A Guide to U.S. Environmental Law

Arden Rowell, Josephine van Zeben

• Publisher: University of California Press
• Year: 2021
• ISBN:
  9780520968066
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

Written by two internationally respected authors, this unique primer distills the environmental law and policy of the United States into a practical guide for a nonlegal audience, as well as for lawyers trained in other regions. The first part of the book explains the basics of the American legal system: key actors, types of laws, and overarching legal strategies for environmental management. The second part delves into specific environmental issues (pollution, ecosystem management, and climate change) and how American law addresses each. Chapters includesummaries of key concepts, discussion questions, and a glossary of terms, as well as informative "spotlights"—brief overviews of topics. With a highly accessible structure and useful illustrative features, A Guide to U.S. Environmental Law is a long-overdue synthetic reference on environmental law for students and for those who work in environmental policy or environmental science. Pairing this bookwith its companion, A Guide to EU Environmental Law, allows for a comparative look at how two of the most important jurisdictions in the world deal with key environmental problems.

PART ONE

Building Blocks of U.S. Environmental Law

CHAPTER ONE

Regulating Environmental Impacts

Environmental law regulates human behavior in light of its environmental impacts. Environmental impacts affect the surroundings or conditions in which humans, plants, and animals function. Every country around the world has developed its own legal (and nonlegal) approaches to addressing environmental impacts. These responses are based in part on normative choices about what a good environment would look like, and are informed by historical, natural, cultural, and political conditions that tend to vary widely within and between countries.

To understand how the United States—or any country—approaches environmental law, it is important to understand the distinctive challenges that are presented by regulating the environment. Environmental impacts affect the environment in which people live, rather than affecting people directly. While humans can change their environments—by taking actions that affect environmental quality, such as littering or picking up litter, emitting or reducing air pollutants, cutting down or planting trees—any effect of those actions on human well-being will be indirect, as a result of subsequent human exposure to the degraded or improved environment. Some environmental impacts may have very few important implications for humans, while others may have profound implications for human health, well-being, and flourishing. Understanding the implications of human actions for environmental quality, and the implications of environmental quality for human ends, thus presents special challenges to environmental regulation.

This chapter begins by introducing the core challenges to environmental law that are created by the fundamental characteristics of environmental impacts: namely, that those impacts tend to be diffuse through space and time, complex, and nonhuman in character. It then flags key normative values and choices that the United States has made regarding environmental impacts, which undergird the U.S. approach to environmental law. Understanding these background normative choices can help readers in approaching the remainder of the book, which further develops the key actors, types of law, and specific strategies the United States has deployed to address particular environmental problems.

KEY CHALLENGES IN REGULATING ENVIRONMENTAL IMPACTS

Many challenges in environmental regulation can be traced back to three characteristics of environmental impacts (table 1). First, because the environment is both durable and dynamic, many environmental impacts are diffuse through space and time. A person who tosses a plastic bottle on the ground does not merely affect that place in that moment; the bottle may be washed away to a distant spot, or even a distant ocean, and it may take hundreds of years to degrade into microplastics, which then may affect the environment for hundreds of years more. Few, if any, of these impacts may be apparent to the person who threw the bottle on the ground in the first place, and even experts may have a difficult time predicting exactly where and when the plastic will generate environmental impacts.

TABLE 1

Characteristics of Environmental Impacts

Second, the impacts of human action on the environment tend to be complex. Natural environmental systems are already complex before humans become involved; it should not be surprising that it is still more complicated to predict the full implications of human action on natural environments, and to predict the follow-on effects of environmental quality on human well-being. Only in recent years have scientists started to understand the multiple implications of plastic waste, and of degraded microplastics, on natural environments and human health. Most likely, the extent of environmental and human impacts of plastic waste depends significantly on the scope and interaction of that waste—on how many people use and dispose of plastics, and in which ways, with what frequency, and in which locations. The environmental impacts of plastic disposal are therefore obscure, technical, and dependent upon knowledge—which will often be unavailable—about other human actions that may also affect the environment.

Third, consider that environmental impacts affect the natural environment, and that they therefore relate to the nonhuman animals, plants, and processes that make up much of human surroundings. Natural processes will eventually lead to the dispersion and decomposition of a plastic bottle that is thrown on the ground—but understanding and evaluating those natural processes presents challenges on its own. How will the plastic affect the particular ecosystem(s) into which it degrades? Which plants, animals, or fungi might be affected, how, and how acutely? Which other plants, animals, or fungi might be affected, in turn, by the direct impacts of environmental plastics on prey species or food sources? Which, if any, of these nonhuman effects impact human well-being? To what extent should nonhuman impacts matter for their own sake, even if they do not affect human well-being? Understanding the environmental impacts of human actions requires answering questions like these, and thus carries a special kind of informational, scientific, and normative burden.

Importantly, knowledge about an environmental impact does not guarantee legal action to remedy that impact. The environment cannot speak for itself; it depends on humans to do so on its behalf. The likelihood of a legal or social response differs depending on the perceived economic and social value of the environment to (a group of) individuals. This means that there are situations in which environmental impacts can go unnoticed, or unchecked, for long periods. At the same time, human law is able to directly regulate only human behavior. Environmental law must therefore identify a nexus between human behavior and the nonhuman environment, both to understand the impact of current human behaviors and to shape human behavior in directions that reflect a preferred relationship with the nonhuman environment.

THE ROLE OF NORMATIVE VALUES

Decisions about how to approach environmental problems are, explicitly or implicitly, decisions about how people want to shape the environment in which they live. This means that reasonable people might disagree as to whether U.S. strategies work well or poorly when measured against specific environmental problems. For example, the United States’ decision to manage environmental impacts in large part through the vehicle of monetized cost-benefit analysis remains controversial even domestically. Moreover, it contrasts sharply with the approach of other jurisdictions—like the European Union—to the same problems. Similarly, the institutional choices jurisdictions make on how to address problems also embed normative choices. In the case of the United States, for instance, reliance on expert administrative agencies to set environmental policy tends to prioritize the value of scientific and technical expertise over the value of direct democratic accountability. As the book describes the distinctive characteristics of the U.S. approach to environmental problems, it is worth reflecting both on which normative choices underlie those approaches, and whether it would be possible to better them.

Another key normative question that is answered differently across jurisdictions relates to the management of environmental justice, which concerns the fairness of how environmental impacts are distributed (see spotlight 1). The challenge is ethical as well as practical: How should environmental harms and benefits ethically be spread across the (human and nonhuman) population? The U.S. legal system has no unified answer to the question of environmental justice, although its institutional and normative choices have implications for who bears environmental harms. For example, as we have already noted and as the next chapters explain further, U.S. environmental law relies heavily on cost-benefit analysis. Cost-benefit approaches typically address future impacts by monetizing environmental harms the same way regardless of when they accrue, and then discounting those monetized harms back to present value to account for the time-value of money. This has the normative implication that the U.S. government allocates fewer of today’s dollars to prevent future harms than it allocates toward preventing immediate harms.

SPOTLIGHT 1. ENVIRONMENTAL JUSTICE

Environmental justice seeks to assure a fair distribution of environmental quality.

In the United States, locally undesirable land uses (LULUs)—such as landfills or incinerators—tend to be located near poor communities and communities of color. As a result, African American and Hispanic populations are disproportionately impacted by LULUs. Scholars disagree about whether existing distributions are the result of racist and/or classist siting decisions, market factors that constrain poor and nonwhite persons from moving away from LULUs, or both.

U.S. environmental statutes typically do not address environmental justice concerns, though there are several presidential orders—most notably Executive Order 12,898—that encourage consideration of enviro...