Law & the Environment
Environmental law seeks to control the ecological impact of human activity. In the United States, the federal government began significant national regulation of the environment. Despite difficulties posed by the law making structure of the government and changing political climates, environmental law has endured to become a settled part of the legal landscape. This article reviews the inherent difficulty in making effective environmental law as a result of natural complexity and the legislative apparatus of the United States. The article goes on to review some major laws in their historical context.
Keywords Clean Air Act; Clean Water Act; Constitutional law; Environmental Law; Environmental Protection; Federalism
Broadly stated, environmental law regulates human activity to limit ecological impacts that threaten public health and biodiversity. The content of the law, therefore, is determined by ecological inquiry regarding the effects of human activity. The goal of environmental law is not to prevent any changes in the environment, which are unavoidable and sometimes desirable, but to influence the type and degree of change caused by humans. To achieve this purpose, environmental legislation must overcome two inherent difficulties; addressing ecological problems in light of the need for certain human activity and the structure of the law making apparatus of the United States.
The natural world is intricate and delicate and the activities of highly industrialized economies are complex and intertwined. Environmental Law, to be responsive to the problems it seeks to address, must accurately reflect an understanding of the underlying causal relationships of nature, the underlying relationships of human economic activity and the extent which the latter influences the former. Such understanding is not easy because ecosystems can be fragile and interconnected in ways not readily apparent and because lawmakers must be sensitive to the needs of the economy it seeks to regulate. To begin the process, an extraordinary amount of scientific data is required to establish standards and regulatory regimes. That data must account for all potential factors that may contribute to a particular ecological threat. Otherwise, the law may fail to adequately address the problem and over-regulate some responsible parties while under-regulating others. Scientific uncertainty contributes to the difficulty of legislating for the purpose of controlling environmental change. Often, we are unsure of what would happen with the implementation of a particular law. Similarly, we are also often unsure exactly what will happen in the absence of the law. This uncertainty arises from the sheer complexity of a natural environment that often defies our understanding. Environmental regulations, once established, often require relatively frequent adjustment to reflect changes that develop from new information about causal relationships. Those developments can prompt relaxed or more stringent standards, and shifts to address new causes of a previously identified problem. In this way, something harmful can be redefined as something benign, and vice versa.
Given scientific uncertainty and the balance between economy and environment, environmental regulation will always cause controversy. That controversy comes from conflicts over natural resources, distribution of wealth, and differing values. Controversy arises because the party that gets the benefits is often not required to incur the costs for those benefits and vise versa. This mismatch is inherent in nature because resources are collected in common pools where harm committed in one place may have consequences in another place at another time; thus an activity upstream will have effects downstream. Therefore, when a regulation seeks to prevent injury to a common resource (e.g. the ozone layer, marine fishery, a drinking water aquifer), those subject to regulation will often perceive it as unduly burdensome because there may not be any perceivable injury to others. And in light of scientific uncertainty, casual relationships are not assured which bolsters the argument that regulation is unnecessary. Moreover, the short-term compliance costs and other effects on human activity are often more clear than the long term benefits of any given regulation. Those short-term economic costs of compliance can be viewed as adverse to human health in the same way environmental degradation would be and cause a clash between the human interests protected by the legislation and the short term human interests. This controversy is especially apparent when an environmental program does not have a clear connection to human health.
The difficult questions of science, causation, and economics that must be answered to enact effective environmental law must be done within the governmental structure established by the Constitution at both the state and federal levels. The division of power in the United States into fifty separate states and one federal government affects how the law can address or regulate activity that has an impact on the environment. Federalism is designed to give the Federal government certain specific powers and only specific powers. The states have all undefined powers not specifically given to the federal government. Because limited federal power is a basic assumption of the federal government, Congress does not necessarily have the power to take action that it deems in the public good. Congress must base every act on a specific grant of power found in the Constitution. As a general matter, the Constitution favors decentralized, fragmented and incremental lawmaking while environmental concerns lend themselves to national, or global, solutions.
In the area of environmental law, the most important federal authority to regulate the environment are: the power to regulate interstate commerce, the power to tax and spend, the power to enter into treaties, and the power to regulate use of public lands. The power to regulate interstate commerce is most important because it extends to the regulation of private entities. Ultimately, federal courts decide whether Congress may legislate based on the authority of the commerce clause, and until relatively recently, the courts have allowed Congress significant latitude to use the commerce clause. To pass an environmental law based on the commerce clause, the activity being regulated must "affect commerce." That test may include consideration of the aggregate effects of a number of local activities that if taken together would affect commerce. For most of the twentieth century, Congress's power under the commerce clause seemed unlimited. In the mid-1990's the Supreme Court decided cases that limited that authority and appeared to halt the trend toward federal power in favor of states' rights to legislate on their own behalf with authority of their general powers. For the time being, the core of Congress's ability to legislate environmental issues seems to not be threatened. However, the regulation of the environment under the commerce clause is on uneasy legal ground, and should federal courts adopt stricter and more literal interpretation of the commerce clause, federal authority to pass environmental legislation could be severely limited.
Oddly, while the federal government does not have the general authority to regulate environmental issues, the use of the commerce clause to do so does restrict the power of the states, which do have that general authority to address environmental concerns. The Constitution makes an affirmative grant of authority to Congress to regulate interstate commerce and under the supremacy clause of the Constitution, federal law takes precedent over, or preempts, state law that conflicts federal law. Even if Congress has been silent on an issue, the constitutional grant of power is interpreted to prevent the states from passing laws in areas committed to Congressional authority. This prohibition is called the silent commerce clause. The silent commerce clause prevents state law from discriminating against interstate commerce and from passing laws that impact interstate commerce to a greater extent than justified by the state's justification for the law. For example, a state may not impose limits or taxes on out-of-state garbage dumping to protect its local industry.
Environmental problems do not respect political boundaries, and a problem in one state may have been caused by activity in another state. Any particular state may legislate to protect its own environment and fail to adequately take into account the repercussions of its regulations on other states. In such cases, because environmental problems often arise from interconnected ecological systems that cover large areas and develop over long periods of time, an affected state would be unable to protect its own environment. Another disadvantage of decentralized law making is the inability of a state to regulate effectively because of an economic need to attract or retain industry with lax or lower environmental standards than other states. This contributes to the possibility that other states will follow suit, causing environmental...
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