels of government—signifies a transformation of our nation's laws that is both palpable and encouraging. Environmental laws now affect almost everything we do, from the cars we drive and the places we live to the air we breathe and the water we drink. But while enormous strides have been made since the 1970s, gaps in the coverage, implementation, and enforcement of the existing laws still leave much work to be done.

In The Making of Environmental Law, Richard J. Lazarus offers a new interpretation of the past three decades of this area of the law, examining the legal, political, cultural, and scientific factors that have shaped—and sometimes hindered—the creation of pollution controls and natural resource management laws. He argues that in the future, environmental law must forge a more nuanced understanding of the uncertainties and trade-offs, as well as the better-organized political opposition that currently dominates the federal government. Lazarus is especially well equipped to tell this story, given his active involvement in many of the most significant moments in the history of environmental law as a litigator for the Justice Department's Environment and Natural Resources Division, an assistant to the Solicitor General, and a member of advisory boards of the U.S. Environmental Protection Agency, the World Wildlife Fund, and the Environmental Defense Fund.

Ranging widely in his analysis, Lazarus not only explains why modern environmental law emerged when it did and how it has evolved, but also points to the ambiguities in our current situation. As the field of environmental law "grays" with middle age, Lazarus's discussions of its history, the lessons learned from past legal reforms, and the challenges facing future lawmakers are both timely and invigorating.

Product Details

ISBN-13: 9780226470641
Publisher: University of Chicago Press
Publication date: 09/15/2008
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 334
File size: 550 KB

About the Author

Richard J. Lazarus is professor of law at the Georgetown University Law Center and director of the Georgetown University Supreme Court Institute. He litigated the first Superfund liability case on behalf of the federal government in the early 1980s and has since been involved in many of the significant environmental law cases before the U.S. Supreme Court.

Read an Excerpt

Chapter One - Time, Space, and Ecological Injury

Environmental law must necessarily be responsive to the types of problems it seeks to address, including the physical causes and effects of environmental degradation. Although concerns regarding humankind's impact on the natural environment have only recently intensified sufficiently to prompt the development of a comprehensive legal regime for environmental protection, scientific concerns by the end of the eighteenth century were sufficient to trigger meaningful, focused research. Precipitated in part by observations of the fragility of ecosystems on various islands used by trading companies in the eighteenth and nineteenth centuries, scientists began to study the potential for irreversible environmental damage to such ecosystems. An especially prescient contribution was a paper written in 1859 by the British scientist J. Spottswood Wilson on what he described as "The General and Gradual Desiccation of the Earth and Atmosphere" by, inter alia, "changing proportions of oxygen and carbonic acid in the atmosphere."

Without question, however, George Perkins Marsh's classic work Man and Nature: Or Physical Geography as Modified by Human Action, published in 1864, is the earliest known comprehensive scientific examination of human activity degrading the earth's ecosystems. His 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.

While environmental law's overarching rationale may be both simply stated and capable of perseverance, its precise terms necessarily possess neither of those attributes. Its terms are complex and dynamic, susceptible to constant change. The reason, though, 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 the 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 the Earth's ecosystem defies a precise unitary or static description. For some purposes, the global ecosystem is often conceptualized as being divided into the atmosphere, the biosphere, the hydrosphere (aquatic systems), and the lithosphere (the solid portion of the 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 land forms), atmosphere, and climate.

A sharply contrasting and more accurate image, however, is revealed by focusing on the critically important chemical cycles that interlock, and resist any notion of meaningful boundaries between, various aspects of the ecosystem. Whether basic chemical elements (such as carbon, hydrogen, sulfur, and nitrogen) or chemical compounds essential for life on Earth (such as water), constitutive components of life on Earth are perpetually cycled through virtually all ecological systems in exceedingly complex and dynamic combinations of interrelationships. These geochemical cycles bind the entire global ecosystem together over time and space and are the root cause of the spatial and temporal spillover effects of activities at one place and time on other places and other times.

Chemical cycles in the ecosystem involving elements such as carbon or compounds such as water are likely the cycles best known by members of the public, but they are just two of the many systems essential to ecological sustainability. 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 the Earth's surface extending to a depth of fifty kilometers. Sulfur in the soil layer immediately at the Earth's surface, known as the pedosphere, is generally in organic compounds, as is atmospheric sulfur, predominately as carbonyl sulfide.

Sulfur flows between the 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.

Soil illustrates how a chemical cycle like sulfur's results in an exceedingly complex and dynamic ecosystem, with heightened potential for spillover effects. Seemingly static to most people, soil is understood by those expert in its science to be an exceedingly dynamic system over both time and space. Soil represents a "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.

The soil system serves several varied 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 accumulation of organic matter, allowing for the natural recovery and recycling of the energy and valuable minerals contained within dead plants and animals.

The 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. The interactions of these subsystems are exceedingly complex; for example, changes in one part of the climatic system at a given time can affect other parts of the system at a later time. Again, such effects may be far removed both spatially and temporally, or they may be quite localized--immediate both in both time and space. Little clarity exists in identifying the precise cause and effect of climatic changes. As noted by one prominent academic expert on predicting long-term climate behavior, "If you were going to pick a planet to model, this is the last planet you would choose."

As with the sulfur cycle, there are both natural and human sources of climatic change. Natural sources are either external or internal. An example of an external source is a change in solar output or a change in the tilt of Earth's axis, either one of which may significantly affect the amount of radioactive energy 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.

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 the maintenance of 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, renders far more difficult any possible sorting out of human versus natural sources of ecological change, let alone determining which transformations should, as a matter of policy, be allowed, 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 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.

The Transformation of Earth

Environmental law's challenge is to regulate, where possible, the process of ecological transformation. This includes regulating the extent of transformation, its geographic location, and, at least as important, its pace. While much disagreement persists about each, it seems quite plain that the spatial and temporal scales of ecological transformation have increased from the local and regional to the global.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 century witnessed a dramatic escalation of humankind's impact on the natural environment in virtually every aspect of the planet's ecosystem: atmosphere, hydrosphere and biosphere.

On a global scale, humankind has transformed 40 percent of the land surface, increased carbon dioxide levels by 20 percent, and used 50 percent of the fresh water supplies currently available. Ten to fifteen percent of land is now given over to agricultural, urban, or industrial uses. In 1995, 22 percent of recognized marine fisheries were being overfished and 44 percent were already being fully exploited. In the United States, 40 percent of the nation's fisheries were classified as overutilized and 43 percent were fully utilized. Worldwide, an estimated 15 percent of all plant species are currently threatened with extinction.

Here again, the effects of human activity on the soil, the sulfur cycle, and the climate illustrate what is a widespread ecological phenomenon. Human activities have resulted in significant soil losses due to irrigation, desertification, agriculture, and settlement and road construction. Estimated total "losses of organic carbon from the humusphere of the earth, just within the history of agricultural civilization, is 268 million tons or 15.8% of the original stock."

The dust bowl storm of May 1934 is nothing more than an extreme example of the norm. Tough economic times in the aftermath of the Great Depression resulted in too-rapid cultivation of farmlands in the Great Plains. The exposed soil combined with an especially dry, hot year to produce an ecological disaster: a massive storm that spread approximately 300 million tons of dirt over fifteen hundred miles, all the way to the northeastern United States. A contemporary example of the same effect is the airborne dust resulting from the desertification of thousands of square miles in China and western Africa. Immense clouds of dust (sometimes binding with toxic industrial pollutants) from China now regularly cause 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 travel thousands of miles through the jet stream and reach the western United States. Worldwide, approximately 430 million hectares (seven times the size of Texas) have been irreversibly destroyed by erosion. Within our own borders, the United States currently loses 1.7 billion tons of topsoil a year to erosion and during the entire twentieth century lost an amount of topsoil that had taken a thousand years to be produced.

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." Because, moreover, 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.

Finally, while considerable scientific controversy continues to surround theories of climatic change, the "modern increase in [carbon dioxide] presents the clearest and best documented significant human alteration of the Earth system." A consensus now exists within the "climate research community that carbon dioxide levels from human activity probably already affects climate detectably and will drive substantial climate change in the [twenty-first] century." What remains far less certain is precisely what will be the myriad and multiplying impacts of climate change on human health and biodiversity.

The spatial expansion of the effect of human activities on the natural environment is not, however, exclusively global. Environmental impacts can also result in localized problems. 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 trace metals deposited by many industrial processes, including mining, waste incineration, and fuel combustion. The worldwide increases in the amounts of lead, arsenic, cadmium, and mercury in the biosphere resulting from human activity are now several times greater than the levels of these elements attributable to natural releases. Trace pollutants are likewise the by-product of the vast organic chemical industry, which both creates and incidentally releases into the environment new, often quite persistent, chemical compounds. There are many localized "hot spots" where these contaminants persist and accu-mulate. And, at least as unsettling, there is virtually no place on the globe, from the most seemingly remote polar icecap to the bottom of the oceans, where evidence of such contamination cannot be found.

Whether global or local in nature, discerning the cause and effect of ecological transformation is often impossible, or at a minimum 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 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 causing increases in disease within the village.

But it is not simply the scope or complexity of ecological transformation that challenges the implementation of effective environmental law, but also its temporal dimension, including the pace of the transformative process. Life forms 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 threatening cataclysmic collapses within various aquatic ecosystems suffering from overexploitation are emblematic of the problem. Technological advances in commercial fishing techniques have decimated fishing grounds that not long ago were considered too enormously 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 abundant 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."

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.

Table of Contents

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 U.S. Lawmaking Institutions and Processes of Environmental Protection Law
Part II: The Road Taken
4. Becoming Environmental Law
5. Building a Road: The 1970s
6. Expanding the Road: The 1980s
7. Maintaining the Road: The 1990s
Part III: Environmental Law in the New Millennium
8. The Emerging Architecture of U.S. Environmental Law
9. Changing Conceptions of Time and Space Redux: Environmental Law's Future Challenges
10. Environmental Law's Second (and Quite Different) "Republican Moment"
Conclusion: The Graying of the Green

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