The past and future of environmental law.

• Author: Huffman, James L.

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.

1. INTRODUCTION

   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.

2. 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."(3) This late nineteenth century philosophy was well suited to the mid-twentieth century realization that environmental harm threatened human health. Actions harmful to children and others were clearly not for the greatest good and presumably would have been avoided had we been attentive to Pinchot's conservation principle.

   Preservation, as understood and advocated by George Perkins Marsh, Henry David Thoreau, John Muir, and others, saw value in preserving nature for its own sake, simply because it is nature.(4) Human spiritual health was thought to benefit from exposure to, and even the simple existence of, natural places. While this perspective was sometimes seen to be in conflict with the conservation ethic, as in the debates over the future of Hetch Hetchy Valley in Yosemite,(5) the philosophy of preservation proved a good companion for conservation philosophy in the infancy of modern environmentalism. Preserving nature's wonders had great symbolic value which served well the efforts to rein in human excesses in the use of nature's bounty.

   It was an alliance of well-established traditions that would carry modern environmentalism for nearly three decades with little internal conflict. And it was an alliance that suggested particular policy responses, namely, government intervention through public ownership of natural and environmental resources and government regulation of private owners of those resources. Little attention was given to the widespread, unintended, environmental harm that resulted from government's efforts. Often in the name of conservation, governments wrought direct environmental harm as resource managers and indirect environmental harm through massive subsidies to private owners and managers.(6) And finally, it was an alliance of philosophical traditions that urged upon modern environmentalists a preference for centralized government action at the federal level, just as the federal government had been the primary instrument of nineteenth century conservation and preservation.

3. EDUCATING AND MANDATING FOR ENVIRONMENTAL QUALITY

   The dominant approach to environmental protection over the past thirty years has been command and control regulation.(7) The basic idea has been that private decision makers, particularly those acting pursuant to market incentives, will fail to take account of the environmental consequences of their actions.(8) It is therefore necessary that government establish acceptable levels of environmental impact and command that these levels not be exceeded. For some, these environmental standards are a moral imperative; for others, they internalize costs...