Center for Progressive Reform

Scholarship Round-Up: New Directions in Environmental Law

by Shana Jones

Last week, the Washington University Journal of Law and Policy published New Directions in Environmental Law, a symposium issue featuring articles from six CPR Member Scholars. The articles explore how lessons learned from first generation environmental statutes should be applied to future legislation in order to accomplish the original goals of the environmental movement.

Dan Tarlock, in Environmental Law: Then and Now, describes how the symposium was organized to analyze first generation environmental statutes to raise provocative questions about the future of environmental law. Tarlock concludes that environmental law in the United States “remains locked in the transition phase of protecting the earth from discrete threats to human and natural well-being.” “The major themes running through this symposium are that we require a richer theory of the appropriate scale and mix of government participants (monitored by NGOs), management strategies that use information both to set protection targets and to allow flexible ways of reaching them, and ways of reducing the stream of chemicals that impair public health even as the question of what triggers adverse impacts on the human body becomes ever more complex.”
In his article Clean Air Act Dynamism and Disappointments: Lessons for Climate Legislation to Prompt Innovation and Discourage Inertia, Bill Buzbee calls for the continuation of the dynamic structure established in the Clean Air Act (CAA) in new pollution-regulating legislation. Buzbee compares the CAA’s structure to the Waxman-Markey American Clean Energy and Security Act of 2009 and the Kerry-Boxer Clean Energy Jobs and American Power Act of 2009. He finds the proposed bills follow the CAA’s burdensome regulatory requirements on EPA and create costly risks and delay in regulation of greenhouse gas emissions through their notice-and-comment regimes. Buzbee also finds, however, that the proposed bills omit some of the strategies that have proven remarkably effective in the CAA, namely, the Act’s savings clauses and floor preemption strategies that preserve state and local governments’ ability to impose more stringent pollution reductions than federal law. He concludes that “[l]egislators should hedge their regulatory bets” when crafting federal climate change legislation, “retaining substantial roles for the states.”
Rob Glicksman, with co-author Matthew Batzel, analyzes the Clean Water Act in Science, Politics, Law, and the Arc of the Clean Water Act: The Role of Assumptions in the Adoption of a Pollution Control Landmark. The authors analyze what assumptions Congress held when enacting the Clean Water Act (CWA), and whether those assumptions, or improper implementation, led to the Act’s goals not yet being fulfilled. They conclude “a surprisingly large share of the assumptions upon which Congress built the CWA were valid and have helped to make the statute an environmental success story," but "the statute's failure to perform even more admirably than it has is due largely to a lack of legislative clarity in addressing the role of wetlands in preserving the integrity of aquatic ecosystems and to Congress's unwillingness to adopt, or force the states to adopt, measures to control nonpoint source pollution.”
Analysis of the CWA continues with Robert Adler’s article, Resilience, Restoration, and Sustainability: Revisiting the Fundamental Principles of the Clean Water Act, which focuses on the original intent of the law: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Although Adler notes that “[m]any of the basic ideas in the CWA remain as sound today as they were when enacted in 1972,” he also concludes that the CWA should be modified or expanded to:

Incorporate “current concepts of ecosystem resilience rather than the notion of ecosystem ‘stability’ that prevailed when the 1972 law was passed”;
Develop the statutory tools necessary to press forward with restoration goals of the statute;
Redress non-industrial forms of water pollution from a much wider range of sources than traditional industrial and municipal point source discharges;
Revise the definitions and overall notions of “waters” and “waters of the United States” to “focus on the sustainability of aquatic ecosystems for human and natural uses, rather than on the antiquated concept of navigability.”

In The Endangered Species Act: Static Law Meets Dynamic World, Holly Doremus examines how the framework of the ESA created strategies designed for a static ecosystem, whereas ecological research has shown that species and their living areas are inherently dynamic. After surveying the history of the static theory of nature and the flaws therein, she establishes a need for a dynamic approach to conservation of species in ecosystems, which would allow for evolution, climate change, and adaptive management to be incorporated into legislation. She concludes by enumerating the political, psychological and practical limitations of addressing dynamism in legislation, including the legal issues surrounding an approach to land and water use that allows for change and the ability to create practical alternatives with concrete, enforceable goals.
David Adelman analyzes toxics regulation and advancement of toxicogenomics in A Cautiously Pessimistic Appraisal of Trends in Toxics Regulation. Adelman discusses the large gap between the quantity of toxics produced and the low regulation of these substances, as well as the deficiency of scientific data about these chemicals in comparison to the regime under the Toxic Substances Control Act (TSCA). Surveying the trends in toxics regulation throughout the world, Adelman finds improvements in REACH’s precautionary approach and the Canadian Environmental Protection Act of 1999’s structure that has allowed for examination of many more chemicals than TSCA. After analyzing the trends, Adelman concludes that three types of policies could strengthen future toxics regulation: tiered systems for testing and review, better post-market review of chemicals, and approaches that promote innovation.