Roger Clegg reviews The Demise of Environmentalism in American Law by Michael S. Greve

Environmental Law & Property Rights Practice Group Newsletter - Volume 1, Issue 1, Fall 1996

December 1, 1996

Roger Clegg

Michael Greve is cofounder and executive director of the Center for Individual Rights, an organization best known recently for its successful challenge of the University of Texas's racial and ethnic quotas for law school admission. But Greve is also an accomplished expert on environmental law, the subject of his latest book, published by the American Enterprise Institute.

The book is not long — 137 pages of text, but closely argued and heavily footnoted — and its structure is straightforward. Greve identifies and discusses three important judicial trends in environmental law, and then offers as his thesis a common thread.

The three trends are the judiciary's increasing sympathy for property owners' claims under the Takings Clause of the Fifth Amendment; the courts' increasing skepticism about environmental plaintiffs' standing to bring lawsuits; and "substantive review," whereby some courts now have insisted that environmental regulations pass a reasonableness test and do "more good than harm."

The common thread Greve suggests is a rejection by the courts of the "ecological paradigm." Greve writes that this paradigm sees "a world in which everything is connected to everything else." The paradigm is hostile to private property and freedom of contract, and therefore "aims to eviscerate common-law rights and to replace them with a legal regime that would organize transactions among individual citizens for a single public purpose, environmental protection." The judges have rejected this world view, and instead environmentalists now are being treated as just another interest group. There are really only two ways in which Greve's very scholarly and thoughtful book might be criticized. The first stems from the fact that his analysis is both descriptive and normative. Not only does Greve believe the environmentalists are losing, he is glad they are losing, and he explains why the reader should be, too. The book favors limited government, property rights, and private ordering, and rejects not only the ecological paradigm, but the New Deal, interest-group paradigm that preceded it. So a reader who does not embrace Richard Epstein also will not embrace much of Greve's discussion.

But in all likelihood the readers of this newsletter, like the reviewer, have no doubt that Richard Epstein is a Great American. Let us consider then, instead, the second kind of criticism that might be levied at Greve's book. That criticism is that Greve's "common thread" thesis — of a judicial rejection of the ecological paradigm — is more complicated than it needs to be.

The judiciary is more conservative now than it was in the seventies, and that is enough to explain at least two of Greve's three trends. If a judge honors the Constitution's text — and that ought to be the sine qua non for any judge we label "conservative" — then he will insist that just compensation be paid when private property is taken for public use. And if a judge honors the Constitution's structure, then he will not be inclined to let private litigants ignore Article III's case-or-controversy requirement, allowing them to usurp the executive branch's law-enforcement authority in the bargain. In other words, a good judge will require the payment of just compensation to property owners and insist that all cases before him be justiciable, whatever he thinks of the ecological paradigm.

In this regard, it should be noted that nearly all Greve's discussion of his first two trendshinges on three Supreme Court decisions: Lucas v. South Carolina Coastal Council, Lujan v. National Wildlife Federation, and Lujan v. Defenders of Wildlife. In all three cases, the Court's opinion was written by Justice Scalia, the person in the world who believes most strongly that the Constitution's text and structure must be followed wherever they lead a judge, whatever his own policy preferences in the underlying dispute.

Human nature being what it is, however, it undoubtedly makes matters easier when a conservative judge can perform his judicial duty and reach a policy result he likes. The conservative majority in Defenders of Wildlife, for instance, would have been unlikely to shed anything for the plaintiffs but crocodile tears.

But is anything as sophisticated as "the rejection of the ecological paradigm" necessary to explain even that? Consider, for example, Greve's third trend — the scrutiny given by judges to environmental regulations, demanding that they be reasonable and do more good than harm. To begin with, as Greve acknowledges, sometimes there is a textual (statutory) basis for this kind of review, too. And when there is not, then, yes, the judge may in fact be influenced by his own policy preferences. But for conservatives, this will include suspicion of regulatory bureaucrats, sympathy for the private sector and property owners, and a general presumption in favor of limited government: all as much present in an EEOC or OSHA matter as in an EPA case.

Greve is not wrong that the ecological paradigm is being rejected by conservatives, but the conservative mind is of course suspicious of all master plans. As someone who has litigated against the feminist and civil rights establishments, Greve certainly knows that other left-wing paradigms exist. Conversely, people who are skeptical about human nature and perfectibility, who are uncomfortable with the concentration of power, and who have more confidence in the marketplace and private orderings than in government — you know, extremists like us — are unlikely to demand that everyone in the world march toward a single goal, of any sort. Greve notes that even some middle-of-the-road jurists are beginning to balk at the environmentalists, but that may be because their paradigm is a particularly arrogant one, and therefore has failed in a particularly spectacular way — different in degree from other items on the Left's agenda, but not in kind.

I should hasten to add that my criticism is one that Greve anticipates and addresses at several points in his excellent book. These passages, while manfully argued, did not persuade this reviewer, and I wonder whether in his heart of hearts Greve himself is persuaded. After all, Thomas Sowell's 1987 book, A Conflict of Visions: Ideological Origins of Political Struggles, brilliantly shows how most of the political debates we are having and have had for the past two hundred years or so are simply variations on a theme: the conflict between "constrained" and "unconstrained" visions of human capacities, especially political capacities. Greve, I believe, ultimately agrees. In an eloquent passage near the end of his book, he writes: "[O]ur political commons produce tragedies; our private backyards, as a general rule, do not. The demise of environmentalism has reopened this long-forgotten challenge." My only point is that the challenge is not "long-forgotten"; we are reminded of it every day in nearly every policy debate.

*Roger Clegg is vice president of the National Legal Center for the Public Interest. From 1991 to 1993, he served as Deputy Assistant Attorney General for the Environment and Natural Resources Division of the U.S. Department of Justice.