Environmental Law. Disrupted
| Date | 01 January 2019 |
| Author | Inara Scott, David Takacs, Rebecca Bratspies, Vanessa Casado Pérez, Robin Kundis Craig, Keith Hirokawa, Blake Hudson, Sarah Krakoff, Katrina Fischer Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, and Erin Ryan |
49 ELR 10038 ENVIRONMENTAL LAW REPORTER 1-2019
ARTICLES
Environmental
Law. Disrupted.
by Inara Scott, David Takacs, Rebecca
Bratspies, Vanessa Casado Pérez, Robin Kundis
Craig, Keith Hirokawa, Blake Hudson, Sarah
Krako, Katrina Fischer Kuh, Jessica Owley,
Melissa Powers, Shannon Roesler, Jonathan
Rosenbloom, J.B. Ruhl, and Erin Ryan
Summary
e U.S. regulatory environment is changing rapidly,
at the same time that visible and profound impacts of
climate change are already being felt throughout the
world, and enormous, potentially existential threats
loom in the not-so-distant future. What does it mean
to think about and practice environmental law in this
setting? In this latest in a biannual series of postings
and essays, the authors, members of the Environmen-
tal Law Collaborative (ELC), have taken on the ques-
tion of whether environmental law as we currently
know it is up to the job of addressing these threats;
and, if not, what the path forward should be.
In 2017, the U.S. regulatory environment began a
period of intense change, even as the world witnessed
the escalation of visible and profound impacts from
climate change. Alongside these events, and with full
knowledge of the limited time left in which to address
existential environmental cha llenges, the authors, as par-
ticipants in the 2018 Environmental Law Collaborative,
considered whether environmental law as we know it is
up to the task of meeting these ongoing, esc alating, and
perilous t hreats.
Each of the following sections considers where envi-
ronmental law should be headed in the next decade or
more, and how we might get there. ese short pieces
consider whether and how to reframe and reshape—and,
ultimately, disrupt—the environmental law landscape to
better address the catastrophic, synergistic, and disruptive
ecological changes portended by climate change, biodiver-
sity destruction, and social inequa lity. ey consider at a
deep level what it might be like if we radically and fun-
damentally reoriented our environmental law and policy
agenda, and ask: is t his possible, desirable, or both?
As we are a diverse group of scholars and thinkers, our
conclusions are by no means uniform, but they share a
common thread: this is not time for business as usual. e
system requires signica nt, potentially disruptive changes,
some of which may make us profoundly uncomfortable.
We hope these essays disrupt your thinking i n provocative,
productive ways, and we look forward to opening a dia-
log with you about how we can reframe, reshape, and ulti-
mately disrupt environmental law to meet the challenges
of our day.
I. Is It Time to Say Goodbye to
Environmental Law?
is section was authored by Inara Scott, Gomo Family Pro-
fessor and Assistant Dean for Teaching and Learning Excel-
lence, College of Business, Oregon State University.
Besides being a legal scholar, I also write ction. My rst
published book was a young adult novel, and it was in pub-
lishing that I beca me familiar with the problem of shelv-
ing. You see, before you can sell your book, you have to
identify the genre. at designation tells booksellers and
librarians where to shelve the book; for e-books, it identi-
es what category to put it in for online searching.
If you can’t label it, they can’t sell it.
Picking a genre determines how the book is marketed
and who becomes the audience. Genres also carry deeply
embedded connotations: for example, who do you pic-
ture reading romance novels? Who do you picture writ-
ing them?
Authors’ Note: e Environmental Law Collaborative (ELC)
comprises a rotating group of law professors who assemble every other
year to think, discuss, and write on an important and intriguing
theme in environmental law. e goals of this meeting are both
scholarly and practical, as ELC participants seek to use their disparate
areas of scholarly expertise to study trends and important events in
the law, and ultimately to improve the environmental conditions
of the world in which we live. e ELC would like to thank the
Environmental Law Institute for its continued support of these
eorts, which have resulted in multiple collections of essays and two
full-length books. We would also like to thank the Drake University
Law School and Albany Law School for their support of this project.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
1-2019 NEWS & ANALYSIS 49 ELR 10039
e boundaries of genres can ma ke it impossible to
write and sell certain kinds of stories. Understanding this,
authors consider where their books will be shelved before
they write, and modify their story ideas accordingly. Until
the 1970s, few books were written with teenage protago-
nists because there was no such genre as “young adult”—
the genre of books for young people aged 12-18 was not
ocially created until the 1960s.1
Like ction authors, lawyers are tra ined to think about
law in discrete categories. Interdisciplinar y eorts may be
viewed with skeptical or even dis approving eyes.2 As a pro-
fessor teaching environmental law at a business school, I
can say from rsthand experience that many do not con-
sider me to be part of the “environmental law” community
simply because of where I teach.
e Anthropocene—a nd, more specically, climate
change—oer existential challenges to the survival of
humanity and life on this planet.3 Many instinctively turn
to environmental law to solve these challenges. Unfortu-
nately, I do not think the challenges we face will be solved
by items on the environmental law shelf. No, I believe we
need to start fresh, create a new genre, and leave environ-
mental law rmly in the past.
To explain why, let’s start with what the environ-
mental law shelf currently contains. Most denitions of
“environmental law” describe statutes and regulations
that govern how people interact with the natural environ-
ment—the “natural environment” in this context being
nonhuman species, plants, and natural resources.4 Envi-
ronmental law is also generally understood to include
pollution control and management of public lands and
natural resources. e laws most would identify as the
canon of the environmental law genre (e.g., the Endan-
gered Species Act (ESA), the Clean Air Act (CAA), and
the Clean Water Act (CWA))5 focus on this relatively
straightforwa rd human-environment formula. ese laws
generally arose out of a perceived environmental crisis, a
desire to protect the environment from human harm, and
1. Ashley Strickland, A Brief History of Young Adult Literature, CNN, Apr. 15,
2015, https://www.cnn.com/2013/10/15/living/young-adult-ction-evolu-
tion/index.html.
2. Brian Tamanaha, Why the Interdisciplinary Movement in Legal Academia
Might Be a Bad Idea (for Most Law Schools), B, Jan. 16, 2008,
https://balkin.blogspot.com/2008/01/why-interdisciplinary-movement-in-
legal.html.
3. Robert Macfarlane, Generation Anthropocene: How Humans Have Altered
the Planet for Ever, G, Apr. 1, 2016, https://www.theguardian.
com/books/2016/apr/01/generation-anthropocene-altered-planet-for-ever;
Will Steen et al., Trajectories of the Earth System in the Anthropocene,
115 PNAS 8252 (2018), available at http://www.pnas.org/content/ear-
ly/2018/08/07/1810141115.full.
4. See, e.g., Wikipedia, Environmental Law, https://en.wikipedia.org/wiki/En-
vironmental_law (last edited Nov. 27, 2018).
7671q, ELR S. CAA §§101-618; 33 U.S.C. §§1251-1387, ELR S.
FWPCA §§101-607.
a need to ensure environmental resources were available
for human consumpt ion.
Over time, the popular understa nding of environmental
law, including this human-environment formula, created
certain expectations for and limitations on the genre:
1. Environmental law addresses interactions between
humans and the natural environment, and ways to
limit human actions in order to protect the environ-
ment. Conversely, environmental law does not focus
on human-to -human interactions or econom ic
transactions. Matters having to do with corporate
law, tax, and business are generally not included.
It is only recently that energy law—including fossil
fuel extraction and electric utility regulation—has
been considered alongside or even linked to envi-
ron menta l law. 6
2. Environmental laws address narrow targets with nar-
row solutions. For example, the ESA creates a mech-
anism for protecting individual species. It was not
intended to create a mechanism for considering big-
ger questions (i.e., how do we protect biodiversity?).7
3. Environmental law is fur thered by liberal white activ-
ists. Environmental law is not relevant to conserva-
tives, people of color, or people living in urban settings
who do not like the woods.8
Point number three is perhaps the most dangerous
aspect of the environmental law shelf. In a time of viru-
lent political division, environmental law, like anything
associated with climate cha nge, is associated with one per-
spective and one political part y.9 Sadly, it is also associated
with one race and one socioeconomic status, and negatively
associated with strident activism.10 Overall, the perc entage
6. Amy J. Wildermuth, e Next Step: e Integration of Energy Law and Envi-
ronmental Law, 31 U E. L. R. 369, 380-83 (2011).
7. Sarah Gold, e Endangered Species Act Won’t Save Animals. It’s Not Designed
To. , S, May 13, 2017, http://www.slate.com/articles/health_and_sci-
ence/science/2017/05/the_endangered_species_act_wasn_t_meant_to_save_
the_animals.html; Daniel J. Rohlf, Six Biological Reasons Why the Endan-
gered Species Act Doesn’t Work—And What to Do About It, 5 C
B 273, 275 (1991).
8. Jedediah Purdy, Environmentalism’s Racist History, N Y, Aug. 13, 2015,
https://www.newyorker.com/news/news-desk/environmentalisms-racist-
history.
9. Monica Anderson, For Earth Day, Here’s How Americans View Environmental
Issues, P R. C, Apr. 20, 2017, http://www.pewresearch.org/fact-
tank/2017/04/20/for-earth-day-heres-how-americans-view-environmental-
issues/.
10. Nicole Smith Dahmen, e Overwhelming Whiteness of U.S. Environmentalism
Is Hobbling the Fight Against Climate Change, Q, Jan. 4, 2017, https://
qz.com/877447/the-overwhelming-whiteness-of-the-us-environmentalist-
movement-is-hobbling-the-ght-against-climate-change/; Nadia Y. Bashir
et al., e Ironic Impact of Activists: Negative Stereotypes Reduce Social Change
Inuence, 43 E. J. S. P. 614, 624-25 (2013).
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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