Is Environmental Law Serving Society?

Vol. 26 No. 4

Ms. Ristino is senior counsel with the USDA Office of the General Counsel in Washington, D.C., and she is a member of the editorial board of Natural Resources & Environment. Mr. Kalen is of counsel with the Van Ness Feldman Law Firm in Washington, D.C.

Last year, the Environmental Law Institute (ELI) launched Environment 2050, an initiative to envision what our environmental governance systems should look like in 2050. A recent ELI Forum article entitled Any Big Ideas Left summarizes the ELI’s findings to evaluate the environmental achievements of the last four decades and asks whether society is running out of solutions to address environmental protection. In this Insights article, Professor Sam Kalen and Laurie Ristino discuss whether environmental law, which is rooted largely in the environmental movement of the 1960s and 1970s, provides an effective framework to address current environmental problems or whether a new framework is needed.

Laurie Ristino: I’ve been thinking about this issue lately in regard to my legal practice. For example, I have been struck by the attempt to use old common law strategies like nuisance law and the public trust doctrine to address the complex issue of climate change. It throws a spotlight on the Clean Air Act’s regulation of greenhouse gases, which is ill-fitting and cumbersome given the nature of carbon emissions.

Sam Kalen: I think it is fair to say that modern environmental challenges are possibly more complex than how environmental challenges were perceived back in the 1960s and 1970s. When our existing environmental laws were first crafted, the country was focusing on overt, easily identifiable, and quite dramatic environmental concerns, such as visible fish kills in our nation’s waters. Today, with challenges such as climate change, or large-scale landscape and demographic shifts, we must now address what is, in effect, a different level of environmental threats. And with a political climate today far different from what it was back in the 1960s and 1970s, Congress has yet to illustrate that it either has the ability or the desire to respond to these modern threats with new ideas or structures. So, instead, it is natural that other avenues are explored—whether imbuing old statutes with sufficient resiliency to respond to modern threats or by pushing the envelope with common law theories.

LR: Your description of environmental laws as based on how environmental challenges were “perceived” 40 years ago is important. It’s not that environmental problems are suddenly more complex; rather, it’s that we are waking up to their complexity. It is worth noting that several legal scholars in the past decade have applied complexity and systems theories from science to critique environmental law and suggest new paradigms for developing environmental solutions. Likewise, I’m suggesting that we’ll need to move beyond old avenues to make progress in addressing environmental protection. To do this, I think we first need to step back and take a hard look at what parts of our legal framework are working and which ones aren’t.

SK: I agree. Professor Tony Arnold aptly noted that “[w]e are starting to see the emergence of a fourth generation of environmental law,” where “[e]cological and social forces of change—and the policy imperatives that they will create—will move the next generation of environmental law towards integrationist and multimodal methods of addressing complex, interdependent, dynamic, and multiscalar environmental problems.” Craig Anthony Arnold, Fourth-Generation Environmental Law: Integrationist and Multimodal, 35 Wm. & Mary Envtl. L. & Pol’y Rev. 771 (2011). This suggests that our existing silo approach to environmental law, induced by the value of specialization, needs revisiting. The environmental law of the future must incorporate energy, food, transportation, land use, and water, just to name a few. And it must do so unconstrained by our existing, arguably simplistic, federalist, regional, and local models.

LR: I agree with you, with a twist. I think we need to specialize because of the complexity of information, but with skills to incorporate and leverage other disciplines both within and outside law. The world is fluid and dynamic and attorneys need to be as well. To this end, two things concern me. The first is that the Academy and practitioners are insufficiently cross-pollinating ideas. The second is that the law has fallen behind in providing a valid framework to address environmental and other issues. In other words, life has outpaced the legal structure. And, when we do attempt to develop new statutory frameworks, we often default to traditional, ill-fitting paradigms and doctrines.

SK: I believe the two issues you identify are mutually reinforcing. The difficulty of cross-pollinating ideas among different specialized silo areas of the law and other disciplines arguably inhibits the introduction of new frameworks. Two examples come to mind. The concept of ecosystem services, while gaining some traction in both the academy and governmental programs, is a product of a multidisciplinary understanding of economics and the value of natural capital. Yet, we have been slow to deploy an ecosystem services approach as robustly as we could. Second, many environmental programs grew out of an era when many ecologists still subscribed to a balance of nature theory—presuming we could take a snapshot of the present “environment” and predict how proposed actions affecting the physical environment might transform the natural and environmental landscape. In contrast, agencies are now increasingly deploying more effective programs that focus on monitoring and adaptive management, as well as ecosystem services, but our laws lag behind where many agencies now appreciate a multidisciplinary, integrationist approach would take them.

LR: I think that the current legal framework, or lack thereof, constricts government from experimenting and using new approaches to environmental protection. For example, the Endangered Species Act (ESA), 16 USC 1531 et seq., is linear in structure with its primary focus on protection of particular species not habitat. (To be clear, I am not advocating repealing the ESA or any other environmental law. Imperfect environmental laws are better than none at all.) On the other hand, one could argue that our national environmental policy as set forth in the landmark National Environmental Policy Act (NEPA), 42 USC 4321 et seq., is based upon a more holistic or systems approach. The implementing regulations at 40 CFR 1502.6 require that NEPA analysis is to be prepared using an interdisciplinary approach. And, 40 CFR 1501.7 provides policy on “scoping,” which is the process to determine the scope of potential issues of the proposed action. Yet, despite its “systems” approach, NEPA’s success in fostering better federal decision making is mixed. I have seen NEPA result in better environmental protection, but I have also seen NEPA that appears perfunctory and predetermined. Moreover, the process itself, and the litigation that arises, can be burdensome, stagnating, and subjective. So, the ultimate question I am left with is how to make environmental laws more integrated and flexible in a way that allows for effective decision making in a complex and fast-moving world.

SK: So, are our laws sufficiently flexible to adapt to the modern scientific paradigm? The ESA and NEPA are two salient examples. The ESA primarily focuses on species rather than habitat, but not to the exclusion of the importance of habitat for protecting species; the act has been employed in a manner that undoubtedly recognizes the importance of habitat, whether in the development of recovery plans, the identification of important habitats (whether “critical” or not), the use of habitat conservation plans, or the way in which biological opinions are structured around protecting habitat values. The notion of ecosystems was apparent when Congress passed the ESA of 1973, and the act itself recognizes their value. The real question is not necessarily the act itself, but whether it is being administered in a manner consistent with modern science. NEPA, I agree, is a systems based, integrationist approach to decision making. The Act is framed in terms of “ecological systems,” averting damage to our “biosphere,” recognizing the “interrelations of all components of the natural environment,” and of fostering “productive harmony” between human society and the environment. And so your question about making our environmental laws, such as NEPA, flexible enough to respond to a complex and fast-moving world is not necessarily a question about the act or other acts themselves; it is about whether our environmental and natural resource agencies are administering these acts in a manner that reflects the resiliency of the acts to address scientific uncertainty in the face of our complex and fast-moving world.

LR: I think your argument is more compelling for NEPA than the ESA, which I think is fundamentally species oriented. Under the ESA, the majority of species have never had critical habitat designated, despite the statutory requirement to do so. Regarding NEPA, I am not so sure its efficacy challenges can be squarely put on the shoulders of agency implementation. Over the last 40 years, much experience and case law has accrued, but, unfortunately, none of these lessons learned have been integrated into these statutes. We could also discuss the regulation of greenhouse gases under the Clean Air Act and attempts to regulate total maximum daily loads (TMDLs) in watersheds such as the Chesapeake under the Clean Water Act. I consider these statutes to fall into a different category than NEPA/ESA (i.e, those statutes that are being stretched to deal with systemic environmental effects, with not insubstantial controversy). Relatedly, we could discuss the absence of law where energy and climate change mitigation strategies are being developed (i.e., the lack of statutory frameworks for pore space, wind, and solar). This phenomenon (the lack of statutory frameworks or foundational law) highlights how environmental, natural resource, and energy law have fallen behind society’s needs. I guess it’s not easy being middle-aged.

SK: Little doubt exists that our middle-aged environmental programs are shouldering challenges not particularly well-suited to their statutory frameworks. With that said, one question is whether these programs are sufficiently resilient? Your argument that the ESA is too species-oriented is perhaps a good starting place. Scholars generally consider that the ESA has experienced several phases. Early on, it was heavily species-specific. But the act has demonstrated its flexibility. Science and common sense prompted the service agencies to take recovery planning more seriously, and they often now focus on landscape level protection for several species and their habitat types. The same is true with the emergence of the Section 10 Habitat Conservation Plan process: Prior to the early 1990s, the program barely operated; after the early 1990s, landscape level habitat protection efforts increased considerably following administrative enticements. I agree that the Section 4 critical habitat program has been somewhat retarded by differing views of its effectiveness. The principal issue is not whether the act is resilient, it has proven to be so, but whether the ESA is sufficiently capable of addressing landscape level protection necessary to achieve meaningful environmental protection?

LR: Let me step back and return to the start of our discussion. We agree that a systems-based integrationist approach is needed. I suggest that ultimately three things need to happen. First, as a society we should take the lessons learned from the last 40 years and integrate them into our environmental laws. Second, any changes should be guided through a systems lens of environmental protection, integrating regulatory requirements for multiple resource concerns where possible with an eye toward practical implementation. Third, public financial assistance dollars should be used to stimulate systems resource approaches, drawing linkages wherever possible.

Sam, do you remember that old TV show Logan’s Run? An image I can’t get out of my head as I am writing this is how the cities in that show were surrounded by vast acreages and connected by high-speed transport.

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