Malone, Linda A.

English

bepress Legal Repository

Looking Beyond Environmental Law\u27s Mid-life Crisis

DigitalCommons@Pace

Pace Environmental Law Review Volume 23 Issue 3 Special Edition 2006 The Intersection of Environmental and Land Use Law Article 3 September 2006 Looking Beyond Environmental Law's Mid-Life Crisis Linda A. Malone Follow this and additional works at: https://digitalcommons.pace.edu/pelr Recommended Citation Linda A. Malone, Looking Beyond Environmental Law's Mid-Life Crisis, 23 Pace Envtl. L. Rev. 679 (2006) Available at: https://digitalcommons.pace.edu/pelr/vol23/iss3/3 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Environmental Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact dheller2@law.pace.edu. Looking Beyond Environmental Law'sMid-life CrisisLINDA A. MALONE*In the late 1970s, as a young lawyer just out of law school, Ihad the privilege of working with Fred Bosselman and David Cal-lies at the law firm Ross & Hardies in Chicago. Bosselman andCallies, along with John Banta, had just a few years earlier pub-lished the landmark book in environmental regulation of land use,The Taking Issue,' which, among other legal innovations, sug-gested that a temporary regulatory taking of private propertymight require compensation. 2 I knew that I wanted to practiceenvironmental law, although the environmental course offeringsat Duke Law School (like most law schools at the time) had beenlimited to the basic survey course taught from materials the visit-ing professor had assembled. I knew nothing about land use, anarea that my property teacher (like many law professors at thetime) refused to consider or teach as any aspect of property law.My other area of interest was public international law, an area Ididn't even expect to encounter in private law firm practice. I set-tled instead for an assignment to the small but growing group ofattorneys who represented foreign corporations with subsidiariesin the United States. International environmental law was noteven recognized as an area of legal expertise, by practitioners orby academics.It has been a long, strange journey for those of us who havetraveled along the path of environmental regulation of land use-from the explosion of naively optimistic federal legislation in the1970s, to the dawning awareness of the environment's complexi-ties in the early 1980s, to the startling recognition of global inter-connectedness in the late 1980s and early 1990s, to the economic* Marshall-Wythe Foundation and Professor of Law, William & Mary LawSchool.1. FRED BOSSELMAN, DAVID CALLIES & JOHN BANTA, THE TAKING ISSUE: A STUDYON THE CONSTITUTIONAL LIMITS OF GOVERNMENTAL AUTHORITY TO REGULATE THE USEOF PRIVATELY-OWNED LAND WITHOUT PAYING COMPENSATION TO THE OWNERS (1973).2. FRED BOSSELMAN & DAVID CALLIES, THE QUIET REVOLUTION IN LAND USE CON-TROL (1971).6791PACE ENVIRONMENTAL LAW REVIEWcritiques of command and control regulation in the mid 1990s, tothe current controversies over "junk science" and debate overwhether the environmental apocalypse has already begun. Thefashionableness of environmental law has seen accompanyingchange with rises and falls in law school student enrollment fromthe environmental heydays of the 1980s to the cynicism of the1990s. Now environmental law is just one of many establishedspecialty areas and land use has become a bread and butter coursefor diversified general private practice. The cocktail party "chitchat" no lawyer can avoid is less likely to invoke the response"what a fascinating area" than used to be the case, and more likelyto lead to a disgruntled recollection of property regulated exces-sively or unfairly (inevitably from the landowner's viewpoint).Environmental law generally, and environmental regulation ofland use specifically, seem to be in the throes of a mid-life crisis.As Mark Twain would say, however, reports of the death ofenvironmentalism have been exaggerated. A mid-life environ-mental crisis may be generated by feelings of failure, unachievedgoals, and impending catastrophe, but that does not necessarilymean that the possibilities for achievement are over. Thoughtfulevaluation of values and directions in the environmental move-ment may just as well be seen as a sign of renewal, growth, andenduring commitment.In this case one common solution to a mid-life crisis-a new,gas guzzling sports car-is part of the problem, not the solution.Aspirations for environmental improvement have run into thestumbling block for all aspirations of human nature. The "haves"and "have-nots" all want more. More means more production,which means more environmental degradation quantitatively un-less more is done to minimize the post-production degradationqualitatively. We appease our collective conscience with the hopethat science is always on the verge of a quick fix for whatever theenvironmental problem might be. Our petulant demands for sati-ety and comfort and environmental improvement have placed uson a moving walkway, walking backwards. It is not that difficultto figure out why we are not getting where we need to go.The temptation to consume our resources cannot be overesti-mated. As environmentalists or citizens we continue to focus onthe symptoms and not the cure for what ails us. There are somein this world who deserve more, just to have the minimum hu-mane requirements for living. They are not the problem, except tothe extent that we have ignored their basic needs. The problem is680 [Vol. 232https://digitalcommons.pace.edu/pelr/vol23/iss3/3LINDA A. MALONEthat nothing is ever enough for the spoiled masses of the devel-oped world. The same self-centered destructiveness that drivesmany mid-life crises is driving an environmental crisis.Is there any reason to hope that fifty years into the environ-mental revolution any of these seemingly intractable attitudeswill change? There is. Environmentalism, however one chooses todefine that term, will be pulled through this mid-life crisis, proba-bly kicking and screaming all the way, by the unavoidable de-mands of its global family. Even if the developed countries canafford in the short-term to continue their selfish and self-centeredways, the developing world cannot afford to tolerate them and thedeveloping world's needs cannot be ignored. Whether examined inthe context of economic globalization or human rights, what goesaround the world comes around, quite literally. A few examplessuffice. Pollution, "natural" disasters, and disease do not recog-nize national boundaries. A quality of life that does not include abasically safe, healthy environment breeds illness, resentment,migration, poverty, and violence. National security cannot existwithout environmental security and assurance of basic, inaliena-ble human rights in all civil societies. As the devastation afterHurricane Katrina has proven, environmental threats and disas-ters cannot be characterized as internal or external, natural ormanmade, environmental or economic. Those are distinctionswithout a difference.Another form of environmental myopia is the still minimalrecognition of the role of women in environmental preservation.Feminist literature, whether based in law and feminism or advo-cacy of an expanded role for women in environmental preserva-tion, has received relatively little acknowledgment compared, forexample, to its recognition in criminal, constitutional, or interna-tional law. Eco-feminism 3 has been limited to relatively few arti-cles of mostly academic impact. When Wangari Maathai receivedthe Nobel Peace Prize in 2004, public attention was focused on herstatus as an environmentalist receiving the Peace Prize and sec-ondly on her being the first African to receive the award, and onlyincidentally on her being a woman environmentalist. Although in3. See generally MARY MELLOR, FEMINISM & ECOLOGY (1997). Eco-feminism, asocial movement that emerged in the 1970s, views the degradation of the naturalworld and the oppression of women as interconnected. Id. at 1. While the movementshares with environmentalists a concern about ecological damage caused by contem-porary socio-economic systems, it asserts that woman disproportionately bear the con-sequences of environmental impacts and it challenges the failure of the ecologicalmovement to adequately address women's subordination. Id. at 2.200613PACE ENVIRONMENTAL LAW REVIEWsome sense the non-recognition of her gender might be seen as asign of progress, the stature of women in environmental law hasnot reached the point that such an extraordinary accomplishmentby a woman should be gender-neutralized. What cognizance therehas been of the pivotal role women might play in environmentaladvocacy and preservation, particularly at the grassroots level,has progressed more aggressively in the human rights arena thanin more conventional environmental arenas.John Nolon and I shared in the excitement when Maathai re-ceived the award at a conference that marked the beginning of myfriendship and admiration for him. We were attending the secondannual colloquium of the Environmental Law Commission of theInternational Union for the Conservation of Nature and NaturalResources ("IUCN") in Nairobi, Kenya, and Maathai had been theopening speaker at the conference. We spoke of what an ex-traordinary woman she was and how little general understandingthere was in our privileged country of how environmental advo-cates like Maathai endured torture, imprisonment, and the threat(too often realized) of death for their advocacy of environmentalpreservation as a human right. Two days later she received noticethat she had been awarded the Nobel Peace Prize, quite appropri-ately while she was planting trees on Mount Kenya.The birth of environmentalism is often traced to a woman,Rachel Carson, for demonstrating environmental interconnec-tions, and a man, Aldo Leopold, for formulating an environmentalethic. Aside from this pairing demonstrating the theories of CarolGilligan's In a Different Voice4 (and perhaps Men Are From Mars,Women Are From Venus),5 the divergent paths of these two iconsare overdue for merger. Carson's environmental interconnected-ness must be broadened to recognize the interconnectedness of so-cial, economic, political, and environmental progress; Leopold'senvironmental ethic must be expanded to a human rights ethic;and both must be interrelated to recognize that there is no techno-logical solution or ethical solution in isolation from the other.Tentative steps toward a holistic environmentalism have alreadybeen taken. Recognition that water pollution may come from theair, that hazardous waste cleanup may require financial incen-4. CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WO-MEN'S DEVELOPMENT (1982).5. JOHN GRAY, MEN ARE FROM MARS, WOMEN ARE FROM VENUS: A PRACTICALGUIDE FOR IMPROVING COMMUNICATION AND GETTING WHAT YOU WANT IN YOUR RELA-TIONSHIPS (1992).682 [Vol. 234https://digitalcommons.pace.edu/pelr/vol23/iss3/3LINDA A. MALONEtives for brownfields redevelopment, and that environmental im-provement may require land use regulation implicitlyacknowledges that categorization of environmental issues iscounterproductive and shortsighted. The heated debate over com-mand-and-control regulation versus economic incentives was fullof sound and fury but ultimately signified nothing. There are no"either-or" resolutions. The remedies for environmental problemsmust be as varied and open-ended as the problems they address.Academic literature has if anything impeded a more holistic,open-minded approach to the environment. Much of the scholar-ship is specialized to the point of practical obscurity, or is advo-cacy of a specific scholarly agenda that refuses to cede anyrecognition to competing theories. Extremism, conservative or lib-eral, is disproportionately recognized in this marketplace of ideas.Thoughtful scholarship that is receptive to multiple theories andoptions is too easily dismissed as descriptive or lacking in innova-tion. The "real world" impact of scholarship is not only underval-ued in academia; it is rarely even assessed. Add to this dilemmathe immediacy of environmental problems and the not uncommon,two-year gap between the creation of an article and its publica-tion, and the result is an expanding "disconnect" between the aca-demic literature and the most pressing environmental crises.This issue's recognition of Professor Nolon's scholarship is awelcome exception to the dire assessment above. Professor Nolonhas brought his considerable experience and expertise, in both theacademic and "real world" spheres, to the forefront of environmen-tal regulation of land use. Almost single-handedly, he has resur-rected the importance of local government to the resolution ofenvironmental issues, and yet he has maintained a broader per-spective on the important role of local government in all localitiesglobally. His scholarship defies easy categorization because ittranscends categorization. For those of us fortunate enough toknow him personally, his open-mindedness and essential human-ity are reflected in his scholarship. As a result, his articles havecontributed to both the academic literature and the practical im-plementation of the environmental solutions he proposes.When I first became familiar with Professor Nolon's scholar-ship, I felt that my environmental education had come full circle.The young associate working with Fred Bosselman and David Cal-lies had been inspired by their book on the pivotal and under-ap-preciated role of the federal government in land use, The Quiet2006] 6835PACE ENVIRONMENTAL LAW REVIEWRevolution in Land Use Control,6 to write her own book on envi-ronmental regulation of land use entitled, Environmental Regula-tion of Land Use.7 Despite this unimaginative title, publishersfound the topic quite imaginative-questioning what could possi-bly be in such a title and whether there was any market for such a"narrow" (read as "non-existent") subject matter. The book is nowin its sixteenth year of publication, and its initially unusual focuson federal regulation of environmental land use is now quite com-monplace. Professor Nolon's scholarship was a necessary re-minder for many of us that local governments remain the bedrocklevel of environmental regulation of land use. The next frontier towhich he has directed us is to explore the variety of ways in whichlocal governments globally have led the way in innovative envi-ronmental advocacy and preservation. I look forward with greatinterest to the publication of this collection of Professor Nolon'swork, which exemplifies how we need to think globally and actlocally and look beyond the mid-life crisis of environmentalism inthe United States.6. BOSSELMAN & CALLIES, supra note 2.7. LINDA A. MALONE, ENVIRONMENTAL REGULATION OF LAND UsE (2005).684 [Vol. 236https://digitalcommons.pace.edu/pelr/vol23/iss3/3