The Making of Environmental Law

The Making of Environmental Law

The Making of Environmental Law

The Making of Environmental Law


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.


In the fall of 1975, I worked evenings as a bartender while completing my senior year at the University of Illinois at Urbana-Champaign. I was pursuing degrees in chemistry and economics in anticipation of enrolling in law school the following year, with the ultimate aim of becoming an environmental lawyer. I well remember a conversation I had one evening with a customer who turned out to be a high-ranking corporate officer for the only major private manufacturing facility in the community. Upon learning of my plans to become an environmental lawyer, he gamely responded that environmental law was a mere “fad”—a “flash in the pan” that offered no meaningful future career opportunities. At the time, I silently labeled him a fool: a businessman clearly lacking any appreciation of the compelling nature of the environmental threats and resulting political forces then driving the emergence and spread of environmental law. Now, with the benefit of more than twenty-five years of hindsight, I realize that there was far more force to his intuition than my own youthful self-assuredness allowed me to perceive.

I understood the events of those years—such as the inauguration of Earth Day in April 1970; the creation of legal institutions such as the President's Council on Environment Quality and the U.S. Environmental Protection Agency (EPA) also in 1970; and the passage of federal statutes such as the National Environmental Policy Act of 1969, the Clean Air Act of 1970, and the Federal Water Pollution Control Act Amendments of 1972—to be the inevitable product of irreversible social and political forces emanating from the environmental protest movements of the 1960s. As a twenty-one-year-old, I was not surprisingly unappreciative of the relative youth of events, institutions, and laws then in existence for fewer than five years. I also lacked any comprehension of how extraordinary it was for such laws to have been enacted in light of their enormously radical . . .

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