Public Health Environmental Law
by
Robert Percival
  • LAST MODIFIED: 23 August 2017
  • DOI: 10.1093/obo/9780199756797-0169

Introduction

Concern over the effects of pollution on public health has been a major factor shaping the development of environmental law. Prior to the rise of the regulatory state, courts used the common law of public and private nuisance to umpire disputes over air and water pollution. Beginning in the 1970s, the United States largely centralized environmental regulation in the federal government after years of effort to prod states to act proved unsuccessful. Today, a plethora of federal environmental statutes establish comprehensive regulatory programs to protect public health from exposure to pollution. The laws generally require federal agencies to set minimum national standards that can be implemented and enforced by state authorities under delegated authority. Environmental impact assessment requirements are the most widely adopted provisions of environmental law around the world. These laws require assessment and consideration of potential environmental effects of major actions likely to significantly affect the environment before they are approved. But environmental law now extends far beyond environmental assessment. The laws also direct expert agencies to set standards to limit emissions of pollution, to ensure that hazardous wastes are managed safely, to regulate chemical use, and to protect endangered species. Environmental laws employ a variety of approaches for determining how stringently to regulate. These include technology-based standards, health-based regulation, and approaches that balance risks and benefits. In recent years, more emphasis has been placed on informational regulation that requires disclosure of potential hazards to consumers and members of the general public. In many countries, the environmental laws require agencies to solicit public input when they develop regulations. These laws provide for judicial review of agency actions and authorize citizen suits to ensure that the laws are implemented and enforced. As countries increasingly borrow regulatory innovations from one another, traditional distinctions between domestic and international law are beginning to blur. The growing importance of nonstate actors in influencing the development of global environmental law and policy also is blurring traditional distinctions between private and public law.

Reference Resources

Environmental law is a rapidly growing field that is increasing in complexity as it extends its reach around the globe. Because the field has become so vast, most practitioners specialize in particular aspects of the field. The following is an annotated list of the leading journals, casebooks, and websites that cover this enormous field and report on new developments in law and regulatory policy. Because the environmental law field has been developing so rapidly, journals increasingly are publishing materials online and casebooks are using websites to provide updates on new developments. Transnational Environmental Law has quickly become the most respected peer-reviewed environmental law journal that focuses on the global dimensions of the field. The three top student-edited specialty environmental law reviews are Ecology Law Quarterly, the Harvard Environmental Law Review, and Environmental Law. The Environmental Law Reporter: News and Analysis is a highly respected journal that is widely read by practitioners of environmental law. EcoAméricas provides timely coverage of recent developments in environmental law and policy in Central and South America. The two leading casebooks on environmental law in the United States (Percival, et al. 2013 and Plater, et al. 2016) are both published by Wolters Kluwer. Hunter, et al. 2015 is the leading casebook on international environmental law. The leading environmental law blogs are Legal Planet and Environmental Law Prof Blog. The IUCN Academy of Environmental Law website has valuable material on developments in environmental law around the world through its E-Journal and useful bibliographies in its Essential Readings in Environmental Law.

  • EcoAméricas. 1998–.

    Save Citation »Export Citation »E-mail Citation »

    Published monthly by Fourth Street Press of Beverly, Massachusetts; covers developments in environmental law and policy in Central and South America. Articles include detailed resource and contact information, and subscribers receive a separate guide annually that contains contact information for key environmental NGOs and government officials in the region. Further information is available at the publication’s website.

    Find this resource:

  • Ecology Law Quarterly. 1971–.

    Save Citation »Export Citation »E-mail Citation »

    One of the most respected environmental law journals in the United States, this publication is edited by law students from the University of California at Berkeley. The journal, which is published four times per year, also maintains an online journal called Currents that publishes articles of contemporary interest.

    Find this resource:

  • Environmental Law. 1969–.

    Save Citation »Export Citation »E-mail Citation »

    This is the oldest law review in the United States that specializes in environmental issues. It is published four times per year by law students from the Lewis & Clark Law School in Portland, Oregon. Each year the publication also publishes an article that is the product of the law school’s annual National Resources Law Institute Distinguished Visitor lecture.

    Find this resource:

  • Environmental Law Prof Blog.

    Save Citation »Export Citation »E-mail Citation »

    Although not as stylistically elegant as Legal Planet, this blog provides valuable perspectives on developments in environmental law from a diverse group of environmental law professors. It also includes discussion of issues that arise in the teaching of environmental law, including what books to recommend to prepare students for the study of environmental law.

    Find this resource:

  • Environmental Law Reporter: News & Analysis. 1971–.

    Save Citation »Export Citation »E-mail Citation »

    Published monthly by the Environmental Law Institute, a nonpartisan environmental think tank in Washington, DC. It contains articles and updates on important developments in environmental law and policy. Widely read by practitioners of environmental law, it also provides a comprehensive list of significant recent environmental decisions by courts and actions by regulatory agencies.

    Find this resource:

  • Harvard Environmental Law Review. 1976–.

    Save Citation »Export Citation »E-mail Citation »

    This journal, edited by law students from Harvard Law School, publishes two issues per year. It also hosts a website that is part of the Environmental Law Review Syndicate, a consortium of ten US environmental law reviews that selects one student article per week to be shared on the websites of all ten reviews.

    Find this resource:

  • Hunter, David, James E. Salzman, and Durwood Zaelke. 2015. International environmental law. 5th ed. St. Paul, MN: Foundation Press.

    Save Citation »Export Citation »E-mail Citation »

    This is the most widely adopted casebook in the international law field. It provides comprehensive coverage of the field, examining how major environmental treaties have evolved, customary principles of international environmental law, and the role of diplomacy and nonstate actors in shaping the development and implementation of international norms.

    Find this resource:

  • IUCN Academy of Environmental Law. 2009–.

    Save Citation »Export Citation »E-mail Citation »

    A consortium of environmental law professors from more than 200 law schools in more than sixty countries, the Academy publishes an annual online journal with articles and reports on developments in environmental law and policy in several countries written by experts from each country. The Academy’s website, parts of which are available in four languages (English, Spanish, French and Chinese), also has sixty online bibliographies (“Essential Readings”) addressing various environmental topics.

    Find this resource:

  • Legal Planet.

    Save Citation »Export Citation »E-mail Citation »

    The leading environmental law blog, Legal Planet publishes new material nearly every day. It is a joint venture of environmental law professors from the University of California at Berkeley and UCLA Law School, who frequently are joined by guest bloggers. The blog is particularly valuable for its coverage of legal and policy developments in California, the state with the most progressive climate policies in the United States.

    Find this resource:

  • Percival, Robert V., Christopher H. Schroeder, Alan S. Miller, and James P. Leape. 2013. Environmental regulation: Law, science & policy. 7th ed. New York: Wolters Kluwer Law & Business.

    Save Citation »Export Citation »E-mail Citation »

    This has been the most widely adopted casebook on environmental law in US law schools. It is designed to be accessible to non-lawyers. After providing a structural overview of the field, the book covers risk regulation, waste management and remediation, control of air and water pollution, land use regulation and regulatory takings, environmental impact assessment, protection of biodiversity, environmental enforcement, and global environmental law. A casebook website that tracks new developments in the field is available online.

    Find this resource:

  • Plater, Zygmunt J. B., Robert H. Abrams, Robert Graham, Lisa Heinzerling, David Wirth, and Noah Hall. 2016. Environmental law & policy: Nature, law, and society. 5th ed. New York: Wolters Kluwer Law & Business.

    Save Citation »Export Citation »E-mail Citation »

    This popular casebook is organized primarily on the basis of different legal strategies for protecting the environment. These include common law approaches, administrative law, disclosure statutes, planning requirements, harm-based regulation, technology-based regulation, market-enlisting strategies, and the public trust doctrine, among others.

    Find this resource:

  • Transnational Environmental Law. 2012–.

    Save Citation »Export Citation »E-mail Citation »

    Published twice a year by Cambridge University Press, this is the first journal to focus specifically on the growing transnational dimensions of environmental law and policy. This peer-reviewed journal, edited by Professors Thijs Etty and Veerle Heyvaert, contains valuable articles, book reviews, and editorials, many of which examine how nonstate actors influence environmental law and policy. It is available both online and in print.

    Find this resource:

Rationales for Environmental Law

Why is environmental law necessary? A diverse array of value systems, drawing support from multiple disciplinary perspectives, including economics, science, game theory and philosophy, provide strong support for some form of collective action to protect the environment. Leopold 1949 articulated what has come to be known as a “land ethic,” focusing on ecological reasons for protecting nature from the impact of human activities. Most famously, Carson 1962 galvanized public concern over the environmental effects of the rapid growth of the pesticide industry. Hardin 1968 explained why individually rational behavior can result in the destruction of common pool resources in circumstances when open access to them leads to consumption in excess of their carrying capacity. Olson 1971 explored the difficulty of organizing collective action to combat problems like the tragedy of the commons. In Ostrom 1990, a Nobel Prize–winning political economist described how some communities were able to overcome these difficulties to address collective action problems. Nash 1989 provides a comprehensive review of the history of philosophic thought concerning humans’ relationship to nature. An argument for fundamentally changing how humans think about nature is made in Devall and Sessions 1985. In Lorenzetti 2008, the Chief Justice of Argentina, who has been active in promoting greater judicial understanding of environmental law, explains why environmental law is different from, and should be transformational of, other areas of law.

  • Carson, Rachel. 1962. Silent spring. New York: Houghton Mifflin.

    Save Citation »Export Citation »E-mail Citation »

    This has been the most influential book in the history of the environmental movement. Zoologist Rachel Carson warned that the bioaccumulation of pesticides in the environment eventually could wipe out bird colonies, producing a “silent spring.” The book helped galvanize the modern environmental movement and fueled ultimately successful efforts to get the US government to ban DDT. US Interior Secretary Stewart Udall wrote that the book “began to alter the thinking of my generation.”

    Find this resource:

  • Devall, Bill, and George Sessions. 1985. Deep ecology: Living as if nature mattered. Layton, UT: Gibbs Smith.

    Save Citation »Export Citation »E-mail Citation »

    Exploring different alternative scenarios for the environmental/ecological movement, the authors question the human-centered assumptions behind most approaches to nature. They argue for a broadening of human consciousness toward the natural world and offer suggestions for individual direct action.

    Find this resource:

  • Hardin, Garrett. 1968. The tragedy of the commons. Science 162:1243–1248.

    DOI: 10.1126/science.162.3859.1243Save Citation »Export Citation »E-mail Citation »

    Using an example of a commons on which individuals can graze their livestock for free, ecologist Garrett Hardin argued that individually rational behavior can be collectively deficient by leading to overconsumption and destruction of the commons because its carrying capacity has been exceeded.

    Find this resource:

  • Leopold, Aldo. 1949. A Sand County almanac. New York: Oxford Univ. Press.

    Save Citation »Export Citation »E-mail Citation »

    This book by a former forest ranger was edited by his son and published a year after his death. It became a classic for articulating a “land ethic,” a kind of philosophy of ecological best practices. The ethic is distilled into the statement that “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.”

    Find this resource:

  • Lorenzetti, Ricardo Luis. 2008. El teoria del derecho medio ambiental. Buenos Aires, Argentina: La Ley.

    Save Citation »Export Citation »E-mail Citation »

    This book, written in Spanish by the Chief Justice of the Supreme Court of Argentina, argues that the environmental paradigm challenges conventional thinking about law. It makes a powerful argument that environmental law should be “transformational” of other areas of law. (Title translation: The theory of environmental law.)

    Find this resource:

  • Nash, Roderick F. 1989. The rights of nature: A history of environmental ethics. Madison: Univ. of Wisconsin Press.

    Save Citation »Export Citation »E-mail Citation »

    An environmental philosopher traces the history of philosophical and religious beliefs regarding nature and the concept that nature has rights. The author hails the enactment of the US Endangered Species Act as a breakthrough in human history because it is the first time humans expressly extended rights to nonhuman species.

    Find this resource:

  • Olson, Mancur. 1971. The logic of collective action: Public goods and the theory of groups. 2d ed. Cambridge, MA: Harvard Univ. Press.

    Save Citation »Export Citation »E-mail Citation »

    Economist Mancur Olson challenged facile notions that individuals will band together in groups to pursue their collective best interests in the production of public goods. Olson argued that “unless the number of individuals is quite small, or unless there is coercion or some other special device to make individuals act in their common interests, rational, self-interested individuals will not act to achieve their common or group interests” (p. 2).

    Find this resource:

  • Ostrom, Elinor. 1990. Governing the commons: The evolution of institutions for collective action. Cambridge, UK: Cambridge Univ. Press.

    DOI: 10.1017/CBO9780511807763Save Citation »Export Citation »E-mail Citation »

    Analyzing case studies, Ostrom develops a series of “reasoned conjectures” concerning “how it is possible that some individuals organize themselves to manage and govern common pool resources and others do not.”

    Find this resource:

History of Environmental Law

Environmental law has much deeper roots than conventionally acknowledged, stretching back centuries to the development of nuisance law in 16th-century England. Humans were slow to grasp the relationship between environmental harm and public health. The rise of the conservation movement in the late 19th century focused on controlling deforestation and preserving public lands for their aesthetic value. Marsh 1864 warned that deforestation could have long-term environmental consequences. The author’s proposal to create protected areas for future generations to enjoy was influential on a global scale. With the acceptance of the germ theory of disease, early-20th-century environmental battles shifted to concern over the public health effects of disposal of untreated sewage and contamination of sources of drinking water. After World War II, the growth of the chemical industry and burgeoning pollution problems spawned a global environmental movement that led to the enactment of laws that created the basic infrastructure of today’s system of environmental law. Udall 1963 made a compelling argument for rethinking the relationship between humans and the environment at the dawn of the modern environmental movement. Kloepfer 1994 explores the ancient roots of environmental law and its development in Germany. Morag-Levine 2003 explores the different paths followed by the European continent’s civil law system and Britain’s common law system in the evolution of environmental law. Sax 1971 made a compelling argument that federal agencies were ignoring environmental concerns. The National Environmental Policy Act, signed into law in 1970, and the avalanche of regulatory legislation that soon followed changed agency priorities. Elliott, et al. 1985 makes the surprising argument that the stringency of this new legislation can be explained in part by the absence of powerful environmental groups with whom industry could seek compromises. Lazarus 2004 and Lazarus and Houck 2005 provide insider insights into the complex factors that led to the enactment and implementation of the laws that form the basic infrastructure of environmental law today.

  • Elliott, E. Donald, Bruce A. Ackerman, and John C. Millian. 1985. Toward a theory of statutory evolution: The federalization of environmental law. Journal of Law, Economics & Organizations 1:313–340.

    Save Citation »Export Citation »E-mail Citation »

    The authors make a provocative argument that the environmental laws adopted in the early 1970s were surprisingly stringent because of the absence of powerful national environmental organizations from whom industry lobbyists could seek compromises.

    Find this resource:

  • Kloepfer, Michael. 1994. Zur Geschichte des deutschen Umweltrechts. Berlin: Dunker & Humblot.

    Save Citation »Export Citation »E-mail Citation »

    This is a history of German environmental law written from the perspective of a professor who is the author of a standard reference text on German environmental law. The author, a professor at Humboldt University in Berlin, explores the relevance of ancient Roman law to environmental concerns.

    Find this resource:

  • Lazarus, Richard J. 2004. The making of environmental law. Chicago: Univ. of Chicago Press.

    DOI: 10.7208/chicago/9780226470641.001.0001Save Citation »Export Citation »E-mail Citation »

    This book provides an excellent review of why environmental problems pose such difficult challenges to lawmakers. It then traces how the US legal system responded to them with a flood of legislation enacted during the 1970s and 1980s.

    Find this resource:

  • Lazarus, Richard J., and Oliver A. Houck, eds. 2005. Environmental law stories. New York: Foundation Press.

    Save Citation »Export Citation »E-mail Citation »

    This book examines the backstories behind ten seminal judicial decisions involving environmental law in the United States. While the ten case studies included in the book (including Boomer v. Atlantic Cement, Reserve Mining, TVA v. Hill, the Benzene decision, Laidlaw, Lucas, SWANCC, and American Trucking) do not necessarily represent the ten most important cases in the history of US environmental law, the authors provide fascinating strategic details that are not available in the actual judicial decisions.

    Find this resource:

  • Marsh, George Perkins. 1864. Man and nature. New York: Charles Scribner.

    Save Citation »Export Citation »E-mail Citation »

    This book by a former US ambassador to Turkey warned that the United States should start to preserve natural areas to avoid the widespread deforestation that afflicted ancient societies in the Middle East. It helped spur the creation of the Adirondack Park and forest protection measures in Italy and New Zealand, and fueled the rise of the conservation movement in the late 19th century. Later renamed The Earth as Modified by Human Action (New York: Scribner, Armstrong, 1874).

    Find this resource:

  • Morag-Levine, Noga. 2003. Chasing the wind: Regulating air pollution in the common law state. Princeton, NJ: Princeton Univ. Press.

    Save Citation »Export Citation »E-mail Citation »

    This book contains an impressive review of the history of air pollution control law that traces the historical roots of current tensions between common law and precautionary approaches to regulation. Comparing US experience with that of Europe, the book combines a remarkable blend of legal history, comparative law, and political theory in discussing the historical development of the common law, comparing pollution control regulation in common law and civil law countries, and discussing why some communities continue to face air pollution problems long after enactment of the Clean Air Act.

    Find this resource:

  • Sax, Joseph L. 1971. Defending the environment: A strategy for citizen action. New York: Alfred A. Knopf.

    Save Citation »Export Citation »E-mail Citation »

    This book documented the unresponsiveness of federal agencies to environmental interests. Professor Sax argued for great judicial scrutiny of agency decisions and use of ancient principles of the public trust to develop a common law of environmental protection. The book helped spur more aggressive scrutiny of agencies under the National Environmental Policy Act. The author expanded the arguments he first made in “The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention” (Michigan Law Review 68:471 [1970]).

    Find this resource:

  • Udall, Stewart L. 1963. The quiet crisis. New York: Ig.

    Save Citation »Export Citation »E-mail Citation »

    A wonderful, sweeping review of the history of Americans’ relationship to the environment from the founding of the republic until just before the birth of the modern environmental movement. Professor Dan Tarlock has aptly described this book as “an important, popular synthesis of nascent environmental thinking and a call for a modern conservation ethic.” The author served as US Secretary of Interior from 1961 to 1969.

    Find this resource:

Principles of Environmental Law

The clearest articulation of principles of environmental law is contained in two declarations signed by the nations of the world at the 1972 Stockholm Conference on the Human Environment (United Nations 1972) and at the Rio Earth Summit in 1992 (United Nations 1992). Both of these, namely, the Stockholm Declaration of the United Nations Conference on the Human Environment (United Nations 1972) and the Rio Declaration on Environment and Development (United Nations 1992), can be found online. Among the important principles of environmental law that they endorse are the ancient Roman sic utere principle (that countries have an obligation to avoid causing foreseeable, significant harm to areas outside of their jurisdiction) (Stockholm Principle #21 and Rio Principle #2), the polluter pays principle (Rio Principle #16), and the precautionary principle (Rio Principle #15). Perhaps the most ubiquitous but least understood principle of environmental law is “sustainable development.” First articulated by the Brundtland Commission in World Commission on Environment and Development 1987, the principle of sustainable development is best understood as embracing the notion that the present generation should leave the environment in as good a shape as they found it for future generations.

  • Merrill, Thomas. 1997. Golden rules for transboundary pollution. Duke Law Journal 46:931–1019.

    DOI: 10.2307/1372915Save Citation »Export Citation »E-mail Citation »

    Noting the failure of both US and international law to articulate effective principles for control of transboundary pollution, Tom Merrill proposes “golden rules,” rather than strict liability, to resolve disputes over transboundary pollution. He argues for application either of a “reverse golden rule” that specifies that states should not ask of other states what they do not ask of their own citizens or of a “golden rule” that provides that states should treat other states as they do their own citizens.

    Find this resource:

  • United Nations. 1972. Declaration of the United Nations Conference on the Human Environment. New York: United Nations.

    Save Citation »Export Citation »E-mail Citation »

    Also known as the “Stockholm Declaration,” this document was unanimously adopted by the 133 countries participating in the first global Earth Summit in 1972, the UN Conference on the Human Environment. It established the principle that countries have an obligation to avoid causing foreseeable, significant harm to areas outside of their jurisdiction (Principle #21).

    Find this resource:

  • United Nations. 1992. Rio Declaration on Environment and Development. New York: United Nations.

    Save Citation »Export Citation »E-mail Citation »

    This declaration, signed by 178 nations at the Rio Earth Summit in 1992, articulates a comprehensive set of principles that form the basis for global environmental law. These include the sic utere principle (Principle #2), the precautionary principle (Principle #15), and the polluter pays principle (Principle #16).

    Find this resource:

  • World Commission on Environment and Development. 1987. Our common future. New York: United Nations.

    Save Citation »Export Citation »E-mail Citation »

    This is also known as the “Brundtland Report” because it was written by a commission chaired by former Norwegian Prime Minister Gro Harlem Brundtland. The report is best known for launching the concept of sustainable development, which it defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” The report focused international attention on global environmental challenges and laid the groundwork for the 1992 Rio Earth Summit.

    Find this resource:

The Precautionary Principle

As articulated in the Rio Declaration on Environment and Development in 1992, the precautionary principle states: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” The principle is derived from German air pollution law during the 1980s. There has been a great deal of confusion about its meaning. Critics, such as Professor Cass Sunstein, have argued that it guarantees overregulation by promoting regulatory paralysis in the face of uncertainty (see Sunstein 2005). Others have argued that all it does is to endorse the sensible principle that lack of full scientific certainty should not preclude the taking of reasonable precautions against significant risks (see Percival 2006). As Weiner, et al. 2011 notes, the European Union has placed more faith in the precautionary principle than the United States has. Yet, the authors argue, that does not mean that US environmental policy is less stringent than the EU’s. Political scientist David Vogel makes a strong case that US environmental policy used to be more stringent than that of the EU, but he claims that this no longer is the case (Vogel 2012). Percival 2006 argues that much of the criticism of the principle has been misplaced because the principle does not actually address how precautionary regulatory policy should be.

  • Gee, D., P. Harremoes, J. Keys, et al. 2001. Late lessons from early warnings: The precautionary principle 1898–2000. Copenhagen: European Environment Agency.

    Save Citation »Export Citation »E-mail Citation »

    The first of a two-volume study sponsored by the European Environment Agency, this report presents a rare retrospective examination of how regulatory policy responded to fourteen particular risks that caused significant harm to public health and the environment over more than a century. It examines when the first signs of the problem emerged, how public policy responded, and what can be learned from the results to make regulation more successful in preventing harm in the future.

    Find this resource:

  • Percival, Robert V. 2006. Who is afraid of the precautionary principle? Pace Environmental Law Review 23:801–876.

    Save Citation »Export Citation »E-mail Citation »

    This article argues that criticisms of the precautionary principle as unreasonably stringent are misplaced because the principle does not specify how precautionary regulatory policy should be. Reviewing the history of regulation of gasoline lead additives, asbestos, and other risks, the article argues that regulatory policy has been more reactive than precautionary, acting only after risks have caused significant environmental harm.

    Find this resource:

  • Sunstein, Cass R. 2005. Laws of fear: Beyond the precautionary principle. Cambridge, UK: Cambridge Univ. Press.

    DOI: 10.1017/CBO9780511790850Save Citation »Export Citation »E-mail Citation »

    Professor Sunstein is sharply critical of the precautionary principle, which he describes as “deeply incoherent.” He argues that because precautions themselves create risks, using the principle can result either in overly stringent regulation or in regulatory paralysis by banning what it appears to require. He maintains that the principle should only be applied to justify precautionary regulation in circumstances involving risks of catastrophic, irreversible harm.

    Find this resource:

  • Vogel, David. 2012. The politics of precaution: Regulating health, safety and environmental risk in Europe and the United States. Princeton, NJ: Princeton Univ. Press.

    DOI: 10.1515/9781400842568Save Citation »Export Citation »E-mail Citation »

    Comparing the histories of risk regulation in the United States and Europe, Vogel concludes that although the United States was more precautionary than Europe during the 1970s and early 1980s, the EU today is more precautionary than the United States in dealing with risks to human health and the environment. Vogel argues this shift is due to political changes in both countries, as Europeans have become more concerned about environmental risks, while business interests have become more politically active in the United States.

    Find this resource:

  • Weiner, Jonathan B., Michael D. Rogers, James K. Hammitt, and Peter Sands, eds. 2011. The reality of precaution: Comparing risk regulation in the United States and Europe. Washington, DC: Resources for the Future.

    Save Citation »Export Citation »E-mail Citation »

    Wiener concludes that even though the EU has more explicitly embraced the precautionary principle, its member states are not more precautionary than the United States in addressing health, safety, environmental, and security risks. Based on several case studies comparing the histories of regulation in the EU and the United States and a quantitative analysis of a sample of one hundred risks, Wiener believes that “Europe and the United States have maintained rough parity across all risks over the past four decades.”

    Find this resource:

Risk Regulation and Control of Toxic Substances

Much of the development of modern US environmental law was spawned by public concern over the growing use of toxic chemicals. Scientists played a leading role in warning the public of the dangers of expanded pesticide use during this period. Wurster 2015 provides a firsthand account of how a group of scientists, concerned by the apparent collapse of bird populations, raised funds to hire lawyers and launch a campaign to get DDT banned. With the advent of regulatory statutes requiring regulation of toxic substances, courts encouraged agencies to perform risk assessments to support their regulatory decisions. National Research Council 1983 provided valuable guidance concerning how to perform risk assessments. The provocative study Environmental Protection Agency 1987 found many gaps in the risk assessment process and noted that regulatory priorities were more in line with public perceptions of risks than with the conclusions of expert risk assessors. Future Supreme Court Justice Stephen Breyer echoed this argument, advocating for greater insulation of regulatory decisions from the influence of public opinion (see Breyer 1995). Sociologist Ulrich Beck’s conceptualization of a “risk society” (Beck 1992) was influential in developing understanding of how society should respond to risk. Increasing emphasis has been placed on discovering and disclosing risks, as illustrated by the US EPA’s Toxics Release Inventory, analyzed by Karkkainen 2000, and the EU’s REACH program for chemical testing (Bergkamp 2013).

  • Beck, Ulrich. 1992. Risk society: Towards a new modernity. London: SAGE.

    Save Citation »Export Citation »E-mail Citation »

    Shortly after the 1986 Chernobyl disaster, Ulrich Beck, a sociology professor from the University of Munich, published Risikogesellschaft, initially in German. This book, published in English in 1992, was considered groundbreaking in its description of the array of risks created by modern industrial society. It proposes that risks be managed through what Beck calls “reflexive modernization,” which Beck defines as “a systemic way of dealing with hazards and insecurities induced and introduced by modernisation itself” (p. 21).

    Find this resource:

  • Bergkamp, Lucas, ed. 2013. The European Union REACH regulation for chemicals, law and practice. Oxford: Oxford Univ. Press.

    Save Citation »Export Citation »E-mail Citation »

    This anthology contains a series of articles about the European Union’s innovative REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) program, which requires extensive testing of chemicals. After examining the history of chemical regulation in Europe, the chapters explore the design and objectives of the REACH program and the challenges of implementing it.

    Find this resource:

  • Breyer, Stephen. 1995. Breaking the vicious cycle: Toward effective risk regulation. Cambridge, MA: Harvard Univ. Press.

    Save Citation »Export Citation »E-mail Citation »

    Initially published shortly before the author became a US Supreme Court Justice, this book argues that activities that pose environmental risks often are overregulated because regulators bow to pressure from the public and the media, who often misperceive the true magnitude of risks. The author notes that the most expensive part of environmental cleanups often involves the last 10 percent of risk reduction and that public policy could improve if experts had more influence over regulatory decisions.

    Find this resource:

  • Environmental Protection Agency. February 1987. Unfinished business: A comparative assessment of environmental problems. Washington, DC: EPA.

    Save Citation »Export Citation »E-mail Citation »

    A study prepared by a broad group of experts from the EPA compared the agency’s regulatory priorities with rankings of relative risks by the public and by EPA scientists. The experts examined four types of risks: carcinogenic risks, non-carcinogenic risks to health, ecological risks, and economic risks. It found that risk assessment techniques were most developed and data most available for carcinogenic risks and that the agency’s priorities are much more in line with relative rankings of risk by the public than with those by expert risk assessors.

    Find this resource:

  • Karkkainen, Bradley C. 2000. Information as environmental regulation: TRI and performance benchmarking, precursor to a new paradigm. Georgetown Law Journal 89:257–370.

    Save Citation »Export Citation »E-mail Citation »

    This article examines the use of disclosure requirements and the data they produce, such as those contained in EPA’s Toxics Release Inventory (TRI), as a force for positive environmental change.

    Find this resource:

  • National Research Council. 1983. Risk assessment in the federal government: Managing the process. Washington, DC: National Academy Press.

    Save Citation »Export Citation »E-mail Citation »

    This classic report by the National Research Council provides a comprehensive analysis of the use of risk assessment by various federal agencies to inform regulatory policies applicable to carcinogens and other public health hazards. The report endorses the use of risk assessment and helps provide a framework for understanding the basic steps in the process.

    Find this resource:

  • Wagner, Wendy E. 1995. The science charade in toxic risk regulation. Columbia Law Review 95:1513–1723.

    DOI: 10.2307/1123193Save Citation »Export Citation »E-mail Citation »

    The author, a former EPA lawyer who became a law professor, argues that the way regulatory agencies use science in the risk assessment process spawns overconfidence in regulatory judgments.

    Find this resource:

  • Wurster, Charles F. 2015. DDT wars: Rescuing our national bird, preventing cancer and creating the Environmental Defense Fund. Oxford: Oxford Univ. Press.

    Save Citation »Export Citation »E-mail Citation »

    This book provides a firsthand account of the campaign by scientists during the 1960s to get DDT banned to save collapsing bird populations. The scientists founded the Environmental Defense Fund, which has become a major global environmental NGO, and hired lawyers who eventually convinced the federal government to ban DDT.

    Find this resource:

Air Pollution Control

Early efforts to control air pollution included municipal smoke control ordinances in the 19th century and interstate air pollution disputes heard by the US Supreme Court at the beginning of the 20th century. In these cases, aesthetic harm and visible crop damage were the most prominent concerns. Wirth 2000 examines the difficulty of even proving harm to crops during early litigation to control smelter pollution. But by the mid-20th century, air pollution’s impact on public health became alarmingly apparent at times. Davis 2002 describes the impact on public health of the killer smogs experienced by Donora, Pennsylvania in 1948 and London, England in 1952. The enactment of the US Clean Air Act in 1970 launched an ambitious national program to control air pollution. Critics charged that the Act was inefficient or entirely too ambitious (Dwyer 1990). Even supporters of the legislation noted some flaws, such as the grandfathering of existing sources decried by Revesz and Lienke 2015. Yet, as Percival 2016 notes, at several crucial junctures, bold decisions were made by regulators or the judiciary in favor of clean air. As a result, while millions of people are dying annually from exposure to air pollution in countries like China and India (Cohen, et al. 2017), the air is much cleaner in the United States, and US law even is adapting to respond to climate change in creative ways, as Freeman and Gerrard 2014 documents.

  • Cohen, Aaron J., Michael Brauer, Richard Burnett, et al. 2017. Estimates and 25-year trends of the global burden of disease attributable to ambient air pollution: An analysis of data from the Global Burden of Diseases Study 2015. The Lancet 389.10082: 1907–1918.

    Save Citation »Export Citation »E-mail Citation »

    Using data from the 2015 Global Burden of Diseases Study, the authors determine that exposure to small particulate (PM 2.5) air pollution caused 4.2 million premature deaths and the loss of 103.1 million disability-adjusted life years in 2015. The deaths caused by air pollution represented 7.6 percent of total global deaths.

    Find this resource:

  • Davis, Devra. 2002. When smoke ran like water: Tales of environmental deception and the battle against pollution. New York: Basic Books.

    Save Citation »Export Citation »E-mail Citation »

    This book by a leading environmental scientist is a history of efforts to control toxic pollution including the Donora tragedy, London’s killer smog, leaded gasoline, and CFCs. Davis is harshly critical of some tactics used by industrial groups to forestall regulation while their products and emissions caused substantial harm to public health and the environment.

    Find this resource:

  • Dockery, Douglas W., Pope, Xiping Xu, et al. 1993. An association between air pollution and mortality in six US cities. New England Journal of Medicine 329.24: 1753–1759.

    DOI: 10.1056/NEJM199312093292401Save Citation »Export Citation »E-mail Citation »

    An influential study using epidemiology to estimate the effects of air pollution on excess mortality in US cities.

    Find this resource:

  • Dwyer, John P. 1990. The pathology of symbolic legislation. Ecology Law Quarterly 17:233–316.

    Save Citation »Export Citation »E-mail Citation »

    The author argues that requirements, such as the initial version of Section 112 of the Clean Air Act, that hazardous air pollutants (e.g., carcinogens) be regulated to provide “an ample margin of safety” are counterproductive because agencies fear the real-world consequences of implementing them. After EPA regulated only six hazardous pollutants in twenty years, Congress responded to such criticisms by amending the Clean Air Act in 1990 to shift to a largely technology-based approach.

    Find this resource:

  • Freeman, Jody, and Michael B. Gerrard, eds. 2014. Global climate change and U.S. law. 2d ed. Chicago: American Bar Association.

    Save Citation »Export Citation »E-mail Citation »

    This is the second edition of a pioneering anthology of articles about legal responses to climate change under US law (the first edition was published in 2007). Its twenty-three chapters cover a vast array of topics, illustrating the creative ways in which law is adapting to the unique challenges posed by this problem.

    Find this resource:

  • Percival, Robert V. 2016. Against all odds: Why America’s century-old quest for clean air may usher in a new era of global environmental cooperation. Salt Lake City: Univ. of Utah Press.

    Save Citation »Export Citation »E-mail Citation »

    Published version of the 2015 Wallace Stegner Lecture. Reviewing the history of air pollution control efforts, Percival argues that the United States has been enormously successful because at several crucial stages Congress or the courts made bold decisions in favor of clean air.

    Find this resource:

  • Revesz, Richard, and Jack Lienke. 2015. Struggling for air: Power plants and the “war on coal.” Oxford: Oxford Univ. Press.

    Save Citation »Export Citation »E-mail Citation »

    Reviewing the history of air pollution control in the United States, the authors criticize “grandfathering” provisions that allowed existing sources to continue to operate without state-of-the-art pollution controls. These provisions, coupled with flouting of the law and lax enforcement, prolonged the life of coal-fired power plants, whose emissions caused hundreds of thousands of deaths from respiratory diseases.

    Find this resource:

  • Wirth, John D. 2000. Smelter smoke in North America: The politics of transborder pollution. Lawrence: Univ. Press of Kansas.

    Save Citation »Export Citation »E-mail Citation »

    Historian John Wirth explores in depth lengthy controversies over transborder pollution from the Trail Smelter in Canada near the US border and the Douglas smelter in Arizona near the Mexican border. While these disputes produced the famous Trail Smelter decision in 1941 and prolonged regulatory battles over application of the Clean Air Act to the Douglas smelter in the 1980s, Wirth finds that victims of pollution were outgunned at nearly every stage of these controversies.

    Find this resource:

Water Pollution Control

Growing concern over both the availability and quality of water resources has emerged as a critical issue in many parts of the world. The US Clean Water Act has been remarkably successful in controlling large point sources of water pollution, as Adler, et al. 1993 documents, but severe problems on non-point-source pollution remain. Economists have criticized the Act’s technology-based regulatory requirements as inefficient (see Kneese and Schultze 1975), though Latin 1985 defends them as realistic and necessary. Houck 2002 explains how the total maximum daily loading (TMDL) program is filling important gaps when technology-based effluent limits alone are not enough to achieve desired levels of water quality. Fisher 2009 explores the global dimensions of water problems, including how to defuse transboundary conflicts over water. The implications of an emerging recognition of a human right to water are explored by Winkler 2012.

  • Adler, Robert W., Jessica C. Landman, and Diane M. Cameron. 1993. The Clean Water Act 20 years later. Washington, DC: Island Press.

    Save Citation »Export Citation »E-mail Citation »

    This book by leading experts on the Clean Water Act assesses its successes and failures in the first twenty years since its enactment in 1972. It examines what can be learned about the state of water quality from the uneven data available to federal and state regulators.

    Find this resource:

  • Delli Priscoli, Jerome, and Aaron T. Wolf. 2009. Managing and transforming water conflicts. Cambridge, UK: Cambridge Univ. Press.

    DOI: 10.1017/CBO9780511551536Save Citation »Export Citation »E-mail Citation »

    This book examines transboundary conflicts over access to water resources and how they can be managed from a multidisciplinary perspective. It notes that efforts to develop international law applicable to transboundary waters have yielded some important principles: equitable and reasonable use, obligations not to cause significant harm, the general obligation to cooperate, and the need for regular exchanges of data and information. It argues for new approaches and new institutions to facilitate cooperation among users.

    Find this resource:

  • Fisher, Douglas. 2009. The law and governance of water resources: The challenge of sustainability. London: Edward Elgar.

    DOI: 10.4337/9781781950166Save Citation »Export Citation »E-mail Citation »

    Professor Douglas Fisher from the Queensland University of Technology discusses how laws for managing water resources have evolved over time and how they need to be changed to promote more sustainable uses of water. He discusses both national and international legal instruments as well as interstate agreements and the need for doctrinal innovation in legal approaches to water management.

    Find this resource:

  • Houck, Oliver A. 2002. The Clean Water Act TMDL program: Law, policy, and implementation. 2d ed. Washington, DC: Environmental Law Institute.

    Save Citation »Export Citation »E-mail Citation »

    A guide for using the TMDL program of the US Clean Water Act to achieve ambient water quality standards when technology-based effluent limitations prove insufficient in themselves to achieve them. After reviewing the history of this “sleeping giant” that has awakened, Professor Houck discusses the challenges of designing and implementing effective TMDLs.

    Find this resource:

  • Journal of Water Law. 1990–.

    Save Citation »Export Citation »E-mail Citation »

    This is an international peer-reviewed journal which publishes six issues per year. Initially its focus was on water law in the United Kingdom, but its focus has been expanded to include water law and policy issues in Europe and beyond.

    Find this resource:

  • Kneese, Allen V., and Charles L. Schultze. 1975. Pollution, prices, and public policy. Resources for the Future & Brookings Institution.

    Save Citation »Export Citation »E-mail Citation »

    In this study, economists criticize the high costs and enforcement difficulties of the Clean Water Act and Clean Air Act. They advocate that Congress shift to an approach that would emphasize economic incentives to reduce pollution, such as effluent and emission charges.

    Find this resource:

  • Latin, Howard. 1985. Ideal versus real regulatory efficiency: Implementation of uniform standards and “fine-tuning” regulatory reforms. Stanford Law Review 37:1267–1332.

    DOI: 10.2307/1228632Save Citation »Export Citation »E-mail Citation »

    Responding to economists’ criticisms that uniform, technology-based standards mandated by the Clean Water Act and other environmental laws are inefficient, Professor Howard Latin argues that such standards still are superior to the alternatives because they are more effective, require less information collection and evaluation, and reduce opportunities for obstructive behavior by regulatory targets.

    Find this resource:

  • Winkler, Inga T. 2012. The human right to water: Significance, legal status and implications for water allocation. Oxford: Hart.

    Save Citation »Export Citation »E-mail Citation »

    Reviewing a wide array of international legal instruments, the author explores the implications of a human right to water, as recognized by the UN General Assembly in 2010. The book explores the implication of this right for efforts to achieve a more equitable allocation of water resources.

    Find this resource:

Environmental Impact Assessment

Environmental impact assessment is the most widely adopted provision of environmental law throughout the world. It originated in the United States with the enactment of the National Environmental Policy Act (NEPA), signed into law on New Year’s Day 1970. Taylor 1984 is one of the most thoughtful assessments of the impact of this requirement on federal agencies. NEPA’s procedural requirements were quickly taken seriously by the courts, but the Act was interpreted not to impose substantive limits on agencies, as Yost 1990, Caldwell 1998, and Houck 2000 decry. Yet the procedural requirements substantially improved agency decision-making, as Dreher 2005 explains. Despite a record of 0–22 for environmentalists in NEPA cases before the US Supreme Court, as Houck notes, one of NEPA’s most significant legacies is the global spread of environmental assessment requirements, examined by the comparative analysis Wood 2014. Karkkainen 2002 has explained how these requirements can be made even more useful, a proposal more likely to win fans in other countries than in the United States, given its current political climate.

  • Caldwell, Lynton K. 1998. Beyond NEPA: Future significance of the National Environmental Policy Act. Harvard Environmental Law Review 22:203–239.

    Save Citation »Export Citation »E-mail Citation »

    Written by one of the “fathers” of NEPA, this article argues that to fulfill NEPA’s potential it may now be necessary to reinforce the Act’s declared congressional intent or to incorporate it into constitutional law. Caldwell maintains that the anticipated challenges of the 21st century have enlarged the implications of NEPA for US public policy far beyond those anticipated by the authors of the Act.

    Find this resource:

  • Dreher, Robert. 2005. NEPA under siege: The political assault on the National Environmental Policy Act. Washington, DC: Georgetown Environmental Law and Policy Institute.

    Save Citation »Export Citation »E-mail Citation »

    A former EPA official describes how NEPA has improved government decision-making. He documents numerous instances in which agency actions that would have had severe environmental consequences were dramatically improved as a result of the environmental assessment process. Responding to proposals to weaken NEPA, he explains why they would undermine its benefits.

    Find this resource:

  • Houck, Oliver A. 2000. Is that all? A review of The National Environmental Policy Act, An Agenda for the Future, by Lynton Keith Caldwell. Duke Environmental Law & Policy Forum 11:173–191.

    Save Citation »Export Citation »E-mail Citation »

    Reviewing Caldwell’s proposals for strengthening NEPA, Professor Oliver Houck describes NEPA as holding “the unusual honor of being the most successful environmental law in the world and the most disappointing” (p. 173). Like Caldwell, he laments NEPA’s treatment in the Supreme Court, where environmental interests have lost all NEPA cases heard there. But he maintains that NEPA’s vagueness was inevitable and its “ideas of disclosure, public participation, alternatives and judicial review are blockbuster stuff” (p. 191) for the rest of the world.

    Find this resource:

  • Karkkainen, Bradley C. 2002. Toward a smarter NEPA: Monitoring and managing government’s environmental performance. Columbia Law Review 102:903–972.

    DOI: 10.2307/1123648Save Citation »Export Citation »E-mail Citation »

    Professor Karkkainen argues that efforts to avoid preparation of full-blown environmental impact statements (EISs) through promises of mitigation of a project’s impacts create a backdoor mechanism for producing environmentally beneficial outcomes. Yet because NEPA does not require follow-up monitoring or verification of predicted impacts, there is little assurance that the predictions made in EISs are accurate. The article proposes to retool NEPA to require follow-up monitoring, adaptive mitigation, and an environmental management, systems-oriented approach.

    Find this resource:

  • Mandelker, Daniel R. 2016. NEPA law and litigation. 2d ed. Eagan, MN: Clark Boardman Callaghan.

    Save Citation »Export Citation »E-mail Citation »

    This leading treatise is updated periodically to reflect the most recent legislative, regulatory, and case law developments interpreting the National Environmental Policy Act. It is considered by many lawyers to be the definitive source on NEPA, providing practitioners with an understanding of how this statute can, in effect, be used to override the policies and decisions of federal agencies.

    Find this resource:

  • Taylor, Serge. 1984. Making bureaucracies think: The environmental impact strategy of regulatory reform. Palo Alto, CA: Stanford Univ. Press.

    Save Citation »Export Citation »E-mail Citation »

    Political scientist Serge Taylor analyzes the policy impact of the environmental impact assessment requirement in NEPA. NEPA requires federal agencies to assess environmental risks prior to making major decisions likely to have a significant effect on the environment. Taylor finds that when agencies consider a wide range of alternatives, projects tend to benefit from relatively inexpensive mitigation measures. He predicts that NEPA is likely to have unexpectedly broad effects because it institutionalizes environmental values within agencies as they hire staff with environmental expertise.

    Find this resource:

  • Wood, Christopher. 2014. Environmental impact assessment: A comparative review. 2d ed. Hoboken, NJ: Taylor and Francis.

    Save Citation »Export Citation »E-mail Citation »

    This book provides a thorough comparison of environmental impact assessment requirements in the United States, the United Kingdom, the Netherlands, Canada, Australia, New Zealand, and South Africa. It compares their legal basis, coverage, consideration of alternatives, and various stages of the assessment process and evaluates their benefits and costs.

    Find this resource:

  • Yost, Nicholas C. 1990. NEPA’s promise—Partially fulfilled. Environmental Law 20:533–549.

    Save Citation »Export Citation »E-mail Citation »

    In this article, the former general counsel of the US Council on Environmental Quality (CEQ) argues that NEPA’s promise has been only partially fulfilled. While the procedural provisions of the Act have been implemented in an extraordinarily successful fashion, the Act has not been used to force substantive action. He blames the Supreme Court for consistently taking a narrow view of NEPA’s reach.

    Find this resource:

Preservation of Biodiversity

Environmental philosophers hailed the adoption of the US Endangered Species Act (ESA) in 1973 as the first legislation to extend rights to nonhuman species. Bean and Rowland 1997 is an impressive treatise that explains the forces leading to its adoption, while Wilson 1992 explains why it was necessary. Plater 2013 gives an insider’s account of the remarkable litigation that persuaded the US Supreme Court to put teeth in the ESA. Remarkably, the ESA has survived political assault in part due to strong support from the scientific community, as illustrated by the reports National Research Council 1995 and Goble, et al. 2006 and Baur, et al. 2009 provides thoughtful suggestions for improving the workings of the Act in the face of legislative gridlock. Cirelli 2002 and Bowman, et al. 2010 show the global reach of measures to protect biodiversity.

  • Baur, Donald C., Michael J. Bean, and William Robert Irvin. 2009. A recovery plan for the Endangered Species Act. Environmental Law Reporter 39:10006–10011.

    Save Citation »Export Citation »E-mail Citation »

    In this article, three environmental lawyers with substantial experience with the ESA propose regulatory actions that could improve the working of the Act without requiring new legislation. These include establishing and following science-based priorities in the listing of endangered species, reducing regulatory impediments to clearly beneficial actions, and making greater use of incentives to encourage landowners to promote species conservation.

    Find this resource:

  • Bean, Michael J., and Melanie J. Rowland. 1997. The evolution of national wildlife law. 3d ed. Westport, CT: Praeger.

    Save Citation »Export Citation »E-mail Citation »

    Coauthored by lawyers who are leading experts on the ESA, this book was the first and most comprehensive analysis of federal and state wildlife law in the United States. When the book was first published in 1977 it established wildlife law as a significant aspect of environmental law.

    Find this resource:

  • Bowman, Michael, Peter Davies, and Catherine Redgwell. 2010. Lyster’s international wildlife law. 2d ed. Cambridge, UK: Cambridge Univ. Press.

    DOI: 10.1017/CBO9780511975301Save Citation »Export Citation »E-mail Citation »

    This is an update of a respected text first published in 1985. It reviews the evolution and implementation of wildlife protection law throughout the world, including international treaties that protect wildlife and their habitat. It also considers the impact of pollution and climate change on wildlife.

    Find this resource:

  • Cirelli, M. T. 2002. Legal trends in wildlife management. Rome: UN Food and Agriculture Organization.

    Save Citation »Export Citation »E-mail Citation »

    This book, written for the Legal Office of the UN Food and Agriculture Organization, analyzes national wildlife laws from around the world and important features of international wildlife treaties. It examines hunting regulations, ownership of wildlife, the impact of protected areas on wildlife, and the involvement of the public in wildlife protection.

    Find this resource:

  • Goble, Dale D., J. Michael Scott, and Frank W. Davis. 2006. The Endangered Species Act at thirty. Vol. 1, Renewing the conservation promise. Washington, DC: Island Press.

    Save Citation »Export Citation »E-mail Citation »

    An in-depth examination of the ESA, undertaken by a multidisciplinary group of scholars on the Act’s thirtieth anniversary. These environmental law scholars examine what has been protected by the ESA and they evaluate various programs for protecting species “on the ground.” They assess lessons that can be learned from the history of the ESA and the role of science in regulatory decision-making. The report continues in Volume 2: The Endangered Species Act at thirty: Conserving biodiversity in human-dominated landscape, edited by Scott, Goble, and Davis (Washington, DC: Island Press, 2006).

    Find this resource:

  • National Research Council. 1995. Science and the Endangered Species Act. Washington, DC: National Academy Press.

    Save Citation »Export Citation »E-mail Citation »

    Report of a committee of the National Research Council that examines how science is used in policymaking under the ESA. While noting significant gaps in data and scientific understanding, the report concludes that “there has been a good match between science and the ESA,” which has played a critical role in slowing the decline of endangered species.

    Find this resource:

  • Plater, Zygmunt J. B. 2013. The snail darter and the dam: How pork-barrel politics endangered a little fish and killed a river. New Haven, CT: Yale Univ. Press.

    Save Citation »Export Citation »E-mail Citation »

    This book tells the fascinating story of the lawsuit that first gave teeth to the ESA. The author, then a young law professor, sued to block completion of the Tellico Dam in order to protect the snail darter, a tiny endangered fish. The litigation spawned a key Supreme Court decision that temporarily halted the dam until Congress intervened and exempted the dam from the ESA through an appropriations rider.

    Find this resource:

  • Wilson, Edward O. 1992. The diversity of life. Cambridge, MA: Harvard Univ. Belknap Press.

    Save Citation »Export Citation »E-mail Citation »

    Arguing that society is undergoing the “sixth great spasm of extinction on earth—caused this time entirely by humans” (p. 426), noted biologist E. O. Wilson provides a powerful case for legislation like the ESA to combat the decline of biodiversity. This book is a follow-up to his classic work, Biodiversity, published in 1988 by National Academy Press, Washington, DC, which Wilson co-edited with F. M. Peter. This book, which included contributions from scientists from several disciplines including biology, economics, and philosophy, helped launch the concept of biodiversity.

    Find this resource:

Environmental Enforcement

Many countries have impressive environmental laws on paper, but they accomplish very little because they are not effectively enforced. Mintz 2012, by a former EPA attorney, explores the many factors that influence the effectiveness of environmental enforcement. Russell, et al. 1986 suggests that greater attention should be paid to economic incentives in shaping enforcement policies. McAllister 2008, a product of the author’s Ph.D. thesis, provides unique insights into the factors influencing environmental enforcement in Brazil, including the importance of having institutions devoted to public interest enforcement such as the Ministério Público. Most US federal environmental laws have provided for citizen enforcement suits since the enactment of the Clean Air Act in 1970. Yet few citizen suits were brought until the 1980s, when the Natural Resources Defense Council started a citizen enforcement project working in cooperation with local environmental groups. Roberts, et al. 1992 provided strong support for citizen suits as part of broader enforcement strategies. Today, controversies over criminal enforcement of the environmental laws have come to center stage. These include debates over what intent requirement should be necessary to prove criminal violations (see Lazarus 1995 and Schiffer and Simon 1995) and how to use criminal sanctions most effectively to deter corporations from violations (see Steinzor 2015 and Garrett 2014).

  • Garrett, Brandon. 2014. Too big to jail: How prosecutors compromise with corporations. Cambridge, MA: Harvard Univ. Belknap Press.

    DOI: 10.4159/9780674735712Save Citation »Export Citation »E-mail Citation »

    Professor Garrett explores why criminal sanctions are more easily imposed on individuals than on corporations. He finds that the vast majority of prosecutions against corporations are now resolved through deferred prosecution agreements with the US Department of Justice. Prosecutors are behaving like Davids rather than Goliaths when they prosecute major corporations. Yet there is no data concerning whether such agreements are actually effective in changing corporate conduct.

    Find this resource:

  • Lazarus, Richard J. 1995. Meeting the demands of integration in the evolution of environmental law: Reforming environmental criminal law. Georgetown Law Journal 83:2407–2529.

    Save Citation »Export Citation »E-mail Citation »

    Professor Lazarus questions application of the public welfare offense doctrine, which presumes that regulated entities are aware of the law, to criminal enforcement of environmental law. Noting that many environmental regulations are difficult for regulated entities to understand, he suggests that in many circumstances it may be unfair not to require criminal prosecutions to prove specific intent to violate the laws.

    Find this resource:

  • McAllister, Lesley K. 2008. Making law matter: Environmental protection and legal institutions in Brazil. Palo Alto, CA: Stanford Univ. Press.

    DOI: 10.11126/stanford/9780804758239.001.0001Save Citation »Export Citation »E-mail Citation »

    Professor McAllister provides a remarkable comparative analysis of the work of Brazil’s unique Ministério Público in enforcing environmental laws in two very different Brazilian states. She explores not only the legal structure of enforcement institutions, but also the non-legal forces that affect prosecutorial decisions.

    Find this resource:

  • Mintz, Joel A. 2012. Enforcement at the EPA: High stakes and hard choices. Austin: Univ. of Texas Press.

    Save Citation »Export Citation »E-mail Citation »

    A comprehensive review of the history of environmental enforcement by the US Environmental Protection Agency written by a former EPA attorney who conducted nearly 200 interviews with present and former enforcement officials and congressional overseers. Professor Mintz emphasizes the importance of both the agency’s enforcement philosophy and the level of resources devoted to enforcement.

    Find this resource:

  • Roberts, Edith Lampson, Jeff Dobbins, and Margaret B. Bowman. 1992. The role of the citizen in environmental enforcement. Washington, DC: Environmental Law Institute.

    Save Citation »Export Citation »E-mail Citation »

    This report, published by a respected nonpartisan environmental think tank, was prepared for one of the first international conferences on environmental enforcement. The report found that citizens can play a wide range of valuable roles in the enforcement of environmental law. Examining several examples of citizen suits, it made recommendations for improving citizen involvement in the enforcement process. A copy of the report is available online.

    Find this resource:

  • Russell, Clifford S., Winston Harrington, and William J. Vaughan. 1986. Enforcing pollution control laws. Washington, DC: Resources for the Future.

    Save Citation »Export Citation »E-mail Citation »

    This report explores the difficulties of implementing, monitoring, and enforcing compliance with the environmental laws through the lens of economics. The economist authors advocate for new policies to reduce the cost and increase the effectiveness of environmental monitoring.

    Find this resource:

  • Schiffer, Lois, and James Simon. 1995. The reality of prosecuting environmental criminals: A response to Professor Lazarus. Georgetown Law Journal 83:2531–2538.

    Save Citation »Export Citation »E-mail Citation »

    Responding to Professor Lazarus, two environmental enforcement officials offers several scenarios where a specific intent or “willfulness” requirement would make it virtually impossible to prosecute environmental violators successfully.

    Find this resource:

  • Steinzor, Rena. 2015. Why not jail? Industrial catastrophes, corporate malfeasance, and government inaction. Cambridge, UK: Cambridge Univ. Press.

    Save Citation »Export Citation »E-mail Citation »

    Professor Steinzor explores the difficulties of applying criminal sanctions to corporations who violate the environmental, health, and safety laws. She argues that prosecutors have been too lenient in not seeking substantial criminal penalties for corporate executives.

    Find this resource:

International and Comparative Environmental Law

Environmental law is now global, extending its reach into every part of the world. Progress has been made in some areas, but in other areas international environmental law has come up short, as documented by the Global Environmental Outlook-5 (GEO-5) report (UN Environment Programme 2012). Citizens and NGOs continue to make a difference, as Oliver Houck demonstrates in his inspiring Taking Back Eden (Houck 2010). Not all the gains achieved by these cases have persisted, however, and questions remain concerning the democratic legitimacy of the processes by which international environmental law is developed, as Bodansky 1999 notes. International environmental law still has not developed effective means of vindicating all the principles articulated in Sands, et al. 2012, but Weiss and Jacobson 2000 is an admirable effort to understand how to make them more enforceable. The December 2015 Paris Agreement, creating a new global regime to respond to climate change, was a remarkable diplomatic achievement. Susan Biniaz, who was the US State Department’s top climate lawyer in the negotiations, describes the many techniques, including clever use of punctuation, that were used to help promote agreement of countries with very diverse interests (see Biniaz 2016). Finally, in Law of the Jungle, investigative reporter Paul Barrett tells a depressing but highly entertaining tale concerning decades-long litigation against a multinational oil company for pollution in the Oriente region of Ecuador (Barrett 2014). This seemingly never-ending saga illustrates the difficulty of recovering against a multinational corporation that allegedly caused horrendous environmental harm in the developing world.

  • Barrett, Paul. 2014. Law of the jungle: The $19 billion legal battle over oil in the rain forest and the lawyer who’d stop at nothing to win. New York: Broadway Books.

    Save Citation »Export Citation »E-mail Citation »

    This book by an investigative journalist tells the colorful tale of the decades-long litigation by residents of an oil-polluted area of Ecuador to recover damages from a multinational oil company. The author examines the hardball legal strategies employed by both sides and the ethical problems they raise. There appears to be no end in sight for this litigation, as the plaintiffs now seek to collect on their $9 billion judgment from a court in Ecuador that the oil company claims was obtained by fraud.

    Find this resource:

  • Biniaz, Susan. 2016. Comma but differentiated responsibilities: Punctuation and 30 other ways negotiators have resolved issues in the international climate change regime. Columbia Law School, Sabin Center for Climate Change Law.

    Save Citation »Export Citation »E-mail Citation »

    This article by the US State Department’s top climate lawyer, who participated in negotiation of the Paris Agreement, describes how punctuation and other tactics were used to promote agreement on a new global regime to respond to climate change. Available online by subscription.

    Find this resource:

  • Bodansky, Daniel. 1999. The legitimacy of international governance: A coming challenge for international environmental law. American Journal of International Law 93:596–624.

    DOI: 10.2307/2555262Save Citation »Export Citation »E-mail Citation »

    Professor Bodansky presciently raises an important concern about the legitimacy of international environmental law given the widespread perception that it is the product of processes that are insufficiently democratic. He seeks to clarify the nature of the legitimacy challenge and to explore possible sources of legitimacy for international institutions.

    Find this resource:

  • Houck, Oliver A. 2010. Taking back Eden: Eight environmental cases that changed the world. Washington, DC: Island Press.

    Save Citation »Export Citation »E-mail Citation »

    This book tells the stories of courageous citizens in eight countries (Canada, Chile, Greece, India, Japan, the Philippines, Russia, and the United States) who took legal action to defend the environment to force change in places and at times when environmental law was either nonexistent or rarely enforced. Houck concludes that these cases demonstrate that “ordinary citizens can, through legal process, make their governments protect the environment when that may be the last thing their governments want to do” (p. 176).

    Find this resource:

  • Martella, Roger R., Jr., and Brett Grosko, eds. 2014. International environmental law: The practitioner’s guide to the laws of the planet. Chicago: American Bar Association.

    Save Citation »Export Citation »E-mail Citation »

    This anthology provides coverage of both international and comparative environmental law. It includes chapters reviewing the various approaches employed by countries to address particular environmental problems as well as thirty-two regional and country-specific chapters describing the state of environmental law in particular parts of the world.

    Find this resource:

  • Sands, Philippe, Jacqueline Peel, Adriana Fabra, and Ruth MacKenzie. 2012. Principles of international environmental law. 3d ed. Cambridge, UK: Cambridge Univ. Press.

    DOI: 10.1017/CBO9781139019842Save Citation »Export Citation »E-mail Citation »

    After reviewing concepts of international law and the history of its application to environmental problems, this classic casebook examines approaches to environmental governance and the process of international law-making and regulation. It then focuses on the difficult problems of implementing and enforcing norms of international environmental law. (Note also the casebook Hunter, et al. 2015 in the Reference Resources section).

    Find this resource:

  • UN Environment Programme. 2012. Measuring progress: Environmental goals and gaps. Nairobi, Kenya: UN Environment Programme.

    Save Citation »Export Citation »E-mail Citation »

    This GEO-5 report assesses the effectiveness of international environmental law in meeting agreed-upon goals. It finds that “while there has been little or no progress or further deterioration on about half of the goals. . ., most issues for which a specific, measurable target exists achieved at least some progress.” These include “eliminating substances that deplete the ozone layer, phasing out lead in gasoline, and. . . increasing the supply of safe drinking water.” The report is online.

    Find this resource:

  • Weiss, Edith B., and Harold K. Jacobson. 2000. Engaging countries: Strengthening compliance with international environmental accords. Cambridge, MA: MIT.

    Save Citation »Export Citation »E-mail Citation »

    This anthology explores the neglected question of what happens after nations become parties to treaties and other international accords. The book reports the results of an empirical research project involving eight countries (Brazil, Cameroon, China, Hungary, India, Japan, the Russian Federation, and the United States). Based on these results, it attempts to explain why implementation and compliance vary among countries and treaties and change over time. It considers what factors affect the extent of compliance and provides recommendations for improving compliance with international agreements.

    Find this resource:

back to top

Article

Up

Down