The Making of Environmental Law: Past, Present, and Future
For the past thirty years, environmental law has been an integral part of the U.S. environmental movement, providing an extremely effective avenue for pursuing environmental goals. These laws have embedded environmental concerns into our economy, influenced international relations, and paved the way for integrating environmental issues into mainstream society. Today, environmental law is at a crossroads. Where are we, how did we get here, and where do we need to go? At a meeting cosponsored by the Environmental Change and Security Project and the Division of United States Studies on September 28, three pioneers of the environmental movement—Russell E. Train, James Gustave Speth, and Richard Lazarus—discussed the past, present, and future of environmental law with a packed Wilson Center audience.
The Past: Talkin' Bout a Revolution
Russell Train, the chief architect of U.S. environmental laws during the Nixon and Ford administrations, drew on his recently published memoir Politics, Pollution, and Pandas to tell the story of early environmental law, contrasting the past and present U.S. administration policies. Quoting Nixon, Train said, "The environmental cause is as fundamental as life itself." Nixon devoted more than one-third of his first State of the Union address in 1970 to environmental issues, kicking off what Train calls "the single most comprehensive set of policy initiatives enacted in one general area." Within the decade, the National Environmental Policy Act, Clean Air Act, Clean Water Act, Endangered Species Act, Marine Mammal Protection Act, and myriad others were enacted. According to Train, the relatively even balance of power between the Democrats and Republicans forced them to pursue bipartisan efforts. Along with Nixon's desire to neutralize Edmund Muskie, this power sharing led Democrats and Republicans to work together to pass this impressive body of environmental legislation.
According to Richard Lazarus, author of The Making of Environmental Law, "In theory, environmental law should never have happened." Politicians gain little by enacting laws that ask people to pay for benefits they may not experience. In addition, many accuse environmental law of contributing to economic decline. Lazarus pointed out, however, that environmental laws have not significantly decreased economic growth; some have even spurred new industries, like pollution control. While environmental laws have undergone their fair share of growing pains, they are now embedded in the fabric of our economy, society, and political system, leaving virtually no sector unaffected. As Lazarus remarked, environmental law "accomplished in the U.S. nothing less than a legal revolution….[They] completely rewrote the laws relating humankind's relationship to the natural environment."
The Present: A Reed in the Wind
Lazarus bemoaned the graying of environmental laws: "Environmental law… unfortunately seems to be stagnating at a time when the demand for change and innovation is no less pressing than it was." While problems exist nationally, the international realm holds the greatest risk of environmental degradation due to a lack of effective law-making institutions, as well as a mismatch between environmental laws and the ecosystems they are attempting to safeguard. The dynamic and interdependent nature of ecosystems necessitates a similar dynamism and interdependency in the law, one that can recognize complexities and thresholds.
Lazarus observed that U.S. environmental law was born in the era of space exploration and atomic power, when the environmental movement offered hope for a better future. Today, the Iraq War has pushed people away from the environment, focusing attention on the short term rather than the long term. This is compounded by the American populace's lack of connection to place. Smaller families move more often, live on larger pieces of land, drive bigger cars, and even eat greater quantities of food. According to Lazarus, "the resurrection in the United States of a culture of materialism… threatens to reverse a lot of progress that has been achieved over the last several decades."
Gus Speth, the former chair of President Carter's Council on Environmental Quality, questioned the power of international environmental law and decision-making to address our current environmental problems. "It's past time to ask is it working, because the fact is that it didn't work, it's not working well.…It is too weak a reed on which to base our primary reliance in dealing with these great global scale issues." International laws are too easily watered down, and the United States is currently the greatest obstacle to an international environmental regime.
Instead, in his latest book, Red Sky at Morning: America and the Crisis of the Global Environment, A Citizen's Agenda for Action, Speth urges that we examine the drivers of environmental harm—most of which have been ignored—such as technology, consumption habits, and prices. These multifaceted problems require multifaceted responses. Unfortunately, he stated, "We are not taking these issues up. We are missing this one just like we missed terrorism and its seriousness."
Russell Train also expressed his deep concern about the present situation. "I have to admit dismay that President George W. Bush and his White House have shown so little leadership on environmental issues and so little apparent understanding of these issues' overriding long-term implications for the well-being of the American people as well as the world at large….I find it unacceptable that the current U.S. political leadership should demonstrate such disregard for and disinterest in values that are among the most crucial concerns of humanity today."
The Future: A New Jazz Age
Although environmental law has stagnated, Speth, Lazarus, and Train all pointed the way forward. Speth, who co-founded the Natural Resources Defense Council and World Resources Institute, asserted that we need to promote the "jazz," bottom-up initiatives occurring across the nation and the globe. Some of this "jazz" is playing in the 26 states passing their own measures to curb emissions, and in Chicago, whose officials have pledged to transform it into the greenest city in the United States; it is also being played by many NGOs, voters, consumers, and employees. As Speth observed, the infrastructure is already in place or being built, and it is just waiting for the spark that will set it off. But, that spark will require leadership. "It takes people of vision, it takes people of compassion for humankind. It also takes people of respect for the dignity of others, beyond humankind, on the planet," said Lazarus.
All three concurred that bipartisanship must be revived, as the environment should not and cannot afford to be considered a partisan issue. As Russell Train declared, "It was the leadership of the United States both at home and abroad that helped move the world through positive and cooperative engagement to new levels of environmental commitment and achievement. We need to find that road again. It is the only path to a sustainable future for humanity."
Q & A: Not a Sexy Beat?
All three speakers decried the voters' lack of interest in the environment. Train felt that it "does matter to voters but I don't think it matters in the short-term….not nearly as much as the war and terrorism." Citing a recent poll in which terrorism and the environment tied as important public concerns of the next 20 years, Speth remarked, "I think it's out there, but we're not seeing much of it in the campaign….With so much focused on swing voters and swing states, we seem to be missing a real chance to have a sustained and hard-nosed environmental dialogue." Lazarus noted that politicians keep quiet because they don't want to challenge people's aspirations to be good, or ask them to sacrifice their lifestyle. He also observed that short-term election cycles make it "hard for politicians to worry about it, when the public thinks short-term and the issues are long."
Train blamed the media for this situation, noting that early in the campaign, Kerry had given a major speech on environment, but got no response and no press coverage. "I think we've lost the media," Speth concurred. "I don't think is as sexy a beat now [as the 1970s]." He proposed a solution:
If I had $100 million to spend…I would get the best talent I could find in our country, and spend it all on a very sophisticated, sustained public interest advertising campaign. That's the only way we're going to reach enough people soon enough, with real information, to make the difference we need to make in time. I'm a deep believer in education…but we've got to get the message out. We've seen major change through the designated driver campaign, drugs, HIV/AIDS, smoking….We can do it on these issues, too, and we can learn from these experiences, but it will take some real resources.
After September 11, the public is "very focused…it's very hard to get the press to… understand that these are real issues, and that a lot of our real national security problems have environmental roots, natural resource roots. And you don't solve one of these problems by not addressing the other."
An audience member asked if the speakers could suggest any new promising techniques as alternatives to old-fashioned adversarial lawsuits and legal actions. Lazarus noted that the current generation has received an unprecedented level of environmental education through the public schools, but it might take "some kind of catastrophic event to wake people up and release these concerns," rather than any new "lawmaking gimmickry." Lazarus also advocated working with industry: "There is so much that environmental protection law delivers that is incredibly important to business….It would be wonderful if the environmental groups could find a way to tap into those sentiments….A lot of people depend upon these laws for their livelihoods, and it's not just people doing it for altruistic or aspirational reasons."
While "bringing those lawsuits is a lot of fun," Speth noted that international environmental law inhabits an arena that is entirely governmental with barriers that traditionally inhibit public participation. "There are no procedures for public access to that process….It's just the sovereign entities among themselves. We've got to break down those barriers." An audience member suggested one possible point of entry that ties the United States' current preoccupation with security to long-term environmental goals: "In order to get cooperation of other nations, we need to pay attention to their issues," and thus, the United States could exchange its support for international treaties like Kyoto for greater cooperation and peace around the world.