Environmental Law Futures

Friday, March 15, 2019

Blaine T. Phillips Distinguished Professor of Environmental Law; Hunton & Williams Professor of Law; Director, Environmental and Land Use Law Program, University of Virginia School of Law

In the early 1970s, I told my stepfather, a distinguished judge on the Maryland Court of Appeals, that I wanted to go to law school to study environmental law. He thought that was a silly idea. There wasn’t—and wouldn’t be—a separate field of environmental law. If I wanted to study administrative law with an emphasis on environmental applications, fine. But I was deluding myself to think there would be a new domain of law defined by the environmental issues of the day.

In a way he was wrong. I went to law school, took what scant environmental offerings there were at the time, and have spent the rest of my life practicing, teaching, and writing about what we’ve come comfortably to understand as environmental law. That law stems mostly from legislation enacted from the late 1960s through 1990 addressing environmental concerns such as water and air pollution, waste disposal, species loss, and chemical safety. Environmental law also conventionally includes public land management—e.g., legal regimes for wilderness, parks, forests, grazing lands.

In another way, he was right. Environmental law as we have understood it is a branch of administrative law. It derives from the exercise of the government’s authority as regulator or proprietor—a government-regulatory model. And it is focused on the scope and limitations of that authority, with attention to the interpretation of complex regulatory laws, the range of agency discretion, the efficacy of alternative regulatory approaches, and the processes of policymaking (e.g., rules, guidance) and enforcement.

The government-regulatory model has served us well, up to a point, overseeing substantial improvements in human health and environmental quality over the last 50 years. But we may have reached the limits of what we can expect from it, at least without major innovations in the ways we think about and practice it. And even with major innovations, the model itself may be too limiting for the politics of our time and for the nature and magnitude of the environmental challenges that we have yet to effectively address—climate change, overfishing of the oceans, biodiversity loss, to name just a few. We need a more expansive notion of what environmental law is or might be.

ELI's 50th AnniversaryMuch excellent, useful work is being done to explore possible environmental law futures. In a recent article advocating transformation of environmental law from its current regulatory focus to a broader program to advance sustainability, Daniel Esty proposes greater use of incentives over command-and-control. (Red Lights to Green Lights: from 20th Century Environmental Regulation to 21st Century Sustainability) Wider use of pollution pricing rather than prescriptive controls, for example, promises both greater efficiency and range of choice. He also argues for deploying governmental authorities and resources beyond EPA to develop comprehensive incentives for sustainable practice—other federal agencies, such as the Securities and Exchange Commission (for corporate environmental disclosures) and the Federal Accounting Standards Board (for “reporting of sustainability metrics”), as well as local, state, and international bodies.

Michael Vandenbergh observes that pro-environmental behaviors do not—and should not—depend solely on governmental policies, especially in this time of political polarization and gridlock. His groundbreaking Private Environmental Governance described a host of private orderings around environmentally protective actions, including efforts undertaken individually or jointly by corporations, environmental groups, trade associations, and private standard-setting organizations. In the corporate sector, companies such as Walmart, Apple, and Microsoft have embraced a suite of sustainability measures. These can include decarbonizing the company’s energy sources, reducing water use, reducing or eliminating waste streams, and contracting with suppliers, domestic and foreign, to adopt environmentally protective practices. The purchasing power of companies like these gives them immense leverage across national boundaries through the supply chain contract, far exceeding the reach of domestic legislation.

Corporate environmental measures often go well beyond what is required by government regulation, motivated by factors such as shareholder concerns, consumer preferences, or a corporate environmental ethic. Privately organized groups, such as the Carbon Disclosure Project (CDP), help investors direct trillions of dollars annually to responsibly performing companies.

Sarah Light believes that, given the growing importance of corporate environmental policies, corporate law should be considered a branch of environmental law. In her recent article, The Law of the Corporation as Environmental Law, she offers an integrated account of “the impact of corporate, securities, antitrust, and bankruptcy law on a firm’s environmental decisionmaking.” Corporate law conditions the decisions of corporate officials, just as administrative law conditions the decisions of government officials. To the extent both kinds of decisions have an important bearing on actual environmental behaviors, Light makes a convincing case that administrative law should not be the sole domain of environmental law.

Researchers have also documented the potential significance of individual and household choices in making environmental progress. Thomas Dietz and colleagues determined that direct energy use by households produces 38% of total carbon dioxide emissions in the United States and that reasonable non-regulatory measures could reduce these emissions by 20% over a decade. (Household Actions Can Provide a Behavioral Wedge to Rapidly Reduce US Carbon Emissions) Those measures involve influencing household choices through “information, persuasive appeals and incentives.” Regulation may play a role, for example, in requiring that public utilities provide certain kinds of information or options to their customers. But the emphasis is on developing social norms that will support voluntary pro-environmental behaviors. Finding the right mix of regulation, monetary incentives, and social norms can be difficult, but it is well worth the effort, as many of the environmental problems remaining are from diffuse sources that are not susceptible to conventional regulation.

Luckily, new knowledge can help in rethinking environmental law, including work in the social sciences on the effectiveness of incentives and the development of social norms. The explosive growth of information technology can also help—our vastly improved capacity to monitor environmental conditions in real time, collect and interpret volumes of data, model options and processes, and learn algorithmically. (Scott Fulton and David Rejeski, The New Environmentalism: The Need for a Total Strategy for Environmental Protection). Environmental law must evolve to make the most of this capacity and to insure accountability for its use.

Outside the box, the sky is big.