The Demise of Environmentalism in American Law
By Michael S. Greve
American Enterprise Institute Press, April 1996
147 pages; ISBN: 0844739804

Legal scholars, policy analysts, and journalists who follow environmental politics have noted that federal courts have become increasingly skeptical of environmental regulation. Judges now treat environmental interest groups and regulators more harshly, and industry plaintiffs more sympathetically. These tendencies signal a broader and more profound shift, the demise of environmental values and ideology in American constitutional and administrative law. The courts have jettisoned ecological presumption and returned to more traditional legal doctrines. This shift is conducive to somewhat more sensible and efficient regulation. Moreover, it has had a profound effect on the substance and tone of the environmental policy debate.

The Ecological Paradigm

"Environmentalism" is not simply a sentiment for clean air or endangered species. It is, above all, an ideology that sees the world as infinitely complex, interdependent, and fragile. On spaceship earth, small events may have large, unforeseen consequences (externalities); when a butterfly in China flaps its wings, the effects ripple through the entire ecosystem. "Everything is connected to everything else" has been modern environmentalism's central premise and operating principle.

This ecological paradigm pushes toward a coherent, though perverse, view of the legal world. In a world of pervasive externalities, traditional, common-law instruments that are modeled on private autonomy (such as property and freedom of contract) become dysfunctional and illegitimate. Environmentalism therefore aims to subordinate common-law rights and private interests to a legal regime that orders private transactions in accordance with a single public value: environmental protection. This logic connects three areas of the law that are commonly thought of as unrelated: takings of private property, standing to sue, and judicial review of agency action.

Property. The common-law tradition understands property rights as a boundary around a private sphere of autonomy: I may exclude you (and all others) so long as, and because, my activities do not affect you. The right to exclude loses its meaning, however, if everything I do within my boundaries affects everyone else: if the real world makes no distinctions between mine and thine, there is no reason why the law should assert them. Accordingly, environmentalism views property rights as anachronistic privileges that cannot be maintained in the face of the common imperative of protecting an imperiled planet. Environmentalism eliminates such rights as a constitutional category.

Standing. The logic of universal interconnectedness also shapes environmentalism's view of who should get access to the courts. Traditionally, a plaintiff had to show some tangible harm to himself to be entitled to a judicial ruling on the merits of his case. This standing requirement serves to prevent mere bystanders or ideologues from interfering with private transactions or public policies in which they have no actual stake.

Environmentalism rejects harm-based standing rules. In a world of omnipresent externalities where there are no unaffected bystanders, what you do with your property is not your business alone but mine also. In the end, standing belongs not to harmed individuals but to trees, birds, and other bearers of ecological values, and to "concerned citizens" who act as "private attorneys general" in defense of disembodied values and principles. The emasculation of property rights and the elimination of harm-based standing are opposite sides of the same coin, and both converge on a boundless definition of government power.

Judicial Review. If everything is connected to everything else, the courts no longer have a reference point for sorting common-law rights and wrongs from the infinite complexity of life. Only the legislature can decide which harms are worth bearing and which are not. And in a sense, even the legislature cannot do so: any legal boundary based on harms is a common-law relic, an unwarranted judgment that only some effects count and an artificial attempt to reduce environmental complexity. Legislation pursuant to the ecological paradigm is not an exercise in line drawing but an unconstrained commitment to environmental values.

Once the legislature has made that commitment, the courts must give full force and effect to absolutist statutory commands for clean air, clean water, and the protection of endangered species whatever the cost (as the Supreme Court declared in Tennessee Valley Authority v. Hill, the famous snail darter case). A government agency's failure to pursue absolutist statutory commitments to the fullest extent raises the suspicion that the agency has been captured by special interests. Courts must counteract this tendency by taking a hard look at regulations that seem to slight environmental values.

From Harms to Values, and Back

Throughout the environmental era that spanned the 1970s and a good part of the 1980s, the case law reflected ecological presumptions. Similarly, environmentalism's central tenets were incorporated into environmental, health, and safety legislation. Environmental statutes typically regulate the uses of private property regardless of their external effects; they treat economic activity as an externality per se and as therefore subject to regulation. Virtually all environmental statutes contain a broadly worded citizen-suit provision that extends standing to any citizen. And environmental statutes abound with legislative commitments to environmental values without regard to feasibility or cost constraints.

Over the past decade, however, the courts have rejected the ecological paradigm and begun to reassert private rights and private orderings as a central principle of American law.

Takings. Federal courts have expanded property owners' Fifth Amendment protection against environmental land-use regulations that effect uncompensated takings of private property. Of particular interest is the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Council: the Court ruled that landowners whose property values are wiped out by regulation are owed compensation if the regulation restricts permissible land uses further than the state's common law of nuisance. The case signals a profound intellectual shift: Justice Scalia's majority opinion squarely confronted the ecological paradigm of interconnectedness and explicitly rejected it.

Standing. Federal courts have sharply curtailed environmentalists' and other public interest plaintiffs' standing to challenge agency action. In two cases, Lujan v. National Wildlife Federation (1990) and Lujan v. Defenders of Wildlife (1992), the Supreme Court reestablished the common-law-like notion of a particularized, tangible harm to the plaintiff as a prerequisite for gaining access to court. The two cases pose severe obstacles, especially to environmental plaintiff-groups who bring programmatic lawsuits that seek to revamp entire regulatory programs.

Judicial Review. Federal courts have replaced the hard look of the environmental era with a much more deferential approach. Courts are now more likely to presume that Congress wants reasonable regulation. This perspective implies that statutory language should be read to permit a balancing of environmental values with other considerations, in particular, economic costs. Similarly, cases in which appellate courts have reversed and remanded environmental and safety regulations as overly stringent, unsupported by scientific evidence, or otherwise unreasonable indicate that the courts are no longer preoccupied with agency capture but with regulatory excess.

The case law in each of the areas just outlined is characterized by the same underlying shift in judicial perspective, an explicit rejection of the assumption that environmental values are entitled to special judicial solicitude.

Learning from Experience

Clearly, the increasingly conservative composition of the federal judiciary has played a role in the return from values to harms as the baseline of environmental law. But this is only part of the story: judicial opinions evidence a learning process that transcends partisan political considerations.

Over the past decade, experts of all political persuasions (as well as the Environmental Protection Agency itself) have concluded that the existing regulatory framework often addresses the wrong risks, at an exorbitant price. In addition to such random priority selection, environmental regulation often suffers from tunnel vision (that is, a tendency to pursue phantom risks to the point of negative returns), from an inability to revise or abandon obsolete regulatory commitments, and from regulatory paradoxes (that is, stringent regulations that actually retard environmental objectives).

Environmentalism's demise in the case law reflects this expert consensus and, moreover, the judicial realization that the ecological paradigm, so far from remedying or ameliorating the systemic inefficiencies, paradoxes, and excesses of environmental regulation, is a principal source of these failures. As Professor Richard B. Stewart, a principal architect of environmental regulation, has put it, a system that aspired to transcendent values instead turned into a "system of Soviet-style centralized planning for the production of a clean environment." Like any command-and-control regime, this system produced rampant inefficiencies, along with interest-group attempts to use ostensibly public-regarding legislation for redistributive, rent-seeking purposes.

By exalting ecological aspirations over countervailing rights, interests, and considerations, the law of the environmental era systematically reinforced these tendencies. The judicial resurrection of harm-based legal doctrines reflects this insight. It constitutes a coherent, purposeful attempt to bring the pursuit of transcendental environmental values back to the more manageable level of interest-group politics.

Ideology Matters

By constraining ecological ambitions, harm-based doctrines should contribute to a marginally more efficient and effective system of environmental regulation. And while one cannot look to the courts as a source of fundamental regulatory reform, the judicial demise of ecological values should help to curb the worst excesses of environmental law and litigation, complete wipeouts of private property for illusory benefits, programmatic lawsuits that lead to the takeover of entire agency programs by environmental litigants and courts, and absurdly stringent regulations that are unreasonable even by the most modest standards.

More important than the immediate policy effects, however, is the fact that the courts have fundamentally changed the tone of the environmental debate. And when the political debate is as intensely ideological as it has been in the environmental area, its tone matters a lot.

While the ecological premise of interconnectedness has some surface plausibility, its legal implications are so absurd and extravagant that we would not think of accepting them outside the environmental context. For instance, we do not solve the problem of hunger in America by permitting poor people to take food off supermarket shelves without paying for it. But federal law effectively grants an analogous right to every endangered species: if a woodpecker decides to build its nest where you wanted to build your house, the bird wins and you lose. We would not grant "any citizen" a right to sue the Internal Revenue Service to compel the enforcement of the tax code against other private citizens. Yet every environmental statute authorizes such actions, along with attorneys' fees for winning plaintiffs.

Of course, we do not literally spend the entire gross domestic product on a single endangered species, even if the Supreme Court tells us that we must do so. We do not regulate every private action as a potential assault on the ecosystem, as the ecological paradigm of complexity would have us do. But when we ban pesticides at $100 million per life saved or when we pass 600-plus-page Clean Air Amendments that regulate minute emission sources (down to barbecue lighters), we act as if we were committed to ecological presumptions. In the 1970s, the courts played an instrumental role in the ascent of this ideological pretense, which, in turn, sustained an otherwise untenable regulatory edifice.

Over the past decade, however, the courts have played a leading, agenda-setting role in the return to more realistic assumptions. True, this trend did not occur in a vacuum but was played out against a background of growing discontent with environmental regulation: the establishment media began to question previously near-sacrosanct policy commitments, such as Superfund and global warming policies; states and municipalities began to protest costly environmental mandates; and stringent land-use controls led to the emergence of an increasingly influential, grass-roots "property rights movement" that is actively contesting the environmental movement's claim to representing "the public's" view on environmental matters. And, over the past three years, Congress has begun to scale back and reform environmental regulation. Although it remains to be seen how far and how fast these reforms will move, they are bound to carry much further than anything the courts have done, or could have done.

The courts, however, provided an institutional channel for the growing discontent with environmental regulation, and they helped to change the environmental debate and agenda. At a time when the Congress was still passing, with broad public support, ambitious laws that carried ecological presumptions to their extremes (for example, the 1991 Clean Air Act Amendments), the courts questioned the unique, transcendent nature of environmental values. In so focusing on the tangible harms of disembodied value commitments, the courts have resurrected questions that environmentalism had successfully suppressed and cannot answer. Intellectually and politically, environmentalism has been put on the defensive, even if its residual force may prevent or delay serious regulatory reform for many years.

Conclusion

Rigorously pursued, the demise of environmental values in American law points back to the profound and oft-forgotten insight of the common law: complexity and interdependence are an argument for private orderings, not against them. Decentralized and flexible private arrangements are far more easily tailored to an interdependent world than centralized, one-size-fits-all schemes. Complexity is much more manageable in private backyards than in a world-wide political commons.

Environmentalism's demise neither reflects nor portends such a dramatic reaffirmation of common-law precepts; the courts cannot unilaterally impose a libertarian legal regime on the country. But the courts have reminded us of the costs and dangers of an unconstrained political process. They have reminded us that the assertion of values that transcend politics is an ideological attempt to place someone's values and interests over everyone else's. This is the beginning of reason and balance in environmental politics.