Human Nature, the Laws of Nature, and the Nature of Environmental Law
By Richard J. Lazarus
INTRODUCTION
Judge, now Chief Justice, John G. Roberts, Jr., does seem to have a point, even if “for reasons of [his] own,” he makes it obliquely. It is, at the very least, not immediately obvious to those not steeped in constitutional law, let alone Supreme Court Commerce Clause precedent, that persons engaging in the “taking” of toads are necessarily engaging in “commerce” let alone “Commerce . . . among the several States” within the meaning of the federal Constitution's Commerce Clause.
Of all of his judicial writings, moreover, hardly any appear to have stirred as much controversy during his recent Senate confirmation process as this single sentence included in a dissent from a denial of rehearing en banc. Four senators questioned him at length about his reference to the “hapless toad,” and several of the witnesses at the hearings offered their competing interpretations of the opinion's significance. Many commentators, including some environmentalists, sharply condemned then-Judge Roberts. They predicted that these words portended his inclination to strike down not only the federal Endangered Species Act (ESA) as unconstitutional, which was the legal issue raised in the Rancho Viejo v. Norton case, but much federal civil rights law and modern welfare legislation as well. Other environmentalists, however, disputed such a characterization of his words, finding instead reasons for possible cautious optimism. At the Senate hearing itself, Judge Roberts stressed that the dissent's discussion of the “hapless toad” was included in an opinion that did no more than dissent from denial of rehearing en banc in a case raising the constitutionality of the ESA and never purported to address the merits of that constitutional claim. The dissent concluded only that the full court should decide the legal issue, rather than just a three-judge panel. Chief Justice Roberts also pointed out that he did not join a separate dissenting opinion that addressed the merits and contended that the ESA was unconstitutional.
The purpose of this essay is not to address the merits of the controversy concerning what constitutes the fairest reading of Chief Justice Roberts's words as an appellate judge. Nor is it to address the underlying legal issue itself concerning the constitutionality of the ESA as a valid exercise of congressional Commerce Clause authority. This essay is differently directed. It addresses a broader issue about environmental law well highlighted by the toad controversy: why is it that environmental law is so frequently mired by legal disputes wherein the legal issues being debated seem so far afield from what is truly important?
Why does the constitutionality of the ESA turn on the notion that preventing species' extinction is regulation of commerce? Yet, that is the common ground of all the judges and opposing advocates in Rancho Viejo and the several other federal courts of appeals cases addressing the ESA's constitutionality.10 Why does the ability of an environmentalist to bring a lawsuit to prevent the extinction of a species in another part of the world turn, as the Supreme Court held in Lujan v. Defenders of Wildlife in 1992, on whether the citizen-plaintiff environmentalist can produce a plane ticket showing that she has recently visited the species or has discrete plans to visit the species in the very near future? And why does the Clean Water Act strictly regulate the discharge of pollutants into navigable waters to protect their physical, chemical, and biological integrity, but fail to regulate withdrawals from those same waters notwithstanding their equal potential to destroy the waters' essential aquatic character?
Environmental law is full of these seemingly nonsensical riddles. They share, however, a common answer rooted in the challenges presented for environmental law by human nature, the laws of nature, and the nature of the nation's lawmaking institutions. This essay explores the role that all three play in environmental law and how the interrelated difficulties presented by each are reflected in the kinds of legal issues that surround environmental lawmaking. The essay also discusses how these same difficulties impede environmental lawmaking by obscuring from lawmakers, judges, and the general population what is truly important about environmental law.
The essay is divided into three parts. Part I considers the ways in which the need for environmental law derives from the tendency of human nature to cause adverse environmental consequences and the ways in which the laws of nature make it more difficult to prevent those consequences absent the imposition of external legal rules. Part II describes how our nation's lawmaking institutions are similarly challenged by the laws of nature. This includes a discussion of how the kinds of laws necessary to bridge the gap between human nature and the laws of nature are systematically difficult for our lawmaking institutions to develop in the first instance and to maintain over time. Part III takes a closer look at one of the nation's most important legal institutions--the United States Supreme Court--and briefly discusses both its past shortcomings in environmental lawmaking and its potential in the future. This part of the essay includes some analysis of the Court's deliberations in specific environmental cases, as revealed by the recently disclosed official papers of Justice Harry Blackmun.
Judge, now Chief Justice, John G. Roberts, Jr., does seem to have a point, even if “for reasons of [his] own,” he makes it obliquely. It is, at the very least, not immediately obvious to those not steeped in constitutional law, let alone Supreme Court Commerce Clause precedent, that persons engaging in the “taking” of toads are necessarily engaging in “commerce” let alone “Commerce . . . among the several States” within the meaning of the federal Constitution's Commerce Clause.
Of all of his judicial writings, moreover, hardly any appear to have stirred as much controversy during his recent Senate confirmation process as this single sentence included in a dissent from a denial of rehearing en banc. Four senators questioned him at length about his reference to the “hapless toad,” and several of the witnesses at the hearings offered their competing interpretations of the opinion's significance. Many commentators, including some environmentalists, sharply condemned then-Judge Roberts. They predicted that these words portended his inclination to strike down not only the federal Endangered Species Act (ESA) as unconstitutional, which was the legal issue raised in the Rancho Viejo v. Norton case, but much federal civil rights law and modern welfare legislation as well. Other environmentalists, however, disputed such a characterization of his words, finding instead reasons for possible cautious optimism. At the Senate hearing itself, Judge Roberts stressed that the dissent's discussion of the “hapless toad” was included in an opinion that did no more than dissent from denial of rehearing en banc in a case raising the constitutionality of the ESA and never purported to address the merits of that constitutional claim. The dissent concluded only that the full court should decide the legal issue, rather than just a three-judge panel. Chief Justice Roberts also pointed out that he did not join a separate dissenting opinion that addressed the merits and contended that the ESA was unconstitutional.
The purpose of this essay is not to address the merits of the controversy concerning what constitutes the fairest reading of Chief Justice Roberts's words as an appellate judge. Nor is it to address the underlying legal issue itself concerning the constitutionality of the ESA as a valid exercise of congressional Commerce Clause authority. This essay is differently directed. It addresses a broader issue about environmental law well highlighted by the toad controversy: why is it that environmental law is so frequently mired by legal disputes wherein the legal issues being debated seem so far afield from what is truly important?
Why does the constitutionality of the ESA turn on the notion that preventing species' extinction is regulation of commerce? Yet, that is the common ground of all the judges and opposing advocates in Rancho Viejo and the several other federal courts of appeals cases addressing the ESA's constitutionality.10 Why does the ability of an environmentalist to bring a lawsuit to prevent the extinction of a species in another part of the world turn, as the Supreme Court held in Lujan v. Defenders of Wildlife in 1992, on whether the citizen-plaintiff environmentalist can produce a plane ticket showing that she has recently visited the species or has discrete plans to visit the species in the very near future? And why does the Clean Water Act strictly regulate the discharge of pollutants into navigable waters to protect their physical, chemical, and biological integrity, but fail to regulate withdrawals from those same waters notwithstanding their equal potential to destroy the waters' essential aquatic character?
Environmental law is full of these seemingly nonsensical riddles. They share, however, a common answer rooted in the challenges presented for environmental law by human nature, the laws of nature, and the nature of the nation's lawmaking institutions. This essay explores the role that all three play in environmental law and how the interrelated difficulties presented by each are reflected in the kinds of legal issues that surround environmental lawmaking. The essay also discusses how these same difficulties impede environmental lawmaking by obscuring from lawmakers, judges, and the general population what is truly important about environmental law.
The essay is divided into three parts. Part I considers the ways in which the need for environmental law derives from the tendency of human nature to cause adverse environmental consequences and the ways in which the laws of nature make it more difficult to prevent those consequences absent the imposition of external legal rules. Part II describes how our nation's lawmaking institutions are similarly challenged by the laws of nature. This includes a discussion of how the kinds of laws necessary to bridge the gap between human nature and the laws of nature are systematically difficult for our lawmaking institutions to develop in the first instance and to maintain over time. Part III takes a closer look at one of the nation's most important legal institutions--the United States Supreme Court--and briefly discusses both its past shortcomings in environmental lawmaking and its potential in the future. This part of the essay includes some analysis of the Court's deliberations in specific environmental cases, as revealed by the recently disclosed official papers of Justice Harry Blackmun.