Understanding Environmental Law as Public Provision

Jedediah Purdy –

A law-and-political-economy (LPE) approach illuminates environmental law in a few ways. It highlights that environmental law is a prime example of the ways law is generative, even in areas where it is imagined as reactive, and how it channels and responds to contested values even where it is imagined as technocratic. Law does not so much administer “the natural world” as it helps to create it by shaping regions, ecosystems, and the planet – a creative action that overlaps and interpenetrates with law’s shaping of the social world, from cities and suburbs to the agricultural economy to energy and transport systems.carson-book

Environmental law’s creative role, in turn, responds to deep-seated conflicts among visions of the world and the human place in it, and to powerful concentrations of economic interests, including big agriculture, fossil fuels, and the auto industry. The environment – woven out of natural and artificial elements – distributes profoundly unequal benefits, powers, and vulnerability, and does so in ways that are often only halfway visible because they are easy to naturalize as the given shape of the world.

Conventional environmental law and policy tend to steer by two kinds of values that halfway acknowledge, but also muffle, these rich and difficult themes.

The first conventional value is a wealth- or welfare-maximizing standard that is usually implemented through cost-benefit analysis to ask whether a proposed initiative is “worth it.” Second is respect for the “existence value” or “intrinsic value” of biodiversity, healthy ecosystems, and distinctive or beloved landscapes or species.

The second set of values finds expression, for instance, in the Endangered Species Act, which allows no economic balancing in its prohibitions on certain acts tending to jeopardize endangered species, or in the Wilderness Act, with its categorical protection of “wild” place.

A more inclusive approach to environmental law set these important considerations at the intersection of three insights.

First, environmental law frequently originates in acts of democratic mobilization and will-formation: major areas of environmental lawmaking have been powered by new ways of understanding, valuing, and shaping the human place in the larger living world, as well as the shape of human community (including the role of the state and the character and boundaries of national polities).

Second, environmental law does not just manage a pre-existing natural world, but is a mechanism of active world-making, shaping the globe at every level from landscape diversity and regional watershed functions to the chemistry of the global atmosphere and resulting patterns of weather and climate.

Third, environmental law is deeply connected with issues of distribution, the interplay of public and private power, and the shape of a democratic and egalitarian society.

In environmental law, explicit concern with distribution and the interplay of private and public power tends to gather under the rubric of environmental justice (EJ). Born out of struggles in the 1970s and 1980s around the siting of hazardous facilities in predominantly non-white and working-class communities, EJ has drawn attention to a series of issues: the interaction of environmental hazards with both intentional racial discrimination and racialized structural inequality; the absence of any mechanism within the major environmental statutes to address distributional disparities in environmental hazards or benefits; and the deeply race-and-class-specific origins of the conservationist and wilderness movements that lie behind much environmental legislation and advocacy.

EJ advocates have argued accordingly for increased attention to distributional considerations (especially along lines of race and class), increased participation in policy-making by vulnerable and traditionally less powerful populations, and a broadened conception of “environment” that includes the many places where people live, learn, work, and play, in contrast to a traditional woods-and-waters notion of what forms the core of the topic.

In a spirit of respect and solidarity, I would like to propose building on EJ’s themes in the following direction.

Environmental law should be understood as, among other things, a species of public provision, a means of securing basic human interests by maintaining key resources that are open to all on fairly equitable terms. One might understand this idea in terms of rights – a right to clean air or clean water, for instance, language that the architects of the anti-pollution statutes used to describe the protection thresholds they established in those laws. One might also understand it in terms of public utility or public infrastructure, following in the recent revival of these concepts among scholars who put the platform of institutions in which rights are exercised at the center of the question whether those rights are meaningfully protected.

To understand why these themes have not been more central to environmental law, it helps to appreciate the moment in which it arose. In the first three to four decades of the twentieth century, the predecessors to environmental law were alive to themes of political economy and public provision. Much of what gets taught as “natural resources law” – the creation and administration of national forests, irrigation systems, public management of soils and watersheds, and the creation of national parks – was part and parcel of a program of public ownership and management of key resources whose uses were interdependent and whose long-term health was fragile.

Other aspects of that program ranged from labor law and antitrust to public health to the creation of public utilities. The wilderness movement, which was later criticized for its parochial romantic woods-and-waters fetishism, was founded by self-described socialists and New Deal planners, who saw the creation of wilderness areas as part of a landscape-level planning agenda. The scientific study of the health effects of pollution, including the essential works behind Rachel Carson’s Silent Spring, began in the agendas of labor activists and social reformers (many of them women, working as early as the 1920s) studying “industrial toxins” in workplaces and neighborhoods. ‘

These integrating approaches to political economy, social power, human health, and natural systems got narrowed in the Cold War era, as pollution politics focused on threats to archetypal suburban households and small towns (as well as to “the balance of nature”) and wilderness preservation withdrew from its larger ambitions to focus on the aesthetics of upper-middle-class vacations.

The architects of the 1970s anti-pollution statutes (such as the 1970 Clean Air Act and 1972 Clean Water Act) nonetheless talked about their legislation in terms of public “rights” to clean air, and there were anti-pollution advocates at the time who focused on the economic power of polluting industries. (The network of projects then centered around Ralph Nader was exemplary; so were certain progressive labor unions, notably the United Auto Workers under Walter Reuther.) They tended to imagine environmental protections as part of a larger reform program, extending and deepening New Deal and Great Society programs, that would move the country toward economic equality and social provision along several concurrent dimensions.

Elements of their optimism included the expectation that post-World War Two trends toward economic equality would continue, that the political environment would remain receptive to progressive regulation, and that constitutional equal-protection doctrine would be available to check inequitable outcomes from environmental policy. It was not until the late 1970s, with the major environmental statutes on the books, that trends were visibly and decisively moving in the other direction.

Today these themes are once again becoming inescapable.

Climate change is at once a phenomenon of the natural world – the shape of the planet’s basic chemical cycles and all ecosystems that depend on them – and thoroughly a product of human action, and it distributes its threats in ways that follow the lines of global inequality, with the poorest and most precarious populations the most vulnerable. Although neoliberal approaches look to markets (conveniently including Chinese state investment) to provide technology “fixes,” and to some extent these are already in motion, the distributional challenges of an inequitable, human-caused, global phenomenon are already in motion. The question is whether a politics will emerge to grapple with them, or national politics will instead seek to avoid them, as the U.S. Republican Party, Canadian and Australian conservatives, and other parties of the right have done.

At the domestic level, the integrated themes of economic power, market structure, social provision, and natural systems are perhaps most pronounced in food systems. Here, highly concentrated industries, from seed research and sales to meat processing, are deeply shaped by regulation and subsidy, especially the multi-billion-dollar Farm Bill. Food systems contribute massively to greenhouse-gas emissions, soil depletion and erosion, and pollution (pesticide, industrial-scale manure lagoons, fertilizer runoff). They create the American (and global) food environment, with its mix of relatively expensive nutrition-dense calories (fruit and vegetables), and relatively cheap low-nutrition calories (especially corn syrup and soybean oil, both products of heavy subsidy and both major contributors to obesity and follow-on health problems that disparately affect poor and non-white populations).

These are two of many areas in which the law is making the world – natural and social. To change it will mean making a different world.

Jedediah Purdy is the Robinson O. Everett Professor of Law at Duke Law School.

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