The Past and Future of Environmental Law
Huffman, James L., 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.
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. …