Back to Basics
The Demise of Environmentalism in American Law, by Michael S. Greve, Washington, D.C.: American Enterprise Institute, $29.95/$9.95 paper
In 1992, Defenders of Wildlife sued Manuel Lujan, then secretary of the interior, seeking to compel the federal government to apply the Endangered Species Act to foreign nations. The plaintiffs claimed they had visited ecologically sensitive areas in Egypt and Sri Lanka that later became sites of large-scale development projects funded by the U.S. government. These projects, the suit protested, threatened certain endangered species, thereby depriving the plaintiffs of the opportunity to observe these animals in the future. The U.S. Supreme Court ruled that the lawsuit's affidavits "plainly contain no facts…showing how damage to the species will produce 'imminent injury'" to the plaintiffs. The Court found the Defenders of Wildlife had no legal standing to sue.
This result, writes Michael Greve in The Demise of Environmentalism in American Law, marked a "direct challenge" to legal doctrines that had emerged over the previous 25 years. Greve, a political scientist and executive director of the Center for Individual Rights, a public interest law firm, argues that Lujan v. Defenders of Wildlife is one of several cases indicating that the courts have begun to question the basic philosophical principles of modern environmentalism.
It might seem odd that environmental regulations and related court cases have garnered so much national political attention. Federal environmental spending is just a fraction of outlays for national defense, Medicare, and other entitlement programs. And except for a handful of industries, private spending on environmental compliance pales in comparison to other costs imposed by government on business. So why all the fuss? The answer is that environmentalism is a coherent ideology that rivals Marxism in its challenge to the classical liberal view of government as protector of individual rights.
For Greve, the essence of environmentalism is a vision of "a world in which everything is connected to everything else." From this basic idea flow certain legal and political principles: "Environmentalism views common-law rights–such as private property and freedom of contract–as a menace to an imperiled planet. It therefore aims to eviscerate common-law rights and to replace them with a legal regime that would organize transactions among individual citizens for a single public purpose, environmental protection. Environmentalism thus pushes toward a centralized, unlimited political scheme. To the extent that this scheme allows for 'rights' they are defined and circumscribed by public purposes." In the world of the courts, says Greve, this environmental paradigm has translated into an unprecedented erosion of property rights, a loosening of criteria for determining standing to sue, and a transformation of the courts' constitutional role.
The Demise of Environmentalism in American Law is an important book in three ways. First, it succinctly restates some key philosophical premises of modern environmentalism. Second, it offers a highly readable and subtle exploration of several central tenets of American constitutional law. And third, in exploring the environmental paradigm and its effects on American law, it also ends up offering a brief but perceptive exploration of individual freedom as expounded by classical liberalism.
Environmentalism, Greve explains, views the world "as an infinitely complex, interdependent, and fragile place" where "small events may have large, unforeseen consequences." Preserving "spaceship Earth" therefore requires "an unconditional commitment to a one-dimensional value"–environmental protection–that trumps all other values. Environmentalism thus replaces traditional American interest-group politics, in which multiple values undergo constant balancing, with the unbounded pursuit of a single value. From this perspective, individual rights are an impediment to a more encompassing and transcendent public interest. If everything is connected to everything else, the ideas of property rights and individual autonomy are obsolete. In such a world, virtually any individual action may have catastrophic environmental consequences. "In a world of pervasive externalities," explains Greve, "legal relations and instruments that are modeled on private transactions seem hopelessly dysfunctional…and must therefore be discarded."
Greve demonstrates that for more than two decades U.S. court decisions on environmental matters acquiesced to this view of individual rights and property. The acquiescence eroded property rights and nullified the Fifth Amendment's requirement of compensation for individuals whose property is taken for public use. It also transformed the traditional concepts of "harm" and "standing" that determine when a person may sue. Finally, it turned the courts into virtual rubber stamps for an environmental agenda unconstrained by any countervailing values. Greve takes the reader on a quick journey through a series of court cases that established these trends.
But Greve's main project is not to recount what many already know and lament. Instead, he turns to the present and, with some optimism, sees a return in recent court decisions to American common law traditions. Common law relies on the idea that there are discernible distinctions between mine and thine and that property rights provide "a fence or boundary around a private sphere of autonomy." Greve argues that "central to the traditional idea of property is my right to exclude you (and all others), so long as–and because–what I do within my sphere of autonomy does not affect you." But the "right to exclude loses its meaning if everything I do within my boundaries affects everyone else," as environmentalism implies.
The courts, says Greve, have begun to recognize the slippery slope created by this environmental philosophy. The idea that there are no spheres of autonomy–that there is some generalized entitlement to a sound ecosystem–is "tantamount to legalizing aggression by all against all." Anyone's labor and anyone's property become subject to confiscation without compensation by others. The Supreme Court rejected this premise in the 1992 case Lucas v. South Carolina Coastal Commission. David Lucas contested the state's right to prohibit him from building on his coastal property. In essence, the Supreme Court ruled that a "taking" within the meaning of the Fifth Amendment occurs if a prohibition on the use of property goes further than the state's common law of nuisance would have permitted.
The resurrection of property rights, says Greve, has been accompanied (probably inevitably) by a return to stricter criteria for "harm," requiring plaintiffs to show a "palpable," "direct" injury, as the Supreme Court did in the 1992 Defenders of Wildlife case. Similarly, in the 1990 case Lujan v. National Wildlife Federation, environmental activists said they were adversely affected by Bureau of Land Management decisions on 1,250 tracts of land, but the "Supreme Court found these allegations insufficiently specific to support standing and essentially held environmental groups to the same pleading and evidentiary requirements that would apply to any other plaintiffs."
Common law is fundamentally a discovery process in which the courts sort out where one person's sphere of autonomy ends and another's begins. It was therefore not possible for the courts to resurrect property rights and impose a requirement of discernible harm without also rejecting a view of the courts as guardians of a single "public interest." Under the environmental paradigm, the courts had taken on the role of an executive review board, upholding vague, boundless legislative claims without constitutional scrutiny. By returning to common law principles, the courts reinvigorated a separation of powers in which they examine legislative acts within a constitutional context.
Greve does a good job of summarizing modern environmental philosophy and its impact on the courts. His argument that this philosophy is meeting its demise (at least in the courts) is provocative but less convincing, if only because the cases on which he builds his argument remain scanty. Furthermore, whatever may be unfolding in the courts, the old environmental paradigm continues to shape public sentiment and legislation. Efforts by the 104th Congress to codify requirements for takings compensation ran afoul of charges that such legislation would paralyze environmental protection. Common-sense proposals to put environmental legislation to some sort of cost-benefit test–a direct challenge to the pursuit of environmental values unfettered by tradeoffs with competing values–also could not get through Congress.
What is most interesting (but inadequately explored) in the book is the question of why a philosophy that emphasizes "the interconnectedness of all things"–essentially a restatement of the proposition that the world is complex–necessarily leads to an erosion of property rights. At times, Greve seems to imply that a focus on complexity could have no other outcome but collectivism. Yet he clearly does not believe this. Here and there, he admits that "complexity is an argument for private orderings, not against them." He adds that "decentralized and flexible private arrangements are far more easily tailored to a complex world than centralized, one-size-fits-all schemes: The more thoroughly such schemes attempt to mimic complexity, the harder they will crash on the law of unintended consequences." Greve then suggests that "an interdependent global economy may be especially dependent on clear (if somewhat artificial) boundaries; complexity may be more manageable in private backyards than in a worldwide political commons." He even acknowledges toward the end of the book that "the common law was, in fact, quite attuned to complexities–externalities, aggregate effects, multiple causation, unquantifiable risks, and indirect but nonetheless real effects….it did deal, as it had to, with complex social systems and ubiquitous and subtle externalities."
If the common law is also premised on complexity, then modern environmentalism's focus on complexity cannot, in itself, explain why that paradigm has moved us toward an annihilation of property rights, lax definitions of harm, and the view that the courts' role is to ratify some transcendent public interest. Greve's response to this point–not found in the book itself but outlined at an American Enterprise Institute seminar–is that the common law view, which sees simple rules that define spheres of autonomy as the solution to the problem of complexity, is difficult to articulate and even counterintuitive. Thus, many people, obsessed with the idea of complexity, will seek to accommodate it through central plans and the imposition of a single public value above all other values.
Greve may be right that the common law's answer to complexity is counterintuitive. But other factors helped bring us to the current regulatory state of affairs. Greve fails to note that many modern environmentalists adhere to Progressive Era elitism and liberal egalitarianism. The elitism is expressed by a willingness to impose one set of values, articulated by an elect few, on everyone else without regard to any competing values that individual citizens might hold. The egalitarianism can be seen in a distrust of wealth creation and a suspicion of consumption beyond "basic needs." Linked with the focus on interconnectedness and complexity, these attitudes produce the legal and political outcomes that Greve describes.
Recognizing these additional components of environmental ideology is important because they help explain why, notwithstanding the trends in the courts cited by Greve, discussions of environmental reform among legislators do not look very much like a reorientation toward classical liberal precepts. On the one hand, takings compensation clearly is rooted in American common law traditions. On the other hand, the focus on cost-benefit analysis and risk assessment, while no doubt preferable to undisciplined goal setting, retains a strong philosopher-king flavor. This approach to reform sees regulatory pathologies as mainly a "people problem" for which the remedy lies in recruiting the right experts. Classical liberal thought, by contrast, emphasizes decision making structures and how well (or poorly) they align personal self-interest with moral action and public well-being. This approach may have begun to surface in some Supreme Court decisions, but it has received much less attention in environmental reform debates generally. And egalitarian precepts appear to be alive and well, especially in discussions about environmental justice and sustainable development.
These remarks, though, should not detract from the excellent exploration of environmental philosophy and its impact on American law that Greve provides. His thesis would be just a bit more compelling if he had not tried to tie so much importance to the single idea of "the interconnectedness of all things."
Lynn Scarlett (firstname.lastname@example.org) is vice president for research of the Reason Foundation.