One of our key objectives at this celebration has been to explore the future of environmental law. To continue the exploration, I've chosen to address not an area of environmental law or environmental practice, but rather the teaching of environmental law.1
In large measure, the impetus for this essay came from John Bonine, who also contributed to this symposium. Late last year, following a flurry of emails addressing whether EPA had authority to regulate greenhouse gases (Massachusetts v. EPA2), John posted the following provocation to the environmental law professors listserv:
Folks, I have to say that some of our recent discussions seem a bit academic, and not necessarily in the good sense, for this combination professor-and-concerned citizen.
If our job as law professors is to figure out whether EPA was given the authority 36 years ago to control the most serious air pollution threat the world has ever known, I guess we're all on track. I certainly like to entertain myself with intellectual wordand-statute games as much as anyone, as I think I have proved in my own recent postings.
But is that all there is? Can we really afford to be bystanders'? We are in a full blown emergency now. I expect to have shuffled off this planet before things get really bad, but not my children, and not their children.
To bring it back to the role of environmental law professors, what are we doing to prepare our future lawyers? Something other than figuring out whether [Justice] Kennedy will vote with [Justice] Scalia to provide the 5th vote to do nothing, I presume.3
To which Professor Fredrico Cheever, quickly added:
Much as I have enjoyed the recent discussions about the Clean Air Act, I am inclined to agree with John. The rules of the game have changed, the reference in which environmental law in the United States (and every other nation I know about) no longer exists. All politics aside, how do we train lawyers to deal with the endless disputes that will arise from shifting ecosystems, shifting agricultural areas and shifting human population? How do we train them to draft protective legislation (to preserve the atmosphere or oceans) on a scale rarely (if ever) attempted before?4
John and Fred's provocations were followed in short order by the release of Educating Lawyers: Preparation for the Profession of Law (Carnegie Report),5 a Carnegie Foundation study reporting on what we do and do not do so well in law school teaching. That was followed by the release of the report on the Best Practices For Legal Education: A Vision and Roadmap (Best Practices Report),6 which I had previously been working from in its draft form. The Best Practices Report, as the name suggests, provides a comprehensive report on the best practices for law school teaching, and is insistent in calling for reform.
As if that were not enough, my faculty colleagues here at the University of Washington were in the concluding phase of a multi-year effort to revise the first year curriculum and were embarking on discussions about curricular reform in the second and third years, involving various "clusters" including environmental law, administrative law and clinical law-all areas in which I teach. So, you might say that the pump was primed; I was thinking about law school pedagogy,7 planning this conference, and working on several climate change matters.
In this essay, I will respond to John's listserv provocation: What should we be teaching to the next generation of environmental law students? And, in addition, the embedded question of why (what are the goals), and the natural follow-on, how should we go about this teaching?
Before I start to address these questions, a few caveats are in order. First, as surely most of you know well, I am not the first person to address the questions of what and how we teach environmental law. At the end of the 1980s and 1990s, for example, a couple of titans of our field, Professors Joe Sax8 and Zygmunt Plater,9 addressed the subject. …