The past and future of environmental law.

From the perspective of a legal educator at the school that invented environmental law as a specialty, Dean Huffman presents his vision of the future of environmental law. The environmental movement's origins lie in the conservationist tradition of Theodore Roosevelt and Gifford Pinchot and the preservationist tradition of John Muir and George Perkins Marsh. Sadly, under the mantle of conservation directives, federal land managers exacerbated detrimental impacts on the environment through massive subsidies. The federal government, backed by a surging environmental movement in the Seventies, instituted command and control directives to stem the tide of environmental degradation. Dean Huffman chronicles the rise of the economic alternative to command and control mandates--marketplace mechanisms. He notes that the marketplace approach to environmental control originated not from the ivory towers of academia, but from the workings of industry. With these two dominant approaches to environmental law in mind, Dean Huffman next examines the future of environmental law. While command and control directives will remain a central fixture of environmental law in the next century, Huffman predicts their steady decline in favor of more efficient market mechanisms.

I. INTRODUCTION

Since the original Earth Day and the almost simultaneous founding of this journal, environmental law has gone from a legal curiosity to a mainstay of modern legal practice and public policy. What was once the exclusive cause of radicals is now the day-to-day work of legions of button-down lawyers from Wall Street to San Francisco. The Environmental Protection Agency (EPA) is one of our federal government's youngest agencies, yet it is Washington's largest bureaucracy.(1) How did we get here, and what is the future of environmental law?

In brief, environmental law traveled a circuitous and often controversial path from its radical beginnings to Wall Street and Washington. Like any developing area of the law, it borrowed from other laws and relied on trial and error to measure effectiveness. It also struggled with unavoidably high levels of factual uncertainty and relied upon unsophisticated understandings of how the law might influence people to take better care of their environment. As lessons were learned, the inertia of the common law and of constitutional democracy made refinements difficult.

The future is probably more of the same--trial and error based on limited knowledge and restrained by inertia--but we can fairly assume some basic directions. There will surely be a growing tension between decentralization and internationalization of environmental regulation. Market mechanisms will gain favor, even in pursuit of international objectives. Environmental justice will compete with environmental protection for attention in both the public and private realms. All of this will contribute to unexpected political alliances and the growing erosion of the once unified environmental movement.

So there I am, out on a limb. In the remainder of this Essay I will elaborate a bit from the perspective of a career legal educator at the law school that invented environmental law as a specialty of legal education.

II. PHILOSOPHICAL FOUNDATIONS AND A CONCERN FOR HUMAN HEALTH

The environmentalism that emerged in the 1960s was born of a concern for human health and nurtured by association with two parallel philosophical traditions. Rachel Carson's Silent Spring(2) was a key catalyst for widespread public concern about the health impacts of various human activities. This very pragmatic concern for the welfare of individual humans was quickly grounded in the nearly century old traditions of conservation and preservation.

Conservation, as understood and propounded by Gifford Pinchot, Theodore Roosevelt, and many others, was the wise use of resources to yield, in Pinchot's words, the "greatest good to the greatest number for the longest time."(3) This late nineteenth century philosophy was well suited to the mid-twentieth century realization that environmental harm threatened human health. Actions harmful to children and others were clearly not for the greatest good and presumably would have been avoided had we been attentive to Pinchot's conservation principle.

Preservation, as understood and advocated by George Perkins Marsh, Henry David Thoreau, John Muir, and others, saw value in preserving nature for its own sake, simply because it is nature.(4) Human spiritual health was thought to benefit from exposure to, and even the simple existence of, natural places. While this perspective was sometimes seen to be in conflict with the conservation ethic, as in the debates over the future of Hetch Hetchy Valley in Yosemite,(5) the philosophy of preservation proved a good companion for conservation philosophy in the infancy of modern environmentalism. Preserving nature's wonders had great symbolic value which served well the efforts to rein in human excesses in the use of nature's bounty.

It was an alliance of well-established traditions that would carry modern environmentalism for nearly three decades with little internal conflict. And it was an alliance that suggested particular policy responses, namely, government intervention through public ownership of natural and environmental resources and government regulation of private owners of those resources. Little attention was given to the widespread, unintended, environmental harm that resulted from government's efforts. Often in the name of conservation, governments wrought direct environmental harm as resource managers and indirect environmental harm through massive subsidies to private owners and managers.(6) And finally, it was an alliance of philosophical traditions that urged upon modern environmentalists a preference for centralized government action at the federal level, just as the federal government had been the primary instrument of nineteenth century conservation and preservation.

III. EDUCATING AND MANDATING FOR ENVIRONMENTAL QUALITY

The dominant approach to environmental protection over the past thirty years has been command and control regulation.(7) The basic idea has been that private decision makers, particularly those acting pursuant to market incentives, will fail to take account of the environmental consequences of their actions.(8) It is therefore necessary that government establish acceptable levels of environmental impact and command that these levels not be exceeded. For some, these environmental standards are a moral imperative; for others, they internalize costs and thereby correct market failures.(9) Extensive bodies of literature have developed to explain and justify both of these theoretical underpinnings of environmental regulation.

The moral case for environmental regulation finds its roots in the preservationist tradition.(10) Detriment to the environment is regulated not because environmental degradation may have negative impacts on human beings, but rather because the environment has intrinsic worth.(11) It is a claim easily stated, but not so easily translated into regulation. Absent a defensible hierarchy of moral principles that explains when the environment can be sacrificed for the greater human good, human welfare has no better claim to protection than does the environment. While a few radical environmentalists do assert that humans have no higher standing than any other living organism and that any alteration of the environment therefore must be forbidden,(12) most who defend environmental protection on moral grounds fred that they cannot accept human suffering in the name of environmental protection.

Nonetheless, the moral argument is commonly urged in defense of environmental regulation, because it gives the appearance of rising above the nasty business of political log rolling and horse trading. If environmental protection is a moral imperative, it should trump the mere claims of human serf-interest that dominate our political processes, if not our political dialogues. Polluters can be demonized as special interests or worse, while the advocates of environmental protection stand as selfless guardians of the environment.

The moral case for environmental protection has led to two basic policy approaches. Education is the first line of action, with command and control regulation for those not yet educated or the uneducable. There can be little doubt that education has had important effects--particularly among young people---but it is also clear that appeals to voluntarism in the name of a good cause seldom carry the day.

The economic case for environmental protection assumes that education is important to assure that individual decisions are informed, but it does not assume that people will protect the environment because it is the right thing to do.(13) Rather the economic case accepts that people will act to optimize their personal welfare, often with unintended and inefficient detriment for the environment due to market failures.(14) From the economic perspective, high transactions costs, free riders, and poorly defined or nonexistent property rights result in private choices that fail to internalize many environmental costs.

Pursuant to this market failure theory of environmental regulation, it falls to government to impose standards that force private actors to effectively internalize environmental costs. The regulator's task is to command that allocation of environmental resources the market would deliver if there were no market failure. This means that our environmental regulations will seldom, if ever, be designed to eliminate all environmental effects. Rather, the objective is to set standards that maximize net social welfare while taking full account of the costs and benefits of environmental protection.

In fact, most of our environmental regulations of the last three decades have reflected both the moral and economic cases for environmental protection. Most will agree that economic efficiency is a worthy objective in the use of environmental resources, but few will agree that efficiency is the only goal. Indeed, our brief history of command and control regulation evidences that we have often sacrificed efficiency in the name of trying to do the right thing by the environment.

That same history also demonstrates that the reliance placed on government to do the right thing, or to force others to do the right thing, is often misplaced. Significantly several of our most significant environmental laws are designed to regulate government. The National Environmental Policy Act,(15) the Endangered Species Act,(16) and an array of public lands legislation all address the environmental harm that has resulted from government action.(17) In the wake of lip service (or perhaps vain appeals) to education, command and control has been the dominant approach in environmental policy over the last three decades, even where government is the offending agent.

IV. ENVIRONMENTAL LAW IN THE ACADEMY

Environmental law was slow to find its way into the law school curriculum. This was true for several reasons, not the least of which was that legal educators of the late 1960s and early 1970s, like the law itself, were slow to respond to change. Unlike the legal academy of today, law professors and law school administrators in the founding era of modern environmental law were predominantly conservative in their approach to legal education, if not in their politics. The law school curriculum had not yet begun to absorb the vast array of "law and ... " courses, nor had the critical legal studies movement become the catalyst for radicalizing the legal academy. So environmental law was not an obvious or easy fit for the law school curriculum of the early 1970s.

At Lewis & Clark we got an early start in part because my colleague Bill Williamson had the remarkable foresight in 1969 to propose the creation of Environmental Law, the nation's first law journal on the subject. Over the next decade, we pieced together a modest but trend-setting curriculum in environmental law. Our guiding philosophy, emulated by few other schools, was to integrate the traditional subjects of natural resources law (i.e., water, oil and gas, mining, and public lands) with the new subject of environmental regulation.

Throughout the 1970s a relatively small number of law schools instituted basic environmental law survey courses; another group of mostly western schools continued to offer long-standing courses in natural resource laws important to their local economies. It was not until well into the 1980s that environmental law became a standard offering at most law schools.

Today, numerous law schools claim to have environmental law programs, and at least thirty publish journals specializing in some aspect of environmental law.(18) This burgeoning of interest among law schools paralleled the rapid growth of environmental law as a mainstay of both big firm and government law practice. While some would say the bloom is now off the environmental law rose, there is little likelihood of a dramatic decline in the demand for environmental lawyers in light of the pervasive and complex network of federal and state environmental laws.

In an era of growing specialization in both legal practice and legal education, environmental law has taken its place as a well established specialty. While the majority of students interested in environmental law imagine themselves employed in the relatively few public interest jobs, most can find environmental law positions if they are willing to work in the private or government sectors. Most major law firms have environmental law departments that are critical to their ability to compete for clients. Federal, state, and local governments employ large numbers of environmental lawyers responsible for both enforcement and governmental compliance. This has put pressure on all law schools to offer the basics of environmental law and has encouraged several law schools to offer advanced degree programs in environmental law. In less than thirty years, environmental law has gone from a boutique course at a handful of law schools to a core course in every respectable law school.

For the most part, the nation's environmental law professors have been advocates for the environmentalist cause and defenders of the orthodox environmentalist preference for command and control regulation. Because the growth of environmental law in the law school curriculum has paralleled the liberalizing of the legal academy, environmental law professors have not been unusual in this commitment to a particular perspective on the law they teach. Academic criminal law is dominated by professors sympathetic to the defense. Academic employment law is dominated by professors sympathetic to employees. And so it goes across the legal academy, as is evident to any law student with conservative views or to anyone who attends the annual meeting of the Association of American Law Schools.

V. VOICES BEYOND THE IVORY TOWER

While there are notable exceptions to the gross generalizations in the previous paragraph, and individual law schools differ one from another, it was not to be expected that alternative approaches to environmental policy would emerge full blown from the legal academy. For the most part, academic environmental lawyers accepted that environmental problems are the result of short-sighted, self-interested, private decisions and that the only effective solution is public intervention. As it became apparent that public intervention often results in environmental harm, it was generally assumed that the remedy lay in better government. Thus, reform proposals from the legal academy have generally called for more regulation pursuant to processes designed to maximize public participation and minimize the influence of special interests.

A relatively small minority in the legal academy has taken a different view, but the dominant voices in opposition to the orthodox environmentalist approach have come from beyond the ivory tower. Inspired by the influence of the Heritage Foundation during the Reagan Administration, a wide array of conservative think tanks, ranging from libertarian to social conservative, have brought their market philosophy and their considerable political talents to the environmental debates.(19)

Leading the way, from the obscurity of a small college town in Montana, the Political Economy Research Center (PERC) laid the foundations for what has become known as free market environmentalism.(20) Through a long term strategy of educational programming, PERC and its offshoot, the Foundation for Research on Economics and the Environment (FREE), have spread their message to journalists, congressional staffers, federal judges, government bureaucrats, environmental activists, and the general public.(21)

Following the lead of these pioneers in the Northern Rockies, Lilliputian conservative think tanks have blossomed around the country and brought the thinking of free market environmentalism to the local issues that affect people's day-to-day lives. At the same time, there has been a decentralization of the environmental movement in the form of hundreds of local organizations concerned more about results in particular situations than about philosophical struggles between the left and the right. These groups have often been receptive to nonregulatory approaches that promise to serve their objectives.

Meanwhile, larger and more influential conservative think tanks have taken on the command and control orthodoxy in Washington, D.C. and across the country. Notable among these organizations are the Competitive Enterprise Institute and its Private Conservation Project, the American Enterprise Institute, and the Reason Foundation.(22) At the same time, a handful of conservative, public interest law firms, notably the Pacific Legal Foundation and the Washington Legal Foundation, have consistently challenged regulatory excesses and defended the economic liberties essential to a free market economy.(23)

It should not go without saying that a few mainstream environmental groups, most notably the Environmental Defense Fund, have at least occasionally broken ranks with command and control orthodoxy to promote market approaches where they will serve the pragmatic objectives of their constituency.(24) The Nature Conservancy has provided an effective market participation model for other environmental interests.(25) Although many environmentalists may resent that the property acquisition approach requires payment for what regulation promises for free, it is difficult to ignore the environmental accomplishments of the Nature Conservancy and similar organizations.

VI. THE FUTURE OF ENVIRONMENTAL LAW

Environmental law is here to stay. A growing population on a finite Earth guarantees that environmental problems will persist and that governments, corporations, special interests, and individuals will turn to the law for solutions. In the United States and many European countries, a generation of young people has been educated, some would say indoctrinated, in the values of environmentalism. This, like other aspects of our children's formal and informal education, will help form tomorrow's cultural norms and will be reflected in the laws that are enacted over the coming years. Notwithstanding the fondest hopes of those who look forward to a future of environmentally responsible citizens, law will always be necessary to the achievement of environmental objectives. The interesting questions are 1) What form will those laws take?, and 2) How much will we learn from our experience of the past thirty years?

A. Command and Control

Command and control regulation and other forms of direct governmental intervention will surely remain a central characteristic of the environmental law of the future. Human nature seems to make ns an impatient species, ever in search of quick and simple fixes. The prospect of achieving immediate results by issuing commands or prohibitions is alluring, even though our experience demonstrates that fundamental social and cultural change seldom come with what our Supreme Court once called "all deliberate speed."(26) Continued reliance on command and control regulation should also be expected because of the crisis mentality that often characterizes our environmental politics. When the sky is falling, we are all the more impatient.

B. Decentralization

After three decades of centralized environmental regulation, we have begun to see a trend of decentralization. This trend is a product of dissatisfaction with the results of the "one-size-fits-all" approach of the past and a popular desire for greater control over the rules that govern people's day-to-day lives. In some parts of the world it has been a worrisome trend because of the often violent conflicts that have flared up, particularly in countries with historic ethnic divisions in their populations. In the United States the trend is part of what has been labeled "devolution" of power from the federal to the state and local governments.

In the environmental arena, the decentralization movement has been viewed by some as anti-environmental, but the reality is that greater local control over environmental standards has led to both greater and lesser protections for environmental values. This diversity of approaches is part of what recommends decentralization, because it provides everyone with the benefit inherent in experimentation, but it also means that environmental standards will not be the same in every part of the country.

Whatever the merits of decentralization in environmental regulation, it will likely continue for the foreseeable future. It is widely perceived that many environmental problems are local, both in their impacts and their solutions. This is not to say that national regulation is unnecessary in some circumstances. Rather it reflects a recognition that local regulation is sometimes more effective and that national regulations can be detrimental to the autonomy of local communities. Perhaps Americans are moving toward the regulatory philosophy of subsidiarity--the principle that the best government is that which is the least centralized yet still adequate to accomplish the task at hand. It is an approach often articulated, if not implemented, by Europeans struggling with the future of the European Union.

C. Environmental Markets

Pursuant to the same theme of decentralization, we should also expect continued and expanded resort to market mechanisms, which are the most decentralized approach of all. Although most mainstream environmentalists have been reticent to embrace policies like water marketing, emissions trading, congestion pricing, wetlands banking, and fee hunting, the environmental benefits of these approaches are too promising for pragmatic environmentalists to ignore. There will remain principled opposition at both ends of the political spectrum--from the left because the environment has immeasurable value and should not be treated like a mere commodity, and from the right because what are being called market approaches do not really rely on markets to determine the optimal allocation of scarce environmental resources. But pragmatists from all sides will carry the day. Results matter to people, particularly when those results are achieved at less cost in terms of other things people care about.

D. Collaboration

In the near term, at least, we should also expect expanded reliance on collaborative approaches to the resolution of environmental disputes. The archetypal case has been the Quincy Library Group in Calffornia,(27) but many similar efforts have been tried across the country. While the results have been mixed and the transaction costs in terms of human time commitment have been high, the collaborative model appeals to the growing number of Americans who have embraced the communitarian ideal as an alternative to the take-no-prisoners divisiveness that characterizes much of our contemporary politics. The model also appeals to those in the legal profession who have advocated and practiced alternative dispute resolution as a substitute for the adversarial approach of the courtroom. The collaborative method promises to be successful in many local and well-defined disputes, but it is unlikely to be of much use in resolving the major issues of environmental politics.

E. Environmental Crime

There will probably be an expanded role in environmental policy for criminal law in the coming years. A significant number of environmental advocates believe that some environmental harm is the result of criminal behavior, while others take the purely pragmatic position that commands and prohibitions are more effective when the consequences of violation are criminal prosecution. Reliance on the criminal law in many environmental harm situations is problematic in terms of traditional criminal law principles, but these challenges have not prevented the development of a significant body of law on environmental crimes. The fact that the vast majority of environmental harm results from the everyday activities of ordinary people, or from activities which provide ordinary people with the goods and services they need and desire, suggests that the future role of the criminal law in environmental policy will be limited.

F. Environmental Justice

Environmental justice--the concern that our environmental policies do not discriminate against minority and low-income populations--will certainly play a continuing role in environmental law. Although the concerns of environmental justice advocates are really an aspect of the much broader concern about unequal wealth distribution, their focus on environmental policy has had the positive impact of underscoring the tradeoffs implicit in every environmental policy decision. Environmental and civil rights advocacy groups can no longer assume that they are in common cause, a realization with positive consequences in the politics of both environmental policy and civil rights. Because the wealth distribution claims of the environmental justice movement have no special or unique attributes however, they are unlikely to lead to fundamental changes in environmental policy.

G. Internationalization

Finally, we should expect U.S. environmental law, both state and federal, to reflect increasing international law influences. The internationalization of environmental law is obviously a counter trend to the decentralization forecast above. Pursuant to the principle of subsidiarity, there may be appropriate circumstances for an international regime of environmental law, but we should expect considerable tensions between those advocating greater international control and those urging local responsibility.

Illustrative is the current debate over the Kyoto Protocol and the appropriate American response to the prospect of global climate change. Many other environmental issues can be expected to raise similar tensions. Although there may be circumstances where international standards are appropriate, it should not escape our thinking that the shortcomings of our federal regime of the past few decades will only be exacerbated at the international level.

JAMES L. HUFFMAN(*)

* Dean and Professor of Law, Northwestern School of Law of Lewis & Clark College; J.D. 1972, University of Chicago; M.A. 1969, Fletcher School of Law & Diplomacy, Tufts University; B.S. 1967, Montana State University.

(1) The initial size of EPA was slightly over 5,000 employees. Now, 29 years later, more than 17,000 people work at EPA. U.S. Envtl. Protection Agency, U.S. EPA Employment Information (visited Oct. 24, 1999) <http://www.epa.gov/ephrist/>.

(2) RACHEL CARSON, SILENT SPRING (1967).

(3) GIFFORD PINCHOT, THE FIGHT FOR CONSERVATION 48 (2d ed. 1967).

(4) See GEORGE PERKINS MARSH, MAN AND NATURE (David Lowenthal ed., Harvard Univ. Press 1967); HENRY DAVID THOREAU, WALDEN (J. Lyndon Shanley ed., Princeton Univ. Press 1971); JOHN MUIR, NATURE AND WRITINGS (Library of America 1997).

(5) See JACQUELINE VAUGHN SWITZER, GREEN BACKLASH, THE HISTORY AND POLITICS OF ENVIRONMENTAL OPPOSITION IN THE U.S. 39 (1997).

(6) See James L. Huffman, The Future Interest in Private Property Rights, OKLA. L. REV. 377, 388-89 (1997) (citing various sources).

(7) See ROBERT PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 108-11 (1996); see generally, Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997); Resource Conservation and Recovery Act of 1976, 42 U.S.C. [subsections] 6901-6992k (1994 & Supp. III 1997); Clean Air Act, 42 U.S.C.] [subsections] 7401-7671q (1994 & Supp. III 1997).

(8) See WILLIAM BAUMEL & WALLACE OATES, ECONOMICS, ENVIRONMENTAL POLICY AND THE QUALITY OF LIFE 71 (1979).

(9) See PERCIVAL ET AL., supra note 7, at 39.

(10) See JOHN MUIR, GENTLE WILDERNESS: THE SIERRA NEVADA (1907); see also James L. Huffman, Do Species and Nature Have Rights?, 13 PUB. LAND L. REV. 51, 70 (1992).

(11) Huffman, supra note 10, at 70.

(12) See JONATHAN ADLER, ENVIRONMENTALISM AT THE CROSSROADS: GREEN ACTIVISM IN AMERICA 114-21 (1995) (discussing deep ecology and its proponents).

(13) See generally Stevens F. Edwards, In Defense of Environmental Economics, in ENVIRONMENTAL ETHICS: CONVERGENCE AND DIVERGENCE 231, 232-35 (Susan J. Armstrong & Richard G. Botzler eds., 1993) (asserting that rather than protect the environment because it is the right thing to do, people will protect the environment so long as it yields a utility).

(14) See James L. Huffman, Land Ownership and Environmental Regulation, 25 ECOLOGY L. Q. 591, 594 (1999) (citing FREDERICK R. ANDERSON ET AL., ENVIRONMENTAL PROTECTION LAW AND POLICY 19-50 (1990)).

(15) National Environmental Policy Act of 1969, 42 U.S.C. [subsections]

4321-4370(d) (1994 & Supp. III 1997).

(16) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

17 See also Federal Land Policy and Management Act, 43 U.S.C. [subsections] 1701-1784 (1994); Public Rangelands Improvement Act, 43 U.S.C. [sections][sections] 1901-1908 (1994).

(18) Richard J. Lazarus, Environmental Scholarship and the Harvard Difference, 23 HARV. ENVTL. L. REV. 327, 341 (1999).

(19) See ADLER, supra note 12, at 136-44 (discussing the founding and work of various conservative and libertarian think tanks).

(20) Id. (discussing PERC and free market environmentalism in general).

(21) See Id. at 136-37, 140-41.

(22) See Id. at 141-42.

(23) See id. at 127.

(24) See id. at 142-43.

(25) See id. at 139.

(26) Brown v. Board of Education, 349 U.S. 294, 301 (1955).

(27) See Ed Marston, The Timber Wars Evolve into a Divisive Attempt at Peace, HIGH COUNTRY NEWS, Sept. 29, 1997, at 1.