FUNDAMENTAL DILEMMAS OF ENVIRONMENTAL LAW

Howard Latin*

INTRODUCTION

40 years after the publication of Silent Spring by Rachel Carson and the rapid rise of environmentalism as a political force in America;

30 years after adoption of the Clean Air Act, Clean Water Act, and National Environmental Policy Act (NEPA), and celebration of the first Earth Day;

20 years after adoption of CERCLA (the Superfund Act), prohibition of lead additives in automotive fuels, and congressional defeat of many Reagan Administration efforts to achieve environmental deregulation;

10 years after adoption of the Oil Pollution Act, Pollution Prevention Act, massive Clean Air Act Amendments, and the rapid expansion of International Environmental Law prompted by the U.N. Conference on Environment and Development, the "Earth Summit" in Rio;

Is it possible that most law professors, lawyers, and law students know virtually nothing about Environmental Law (EL) beyond the tautology that it deals with various aspects of the environment? Many law schools have offered courses in EL for more than three decades, but I believe the great majority of law faculty could not provide any overview of EL beyond a laundry list of environmental topics. Very few professors and lawyers who focus on other legal subjects-I shall refer to them as "non-ELers"--realize that Environmental Law is a field with characteristic issues, interests, values, uncertainties, and common policy-making dimensions. Judgments about the relative importance of diverse legal realms are bound to be idiosyncratic, but there can be no doubt that EL is among the most fascinating and difficult legal fields, perhaps the most challenging from an intellectual perspective. Yet, few law professors and lawyers outside EL have any meaningful understanding of this extraordinary field, and even most EL experts are too busy saving metaphorical "trees" to see the thematically unifying "forests."

As a heuristic device to explain why EL is uniquely challenging, this Article identifies five "fundamental dilemmas" that arise from the underlying circumstances, conditions, and values in varied environmental contexts. Unlike many more specific legal "problems" greatly affected by these dilemmas, such as standing, takings, natural resources allocations, burdens of proof, and separation of powers, the five fundamental dilemmas can never be resolved or eliminated because they are inherent aspects of environmental law and policy-making.

DILEMMA ONE: MULTIPLICITY OF LEGALLY-PROTECTED INTERESTS

EL must recognize and accommodate a broader range of legally-protected interests than any other field of law. In addition to familiar human-oriented legal interests in economic welfare, personal autonomy, and inter-personal equity, EL must define the scope of legal interests and rights arising from interactions with the natural environment and human environment. Most legally-protected interests subsumed under the constitutional categories of "life" and "property" are commonly involved in environmental disputes, but EL also encompasses interests in aesthetic experiences, recreation, research opportunities, and various ethical positions justifying the preservation of natural systems and features. Many environmentalists believe that some natural features, such as wildlife species, wilderness areas, and ancient forests, should be preserved because of their intrinsic worth irrespective of how valuable or inconvenient they may be for human beings.

Why does EL require the protection of endangered species, such as the Snail Darter, that no one but ichthyologists can identify? Why does EL mandate the protection of parks and wildlife reserves, such as the Arctic National Wildlife Refuge, that few people will ever visit? Why does EL impose air pollution and water pollution controls that may be as stringent and costly in undeveloped rural areas as in congested urban centers? Why does EL require government agencies to assess long-term ecological and social effects, and to serve as "trustees for future generations?" These diverse environmental interests cannot plausibly be explained solely in terms of utilitarian values or anthropogenic welfare. EL not only encompasses a wider range of legally-protected interests than other legal fields, but it is also the only field that must deal with some legal interests that are not exclusively focused on human effects and benefits.

The multiplicity, incommensurability, and unquantifiable character of many environmental interests requires policy-makers to balance diverse competing factors under nebulous decisional criteria. Examples include maximizing the overall "quality of life," attaining the best "multiple uses" of natural resources, defining an "acceptable" level of pollution discharges, or providing "an ample margin of safety" against toxic substances hazards. The resulting regulatory or management decisions are certain to be heavily politicized and controversial whether they seek to include all conflicting environmental, economic, and social interests or to exclude some relevant interests. It would be hard to overstate the enormous difficulties and pressures imposed on regulatory agencies and resource-management agencies by their need to accommodate such a diverse and disparate range of interests in the typical absence of clear political or legal priorities. No other field must deal with such a wide range of partly-incompatible interests that may be entitled to some measure of legal protection, or with so many legally-protected interests that are very difficult to assess, balance, and prioritize within a framework of social consensus.

DILEMMA TWO: INAPPROPRIATE POLITICAL AND TEMPORAL BOUNDARIES

From an environmental viewpoint, the political and legal boundaries created over hundreds of years to serve human needs are inappropriate and often irrational. Most jurisdictional boundaries run down the middle of rivers or follow straight lines imposed on a map regardless of the natural topography and affected ecosystems. These geopolitical boundaries were created long before ecology and toxicology were recognized as sciences and they impose arbitrary jurisdictional barriers that constantly impede effective environmental planning and regulatory programs. Depending on the specific laws adopted by various jurisdictions, people may be legally "entitled" to better or worse health because they reside on one side or another of a political border entirely arbitrary in terms of pollutant exposures. Wealthy residential communities in Connecticut are subject to a "cancer alley" of hazardous air pollutants from more industrialized states blown by the prevailing winds. Midwestern sulfur oxide emissions create acid rain degrading Eastern lakes and forests. Native American communities become more impoverished as their natural water supplies are diverted to large cities hundreds of miles away. Farmers who fill "pothole wetlands" for their personal convenience threaten migratory wildlife that may benefit distant states and nations. Anadromous fish may swim from state waters to federal waters to international waters in a day; and migratory birds fly over many political boundaries in a matter of hours. How can effective responses to countless environmental problems be implemented when our political and legal boundaries impose a jigsaw puzzle of overlapping jurisdictions that make no sense in ecological or toxicological terms?

The time-frames or temporal boundaries associated with most human activities and institutions are similarly inappropriate for many ecological processes. The utility of a factory, business acquisition, 10K securities statement, or law review article will ordinarily be negligible a hundred years in the future. Lawyers in most fields seldom consider social, economic, and environmental effects likely to occur more than a few decades from the present. Natural ecological and evolutionary processes, in contrast, often involve incomparably longer time-intervals. Forests, oceans, wildlife, and many other ecological features will remain biologically and economically productive indefinitely as long as people do not destroy them. Yet, humans are now making countless ecological changes with unplanned and unknown long-term consequences. Global climate change, deforestation, over-fishing, over-grazing, species extinctions, and continuing low-level emissions of toxic substances are examples of EL contexts in which short-term human choices may be risking medium-term or long-term catastrophes. No other legal field is regularly faced with the extended time-horizons characteristic of many environmental issues.

This is not a normative statement that our jurisdictional boundaries and temporal horizons are necessarily "wrong." They are doubtless appropriate for many political, legal, and social purposes. However, these boundaries and time-frames are clearly "wrong" for effective environmental protection, and EL must somehow function despite numerous mismatches between political, legal, temporal, geological, and ecological boundaries. Other legal fields do not have to contend with these kinds of geopolitical and temporal mismatches to any comparable degree.

DILEMMA THREE: THE TRANSITION FROM PERCEIVED ABUNDANCE TO PERCEIVED SCARCITY

For many environmentalists, America is no longer perceived as "the land of plenty." Consider this generic description of many natural resources conservation disputes: In previous historical eras, publicly-owned natural resources-agricultural lands, fisheries, forests, wildlife, mineral ores, petroleum and gas deposits, grazing lands, fresh water--were perceived as abundant and under-utilized. Business enterprises were set up, often with government support, to exploit these natural resources in order to increase the benefits from economic and social development. Consider the Homestead Act of 1864, for example. Communities arose or expanded in regions where natural resources exploitation activities were intensive. Workers acquired skills, experiences, and attitudes necessary to extract and market the resource-exploitation products. Through a process of self-selection, many resource-exploitation workers came to value the psychological benefits of their rugged employment activities and outdoors life-style satisfactions from living in close proximity to the ecosystems that were being exploited. Lumberjacks, farmers, commercial fishermen, hunting guides, miners, prospectors, cowboys, and construction workers normally value what they do and most of them have no desire to become desk-bound professors, computer programmers, or insurance clerks.

The beneficiaries of the decades-long or centuries-long resource exploitation process usually believe they own the natural resources or they are morally and politically entitled to continue exploiting the resources. Even if they do not claim a legal right to the natural resources, people whose livelihoods and preferred life-styles depend on continued resources exploitation will mobilize whatever political influence they can attain to enable continued resource exploitation. The same is obviously true of resource exploitation industries trying to protect their operations and profits. One need only look, for example, at the fierce conflict between preserving the endangered Spotted Owl and preserving forestry livelihoods dependent on non-sustainable logging in the Pacific Northwest to recognize that many natural resource exploiters sincerely believe environmental regulations are unfairly destroying their jobs, communities, and lives.

In contrast, environmentalists perceive natural resources as increasingly scarce, depletable, and integral to the survival of threatened ecological systems. Only 10 percent of ancient-growth forests in the Pacific Northwest still remain reasonably intact, and they are still being logged faster than they can renew themselves. Most commercial fisheries stocks are now exploited up to, or beyond, the limits of sustainable yields, and many fish species are heading toward commercial extinction or ecological extinction. Millions of acres of arid public lands in Western states have been eroded by livestock grazing and could become desolate wastelands if an unusually dry climatological period occurs, as it did during the Depression years. Numerous wildlife species have become extinct in this century and many more are threatened with extinction in the future. Coastal shorelines are eroding because of haphazard development; coral reefs are dying worldwide; Southwestern lands are cracking and subsiding due to excessive fresh water withdrawals from underground aquifers; wild salmon no longer swim up many Northwestern rivers; New Jersey claims it is almost out of space for solid waste landfills; roadless wilderness areas, which represent only a minute fraction of American lands outside Alaska, continue to be converted into logging and mining tracts. The natural features environmentalists now perceive as unnaturally scarce are becoming more degraded, depleted, and vulnerable to further destruction every year. A similar concern for the transition from relative abundance to relative scarcity has arisen in many pollution control contexts, where the assimilative capacities of the ocean, atmosphere, fresh water bodies, and landfills were once considered unlimited but are now regarded as finite and increasingly scarce.

Another form of perceived scarcity occurs when ecological resources may not actually be diminishing, but people feel the related satisfactions are becoming scarce as a result of population growth and increased demand for high-quality experiences or amenities associated with natural conditions. Examples include the degradation of aesthetic experiences in parks as a result of over-commercialization, traffic jams, and air pollution haze; the urban sprawl and congestion around municipalities without sufficient open spaces or green belts; inadequate public beach or shore access; reduced catch limits for recreational hunting and fishing; and zoning restrictions or other growth controls in communities where the present residents want to enjoy nicer surroundings by excluding would-be-residents who would like to move there. As another example, strip development along scenic coastlines may not actually reduce the amount of available coastal land, but for many people it certainly does reduce the perceived benefits from living or traveling in those coastal regions.

Shifting perceptions from relative abundance to relative scarcity in almost every environmental context ensure that EL must be among the most disputatious of legal fields. With regard to natural resources depletion and ecological degradation, proponents of further natural resources exploitation claim that their livelihoods, homes, communities, businesses, preferred life-styles, and personal autonomy are at stake. They also argue that they, or their forebears, were encouraged by once-current social priorities to develop nature-exploiting enterprises, and it would now be unfair for the government to undermine these enterprises and the related communities without ample compensation. To a large extent, the same kinds of arguments are presented by many manufacturing firms and their employees dependent on continuing pollutant emissions. Environmental advocates reply that the resource exploitation activities are destroying irreplaceable ecological features and systems, and current practices will inevitably impose massive long-term social and environmental losses if they are allowed to continue on a non-sustainable basis. Natural resources exploitation and pollution impose major externalities on society in which the beneficiaries do not pay for most of the social harms they cause. Environmentalists also contend that publicly-owned natural resources should be managed to promote the overall public good, including the welfare of future generations, and not just the private interests of short-sighted resource exploiters. Where is the middle ground between these sets of politically powerful arguments?

Environmentalists usually oppose legal policies that ratify historically-accepted development practices because environmental conditions in the past were not well-understood or subject to comparatively high levels of popular demand. In contrast, pro-development advocates contend that most people ground their expectations and investment decisions on whatever legal rights apply when they make their decisions, and it would be both unfair and inefficient to "change the rules of the game" after the choices have been made. Which is more important: the fulfillment of settled human expectations and investments based on those expectations, or flexibility to adapt legal treatments to new conditions, new knowledge, and new social priorities? Obviously, this question cannot be resolved in the abstract, and the answers imposed in concrete disputes are bound to be controversial. Transitions from perceived abundance to perceived scarcity bear directly on many critical issues about how people want to live their lives and how they will be able to lead their lives in the future. Environmentalists must also be concerned not only about human effects but about the effects of development, resource exploitation, and pollution on the preservation of nature and natural conditions.

No other legal field must contend to the same degree with the progressive diminution of inherently limited resources or with as many conflicts arising from increasing demand and perceived scarcity in relation to limited natural resources. There is no reason why the legal rights to life, liberty, or reputation should decrease over time. We are not running out of ideas, managerial skills, or dollars. In comparison, countless development and investment decisions made over many decades have been grounded on presumptions of abundant natural resources that are no longer valid. EL efforts to impose requirements for sustainability and conservation cannot help but conflict with long-established human expectations of natural resources availability, inevitably leading to intense political and legal controversy. Consider, for example, the growth of the "sagebrush rebellion" and "wise use" movements in Western states heavily dependent on non-sustainable natural resources exploitation.

DILEMMA FOUR: PERVASIVE COMPLEXITY AND UNCERTAINTY

In addition to the complicated human relationships at the core of other legal fields, EL must confront innumerable complexities and uncertainties arising from interactions between human behavior and environmental phenomena. Millions of ecosystems and species have distinctive characteristics, each unique to a degree. Critical processes, whether systemic or random, at the boundary-lines between nature and human activities, such as global climate change, deforestation, species habitat destruction, and natural resources depletion, typically lack adequate baseline data and adequate scientific understanding. Thousands of potentially hazardous industrial substances are in everyday use, but toxicologists lack adequate data on most chemical substances exposures; they also lack reliable extrapolative theories from animal test data to human health effects; and lack reliable extrapolative theories from high human dosages in the past to the health risks at the lower exposure levels now typically prevalent. Knowledge about the ecological consequences of potentially toxic emissions is even more limited and often entirely absent.

In every EL context, the need to know greatly exceeds the capacity to know because of the limited state of scientific knowledge and the extraordinary complexity of ecological degradation and toxic risk-assessment issues. Despite billions of dollars expended on scientific and technical research in recent decades, our society is running countless "blind experiments" that impose gambles with unknown stakes and possibly catastrophic consequences. Global climate change is only one well-publicized example. EL is the legal field established to control or remedy environmental and toxic hazards, and yet EL requires a multitude of complicated factual determinations that very seldom can be made in a reliable manner. Pervasive complexity and uncertainty are the norm in EL rather than the exception.

It is true that other fields, such as antitrust, bankruptcy, and intellectual property, present issues of substantial complexity and uncertainty. Yet, EL must confront many of the same business-oriented economic uncertainties in addition to distinctive ecological and toxicological uncertainties. Pollution control standards, as one illustration, must often be supported by administrative findings of economic feasibility before any regulatory limits can be imposed. Agencies and reviewing courts must therefore grapple with complicated economic issues, including present and future industry profitability, foreign competition effects, ability to attract capital for environmental protection investments, and the retention of competitive market structures. Similarly, under the rubric of "sustainable development," decision-makers must consider economic uncertainties relating to the commercial viability of development efforts as well as the many constraints imposed by the need for ecological sustainability. Most environmental protection strategies require evaluations of possible economic and social ramifications, with their accompanying uncertainties, not only of ecological conditions and potential health hazards. In contrast, business-oriented lawyers very seldom are required to assess a myriad of complicated and uncertain environmental factors. No other legal field approaches EL in the diversity and difficulty of the scientific, technical, and economic uncertainties that must continually be addressed.

DILEMMA FIVE: THE NEED TO REVERSE CENTURIES OF PRO-DEVELOPMENT POLICIES AND PRACTICES EMBEDDED IN AMERICAN LEGAL DOCTRINES

As one prominent EL scholar noted some years ago, environmental law is inescapably subversive. For centuries, established legal doctrines and practices promoted development and failed to protect nature or human satisfactions derived from non-consumptive interactions with nature. The famous Pierson v. Post opinion, for example, held that the only way to perfect a legal right to wildlife was to capture or kill it. Many water rights doctrines have similarly provided that people have no right to the enjoyment of natural water flows; they must impound or divert water and use it for a "productive" purpose to obtain a legal "appropriation" right. In an archetypal "Tragedy of the Commons" context, neither commercial nor recreational fisherman have had any legal right to force other fishermen to conserve the fisheries resource, and this has been even more true for environmentalists who espouse conserving the aquatic ecosystems.

As a generalization reflecting centuries of doctrinal treatments, if people benefited from natural resources or conditions without significantly altering them, they were merely enjoying "the bounty of nature" and had no legal right to prevent others from exploiting the same resources. On the other hand, resource exploiters who did change the environment in ways that yielded economic or social benefits could obtain legal property rights to continue these development activities and to exclude others from access to the natural resources. The exploiters did not create the environmental resources; yet, they could secure legal title to those resources by using them in a profitable but frequently non-sustainable manner. There was no way anyone could gain a property right in natural resources by not using them. The law for centuries provided essentially no legal rights to environmental protection for its own sake or to ecological sustainability.

Social problems associated with widespread pollution and toxic substances exposures are mainly of more recent origin. However, common law tort doctrines have always imposed the burden of proof on injured parties to show that they were harmed by pollution and that the particular defendants' emissions caused their harm. These evidentiary requirements impose virtually insuperable obstacles to recovery in many disputes where scientific and toxicological uncertainties are prevalent, and the injuries may have been caused by pollutant exposures from disparate possible sources, by genetic propensities, or by other mechanisms not associated with specific toxic exposures. Even in the rare situations in which causal uncertainty could be overcome, the common law usually provides ex post damages after harms are suffered rather than ex ante preventive legal treatments designed to avoid injuries before they occur. Many EL advocates have proposed broad application of the precautionary principle, which would arguably reverse traditional burdens of proof on uncertain factual issues, but this change has very rarely been incorporated into actual legal doctrines and judicial decisions.

In recent decades, environmentalists have attained sufficient political support to adopt many thousands of statutes and regulations intended to overturn these kinds of legal impediments to environmental protection. Yet, pro-entrepreneurial, pro-development biases in American law are still dominant in the great majority of legal contexts, and EL must continue to challenge the historical and doctrinal underpinnings of a legal system that has actively encouraged so many environmentally destructive practices to flourish in the past. Although law faculty who focus on race relations and feminist legal theory might disagree, I believe no other field of law must strive to make as many fundamental changes throughout the entire corpus of American law as EL is attempting to achieve.

The five "Fundamental Dilemmas" of EL will be discussed sequentially for expositional clarity in Sections II through VI of this Article, and yet it should be emphasized that all of these dilemmas complicate environmental decision-making concurrently and continuously. The dilemmas generate a much larger set of specific legal problems that arise in environmental contexts, including standing, ripeness, and justiciability issues; separation-of-powers; federalism and internationalism; delegations of legislative authority; standards of judicial review for legislative and agency decisions mixing disputed facts, law, and policy judgments; restrictions and exactions on real property development rights; the scope of appropriate "takings" compensation; burdens of proof under conditions of scientific uncertainty; conflicts between social welfare regulation and personal autonomy; tensions between efforts to promote regulatory efficiency and regulatory responsiveness to political or social priorities; and many other characteristic problems related to partly-incompatible environmental, economic, and social interests.

It is no accident that in recent decades many major judicial decisions addressing these legal problems have been EL cases. For example, the multiplicity and incommensurability of environmental interests produced most of the leading standing cases from Sierra Club v. Morton and Duke Power to Laidlaw. Environmental complexity produced many judicial decisions on agency decision-making under uncertainty, including the Reserve Mining and Ethyl opinions and the de facto rejection of these precautionary treatments in the Supreme Court's Benzene and Baltimore Gas & Electric decisions. And the difficult policy-making burdens placed on environmental regulatory agencies produced leading Supreme Court decisions on judicial deference to administrative determinations, including the Chevron and Vermont Yankee decisions.

Non-ELer law professors and lawyers usually Balkanize these important cases and many others by categorizing them as Constitutional Law, Administrative Law, Property Law, or Tort Law without recognizing the linkages between the critical legal issues in the cases and distinctive attributes of environmental policy-making. Most non-ELers do not recognize EL as an independent legal field and consequently organize these important cases under traditional subject-headings that obscure the presence of common environmental issues and constraints. However, I believe the pressures exerted by the five fundamental dilemmas discussed here, not changes in the traditional legal subject-matter areas, have created the primary impetus for many influential legal judgments.

As one illustration, the Boomer v. Atlantic Cement Co. decision balanced non-health-related effects of air pollution on home-owners against the economic consequences if the polluting cement plant were shut down, and the court then imposed the extraordinary remedy of private inverse condemnation after concluding that the broader array of air pollution effects should be controlled by appropriate regulatory agencies. Boomer is clearly an EL case reflecting a judicial response to some of the fundamental EL dilemmas, not simply a Property Law case. In understanding Boomer and similar cases, Property Law professors and lawyers would surely benefit from greater knowledge about environmental contexts in which aggregate damages are widespread and uncertain, but each separate harm may not appear unacceptable in light of other social priorities. The aim of this Article is not only to describe fundamental themes and constraints that unite diverse areas of environmental law, but also to show how understanding the fundamental dilemmas of EL can help faculty, lawyers, and students involved in other legal fields to better comprehend the relevance of environmental law issues to their own interests.