The Making of Environmental Law
BY PROFESSOR RICHARD LAZARUS

INTRODUCTION
Environmental law’s obituary in the United States has been written repeatedly, during the past three decades, in response to a series of powerful, seemingly overwhelming efforts to reverse course. Not long after initially embracing environmentalism, establishing the Environmental Protection Agency, and promoting early environmental legislation, President Richard Nixon became one of environmental protection law’s sharpest critics. Nixon, like his successors Presidents Ford and Carter, saw the energy crisis of the mid-1970s as reason for significant retreat from the overly ambitious environmental laws enacted earlier in the decade, which had made more costly the extraction and combustion of domestic coal. Nixon advised his Cabinet to “Get off the environmental kick.” In 1980, presidential candidate Ronald Reagan campaigned successfully on a platform openly hostile to federal environmental protection regulations, and upon taking office, he immediately sought to reduce substantially their scope and reach. In its final year, the George H. W. Bush administration similarly took specific aim at environmental protection, with the Vice President’s Competitiveness Council singling out environmental laws for its regulatory reform efforts.
    A few years later, in 1995, the “Contract with America” promoted by Speaker of the House of Representatives Newt Gingrich and the 104th Congress, was deliberately designed to cut back on environmental laws by reducing federal budgets used for their implementation, by relaxing requirements that states implement environmental controls, by permitting industry to emit higher levels of pollution, and by compensating property owners for reductions in property value resulting from environmental restrictions. The administration of George W. Bush has, as of this writing, been marked by a series of efforts to reduce the scope and intensity of federal environmental regulations. The first few weeks of his administration witnessed abandonment by the United States of the Kyoto Protocol to the United Nations Framework on Climate Change; the initial revocation of stricter regulations regulating arsenic in drinking water; the staying of new Clean Water Act standards; and the announcement of a new energy initiative that seemed to contemplate a relaxation of environmental protection and resource conservation requirements. The administration has since reversed many of the major environmental protection and resource conservation regulatory initiatives promulgated by the EPA and by the Departments of the Interior and Agriculture during the Clinton administration.
     While it is plainly too soon to know how these most recent reform efforts will ultimately be received, if the past is any guide, they are unlikely to succeed and may well unleash a backlash of even more demanding environmental requirements. Environmental protection law in the United States has not only surmounted each major past challenge, but paradoxically it seems to have rebounded and thrived as a result of those challenges. The premature predictions of its demise in the mid-1970s were followed within that same decade by congressional enactment of even-more-ambitious laws relating to clean air, clean water, and the disposal of hazardous chemicals and wastes. The early efforts of the Reagan administration in the 1980s to reduce the federal role in environmental protection ultimately yielded the adoption of stricter federal environmental controls. The Contract with America was likewise repudiated in the 1990s and seemed to prompt the Clinton administration to embrace a series of new tough regulatory initiatives regarding air and water pollution, mining, and forest lands. Finally, in 2001, partly in response to the Bush administration’s environmental policies, Senator James Jeffords of Vermont stunned the Republican Party by becoming an independent aligned with the Democratic Party. Jeffords’s switch allowed the Democrats to obtain majority status in the Senate and Jeffords to chair the Senate Committee on the Environment and Public Works.
     A snapshot comparison of our nation’s environmental laws in January 1970 to those today starkly reveals a dramatically changed legal landscape. In 1970, there were only a smattering of emerging state environmental laws and even fewer at the federal level, which lacked any pollution control agency. Today, there are comprehensive and stringent pollution control and natural resource management laws, and corresponding agencies responsible for the implementation and enforcement, in the federal government, all fifty state governments, and an increasing number of tribal authorities.

     The significance of environmental law is not confined, however, to the environmental protection laws themselves or to their most obvious regulating institutions, such as the EPA. Those laws and legal institutions are just the most recognizable expression of the legal transformation. Environmental law’s emergence during the past three decades has triggered a broader evolutionary process, as the teachings and values of environmentalism have infused one intersecting category of legal rules after another, transforming the nation’s laws in response to the public’s demand for environmental protection. Areas of the law as diverse as administrative, bankruptcy, civil rights, corporate, criminal, free speech, insurance, property, securities, tax, and tort law each underwent (and is still undergoing) a significant process of transformation in response to the public’s desire to have laws that better reflect the public’s environmental protection goals.
     The results of this extraordinary transformation of our nation’s laws are both palpable and positive. Few would dispute the contention that our air, water, and land are far cleaner today than they would have been absent such legal reform. In many respects, the quality of the natural environment in the United States is better on an absolute scale than it was over three decades ago, notwithstanding the tremendous increases in economic activity occurring during the same period. The air we breathe in many urban areas is far healthier than before. According to a recent EPA report, aggregate emissions of the six principal air pollutants monitored since 1970 have decreased by 25 percent, while energy consumption has increased by 43 percent, vehicular miles traveled by 149 percent, and gross domestic product by 160 percent. Waterways that were no better than open sewers once again support healthy aquatic ecosystems suitable for recreation. Two thirds of the nation’s surveyed waters are currently safe for fishing and swimming, compared to half that number in the early 1970s. Waste disposal, especially the disposal of hazardous wastes, is closely regulated, and the inactive and abandoned waste dumps that serve as the legacy of past inattention are being cleaned up.

     No doubt the significant gaps in the coverage, implementation, and enforcement of existing laws leave much work undone and some resources misdirected and unduly fragmented in their focus. More than 121 million Americans still live in areas where pollution levels exceed national ambient air quality standards; nitrogen oxide emissions have increased during the past 20 years; and, because of largely unregulated sources of water pollution, much of the nation’s waterways and drinking water fail to meet water quality standards. Yet the far worse environmental catastrophes experienced by many other industrialized nations offer compelling testimony to what environmental law has spared the United States. As a former EPA administrator boasted, there is “no more significant success story in the realm of public policy” in recent history than U.S. environmental regulation.

MAKING ENVIRONMENTAL LAW
The touchstone of environmental law is ecological injury caused by human activity. Broadly stated, environmental law regulates human activity in order to limit ecological impacts that threaten public health and biodiversity. Its premise is not that any human transformation of the ecosystem should be per se unlawful. Environmental law’s objective is far more nuanced. It accepts, in light of the laws of thermodynamics, that ecological transformation is both unavoidable and very often desirable, yet seeks to influence the kind, degree, and pace of those transformations resulting from human activity.
     Environmental protection law is, however, intrinsically difficult to make in the first instance and can be just as difficult to maintain over time. The source of these difficulties is the relationship between the two most basic ingredients in any effort to develop such laws: (1) the features of the ecological injuries that environmental protection law is designed to prevent, reduce, and redress, and (2) the structure and character of lawmaking institutions in the United States. The special challenges faced by drafters and practitioners of environmental law are derived from some basic incompatibilities between these two ingredients.

     Several dominant characteristics of the problems presented by ecological injury are systematically problematic for the ways in which law is made in this nation. As a result of this mismatch, it is exceedingly difficult to enact, implement, and enforce needed environmental laws. Moreover, over the longer term, these laws invariably become sources of great controversy and resistance, generating a destructive cycle of public distrust of law and of lawmaking institutions. Most revealing of this mismatch are the contrasting natures of the spatial and temporal dimensions of ecological injury and of lawmaking institutions. The temporal and spatial dimensions of the former are ill-suited for redress by those of the latter. Indeed, the chasm between the two explains much about the peculiar way in which environmental law has evolved during the past three decades.
     The notion that environmental lawmaking presents unique institutional and social challenges, especially for Western legal traditions and lawmaking processes, is not new. Based on just such generalized concerns, many commentators prophesied 30 years ago that environmentalism would inevitably lead to enormous political upheaval in the United States. Some predicted that only a fascist state could meet the challenges of effectively regulating environmental pollution. According to William Ophuls in the initial edition of his darkly foreboding Ecology and the Politics of Scarcity, published in 1977, “[t]he golden age of individualism, liberty and democracy is all but over.” Garrett Hardin, author of the widely influential essay The Tragedy of the Commons, in 1968, similarly contended that what was needed was a “world government that is sovereign in reproduction matters” and went on to claim that “injustice is preferable to total ruin.” Still others, while less pessimistic about democracy’s capacity to embrace the necessary legal regime, were confident that such revolutionary strides could occur only with the rise of a “Green Party” championing such a cause.
     None of these now seemingly extreme prophecies, of course, has been realized, but that is not because of the invalidity of their shared assertions concerning the substantial difficulties associated with environmental lawmaking. They are instead instructive of the capacity of the U.S. legal system for law reform and legal evolution.

THE ROAD TAKEN
In her book Silent Spring, first published in 1962, Rachel Carson awakened a nation to the dangers presented by the unregulated use of pesticides. Borrowing from Robert Frost’s poem “The Road Not Taken,” Carson wrote movingly of the “other road” open to the nation for avoiding ecological catastrophe, advocating strict regulation of pesticide use as well as basic lifestyle changes.

     Over 40 years have passed since the first publication of Silent Spring. Although Rachel Carson would no doubt find fault in much of the road actually traveled during that time, it is equally clear that much has been accomplished in improving environmental protection efforts. The emergence of a comprehensive legal regime for environmental protection has served an important role in securing those accomplishments.
     Some commentators have suggested that environmental law may have resulted from what law professor James Pope has called a “republican moment”–an “outburst of democratic participation and ideological politics”–created by widespread and then-rising public demand for environmental protection. The term “republican” invokes the political tradition referred to as “civic republicanism,” which stresses the willingness of individuals to undergo sacrifices to promote the public good. A “republican moment” is a time of such heightened civic-mindedness that it is possible to overcome substantial institutional and political obstacles to potentially radical social change. Under this view, it has been argued, the “original 1970 Earth Day looks very much like a ‘republican moment.’ An estimated 20 million Americans participated in a variety of public events that day. More than 2,000 colleges, 10,000 high schools and elementary schools, and 2,000 communities took part.” The theoretical significance of such a “republican moment” lies in the contention that, without such a moment, environmental protection law would never exist because of its radically redistributive nature.
     To understand environmental law’s emergence in the 1970s, however, one must distinguish between the seeming suddenness of its emergence and the longstanding reasons that explain its development. A series of major laws came into existence very quickly, but both the relevant pre-existing legal doctrine and the reasons for a more comprehensive legal regime were both long-standing and deeply ingrained. As proponents of “republican moment” theories recognize, such moments can depend for their occurrence on social movements that existed for decades beforehand and on implementing actions that occur for decades afterwards.
     Environmental law did not spontaneously begin in the late 1960s and early 1970s. Environmental law no doubt had its first, most formal, expression during that time, but its historical legal roots are far deeper and broader. They extend to the nation’s natural resources laws, which played such a dominant role in the country’s first 150 years. Environmental law in the United States also stems from the statutory and public policy precedents in the areas of public health and worker safety that were steadily established in the United States throughout the 20th century. Environmental law is not, as many in the media have seemed to assume, “a movement without a history.”
     The reason for environmental law’s persistence and steady expansion, in subsequent decades, notwithstanding major political efforts to cut back on its requirements, relates to the depth of the shift in public attitudes that prompted environmental law’s initial embrace. This was no thinly developed public affinity with a social movement of the moment. Environmental law was then, and is still today, the product of the public’s fundamental reconceptualization of time and space, which propelled environmental law’s extraordinary series of legislative enactments and has since underlain the defeat of a series of major political challenges. The sheer depth and tenacity of the public’s views, which are most often rooted in concerns about potential threats to human health and the dangers of exceeding ecological limits, explain why environmental law has been so persistent and inexorably expansive and why its repeatedly proclaimed demise has proven, on each occasion, to be premature. American environmentalism sweeps into its embrace both long term altruistic beliefs about humankind’s relationship to the natural environment and short term more self-interested concerns about the impact of pollution on specific individuals. On the other hand, much of the controversy and conflict surrounding environmental law since 1970 can be traced to an equally persistent gap between the public’s aspirations for environmental protection and its willingness to sufficiently change individual behavior to realize those aspirations.

THE GRAYING OF THE GREEN
Some conclusions about modern environmental law come easily. It defied most soothsayers of the 1970s, especially in the United States, who predicted that it would be a mere “fad” or “flash in the pan.” The laws were neither systematically gutted by subsequent legislation nor were they the object of merely symbolic implementation. Pollution control and natural resource protection laws instead persisted, expanded, and settled into the legal landscape, changing legal norms throughout the nation’s intersecting laws. By the end of the 20th century, private economic expectations were more likely to be dependent on the existence of pollution control and natural resource conservation laws than they were to be surprised and frustrated by them.

     The actual costs of pollution controls have, moreover, almost always proved to be less than those industry projected in initially opposing their imposition. Strict controls on automobile emissions were not “impossible,” but were instead readily achievable. Industry estimated in 1990 that volatile organic compound controls applicable to stationary sources would cost $14.8 billion per year; the actual costs are now projected to be about $960 million. In 1989, the utility industry predicted that the Clean Air Act’s acid rain program for the control of sulfur dioxide emissions would cost between $4.1 and $7.4 billion per year; actual costs are now estimated to be about $1 to 2 billion per year. Nor did the chemical industry prove correct in their exaggerated complaints that accelerated the phasing out of ozone-depleting chlorofluo-rocarbons would cause major economic disruption; industry quickly developed a ready chemical substitute for those chemical compounds being banned.
     By contrast, the benefits of pollution controls and natural resource management have often been much higher than initially anticipated, to the extent that they even lend themselves to monetization. Serious human health effects from particulate matter, for instance, turned out to be a larger problem than scientists first thought, which has prompted a further tightening of applicable air quality standards both in terms of the minimum size of particulate manner regulated and allowable concentrations in the ambient air. We also now better appreciate that the substantial benefits of environmental laws extend to the promotion of economically productive activities, including many large industries (e.g., fishing, tourism, computer technology) that depend upon a clean environment for producing their goods and services, as well as new businesses that make up the burgeoning multi-billion dollar environmental protection industry.
     Likewise rebuffed have been those political scientists who contended that environmentalism is fundamentally incompatible with a democratic form of government. The experience of the last several decades suggests quite the opposite is true. Environmental protection law has generally fared much better under more democratic forms of government and has not promoted the ascendancy of fascist, totalitarian regimes. Less democratic governments have in fact fared more poorly than democratic politics. One reason for the difference likely has been the fundamental role that information disclosure has proven to play in environmental law, a basic policy that is promoted within democratic government and often viewed as antithetical to more totalitarian governed societies.
     The decades since the early 1970s have not, however, been easy or quiet times for environmental law. They have been tumultuous, fraught with increasing social controversy and political conflict. This should not be a surprise. Nor is it necessarily unhealthy. There are deeply ingrained structural reasons for such controversy and conflict, ultimately rooted in a series of mismatches that exist between the kinds of laws necessarily promoted by environmental law and the demands and preferences of U.S. lawmaking institutions and processes. It is not easy to pass, implement, and enforce laws that impose costs on some and benefits on others, especially when the associated costs and benefits are potentially massive, riddled with uncertainty, and spread out over tremendous spatial and temporal dimensions. It is not easy to pass, implement, and enforce laws where the problems being addressed often promote centralized government deci-sionmaking, but there are countervailing social values, embedded in the Constitution, that both limit such centralization and minimize government restrictions on individual activity. And, it is not easy to pass, implement, and enforce laws, when constantly changing technology and scientific information promote corresponding changes in complex legal rules, but the nation’s lawmaking scheme prefers laws that are stable, settled, and clear.
     Notwithstanding the resulting debates and disagreements over its proper direction, environmental law has been remarkably successful, as it has evolved from a radical intruder into an essential element of a mature legal system in a democratic society. There has been slippage. There are the inevitable regulatory perversities: minor problems overregulated and major problems largely ignored. And there have been some serious and persistent socioeconomic and racial inequities, especially in the distribution of benefits of pollution controls. Some reform is justified. But, a more careful, rigorously analytical approach in the first instance would likely have had far less success in
terms of actual protections achieved than the more dramatic laws that the nation instead embraced over industry’s objections. Sometimes, society is better off simply by hitting a problem with the legal equivalent of a two-by-four than taking the years necessary to determine the problem’s precise dimensions and the optimum legal regime possible for its addressing.

     Sheer human passion for human health and for the natural world supplied much of the necessary evolutionary force in environmental law’s overcoming the hurdles impeding the enactment of such radically redistributive laws. Absent such passionate commitment to the goals of environmental law, including what must often seem to be the environmentalist’s unreasonable refusal to compromise, it seems unlikely that environmental law would have achieved so much. It requires great stubbornness to overcome the strong political forces that are generated in opposition to laws that promise uncertain results only in the distant future at the expense of more discernible costs in the immediate present. Pragmatism is an essential element in effective lawmaking, but it is no substitute for passion and moral commitment.

     However, neither modern environmental law in the United States nor those remarkable individuals who played such phenomenal and persistent roles in its promotion still possess the unbridled youthfulness and uncompromising focus they once enjoyed. In their own distinctive ways, they have each grayed. There is now greater appreciation of the pitfalls associated with perceiving policy disputes as always presenting starkly contrasting images of good versus evil. For many, there is also an inevitable sobering of aspirations and of their assessment of the American public’s willingness to change individual behavior.
     This aging of environmental law and environmentalism raises the larger issue of whether environmental law can maintain the passion and commitment needed to rebuff the never-ending efforts to make it more responsive to the concerns of the here and now at the expense of those in seemingly distant places and future times. The current winds of domestic political polarization, international instability, and armed conflict would seem to make it difficult to be optimistic that the nation and international community will soon be ready to work together to negotiate effective and equitable ways for addressing ever-looming global environmental problems. Perhaps, however, akin to the nation’s experience with the Vietnam War in the late 1960s and 1970s, which produced social unrest but also the societal consensus that led to the enactment of modern environmental law, the world and nation will emerge from current events more ready than ever to work together. The United States, needing to show the rest of the world its willingness to engage in multilateral cooperative efforts, could make environmental lawmaking emblematic of its renewed commitment.