The Federalist Society

Conservative & Libertarian Legal Scholarship: Environmental Law

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XII. Environmental Law

Topical Overviews

RICHARD L. REVESZ, FOUNDATIONS OF ENVIRONMENTAL LAW AND POLICY (1996).  An accessible overview of environmental law with articles written by the scholarly giants in the field.
 
JONATHAN H. ADLER, ECOLOGY, LIBERTY, & PROPERTY: A FREE MARKET ENVIRONMENTAL READER (2000).  A collection of works seeking to answer the question of whether free markets can be reconciled with environmental protection.  Essays explore the market institutions of private property, voluntary exchange, common law liability standards, and the rule of law.

WILLIAM F. BAXTER, PEOPLE OR PENGUINS: THE CASE FOR OPTIMAL POLLUTION (1974). A short, readable introduction to the idea that environmental quality is but one of a set of laudable human goals. Discusses the kinds of compromises and trade-offs that a rational environmental policy will involve.


The Debate Between Regulatory Versus Free-Market Frameworks

The Environment and the Law, 21 ECOLOGY L.Q. 243 (1994). This symposium, sponsored by the Federalist Society, treats a number of interesting theoretical issues regarding the proper nature and function of environmentalism and federal environmental law. Participants included Douglas Ginsburg, Orrin Hatch, Peter Huber, Alex Kozinski, Edwin Meese, Thomas Merrill, Raymond Randolph, Richard Stewart, and Stephen Williams. A variety of viewpoints are presented in the roundtable on “Science, Environment, and the Law,” with Edward W. Warren making a particularly interesting presentation. He focuses on the appropriate role of the courts: What should conservatives seek—judicial deference to the political branches (including the regulatory bureaucracy) or aggressive protection of economic liberty and rigorous science? These themes are further discussed in Edward W. Warren & Gary E. Marchant, “More Good Than Harm”: A First Principle for Environmental Agencies and Reviewing Courts, 20 ECOLOGY L.Q. 379 (1993).

Symposium-Free Market Environmentalism: The Role of the Market in Environmental Protection, 15 Harv. J.L. & Pub. Pol’y 297 (1992). Papers presented at this conference focused on Terry L. Anderson & Donald R. Leal, Free Market Environmentalism (1991). As Anderson and Leal put it, free-market environmentalism “considers the potential for market solutions [to environmental questions] and the problems with political ones.” The responses range from strongly critical to stoutly supportive. One of the longer articles, Escaping Environmental Feudalism, by economist Bruce Yandle, id. at 517, is particularly thought-provoking. It argues that “The domain for contractual solutions to environmental use is vanishing, even though market-like instruments emerge occasionally.”

ENVIRONMENTAL POLITICS: PUBLIC COSTS, PRIVATE REWARDS (Michael S. Greve & Fred L. Smith, Jr., eds., 1994). This collection of essays argues that special interests have played a major role in the inefficiency of environmental regulation. The book includes seven case studies that challenge and confound the benign “public interest” view of policy making by analyzing the role of interest groups and regulators in a broad range of policy disputes. James Q. Wilson wrote the Foreword.

Bruce Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 STAN. L. REV. 1333 (1985). Makes the case that environmental policies should be reformed so as to “set intelligent priorities, make maximum use of the resources devoted to improving environmental quality, encourage environmentally superior technologies, and avoid unneeded penalties on innovation and investment.”

Richard B. Stewart, Controlling Environmental Risks through Economic Incentives, 13 COLUM. J. ENVTL. L. 153 (1988). Stewart characterizes the current environmental regulatory regime as “nothing less than a massive effort at Soviet-style central planning of the economy to achieve environmental goals.” He sketches the command-and-control approach currently in use, and explains how economic incentives (such as pollution charges and transferable pollution permits) would improve the effectiveness and lower the costs of this area of regulation. See also Richard B. Stewart, A New Generation of Environmental Regulation?, 29 CAP. U.L. REV. 21 (2001) for a more recent survey of the command approach and its possible substitutes, calling for solid empirical and analytical work to be done to provide a basis for reform.

Todd J. Zywicki, Environmental Externalities and Political Externalities: The Political Economy of Environmental Regulation and Reform, 73 TUL. L. REV. 845 (1999).  An examination of the specific industries and special interest groups that benefit from environmental regulation at the federal level, which challenges the conventional idea of a dichotomous tension between industry polluters who disfavor regulation and the public that favors regulation.

Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 HARV. L. REV. 553 (2001).  A systematic and empirical critique of the various arguments advanced in favor of environmental regulation by the federal government.

Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COLUM J. ENVTL. L. 171 (1988). Maintains that economic incentives ought to replace the “best available technology” requirements of environmental law. Such reform would be more effective in protecting the environment and less costly than the alternatives.

Jonathan H. Adler, Free & Given: A New Approach to Environmental Protection, 24 HARV. J. L. & PUB. POL’Y 653 (2001).  An argument that existing centralized environmental law has generated enormous costs and diverted resources that would otherwise have better protected the environment.  Professor Adler outlines an alternative environmental policy based on market institutions, property rights, and enforcement through traditional tort principles.

Specific Statutory Regimes Discussed:

NATURAL RESOURCE DAMAGES: A LEGAL, ECONOMIC, AND POLICY ANALYSIS (Richard B. Stewart, ed., 1995). “Natural resource damages” is a novel form of liability established by Superfund and other recent statutes.  This book supplies a comprehensive critique of the current statutory and regulatory schemes, with contributions from a variety of lawyers, economists, and other environmental experts. 

For a recent argument that the statute of limitations of the Superfund Amendments preclude the Government’s practice of delaying the time within which it must bring removal and remedial actions against owners of Superfund sites, see Alfred Light, “CERCLA’s Cost Recovery Statute of Limitations: Closing the Books or Waiting for Godot?” (2008), available at: http://works.bepress.com/alfred_light/1.  In addition to his statutory argument, Professor Light’s article contains a useful, up-to-date history of CERCLA and its construing opinions.

The Environment and Regulatory Takings:

JERRY ELLIG, THE ECONOMICS OF REGULATORY TAKINGS, IN REGULATORY TAKINGS: RESTORING PRIVATE PROPERTY RIGHTS (Roger Clegg, ed., 1994). Ronald Coase and the Takings Clause are brooding omnipresences in the environmental law area. This jargon-free piece by Professor Jerry Ellig, a public-choice economist, does an excellent job of synthesizing the two.

Jonathan H. Adler & Ilya Somin, The Green Costs of Kelo: Economic Development Takings and Environmental Protection, 84 WASH. U. L. REV. (2006), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=894693.   An argument that economic development takings, such as those upheld by the Supreme Court in Kelo v. City of New London, both cause environmental harm and reduce economic growth by transferring land to inefficient development projects.

Lomborg’s Skeptical Environmentalism:

In his highly controversial book THE SKEPTICAL ENVIRONMENTALIST, Danish environmentalist Bjorn Lomborg argued that many claims of environmental scientists concerning overpopulation, declining energy resources, species loss, water shortages, deforestation, and aspects of global warming are not in fact supported by empirical data.  Lomborg’s book, though a work of social science, needless to say has great relevance to the choice of legal remedy to environmental problems, and served as a touchstone for discussion amongst environmental law academics. 

In a symposium on Lomborg’s book, Todd J. Zywicki, presented the article Baptists? The Political Economy of Environmental Interest Groups, 53 CASE W. RES. 315 (2002), arguing that the public interest or “civic republican” explanations for the activities of environmental interest group fail, and that their activities can be understood simply as the desire to use the coercive power of government to subsidize their personal desires for greater environmental protection, and to redistribute wealth and power to themselves. 

See also David Schoenbrod & Christi Wilson, What Happened to the Skeptical Environmentalist?, available at: http://ssrn.com/abstract=352500, for law-of-evidence argument that Lomborg’s arguments should be dealt with on the merits, rather than dismissed summarily by the scientific community.

International Environmentalism:

The global environmental accord, such as the Kyoto protocol, has become an increasingly popular vehicle for promotion of environmental interests.  For a comparison of global multilateralism in the trade context, with other agreements such as environmental accords, see John O. McGinnis, AEI Conference: Trends in Global Governance: Do they Threaten American Sovereignty?  Article and Response: The Political Economy of Global Multilateralism, 1 CHI. J. INT’L L. 381 (2000).  Professor McGinnis argues that the enthusiasm of many conservatives for multilateral trade agreements, in contrast to their skepticism of environmental and human rights accords, military pacts, and international criminal courts, is rooted in more than just political reflex.  He makes the case that trade multilateralism is the best form of global multilateralism because “it can extend exchange by sustaining a global market” and “promotes the rule of nations by their encompassing interests.”  He argues that interest group capture and the reduction of regulatory competition, already problems in domestic regulatory regimes such as environmental regimes, are likely to be more severe at the global level, and that “regulatory regimes liable to be influenced by special interests create a tragedy of the commons problem similar in its structure to that caused by externalities of productive activity,” but without the benefits.

No survey of the literature in the area of environmental law would be complete without considering scholarship in the areas of the Takings Clause, administrative law, and economic liberties. The reader therefore should consult both the Constitutional Law section and the Administrative & Regulatory Practice section of this bibliography as well.

Last updated October 2008

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