Thirty Years of Environmental Protection Law in the Supreme Court

It is an honor to present a lecture named after Lloyd Garrison and to be here at Pace Law School. It is especially fitting, of course, that the first Garrison Lecture was presented by Pace\u27s own David Sive. Professor Sive, as we all know, worked closely with Garrison on the celebrated Scenic Hudson litigation. Few legal counsel have been so closely identified with the emergence of the environmental law profession during the past three decades. Indeed, if there were such a thing as a legal thesaurus that linked substantive areas of law with lawyers and one looked up environ-mental law, its first synonym would undoubtedly be David Sive. I do not and could not, however, make claim to the extraordinary pedigree of David Sive: one of the first of the very first generation of modern environmental lawyers in this country. Nor can a fair comparison be made to the other three Garrison Lecturers who preceded me: Professors Joe Sax, Bill Rodgers, and Oliver Houck. These are true pioneers. They inspired much in the formation of modern environmental protection law, and have served since in their scholarship and their legal counsel as the law\u27s guardians and promoters. But what I strive to claim is a close lineage, as the first of the second generation of environmental lawyers and scholars to deliver this lecture. I use the term lineage deliberately. For although I did not then know any of them by name, it was the work of Lloyd Garrison, David Sive, and the others that resulted in my own decision to engage in the study and practice of environmental law

Human Nature, the Laws of Nature, and the Nature of 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\u27s 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\u27s 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\u27s deliberations in specific environmental cases, as revealed by the recently disclosed official papers of Justice Harry Blackmun

Changing Conceptions of Property and Sovereignty in Natural Resources Law: Questioning the Public Trust Doctrine

This Article considers and evaluates the \u27public trust doctrine, one of the most remarkable legal bases upon which natural resources law has relied in this ongoing transformation. The public trust doctrine is based on an amorphous notion that has been with us since the days of Justinian - the notion that the public possesses inviolable rights in certain natural resources. Commentators first hailed the doctrine in 1970 as offering the most promising legal basis upon which individual members of the public could maintain a lawsuit to protect natural resources from needless degradation and destruction. In the seminal article on the trust doctrine, Professor Joseph Sax reconstructed how the mostly dormant doctrine had historically functioned in the United States to safeguard public rights in navigable waterways, and he predicted that the doctrine could expand to embrace broader environmental concerns

A Different Kind of Republican Moment in Environmental Law

The purpose of this Essay is to propose and discuss the possibility that the nation currently faces another, albeit very different, republican moment that may well test the future of environmental protection laws in the United States. This new moment has as its modifier an uppercase Republican rather than a lowercase republican. While the latter republican invokes the political tradition referred to as civic republicanism, the former Republican refers instead to the current National Republican Party. The moment facing environmental law is the virtually unprecedented ascendancy of the Republican Party in all three branches of the federal government

“Environmental Racism! That’s What It Is.”

In this essay, Professor Lazarus discusses former NAACP director the Rev. Dr. Benjamin Chavis\u27s characterization of U.S. environmental policy as environmental racism. He first justifies this provocative topic choice and then suggests that Chavis\u27s allegation has transformed environmental law. Professor Lazarus next discusses the details of this transformation, arguing that Rev. Chavis has essentially reshaped the way environmental law and justice are conceived. He offers examples of various environmental programs and social and political effects traceable to Chavis\u27s environmental racism comment. Finally, the conclusion provides some of the author\u27s ruminations about the future of environmental law and policy

Environmental Law and the Supreme Court: Three Years Later

In my Garrison Lecture three years ago, I surveyed the environmental law decisions of the Supreme Court between 1970 and 1999. I commented on which Justices had been more or less influential in shaping the Court\u27s decisions and, even more provocatively (if not foolishly), sought to score the individual Justices on their responsiveness to environmental protection concerns based on their votes cast in a subset of those cases. The broader thesis of the lecture, however, was that there is something distinctively environmental about environmental law and that the Court\u27s increasing inability to appreciate that dimension was leading to more poorly-reasoned decisions and results. Pace has now provided me with the luxury to revisit my earlier conclusions with the benefit of three additional years of hindsight. To that end, this update addresses three topics. First, it considers whether the opinion assignments and votes of individual Justices during the past three years either reinforce or undermine my prior assessment. Second, the update surveys the most significant environmental law decisions of the past three years and considers their portent for the possible restoration of what is environmental about environmental law in the Court. Third and finally, the update identifies important legal issues now looming before the Court

The Tragedy of Distrust in the Implementation of Federal Environmental Law

The relationship between the EPA and Congress Since the founding of the EPA in 1970 has been marked by congressional oversight that has seriously frustrated the development and implementation of federal environmental protection policy. A destructive cycle has emerged: agency distrust has led to the failure of its policies, creating further distrust and further failure

Crystals and Mud in Nature

Professor James Salzman has written a wonderful article, which promises an equally wonderful book. His article intelligently and thoughtfully examines the forces that compete, conflict, and combine in the creation of laws relating to drinking water. These include, of course, the physical characteristics of the resource itself and how the resource relates to essential biological needs of humankind. But as Professor Salzman demonstrates, the biological role is only one of several perspectives on drinking water relevant to the kind of legal rules that apply to it. The article describes drinking water as a cultural resource, a social resource, and an economic resource, contending that one has to consider each of these various natures of a natural resource to determine how best to fashion legal rules governing its management. The article readily reminds us how much human history and culture relates to natural resources law. For the purposes of this commentary, however, I would like to expand on two reactions I had to the article. The first is that the article\u27s narrow focus on one use of water undermines some of the article\u27s conclusions by understating water\u27s complexity. And the second is why the article made me think about dirt, and ultimately about mud, and the juxtaposition of water and dirt in natural resources law

Highways and Bi-Ways for Environmental Justice

The purpose of this essay is to discuss the past, present, and future of the environmental justice movement as illustrated by the highway between Selma and Montgomery in Alabama and the highway system surrounding the City of Atlanta in neighboring Georgia. The essay is divided into three parts. The first part describes environmental justice, seeking both to place it in a broader historical perspective and to discuss how it relates to civil rights law and environmental law. The second part undertakes a closer examination of the challenges presented by efforts to fashion positive law to address environmental justice norms. This discussion considers why it has proven so difficult for both civil rights and environmental law to evolve in a responsive fashion. Particular attention is paid to Title VI of the Civil Rights Act of 1964, which has been an area of emphasis for many in the environmental justice movement. Finally, the essay speculates on where progress is more likely to be made in the future in terms of securing legal bases for the promotion of environmental justice objectives. The essay concludes that the two highways that bookend the essay suggest possible bi-ways to environmental justice based on both environmental and civil rights laws