Last week, Richard Lazarus ’79 took an audience at Harvard Law School through a vivid exploration of the making of environmental law, the topic of his landmark book of the same name, which was first published in 2004 and which he has extensively revised in a new edition published this month, taking stock of developments over the last two decades.
In the talk sponsored by the Harvard Law School Library, Lazarus, the Howard and Katherine Aibel Professor of Law, began by asking the audience to consider why it is so hard to make environmental law, drawing on his many years of experience on the frontlines of legal and policy battles. He was joined by panelists Martha Minow, 300th Anniversary University Professor, and Andrew Mergen, a visiting assistant clinical professor of law and faculty director of the Emmett Environmental Law & Policy Clinic. Part of the answer, said Lazarus, has to do with the laws of nature and the nature of lawmaking systems, and how they meet each other and collide.
“What nature does,” he said, “is spread out cause and effect when it comes to environmental contamination and pollution over time and space.” Accidents in one place have consequences in another. Accidents at one time have consequences at another. “We are not talking about minutes. We are talking about years and decades, he said. “We are not talking about yards. We are talking about miles and thousands of miles.”
“And when you spread cause and effect out that has consequences for law. You are regulating people and activities at one time and one place for the benefits that will be secured for people at another time and another place. It is inherently distributional.” And that makes it hard to pass those laws, he said, “because the benefits and the burdens are spread out.” In addition, under these circumstances, it’s hard to know exactly what the cause and consequence will be. “Environmental law is riddled with uncertainty.”
“Environmental law is riddled with uncertainty.”Richard Lazarus ’79, the Howard and Katherine Aibel Professor of Law at Harvard
That is the fundamental dilemma of environmental law, he said. “You are going to regulate some people in one time and place for the benefit of others, and you can’t even tell the first people with certainty that what you are trying to prevent is going to happen.”
And yet, he said, if you fail to act in time, you are faced with the prospect of irreversible consequences. “So, you are often forced to act early, before you know all the science. Before you know all the costs.”
When you add those factors to the nature of our lawmaking systems, he said, “you see we have a problem.”
“The framers by deliberative design, and for good reason, decided to make it hard to make major national laws that are redistributive,” he said. So, they fragmented lawmaking authority horizontally, he said. “We give our national government not absolute police powers, but Commerce Clause powers, and spending powers, and taxing powers. So, you are forced in environmental law to kind of fit it in.” You end up arguing, for example, that the Endangered Species Act is regulating commerce, he said.
“Again deliberately hard, he said, “because the framers were wary of these kinds of laws. But environmental law needs them.”
Lawmaking authority is also fragmented in a vertical way he said. “Again, deliberately, because the framers did not believe in an all-national government. They believed in states as sovereigns.” But environmental law takes a broader look, said Lazarus, which is another dilemma with our lawmaking system. States play an important role in getting these laws passed, Lazarus said, but you need a national system.
We also have a system where people run for office on short-term time horizons. “Politicians are responsive to the here and now,” said Lazarus. “They don’t get any votes from the there and then.”
“Politicians are responsive to the here and now. They don’t get any votes from the there and then.”Richard Lazarus
Considering all of these obstacles how did environmental law ever develop?
To answer that question, Lazarus asked his audience to look back to the 1960s, a period he said had captured the fears and sometimes the aspirations of the American people. He pointed to Rachel Carson’s famous book “The Silent Spring.” People began to worry about contamination and toxic substances in a way they had not before. And by the end of the decade, people were seeing environmental disasters on their TVs, from Cleveland’s Cuyahoga River on fire to the oil spill in Santa Barbara. The 1960s were also a time of enormous strife, and tragedy, including the assassinations of major political figures. The country was divided by war and race, and by massive demonstrations, said Lazarus.
And environmental law offered the country something that could bring people together: a moment of synthesis. You could see it reflected in the popular culture of the time, he said, in lyrics of songs such as Marvin Gaye’s anthem to the environment, “Mercy, Mercy Me,” or Joni Mitchell’s singing that “They paved paradise and put up a parking lot.”
Politicians, too, responded to the moment. President Richard Nixon, who took office in 1969, was not an environmentalist, said Lazarus, but he was a political genius. He spotted an opportunity for the nation to come together over environmentalism. During his first year in office, Nixon signed into law the National Environmental Policy Act, “the Magna Carta of environmental law” said Lazarus, as well as the Clean Air Act, the nation’s first hard-hitting pollution control act. And during Nixon’s next eight years in office, numerous other environmental laws passed by bipartisan majorities in the House and the Senate.
“Hardly anyone could vote against these laws. And they are not just rhetoric,” said Lazarus, “They are hard and demanding, on natural resource management, preservation, and pollution control.”
But the political momentum could not be sustained. Nixon himself after a few years began to shift away from environmentalism, said Lazarus, citing a comment Nixon made to an aide, “People don’t vote on responsibility, they vote on freedom.”
Ronald Reagan ran for president and won in 1980 on the idea of freedom — from government, before eventually signing another series of strong environmental laws.
George Bush then ran on being an environmental candidate and championed a new Clean Air Act, with the help of his EPA head William Reilly ’65, said Lazarus. But when Bush came to believe that the law was not helping him politically, he began to push back against efforts to safeguard the environment.
Ever since then, said Lazarus, it has been “presidential administration whiplash” on environmental law from president to president. “And all of this without Congress, with the statutes remaining static,” said Lazarus.
“It’s not as though the problems are static,” said Lazarus. “We need new legislation. We need Congress to act like they did in the ’70s and ’80s. But Congress shut down environmental lawmaking since 1990, so that every administration is trying to do thing with the old statutory language, which does not easily fit. It takes a lot of gymnastics to try to make these things fit. That is a disaster for lawmaking.”
In his talk (and in the new edition of his book), Lazarus focused in particular on climate change, “because this is environmental law’s worst lawmaking nightmare.” Environmental law is always hard, but climate change is unbelievably difficult when it comes to enormous spatial and temporal consequences.
“We consume more than we need to here, we produce more carbon dioxide. It causes famine, drought, floods, spread of infectious diseases, massive climate immigration in other parts of the world,” said Lazarus. “That’s hard to get your head around. And it’s hard for lawmaking to get its head around.”
“And you have these enormous time issues. If you don’t act quickly enough you lose the glaciers. If you don’t act quickly enough, the membrane in the northern parts of the globe melt, releasing catastrophic amounts of methane. If we don’t act, we may change the tides, the flow of the ocean on a global scale,” he said. “The longer you wait, the harder it is to do anything about it. And we are acting slowly.”
Despite all that, Lazarus said, “environmental law is an unbelievable success story and an incredible legal revolution.”
Benefits are higher than people had thought they would be and the costs are lower than anticipated, said Lazarus. The U.S. has enjoyed enormous economic growth since the 1970s without the accompanying environmental catastrophes seen in parts of the world that did not have these kinds of laws, he said.
But, he added, that success hasn’t been unequivocal. Environmental injustice persists, as do congressional log jams and Supreme Court hurdles. And climate change is accelerating.
“But as students in my classes know,” he told the audience, “my least favorite argument is ‘History is on my side. You are on the wrong side of history. You have to fight for history. If you stay quiet, you are not going to like what happens. That’s why it’s such a privilege to teach here. I get to teach the next generation of fighters.”
Want to stay up to date with Harvard Law Today? Sign up for our weekly newsletter.