Oxford Handbooks Online: The Environment

The Environment
Oxford Handbooks Online

The Environment
Lisa Heinzerling
The Oxford Handbook of Legal Studies
Edited by Mark Tushnet and Peter Cane
Print Publication Date: Jun 2005 Subject: Law, Environment and Energy Law
Online Publication Date: Sep 2012 DOI: 10.1093/oxfordhb/9780199248179.013.0031
Abstract and Keywords
This article discusses three strands of environmental law scholarship. First, the nearly
simultaneous passage of the major environmental laws meant that legislators often had
no time to react to the experience under one law before enacting another; thus several
mistakes were made in the early environmental laws, and many of these mistakes were
repeated from one statute to the next. A large strand of legal scholarship on the
environment has taken critical aim at these early mistakes. To this day, environmental law
scholars focus much of their attention on issues of statutory design. Secondly,
environmental law came of age during a period of great flux in the relationships between
the legislature, the executive, and the courts. Finally, environmental law has come of age
during a period in which opinions about ‘vertical’ institutional design — what in the
United States comes under the umbrella of ‘federalism’ and what in the European Union
comes under the umbrella of ‘subsidiarity’ — have changed quite substantially.
Keywords: environmental law, legal scholarship, federalism, subsidiarity
1 Introduction
ENVIRONMENTAL law scholarship grew up with environmental law itself. Before the
1970s, when most of the first major environmental statutes were passed in the developed
countries, environmental law as a separate discipline, and a separate topic of scholarly
inquiry, essentially did not exist. Although many of the early laws have since been
amended, some significantly, the laws written during the 1970s still provide the basic
framework for environmental protection in many countries.
This history has had at least three important implications for environmental law
scholarship. First, the nearly simultaneous passage of the major environmental laws
meant that legislators often had no time to react to the experience under one law before
enacting another; thus several mistakes were made in the early environmental laws, and
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The Environment
many of these mistakes were repeated from one statute to the next. A large strand of
legal scholarship on the environment has taken critical aim at these early mistakes. To
this day, environmental law scholars focus much of their attention on issues of statutory
design.
Secondly, environmental law came of age during a period of great flux in the relationships
between the legislature, the executive, and the courts. In the United States, the major
environmental laws were part of a cascade of new social legislation enacted in the 1970s
and aimed at protecting consumers, workers, the environment, and other interests left
out of the first New Deal. The answers to questions such as how to (p. 702) interpret
statutes, how broadly to review agency decision-making, who should be able to
participate in the administrative process, and the like, all critically important to the shape
and scope of environmental protection, entered a period of ferment while the major
environmental laws were being passed, and to a large extent this ferment is with us still.
Indeed, in many ways, environmental law itself has been responsible for many changes in
our understanding of the institutional relationships between legislatures, the executive
branch, and the courts. The questions of ‘horizontal’ institutional design occasioned by
what in the United States is sometimes called the ‘second New Deal’ have been another
large focus of environmental law scholars in the United States and elsewhere. Indeed, a
substantial portion of the growing literature in comparative environmental law focuses on
national differences in horizontal institutional design.
Finally, environmental law has come of age during a period in which opinions about
‘vertical’ institutional design—what in the United States comes under the umbrella of
‘federalism’ and what in the European Union comes under the umbrella of ‘subsidiarity’—
have changed quite substantially. Environmental law began at a time when, in the United
States at least, the national role in developing social policy, and agreement about the
appropriateness of that role, were at their height. Now, thirty years later, federalism is all
the rage, and many environmental law scholars are casting about for ways to enlist other
decision-making bodies, including states, regions, towns, and more informal associations,
in decisions about the environment. Some are even questioning the appropriateness of
the national government's own role. Likewise, in the European Union, national
environmental laws arose almost simultaneously with the recognition of enhanced power
for the European Union to develop laws to govern member countries. Thus questions of
‘vertical’ institutional design permeate current legal scholarship on the environment.
These three strands of environmental law scholarship frame the bulk of the discussion
that follows. Before exploring these specific concerns, however, it may be useful to
consider some of the general characteristics of environmental law scholarship and the
ways in which this scholarship is distinctive from legal scholarship in other fields.
1.1 Interdisciplinarity
Environmental law scholarship is pervasively interdisciplinary. Indeed, it is almost

impossible to imagine a first-rate environmental law scholar who is not comfortable with,
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and whose work does not touch upon, scholarly disciplines beyond law. Toxicology,
ecology, public health, statistics, economics, sociology, psychology, philosophy, and more
—these fields have as much to do with environmental law, and environmental law
scholarship, as ‘law’ itself (assuming that law is an autonomous discipline in any event).
Outside of several constitutional issues that have special relevance to environmental
problems (such as the ‘takings’ issue in the United States), (p. 703) traditional modes of
legal scholarship—doctrinal analysis, case parsing, analogical reasoning—have relatively
little place in cutting-edge environmental law scholarship. Most of the heavy labor is done
only with the help of other scholarly disciplines. For example, to look ahead for a moment,
the astonishingly popular scholarly trend in favor of market-based mechanisms for
pollution control came, not from law, but from economics. In environmental law
scholarship, interdisciplinarity is not a trend; it's a way of life.
1.2 Concreteness
Environmental law scholarship also differs from many other kinds of legal scholarship in
so far as it tends toward concreteness; it tends to avoid the high-level abstractions,
without obvious practical significance, found in some other fields of legal inquiry. Many
excellent environmental law scholars are, to be sure, first and foremost theoreticians. But
even they tend to press their theoretical claims into a concrete framework. They tend to
ask how the environmental law system can be made to work; they tend not to rest content
with carrying on an abstract and exclusive conversation among themselves. In fact, one
challenge faced by many top-notch environmental law scholars is to stay engaged in
scholarly debates while at the same time trying to satisfy the inevitable demands placed
on them by non-scholarly pursuits, such as litigation, legislative reform, and the like. At
the same time, one of the great fears of many legal scholars—irrelevance—is not as much
of a concern for deeply engaged environmental law scholars, who not infrequently see
their own ideas become part of the law.
1.3 Fragmentation
Environmental law scholarship tends to straddle several different fault lines, for both
historical and practical reasons. Perhaps the most important dividing line is between
‘brown’ and ‘green’ scholarship, brown having to do with pollution control and green
having to do with natural resources protection. Few legal scholars cross over the line
separating major pollution control laws, such as those controlling air and water pollution,
from natural resources laws, such as laws governing the management of forests, grazing
lands, and mineral resources. Even law school courses typically do not cross this divide;
the ‘environmental law’ survey course offered in most US law schools, for example, is
brown, not green. One reason for this divide, at least in the United States, is historical:
the pollution control laws were part of the wave of social legislation enacted in the 1970s,
whereas the natural resources laws have developed over a longer period of time and
indeed have their origins in the resource-extractive policies of the nineteenth century
(Wilkinson, 1992).
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Another kind of fragmentation also occurs in environmental law scholarship, and that is
between different environmental media and their associated problems. There (p. 704) are
‘air’ scholars and ‘water’ scholars, ‘wetlands’ scholars and ‘toxics’ scholars. Of course,
not all environmental law scholars are so narrowly focused, and indeed, the best in the
field range beyond one discrete area of interest. And of course, most fields of legal
scholarship have their specialties. But in a field where a solution to one problem (say, air
pollution) can literally create another problem (say, water pollution), scholarly
fragmentation can have consequences that range well beyond the academy. In settling
themselves into environmental niches to promote the healthy development of specialized
knowledge, legal scholars can at the same time open up large gaps in understanding and
create the potential for a wide range of unintended consequences.
Finally, and least surprisingly, environmental law scholars have tended to be fragmented
along national lines; US scholars, for example, write about US environmental law. But the
comparative work that exists shows exceedingly promising avenues for further research
and analysis. For example, although many countries have converged on technology-based
regulation as the primary means of pollution control, and have also, at present,
converged on market-oriented regulation as an alternative to technology-based control,
countries differ markedly in their approaches to administrative law and regulatory
compliance. Countries also differ in their particular choices of market-oriented regulatory
instruments; in the United States, pollution trading is probably the instrument of choice
for scholars and regulatory reformers, whereas in Europe, pollution taxes have enjoyed a
bigger role. Comparative research on these differences might yield important discoveries
for the next wave of environmental law scholars.
1.4 Conclusion and Preview
Contributors to this volume were asked to limit their essays to scholarship published after
1960. In the case of legal scholarship on the environment, this is an easy requirement to
meet: such scholarship, in essence, did not exist until the 1970s (despite the long
existence of laws governing the disposition of natural resources). Since then, legal
scholars have focused much of their attention on questions of statutory design,
institutional arrangements, and vertical institutional design. In doing so, they have
marshaled the lessons of other disciplines and have asked concrete questions about how
the existing legal framework can be improved. This is all to the good.
Nevertheless, as I will explain, environmental law scholars' interdisciplinarity has often

been marked by an uncritical acceptance of research from other fields and by an unduly
hearty embrace of reform proposals from other disciplines. Faced with environmental
problems of daunting complexity and stunning variety, environmental law scholars have
tended too often to be comforted by the possibility that one simple idea—say, pollution
trading—will fix everything that is broken. The problems are more complex, and more
multifarious, than that.
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Specialization in one or two environmental fields—forests or wetlands or clean air

(p. 705)
—has also permitted environmental law scholars to grapple with the legal, scientific, and
economic challenges of environmental law without taking on every one of the many laws
in this complex field. But this specialization, too, comes at a cost. The fact is that
environmental law scholarship is too fragmented today between brown and green,
between air and water and land, and, more abstractly, between regulators and anti-
regulators. Age-old stand-offs between different philosophical camps in the
environmental law academy have become unproductive, even dull.
What is needed, for the next generation of environmental law scholarship, are ideas that
break the log-jam by trying something different. Some of these ideas are already in place,
in our laws, but their potential remains largely untapped. Others are discernible, in broad
and shadowy outline, in existing scholarly work and sometimes in existing law. To bring
these innovations into the light of day, the next generation of environmental scholars
must be unintimidated by the jargon and culture of other disciplines, unapologetic about
insisting upon practical applications for their academic work, and unembarrassed by the
possibility that some of their ideas might turn out to be mistakes.
2 Statutory Design
Most environmental protection derives from statutes rather than from the common law.
Certainly, the common law of nuisance, negligence, and strict liability has played some
role in addressing environmental problems. In some jurisdictions, moreover, common law
doctrines have been reshaped to facilitate compensation for victims of environmental
torts. Yet for the most part, addressing environmental problems through the tort system
is made almost impossible by transactional and doctrinal hurdles. The statutory system
for environmental protection arose, in part, in self-conscious rejection of the common law
as a means of protecting the environment. The predominant focus of scholars in the field
of environmental law has been the environmental statutes, not tort doctrine. Statutes will
be our focus as well.
In designing statutes for environmental protection, two large questions immediately

present themselves: what goal should the law aim to achieve, and what means should it
use to carry out that goal? Much of the best environmental law scholarship addresses one
of these two questions. Less well covered, but equally important and rising in prominence
of late, is the question of how to implement a statute once its ends and means have been
set.
(p. 706) 2.1 Ends
Generally speaking, environmental laws can serve one of three broad goals: they can
bring environmental risk down to a level deemed acceptable by the relevant decision-
makers; they can ensure the utilization of the best available technology (or other means)
for pollution control; or they can strive to achieve a balancing between competing
interests, most often between environmental protection and economic cost. Some of the
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fiercest debates in environmental law scholarship have concerned this basic choice about
statutory design.
2.1.1 Acceptable Risk

‘Acceptable’ risk has a range of meanings. It could reach all the way down to zero or it
could go much higher. Environmental laws in the United States have in fact spanned this
wide range, giving ample material to critical environmental law scholars. Although most
scholars in theory agree that it would be wonderful if the law could limit its protections to
ensuring an acceptable level of risk, most scholars also criticize, from various
perspectives, the acceptable risk laws that have existed to date.
Acceptable risk might, for starters, mean zero risk. This is not a common standard in
environmental law. Indeed, the only true zero risk statute even in the United States—
which is known for having, at least in form, the most absolutist environmental statutes of
all of the common law countries—was the Delaney Clause, which prohibited carcinogenic
pesticide residues on processed food and which has now been repealed as applied to
pesticides. Scholars loved to hate the Delaney Clause; so popular was the Delaney Clause
as a topic of scholarly scorn that one continually sees reference to it to this day as an
example of misguided environmental legislation, though it has been dead and buried for
over five years. The problem, as scholars saw it, was that, in aiming for ‘zero risk’, the
Delaney Clause actually created more risk than it avoided. New pesticides were subject
to the Clause's exacting anti-carcinogen standards, whereas old pesticides—which could
be far more dangerous than new pesticides—enjoyed an informal system of
grandfathering that allowed them to stay on the market even if new information revealed
their carcinogenic potential. The Clause thus inspired its own eponymous paradox—the
‘Delaney Paradox’—used to describe a situation in which aiming for zero risk can badly
misfire and create more risk rather than less. In scholarly debates, the case in favor of
the Delaney Clause never really got off the ground, and it seems fair to say that today, no
substantial scholar argues for a reinvigoration of a zero-risk regime. Nevertheless, the
Delaney Clause hangs around as a kind of poster child for regulation gone wrong, and
environmental law scholars critical of regulation often charge environmental advocates
with supporting a zero-risk regime. Never a large part of environmental law, and now
long defunct, the Delaney Clause and zero-risk standards primarily live on as rhetorical
devices deployed, in most cases unfairly, against advocates of stricter environmental
protection.
Acceptable risk might, alternatively, mean a level of risk that public health
(p. 707)
professionals and other experts deem acceptable. Regulatory standards would then be set
to ensure that the designated level of risk is not exceeded. The most prominent US
example of this kind of regime comes from the federal Clean Air Act, which requires
national air quality standards to be set at a level that protects the public health and
welfare with an adequate margin of safety. The idea is that standards will be set to
prevent adverse and significant effects on public health, and will be set strictly enough so
that vulnerable subpopulations—such as children, the elderly, and people who are ill—will
be protected. Germany sets similarly health-based standards for air pollution.
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Environmental scholars have long argued against cost-blind, nationally uniform

environmental standards such as these (Krier, 1974). To be sure, some environmental
scholars love public health standards; but for the most part they do so in the privacy of
their own minds. Most published writing on the US Clean Air Act, and on public health
standards generally, questions the wisdom and even the possibility of setting standards
without regard to costs. The authors of these works believe that an administrator will
inevitably peek at costs when she sets standards, and if she does, she should say so. Thus,
on this view, cost-blind standards carry potential not only for enormous inefficiencies, but
for large-scale disingenuousness as well. Again, however, as with the Delaney Clause, the
debate has veered into an area of relatively little concrete significance for environmental
law. Few environmental standards are cost-blind; even in the United States, with its
uniquely stringent environmental laws, the Clean Air Act standards are an exception. And
costs are carefully considered in choices about how to implement these standards. Thus,
not only do cost-blind standards play a relatively minor role in environmental protection;
even where they exist, they are set in motion only through regulatory frameworks that
are exquisitely sensitive to economic costs. In these circumstances, the amount of critical
scholarly attention paid to health-based, cost-blind standards seems disproportionate
indeed.
A final model for a risk-based regulatory regime comes from the US Occupational Safety
and Health Act, which has been interpreted by the US Supreme Court to require the
Occupational Safety and Health Administration (OSHA) to determine whether a risk is
‘significant’ before regulating it. The determination of ‘significance’ here is fluid,
intuitive, subjective. The important feature of this regime is not the process of attaching
the label ‘significant’ to a particular numerical risk, but rather the requirement that the
risk be described quantitatively rather than qualitatively in the first instance. The
requirement of quantification has been embraced by numerous legal scholars, who
appear to share the Supreme Court's pre-analytic assumption that the only way to think
rationally is to think quantitatively. Others have noted that the insistence on
quantification has led to regulatory delay without improving either the quality of
regulation or even, in many cases, the quality of information undergirding regulation. In
the European Union, the issue of risk assessment surfaced in the free trade challenge to
the EU's prohibition on beef from cattle treated with bovine growth hormone. In that
dispute, the EU's dominant preference for ‘precautionary’ (p. 708) regulation—which may
be imposed before a risk can be quantified or known with certainty—gave way to a
requirement of risk assessment imposed by the appellate body of the World Trade
Organization.
The questions of whether to quantify environmental risks and, if so, what role numerical
probabilities of harm should play in environmental decision-making, have become staples
of environmental law scholarship. At this point, it is possible to discern a trend in favor of
two potentially conflicting ideas: (1) it is important to quantify environmental risks so far
as possible, even when this involves many assumptions that cannot themselves be
validated by science (Pildes and Sunstein, 1995); and (2) ‘risk’, appropriately defined,
involves more than numerical probabilities of harm, and includes such considerations as
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the voluntariness, controllability, familiarity, immediacy, and distribution of the potential

for harm (Hornstein, 1992; Krier and Gillette, 1990).
Few scholars have adequately appreciated, however, the tensions created by this general
agreement on the importance of the quantitative and qualitative features of risk. First, in
practice, once numerical estimates of harm are generated, they tend to dominate all
further debate; qualitative variables are typically given lip-service, nothing more.
Secondly, if the qualitative features of risk were to play a substantial role in decision-
making about the environment, one might then have to wonder about the utility of
spending large amounts of time and money generating precise numerical estimates of
risk, when those estimates can be trumped in the end by vague but readily accessible
notions about which risks are worth reducing. Finally, a focus on quantifying risk in the
presence of extreme scientific uncertainty has often created what Wendy Wagner has
called a ‘science charade’, in which political decisions masquerade as scientific ones
(Wagner, 1995). An important agenda item for future environmental law scholarship will
be to try to reconcile intuitions about the necessity of quantification with intuitions about
the importance of values like autonomy, community, and equity, in addressing risk—or,
alternatively, to explore whether one or the other of these intuitions should be
reconsidered.
2.1.2 Best Available Technology

The most pervasive goal in environmental statutes is to achieve the widespread use of
effective technology for controlling pollution. Obviously, this goal is fundamentally
subordinate to a broader goal of achieving an acceptable level of environmental risk; but
technology-based standards do not directly aim at any particular environmental outcome.
Instead, they aim to achieve a cleaner environment more indirectly, through application
of the most sophisticated available approaches to pollution control.
Technology-based standards permeate environmental law. In the United States, laws on

air pollution, water pollution, hazardous waste remediation, and toxic chemicals, all
employ technology-based requirements as their primary means of pollution control. Even
where laws set risk-based goals, those goals are predominantly met through (p. 709)
technology-based standards; here, risk-based goals get all the credit, but technology-
based standards do all the work. Indeed, one little-noticed historical trend in
environmental law is for health-based standards to be changed into technology-based
standards once it becomes apparent that little regulation will occur under a health-based
framework; the toxic pollutant programs in the United States for air and water both
followed this path. Other countries, such as England and Germany, also rely pervasively
on technology-based standards.
Technology-based standards are another example of standards environmental law

scholars love to hate. Stalinist, command-and-control, central planning—these are the
kinds of descriptors associated with technology-based pollution control (Ackerman and
Stewart, 1985). The lack of a tight connection between precisely correct environmental
outcomes and technology-based requirements, and the variance in control costs across
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firms, have convinced the bulk of environmental law scholars that there is something
presumptively suspicious about environmental law's primary means of doing its work.
Common misunderstandings of the nature of technology-based regulation have also
contributed to its unpopularity among legal scholars. Many reputable scholars, for
example, continue to assert that technology-based regulation is cost-blind. It is not. Even
in the United States, where technology-based standards are often designed to ‘force’
technology to become more effective in preventing pollution, costs are considered in
setting such standards.
Technology-based regulation does have its scholarly defenders. These scholars are
worried about the large informational demands of alternative environmental standards
(risk-based and balancing standards), and, armed with evidence of unexpected
innovations and cost savings that often occur after regulation is in place (but are not
accounted for in estimating the costs of regulation before the fact), they worry less about
technology-based standards being excessively costly (Latin, 1985). With their emphasis
on informational demands and the excessive delay such demands can bring to the
regulatory process, it is perhaps no surprise that some of the same scholars who have
defended technology-based regulation also have devoted a good deal of energy to trying
to identify ways in which the regulatory system might become less ‘ossified’ (McGarity,
1992). If the administrative process were not so slow and cumbersome, these scholars
would say, the record of technology-based regulation would appreciably improve: it is the
process, not the substantive decision-making framework, that is unacceptably inefficient.
2.1.3 Balancing
The current darling of many environmental law scholars is balancing: either a rough-
hewn, all-things-considered kind of balancing, or a more formal, cost-benefit analysis
where the relevant variables are quantified and monetized. In the most current debates,
the second kind of balancing has morphed into the first; no one anymore seems to want to
say publicly that he is in favor of completely precise, (p. 710) quantified cost-benefit
analysis that leaves no room for subjective judgment. Thus the cost-benefit balancing of
environmental law scholarship has, in recent years, been softened around the edges, to
include consideration of factors that no one has managed to quantify or monetize (like
fairness) and to reflect some ambivalence about quantification and monetization even
where it is possible (as when the benefits in question are human lives). Here, however,
there is quite a large divide between theory and practice. While in theory, qualitative
considerations like fairness are relevant in the cost-benefit equation, in practice, anything
that cannot be counted is not likely to figure very prominently in regulatory decision-
making.
A now-predictable set of arguments is offered in favor of cost-benefit balancing. Some of

these arguments—such as the claim that any other regulatory framework requires a zero-
risk regime or does not allow economic costs to be taken into account—are simply wrong,
and obviously so to any careful student of environmental policy. Others are equally
wrong, but the mistakes underlying them are harder to uncover. For example, one of the
most prominent arguments for cost-benefit balancing is that such balancing will restore a
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sense of proportion and sensible prioritization to the environmental laws. Current laws
have no sense of proportion, it is argued, and the evidence for this lack of proportion in
the United States, for example, often requires the expenditure of a huge amount of
money, sometimes billions of dollars, to save a single human life through environmental
regulation. In a related vein, some scholars have claimed that rearranging life-saving
priorities would save not just money, but lives; if resources were shifted from, say, toxin
control to, say, prenatal care, thousands more lives could be saved every year with the
same amount of money.
These are powerful claims, and they have had a powerful effect on environmental law
scholarship, particularly in the United States. Few articles that go to the basic design of
environmental statutes do not refer to this literature on regulatory costs and priority-
setting in one way or another. Even fewer refer to this literature with any kind of
skepticism. Yet the literature is deeply misleading. Many of the US ‘regulations’ it targets
for reform were never implemented, and some never even proposed. Moreover, the rather
complex numerical calculations that lead to the fantastic estimates of costs per life saved
are pervaded by value judgments (such as judgments about the relative worth of present
and future lives) that are not acknowledged by the scholars who rely on this literature as
the empirical premise for large-scale regulatory reform. Here, legal scholarship on the
environment has been slipshod and credulous, and the widespread acceptance of dubious
estimates of regulatory costs has led to a pervasive skepticism about the efficacy of
environmental protection that has dominated environmental law scholarship in the
United States and elsewhere in the last decade (Heinzerling, 1998).
Stripped of the dubious premise of enormous regulatory costs, the case for cost-benefit
balancing loses much of its charm. Information-intensive, expensive, time-consuming,
contentious, and ultimately indeterminate, cost-benefit balancing (p. 711) has never made
for a successful environmental regime. Indeed, the two long experiences the United
States has had with balancing regimes—the Toxic Substances Control Act and the Federal
Insecticide, Rodenticide, and Fungicide Act—are widely considered by legal scholars to
be among the biggest failures of US environmental policy in the last three decades.
Moreover, the latest addition to the balancing provisions—in the Safe Drinking Water Act
—led to one of the biggest brawls of the early Bush (II) administration, concerning the
regulation of arsenic in drinking water. Oddly, one of the most ardent defenders of cost-
benefit balancing in the legal literature has generated estimates of the benefits of
strengthening the standard for arsenic in drinking water that cover such a wide range
(from $0 to $500 million) that, if one accepts these estimates, cost-benefit analysis can
only be regarded as hopelessly indeterminate—the very thing critics of cost-benefit
analysis have been saying for decades (Sunstein, 2002).
Scholars outside the United States have sometimes expressed bewilderment over the
controversy generated by cost-benefit balancing in the United States In England, for
example, environmental standards are typically set for individual sources based on
consideration of many factors including costs, thus leading some scholars to conclude
that cost-benefit analysis is built into the very framework of English environmental law
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(Vogel, 1986). Nevertheless, there remains an important difference between setting

standards with attention to economic costs—the prevailing approach not only in England
but also, as we have seen, in the United States—and setting standards by attempting to
quantify all relevant variables and reduce them to monetary terms. This form of balancing
continues to generate controversy not only in the United States but in other countries as
well.
2.2 Means
To put into place a system of environmental protection, it is not enough to state one's
goals. One must have a way of operationalizing those goals, of reaching them through the
application of enforceable limits on the hundreds or thousands of sources responsible for
the pollution one is trying to address. This is where the choice of regulatory means comes
in. Here, too, one can discern a decided scholarly trend in favor of the most market-
oriented of the possibilities, yet here, too, that preference is based at least in part on a
misapprehension of the relevant facts.
2.2.1 Design
The first two ways of operationalizing environmental standards are both technology-
based. The first, design standards, requires sources of pollution to install particular
devices or other means of controlling pollution. The most infamous example of such a
standard, widely cited in the literature on environmental law, is the Environmental
(p. 712) Protection Agency's decision two decades ago effectively to require scrubbing
technology for power plants to control their emissions of sulfur dioxide. Design standards
not only require firms to reduce their pollution by a certain, fixed amount, consistent with
the capabilities of the pollution control equipment in question; they also forbid firms to
find another way to reduce that pollution. Because of their inflexibility, design standards
are the most widely reviled of the different forms of technology-based regulation. They
are fast disappearing from the scene of environmental regulation. Yet critics of
technology-based regulation seem not to have noticed.
2.2.2 Performance
Performance standards are another kind of technology-based system. Here, the idea is to
set a numerical pollution limit for sources of pollution, a limit that is in most cases based
on an assessment of available technologies for controlling pollution, and then to allow the
sources to decide for themselves how to meet that numerical limit. Performance
standards are pervasive in environmental law. They combine a degree of flexibility
(inherent in the sources' choice about how to meet the numerical limits) with predictable
limits on sources of pollution. In much of the scholarly literature on environmental law,
however, performance standards are lumped in the same category as, and thrown into the
intellectual dustbin with, design standards. Their achievements, and their potential
promise for the future, are thus under-remarked in environmental law scholarship.
Interestingly, this is so even though one of the great policy successes of the last decade—
the sulfur dioxide controls imposed by the US Clean Air Act Amendments of 1990—has so
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far achieved its cost savings and pollution reductions in substantial part through the
flexibility of performance-based measures rather than through the more glamorous
trading program that has excited environmental law scholars around the country and the
world. This trading program is one of several market-based mechanisms for pollution
control that have caught on in environmental law scholarship, as discussed in the next
section.
2.2.3 Market Mechanisms

Market-based environmental requirements attempt to enlist the market in the service of
environmental protection. Pollution trading programs, for example, give an incentive to
firms to clean up their pollution so that they can either refrain from buying pollution
permits or even sell their extra permits to other firms. Pollution taxes offer much the
same incentive structure. Informational requirements, such as disclosure of toxic
chemical releases or warnings about carcinogens in consumer products, attempt to
correct market imbalances in information and thus to help consumers and citizens
respond to information about firms' varying environmental profiles. All of these kinds of
requirements are enjoying a long honeymoon in legal scholarship. And with some reason:
the US sulfur dioxide program has met with considerable success, and many hope to
replicate that success in other regulatory (p. 713) settings. Likewise, disclosure
requirements such as the US Emergency Planning and Community Right-to-Know Act
have been credited with leading to substantial reductions in chemical use and chemical
releases, at a fraction of the cost of more traditional regulatory programs.
Here, too, however, well-founded enthusiasm has a way, in legal scholarship, of spiraling
into irrational exuberance. From the well-documented and sound point that market-based
regulation is a good approach to take for some environmental problems, many scholars
have jumped to the conclusion that it is the only approach to take to environmental
problems. Against this tide stands a handful of scholars who have taken the time to look
carefully, and critically, at market-based programs in operation, and have found much to
worry about. Some examples of cause for concern: technologies for emissions monitoring,
essential to validating compliance with pollution trading programs, are unavailable for
many pollutants; many pollutants produce adverse and serious localized harms that make
liberal trading of pollutants from one place to another problematic in distributional and
public health terms; inter-pollutant trading often relies on crude and incomplete
estimates of the relative harms caused by the covered pollutants; and so on. In this more
cautious scholarship, pollution trading emerges as one, but not the only, promising
possibility for pollution control, to be used with sensitivity to the individual circumstances
in which it is proposed.
Here again, therefore, the most fruitful course for future environmental law scholarship is
to combine careful empiricism with cautious experimentalism: try out new regulatory
ideas, to be sure, but do not promote them everywhere at once, and pay attention to
contextual differences that make a good idea in one setting a very bad idea in another
(Cole and Grossman, 1999; Rose, 1991). Perhaps even more promising are proposals for
combining different regulatory instruments to address the same environmental problem
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(Gunningham and Grobosky, 1998). At this time, it seems fair to say that legal scholars in
Australia and other countries are well ahead of legal scholars in the United States in this
area, as US scholars still tend, unreasonably, to press a quite limited set of solutions for
any given environmental problem.
2.3 Compliance
Although, as discussed, many developed countries have settled upon some form of
technology-based regulation as their primary framework for environmental standard-
setting, the same countries differ markedly in their approaches to regulatory
enforcement. Given the extensive ‘slippage’ between the environmental standards set by
the legislature in collaboration with administrative agencies and the standards firms are
actually required to meet once enforcement practices and priorities are taken into
account (Farber, 1999), and given the disheartening statistics on government resources
available for enforcement (Steinzor, 2000), a large future task for environmental law
(p. 714) scholars will be to develop approaches to regulatory compliance that rely less
heavily on traditional government coercion.
At least two standard answers to the enforcement problem already exist. One is that
adequate monitoring, coupled with reporting requirements, takes care of the problem. To
some extent this is true. The US sulfur dioxide trading program, for example, has been—
amazingly—self-enforcing; there has not been a single reported violation of the
requirements of this program. But without the monitoring technology that exists for
sulfur dioxide—which does not exist for all pollutants—this regime would likely not have
worked as well as it has. A second common answer to the enforcement problem is to
provide for citizen suits—designed both to take the pressure off overworked government
enforcement offices and to put the pressure on the units of government that are
themselves responsible for environmental problems. In the United States, a good bit of
legal scholarship in recent years has been devoted to the construction (or refutation) of
arguments designed to keep the citizen suit constitutionally afloat in the wake of several
Supreme Court decisions cutting back significantly on citizens' ability to sue. Elsewhere,
as in scholarship on German environmental law, attention has been directed to the more
basic question of whether standing should be granted at all to citizens to challenge
environmental decisions (mostly standing has been denied in such cases in Germany).
Relatively less effort has been devoted to figuring out whether, even with citizen suits,
environmental laws are being adequately enforced or, if not, what else can be done about
it. As a result, many legal scholars have been casting about for new ways to achieve
compliance with environmental laws.
In the growing literature on regulatory compliance, several writers have observed what
they call the ‘American Paradox’: the strange fact that the United States has the most
formally strict environmental laws in the world while at the same time enjoying less
environmental success than countries with more lenient laws. Some scholars have
suggested that the American propensity for adversarial approaches to regulation,
including frequent resort to litigation, have created this paradox, and they compare the
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United States unfavorably to countries, such as England and Germany, in which

regulators and regulated work out solutions to pollution problems together and in which
litigation is viewed as a failure (Hawkins, 1984; Verweij, 2000; Vogel, 1986). Other
scholars, in contrast, have criticized the cozy and secretive relationships between
government and industry that develop in such a collaborative rather than adversarial
setting, and have suggested that a country such as Germany, where the administrative
system is characterized by coziness and secrecy, could learn from the openness and
accountability offered by the American system of administrative law (Rose-Ackerman,
1995).
In these circumstances, it seems reasonable to conclude that the truth must lie
somewhere in-between, and that an important task for future legal scholarship on the
environment will be to identify innovative ways in which regulatory compliance (p. 715)
might be achieved. The existing work on this subject is creative and promising. Corporate
self-governance through environmental auditing and enlistment of third-party commercial
actors (such as banks and insurance companies) in the service of environmental
protection are two especially intriguing proposals—the former widely discussed in the
United States and elsewhere and the latter just emerging in scholarship, mostly outside
the United States (Gunningham and Grobosky, 1998). It is hard to predict whether the
Enron and other corporate scandals revealed recently in the United States will promote
or retard the development of alternative regulatory compliance strategies within the
United States. Nevertheless, it is tempting to speculate that the most recent work on
regulatory compliance—concluding that corporate profitability and corporate
environmental management style are as helpful in explaining regulatory compliance as
are national regulatory differences (Kagan et al., forthcoming)—may dovetail with the
current focus on corporate governance in a way that promotes new insights into and
developments in strategies for regulatory compliance.
3 Horizontal Institutional Design

Environmental law is as much about the relationships among the branches of government
as it is about risk, pollution control technology, cost-benefit trade-offs, and market
incentives. These relationships determine the shape and scope of environmental
protection. Likewise, environmental laws have helped give new content to legal doctrines
concerning the duties and powers of the different branches of government. Indeed, many
of the important legal decisions in the United States in the last three decades concerning
the relationships among the branches have emerged from environmental cases; especially
important here have been legal doctrines and institutional frameworks designed to
constrain agency discretion. The experience in the United States puts into sharp focus
some issues of institutional design that arise everywhere in slightly different forms,
depending on the particular nation's governmental structure. Nevertheless, despite the
importance of the question of institutional design to environmental law, environmental
law scholarship has been surprisingly unproductive here. For every yin suggesting one
kind of institutional design or posture, there is a yang proposing quite the opposite. The
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debate has been left in a kind of gyrating stalemate. Even so, if one digs deep enough into
the literature, one can find institutional success stories that could pave the way for more
progressive and fruitful scholarship in the future.
(p. 716) 3.1 Legislatures
Happily for them, most elected representatives probably do not spend their time reading
legal scholarship on the environment. If they did, they would discover that they are doing
pretty much everything wrong—and that if they try to fix it, they will run into opposite but
equally vociferous objections.
In discussing institutional design in so far as legislatures are concerned, environmental

law scholars have focused most of their attention on two basic issues legislatures face in
passing environmental legislation: how specific should legislatures be in their directives
to the agencies or ministries responsible for implementing their commands? And, how
sensitive should legislatures be to the preferences of their political constituencies? In
both realms, many environmental law scholars have given legislatures a failing grade, but
have given very different reasons for doing so.
On the question of specificity of legislative guidance to agencies and ministries, legal

scholars have fallen mostly into one of two camps. Many have criticized legislatures for
being unduly vague and general in their commands, for delegating controversial and
complicated political and scientific judgments to agencies without giving the
bureaucracies adequate direction. Thus, these scholars have argued, legislatures can
take credit for environmentally protective legislation without having to do the difficult
and contentious work of actually protecting the environment in concrete cases. Some
scholars have attributed the aspirational features of many US environmental statutes to
this dynamic: Congress embraces lofty-sounding, but ultimately unattainable,
environmental goals in its statutes, and then, if necessary, blames the agencies for failing
to live up to them (Dwyer, 1990). The solution, on this view, is for legislatures to give
more rather than less guidance to the administrative agencies.
Other scholars say just the opposite. They argue that one large problem in environmental
law has been a lack of intelligent priority-setting. In the United States, this problem is
compounded by Congress's tendency, when it amends the environmental laws, to become
ever more prescriptive—to set precise deadlines for the agency to meet and to direct the
agency to regulate specific pollutants in a specific manner. This tendency leads, in the
view of some scholars, to a ‘pollutant of the month’ syndrome which ties the agency's
regulatory hands and which may require the agency to address trivial environmental
problems. The solution, here, is for legislatures to give the bureaucracies freer rein.
A similar kind of stand-off exists with respect to the question of how responsive elected
representatives should be to their various political constituencies. On the one hand, a
large vein of legal scholarship on the environment has argued for the past decade or so
that elected representatives are far too responsive to the public's desires for strong
environmental laws. The public, on this view, is unduly hysterical about environmental
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threats, while ignoring many other kinds of hazards (such as automobile accidents) that
produce many more human fatalities than environmental risks do. The result is a system
which spends extravagant amounts to save lives (p. 717) through environmental laws and
at the same time spends little or nothing on larger yet less salient kinds of risks. The
solution is to wrest environmental protection from the hands of the public, and to place it
in the hands of technocrats educated in science, economics, and public policy, who will
take a clear-eyed, rational view of risk and allocate life-saving resources to the places
where they are most needed and most effective. This solution, offered by US Supreme
Court Justice Stephen Breyer in his book, Breaking the Vicious Circle, resembles
regulatory frameworks already in place in some European countries, such as Germany
(Breyer, 1993). Nevertheless, in the United States, Breyer's proposal was widely criticized
as anti-democratic at the time, even by scholars who generally shared Breyer's critical
perspective on environmental regulation. Yet the basic outlines of Breyer's proposal are
quietly being implemented within the United States, most prominently by White House
officials in charge of reviewing agencies' regulatory proposals. Given the ascendancy of a
vision of risk regulation dominated by technocrats rather than citizens in policy debates
within the United States, US legal scholars, in particular, would do well to look to the
experience of other countries, such as Germany, with the kind of technocracy—focused on
expertise and quantification, directed away from citizens and the qualitative features of
risk—Breyer and others have proposed (Rose-Ackerman, 1995).
While this academic to-and-fro-ing continues, lawmakers have quietly been experimenting
with institutional designs that aim to constrain agencies somewhat while at the same time
giving agency expertise room enough to maneuver. Two successful US legislative
examples of this kind of middle ground come to mind. First, California's ‘Proposition 65’,
which requires warning labels on consumer products containing carcinogens that pose a
significant risk, avoided the paralysis that has stricken so many other regulatory regimes
dependent on scientific findings of risk by shifting the burden of proof to industry to show
that a carcinogen posed an insignificant risk. More risk-based standard-setting occurred
within a couple of years after this statute had passed than has occurred under all of the
federal environmental laws put together, over thirty years. A second example comes from
the US Resource Conservation and Recovery Act, which governs hazardous waste
treatment and disposal. In this law, Congress banned all land disposal of hazardous waste
—unless the waste was either pre-treated according to standards to be issued by the EPA
or was shown not to be capable of migrating through soil and groundwater for 10,000
years. Congress established precise dates on which land disposal would be banned unless
the pre-treatment regulations or no-migration showings were in place. These so-called
‘hammer’ provisions tied the EPA's hands while at the same time leaving the EPA free to
establish its own pre-treatment regulations, using its expertise. And they worked: the EPA
met virtually all of the deadlines under the statute, a rare event in the annals of
environmental law.
Environmental law scholarship in the coming years would benefit from closer inspection
of legislatures' most recent experiments with institutional design. Scholars could perform
an important service by identifying successful (or failed) (p. 718) experiments, and trying
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to find ways to duplicate them, with appropriate adjustments, in other settings. The idea
would be to create a menu of options for making the most of the ongoing collaboration
between legislative politics and agency expertise.
3.2 Courts
Environmental law scholarship on the role of courts in constraining agency or ministerial

discretion is as polarized and mostly unsatisfying as scholarship on the role of
legislatures. Here I concentrate on the US literature, in which the issues are well-
developed.
On the wisdom and propriety of intensive judicial scrutiny of agency action, there is a
large scholarly divide. Many environmental scholars view aggressive judicial policing of
agency action as essential to an effective regime of environmental protection. US
scholars point, in particular, to a series of landmark decisions from the federal court of
appeals in Washington, DC, as showing how the courts can effectuate environmental
protection even in the face of recalcitrant administrative agencies. The National
Environmental Policy Act, for example—probably the most-copied of all US environmental
laws, in the United States and abroad—was turned into a powerful environmental
litigator's tool essentially overnight, in one famous decision by the federal appeals court
in Washington. Other US decisions in the 1970s, in the first wave of litigation following
the passage of the major federal environmental statutes, scrutinized the newly created
EPA's actions closely, but in the end managed to uphold many of the most important of
these actions. Indeed, one of the most-cited law review articles of all time is a piece by
Judge Harold Leventhal, a member of the 197os-era federal court of appeals in
Washington, defending his view that judges should, in reviewing agency decisions that
are based on scientific expertise, strive to become somewhat expert themselves, in order
to give the decisions the close scrutiny they warrant (Leventhal, 1974). Active judicial
involvement in agency decision-making became, for many early environmental law
scholars, an integral part of the institutional arrangements surrounding environmental
protection.
The very judicial involvement that some scholars have thought critical to environmental
protection has, recently, become a subject of criticism by other scholars, who blame it for
the ‘ossification’ of the administrative rule-making process in the United States. Widely
accepted in this circle of scholars is the notion that a large portion of what US agencies
spend their time and resources on—from making progress in our scientific understanding
of environmental problems to writing the explanations for the rules the agencies
announce—is driven by a fear of invalidation by US courts, not by scientific or technical
necessity. Major environmental rules today are years in the making at US agencies,
following the development of administrative records that frequently run into the tens of
thousands of pages. These rules can then be overturned by an appeals court that finds
something inadequately thorough (p. 719) about the agency's reasoning or explanation.
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The result is perhaps not so much ossification as osteoporosis—in which an apparently

stable structure is vulnerable to the smallest blow.
Many scholars are exploring alternative administrative processes that promise less
rigidity. Regulatory negotiation and collaborative decision-making are two prominently
discussed, and widely exercised, alternatives. Here, too, more comparative work might
yield important insights. The United States system of administrative law has, since at
least the 1970s, been characterized by wide public participation and quite intense judicial
policing of agency procedures (Stewart, 1975). This approach sharply contrasts with the
approach of, for example, England and Germany, where environmental decision-making
largely takes place outside the public eye and outside the range of judicial invalidation
(Vogel, 1986; Rose-Ackerman, 1995). In the best case, comparative scholarship might well
help US scholars in their quest for more agile administrative processes and might help
scholars outside the United States to transcend some of the coziness that appears to
attend more informal, collaborative decision-making frameworks elsewhere.
4 Vertical Institutional Design

In the United States, the passage of the major environmental laws in the 1970s came on
the heels of the passage of the civil rights and Great Society legislation of the 1960s. At
the time, the case for federal protections was quite straightforward, even if not
universally accepted: states had done essentially nothing on the important fronts, and it
was time someone (the federal government) stepped in. The legislative histories of the
major environmental statutes are filled with references to the failure of states to shoulder
the burden of protecting their citizens and natural resources from environmental harms.
Legislators also worried that leaving standard-setting to the states would encourage
states to compete for business by relaxing environmental protections. Few seemed to
think it was a good idea that states be able to do this. Even fewer thought the laws they
were enacting might be unconstitutional infringements on states' power. None, it seems
fair to say, predicted that their laws could eventually be undone by an international
tribunal specializing in issues of free trade.
Now much has changed. Devolution of authority from the federal government to the
states is much in vogue, supported by powerful political constituencies and a recent
change of constitutional course by the US Supreme Court in the area of federal-state
relations; collaborative decision-making by interested persons, outside the traditional
process of agency rule-making, is celebrated both for national (p. 720) rule-making
proceedings and for decisions regarding more localized matters, such as the proper
management of a particular forest or watershed; and, finally, looming over every
environmentally protective regulation today is the possibility that it will be overturned in
the name of free trade. Many issues relating to these broad matters have been fully aired
in environmental law scholarship, but some are only now starting to emerge in the
environmental law literature. The potential implications of free trade agreements for
domestic environmental protection, in particular, are quite underdeveloped in the
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mainstream literature on environmental law. Here, again, a kind of fragmentation in

environmental law scholarship exists—in this instance, between domestic and
international specialists—and it has so far impeded a full understanding of the
ramifications of trade law for environmental law. Even in countries with weaker national
governments, the question of vertical institutional design arises if they are parties to free
trade agreements that may threaten their local environmental laws.
4.1 Devolution
In the wake of the US Supreme Court's newly aggressive posture in federalism cases,
some environmental law scholarship has begun to focus on defending (or attacking)
federal environmental laws on constitutional grounds. This scholarship is important in
practical terms from a litigator's perspective, but it has tended to break little new
theoretical ground. More interesting, and potentially more fundamentally threatening to
federal law in the end, is a raft of legal scholarship concerning a basic premise of federal
environmental legislation—the idea that in the absence of such legislation there will be a
‘race to the bottom’ in which states individually relax their environmental standards to
encourage economic growth in a way that makes the states collectively worse off (Revesz,
1992). A similar idea, and similar scholarship, exists with respect to the relationship
between the European Union and its member states (Bird and Veiga-Pestana, 1993).
The US scholarship, though theoretically engaging, has been characterized by an

unfortunate disengagement with facts concerning states' capacity to take on the role of
environmental protection. Complicated mathematical equations purporting to show social
improvements from devolution have not come to terms with more prosaic statistics
revealing the inadequacy of state resources for environmental protection. Future
environmental law scholarship on devolution would do well to engage both the theoretical
and empirical dimensions of this debate. Future US scholarship in this area would also be
well served by considering the experience of other countries, such as Germany, that have
relied more heavily than has the United States on state rather than federal environmental
regulation and, in the view of some, have stumbled as a consequence (Rose-Ackerman,
1995).
(p. 721) 4.2 Collaborative Decision-Making
Just as regulatory negotiation has been promoted as an antidote to rule-making

ossification, so collaborative models of decision-making have recently caught on as an
antidote to the top-down, nationally driven, elitist modes of decision-making that have
traditionally pervaded environmental law (Freeman, 1997). The collaborative model of
decision-making has been deployed in the United States in two quite different
circumstances, with two very different political valences.
In one incarnation, collaborative decision-making has been employed in contexts where

choices must be made about use and management of a particular natural resource, one
with (arguably) predominantly local effects, such as a forest or watershed. Collaborative
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processes have sprung up all over the place recently, with some legal scholars
enthusiastically embracing the trend. Others, who have had actual experience
participating in such collaborations, worry about the time and resources required to
participate effectively, and worry that such collaborations inevitably end up caving in to
the lowest common environmental denominator. Between these poles, there seems room
for fruitful scholarship on ways to make collaborative arrangements more inclusive, less
unwieldy, and less tilted against environmental protection. Again, the idea would be to
experiment, but cautiously.
In another incarnation, collaborative decision-making is one way to describe the kind of

decision-making process many advocates for environmental justice envision. In the
elaborate administrative proceedings that attend environmental decision-making in the
United States, one important concern that has traditionally been quite completely
overlooked is the cumulative and disproportionate effect of pollution sources on low-
income communities, communities of color, and politically weak communities (Lazarus,
1992). Environmental law scholarship uncovering this gap in protection has begun to
exert a large influence on environmental law. One of the ways often suggested for filling
this gap is a kind of collaborative decision-making, in which local communities
disproportionately affected by environmental hazards are allowed to participate in
environmental decisions that affect them, such as the siting of new hazardous waste
facilities within their borders. In general, a large challenge for future environmental law
scholarship is to seek ways to incorporate insights from the environmental justice
movement into a regulatory regime that is, archaically, still mostly focused on one
pollutant, or one polluting facility, at a time, without consideration of the cumulative
effects pollutants and facilities might have in communities disproportionately exposed to
a variety of pollutants from a variety of sources.
As students of American law rush to embrace collaborative decision-making, some

students of the environmental experience in other countries have been more hesitant.
‘Collaboration’ can quickly degenerate into a kind of quiet conspiracy to undermine
environmental values; some scholars have suggested that this lesson might be taken from
Germany's approach to administration (Rose-Ackerman, 1995). Others have suggested
that collaboration is exactly what makes some formally (p. 722) less stringent
environmental regimes ultimately more effective (Vogel, 1986; Verweij, 2000).
4.3 International Governance
Historically, most environmental law scholars have made a choice between expending
their scholarly energy on domestic or international law; most scholars have not managed
to be experts in both. This is changing, and with good reason. Domestic environmental
laws have become vulnerable to challenges grounded in international law, particularly
international trade law, and at the same time environmental problems, more than ever,
are coming to be understood as global problems requiring global attention. Thus
international law must enter every environmental law scholar's range of vision.
Environmental law scholars can contribute to ongoing debates over free trade, for
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example, by pointing out the special vulnerabilities of domestic environmental laws to

broadly worded prohibitions in trade agreements. Chapter 11 of the North American Free
Trade Agreement (NAFTA), for example, provides a right of financial compensation to
foreign investors harmed by government actions that are ‘tantamount to expropriation’—
a standard inviting enough for potential plaintiffs that numerous lawsuits are now
pending against NAFTA signatory states. Given that such broadly worded trade
agreements exist, and given that international trade tribunals have been comfortable
about questioning environmental protections under these broad agreements, there will
continue to be plenty of constructive (or re-constructive) work to be done by
environmental law scholars on the intersection of domestic environmental protections
and free trade aspirations.
5 Conclusion
The handiwork of environmental law scholars can be seen all over environmental law—
from the decline of design standards and the rise of market-based measures for pollution
control to the influence of concerns about environmental justice on regulatory policy and
the rise of collaborative decision-making. But environmental law scholars could do a
better job along several dimensions, all related to the distinctive features of
environmental law scholarship with which I began this essay.
First, environmental law scholars' interdisciplinarity is admirable and even necessary in a

field like environmental law, but environmental law scholarship is at the same time
unduly uncritical in the face of empirical and theoretical claims from other disciplines.
Many claims about the inefficiency and extravagance of environmental (p. 723) protection,
repeated over and over again by leading environmental law scholars, turn out on close
inspection to be thick with dubious factual assumptions and contestable moral judgments.
Environmental law scholars need to take interdisciplinarity to the next level, and instead
of taking claims from other disciplines at face value, they need to become even more
comfortable in the fields from which they are borrowing their ideas.
Secondly, environmental law scholars' practical inclinations could also be extended. Many
scholars write for practical effect and then do not test the real-world consequences
against their own predictions and theories. They also sometimes do not bother to notice
when the legislature, or the agencies, or another relevant actor actually changes course
and gets things ‘right’ according to prevailing scholarly views. Thus, for example, we
continue to see a debate over zero-risk and technology-based regulation that targets
regulatory practices that mostly have gone the way of the dodo bird.
Finally, and most fundamentally, environmental law scholars should aim to reduce the
fragmentation that characterizes the field. Brown and green, court lovers and court
haters, domestic and international—the fault lines in environmental law scholarship run
deep, deep enough so that it is often impossible to peek over one's own narrow trench
and see what damage one has wrought elsewhere. Opportunities for improvement,
coming from outside one's own narrow boundaries, are also often overlooked. The
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growing literature on environmental justice, risk trade-offs, and the lessons of pollution
control for natural resources law, all attempt to cross the divides that have historically
marked environmental law scholarship. This border crossing should continue and grow in
the next generation of environmental law scholarship.
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Lisa Heinzerling
Lisa Heinzerling is Professor of Law at the Georgetown University Law Center. She
received an AB from Princeton University and a JD from the University of Chicago
Law School, where she was editor-in-chief of the Law Review. She clerked for Judge
Richard A. Posner on the United States Court of Appeals for the Seventh Circuit and
for Justice William J. Brennan, Jr. on the United States Supreme Court. She served as
an assistant attorney general in Massachusetts, specializing in environmental law.
She has been a Visiting Professor at the Yale and Harvard law schools.
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The Environment

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Abstract and Keywords

Keywords: environmental law, legal scholarship, federalism, subsidiarity

Subscriber: Universidad de Chile; date: 12 March 2019

Environmental law scholarship is pervasively interdisciplinary. Indeed, it is almost

Subscriber: Universidad de Chile; date: 12 March 2019

Subscriber: Universidad de Chile; date: 12 March 2019

1.4 Conclusion and Preview

Nevertheless, as I will explain, environmental law scholars' interdisciplinarity has often

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Specialization in one or two environmental fields—forests or wetlands or clean air

In designing statutes for environmental protection, two large questions immediately

(p. 706) 2.1 Ends

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2.1.1 Acceptable Risk

Subscriber: Universidad de Chile; date: 12 March 2019

Environmental scholars have long argued against cost-blind, nationally uniform

Subscriber: Universidad de Chile; date: 12 March 2019

the voluntariness, controllability, familiarity, immediacy, and distribution of the potential

2.1.2 Best Available Technology

Technology-based standards permeate environmental law. In the United States, laws on

Technology-based standards are another example of standards environmental law

Subscriber: Universidad de Chile; date: 12 March 2019

A now-predictable set of arguments is offered in favor of cost-benefit balancing. Some of

Subscriber: Universidad de Chile; date: 12 March 2019

Subscriber: Universidad de Chile; date: 12 March 2019

(Vogel, 1986). Nevertheless, there remains an important difference between setting

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2.2.3 Market Mechanisms

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heavily on traditional government coercion.

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United States unfavorably to countries, such as England and Germany, in which

3 Horizontal Institutional Design

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(p. 716) 3.1 Legislatures

In discussing institutional design in so far as legislatures are concerned, environmental

On the question of specificity of legislative guidance to agencies and ministries, legal

Subscriber: Universidad de Chile; date: 12 March 2019

Subscriber: Universidad de Chile; date: 12 March 2019

Environmental law scholarship on the role of courts in constraining agency or ministerial

Subscriber: Universidad de Chile; date: 12 March 2019

The result is perhaps not so much ossification as osteoporosis—in which an apparently

4 Vertical Institutional Design

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mainstream literature on environmental law. Here, again, a kind of fragmentation in

The US scholarship, though theoretically engaging, has been characterized by an

(p. 721) 4.2 Collaborative Decision-Making

Just as regulatory negotiation has been promoted as an antidote to rule-making

In one incarnation, collaborative decision-making has been employed in contexts where

Subscriber: Universidad de Chile; date: 12 March 2019

In another incarnation, collaborative decision-making is one way to describe the kind of

As students of American law rush to embrace collaborative decision-making, some

4.3 International Governance

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example, by pointing out the special vulnerabilities of domestic environmental laws to

First, environmental law scholars' interdisciplinarity is admirable and even necessary in a

Subscriber: Universidad de Chile; date: 12 March 2019

Cole, D., and Grossman, P. (1999). ‘When is Command-and-Control Efficient? Institutions,

Farber, D. (1999). ‘Taking Slippage Seriously: Non-compliance and Creative Compliance

Freeman, J. (1997). ‘Collaborative Governance in the Administrative State’, University of

Gunningham, N., and Grabosky, P. (1998). Smart Regulation: Designing Environmental