Environmental Law in the Twenty-First Century
By Robert V. Percival
INTRODUCTION
It is a particular pleasure for me to participate in the Virginia Journal of Environmental Law's Twenty-Fifth Anniversary Symposium because I began my career practicing environmental law twenty-five years ago, the same year that the Journal was founded. I began my career as a young attorney with the Environmental Defense Fund, while the Journal began as the Virginia Journal of Natural Resources Law. At the time, a new administration had just arrived in Washington bringing with it a distinctly different vision of environmental policy than its predecessors.
The three previous administrations, from both political parties, had presided over a remarkable, bipartisan burst of legislative activity that created the regulatory infrastructure that protects the environment today. Yet the new president, who had been famously quoted as saying that trees cause more pollution than automobiles do, seemed determined to roll back environmental regulation. Despite the new president's personal popularity, he had little public support for this crusade, so his administration tried to implement it outside of public view. Rather than proposing legislation to relax the environmental laws, the administration quietly used the Office of Management and Budget (OMB) in an aggressive campaign to block the issuance of environmental regulations. The very best early scholarship exposing this campaign was written by a University of Virginia law student in this journal.
Erik Olson, now a senior attorney with the Natural Resources Defense Council, wrote The Quiet Shift of Power: Office of Management and Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291. This article did such a thorough job of documenting abuses of regulatory review by OMB that it inspired me to consult the author when I prepared the first successful lawsuit challenging the program.
The field of environmental law changed substantially in subsequent decades, though it is striking how durable its foundations have proven to be. Ironically, the Reagan administration's misguided assault on environmental regulation provoked a backlash in Congress that resulted in considerable strengthening of the environmental laws during the decade of the 1980s. The fact that the field changed in many unanticipated ways should counsel caution by anyone foolish enough to venture predictions for its next twenty-five years. Thus, what I propose to do in this essay is to paint with broad brush strokes a picture of where the field has been and where I see it heading.
Twenty-five years ago environmental law was viewed as a new and exciting field that was rapidly growing. With overwhelming bipartisan majorities, each Congress would try to outdo its predecessor in strengthening federal regulatory programs to protect the environment that had been launched at the dawn of the decade. Continued environmental progress seemed inexorable and the United States was the leader in what was rapidly becoming a global crusade.
Today things look very different. The current administration has been hostile to many environmental concerns and some voices in the environmental community itself now argue that “environmentalism is dead” or that it no longer is capable of capturing the imagination of the public. They maintain that the movement that spawned our vast body of environmental laws has lost its vision and that it should be subsumed within a larger social agenda of a single political party. Until he was forced to resign, the most powerful man in Congress was a former exterminator who launched his political career because he was outraged that the Environmental Protection Agency (EPA) had the authority to ban some of his favorite pesticides. Rather than strengthening our environmental laws during the past decade, Congress has been gridlocked by fierce partisan splits over environmental policy. It has been more than a decade since a significant federal environmental statute was updated or reauthorized. Because the original tax funding the Superfund program has long since expired, the ambitious program to clean up the toxic legacy of our past mistakes limps along, starved of funds. Only the threat of a filibuster has prevented opening up the Arctic National Wildlife Refuge to oil drilling or the confirmation of some radically anti-environmental judges. Instead of being the global leader on most important environmental issues, the United States has now become a global outcast on some issues.
Despite all these unfortunate developments, there are many reasons for remaining optimistic about the future of environmental law. As bad as things may seem in Washington today, it is becoming apparent that there are larger forces at work that ultimately will overcome our current domestic gridlock. When one takes a long view of the history of environmental law - and a remarkable history it is - it is apparent that the field has established certain foundational principles that cannot be cast asunder by any administration, no matter how much antipathy they harbor toward environmental protection measures. Moreover, anyone who ventures outside of the United States today will quickly discover that the importance of environmental law is well understood by the rest of the world. The forces of globalization are transforming the world's economy today. These same forces ultimately will compel the United States to resume a leadership role in the field of environmental law simply by making the costs of not doing so unacceptably high.
It is a particular pleasure for me to participate in the Virginia Journal of Environmental Law's Twenty-Fifth Anniversary Symposium because I began my career practicing environmental law twenty-five years ago, the same year that the Journal was founded. I began my career as a young attorney with the Environmental Defense Fund, while the Journal began as the Virginia Journal of Natural Resources Law. At the time, a new administration had just arrived in Washington bringing with it a distinctly different vision of environmental policy than its predecessors.
The three previous administrations, from both political parties, had presided over a remarkable, bipartisan burst of legislative activity that created the regulatory infrastructure that protects the environment today. Yet the new president, who had been famously quoted as saying that trees cause more pollution than automobiles do, seemed determined to roll back environmental regulation. Despite the new president's personal popularity, he had little public support for this crusade, so his administration tried to implement it outside of public view. Rather than proposing legislation to relax the environmental laws, the administration quietly used the Office of Management and Budget (OMB) in an aggressive campaign to block the issuance of environmental regulations. The very best early scholarship exposing this campaign was written by a University of Virginia law student in this journal.
Erik Olson, now a senior attorney with the Natural Resources Defense Council, wrote The Quiet Shift of Power: Office of Management and Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291. This article did such a thorough job of documenting abuses of regulatory review by OMB that it inspired me to consult the author when I prepared the first successful lawsuit challenging the program.
The field of environmental law changed substantially in subsequent decades, though it is striking how durable its foundations have proven to be. Ironically, the Reagan administration's misguided assault on environmental regulation provoked a backlash in Congress that resulted in considerable strengthening of the environmental laws during the decade of the 1980s. The fact that the field changed in many unanticipated ways should counsel caution by anyone foolish enough to venture predictions for its next twenty-five years. Thus, what I propose to do in this essay is to paint with broad brush strokes a picture of where the field has been and where I see it heading.
Twenty-five years ago environmental law was viewed as a new and exciting field that was rapidly growing. With overwhelming bipartisan majorities, each Congress would try to outdo its predecessor in strengthening federal regulatory programs to protect the environment that had been launched at the dawn of the decade. Continued environmental progress seemed inexorable and the United States was the leader in what was rapidly becoming a global crusade.
Today things look very different. The current administration has been hostile to many environmental concerns and some voices in the environmental community itself now argue that “environmentalism is dead” or that it no longer is capable of capturing the imagination of the public. They maintain that the movement that spawned our vast body of environmental laws has lost its vision and that it should be subsumed within a larger social agenda of a single political party. Until he was forced to resign, the most powerful man in Congress was a former exterminator who launched his political career because he was outraged that the Environmental Protection Agency (EPA) had the authority to ban some of his favorite pesticides. Rather than strengthening our environmental laws during the past decade, Congress has been gridlocked by fierce partisan splits over environmental policy. It has been more than a decade since a significant federal environmental statute was updated or reauthorized. Because the original tax funding the Superfund program has long since expired, the ambitious program to clean up the toxic legacy of our past mistakes limps along, starved of funds. Only the threat of a filibuster has prevented opening up the Arctic National Wildlife Refuge to oil drilling or the confirmation of some radically anti-environmental judges. Instead of being the global leader on most important environmental issues, the United States has now become a global outcast on some issues.
Despite all these unfortunate developments, there are many reasons for remaining optimistic about the future of environmental law. As bad as things may seem in Washington today, it is becoming apparent that there are larger forces at work that ultimately will overcome our current domestic gridlock. When one takes a long view of the history of environmental law - and a remarkable history it is - it is apparent that the field has established certain foundational principles that cannot be cast asunder by any administration, no matter how much antipathy they harbor toward environmental protection measures. Moreover, anyone who ventures outside of the United States today will quickly discover that the importance of environmental law is well understood by the rest of the world. The forces of globalization are transforming the world's economy today. These same forces ultimately will compel the United States to resume a leadership role in the field of environmental law simply by making the costs of not doing so unacceptably high.