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Environmental Law

Coming into the Anthropocene

The full text of this Book Review may be found by clicking on the PDF link below.

Law is the boring side of many interesting topics. Entertainment law is not famously amusing, nor is the law of war notably heroic or monstrous. Law is the place where passion comes to die of procedure.

Cover for Environment in the Balance: The Green Movement and the Supreme Court

Environment in the Balance: The Green Movement and the Supreme Court

By Jonathan Z. Cannon. Cambridge, Mass.: Harvard University Press. 2015. Pp. 374. $45.00.

Nonetheless, there is something especially poignant in this vignette from the early weeks of any introductory course on environmental law. Students arrive, animated by a memory of Yosemite Valley or a kayaking trip, a passion for biology or rock climbing, a love of oceans or animals. They find seats, deposit their water bottles, and open their laptops. Then they are introduced to the Clean Air Act and the National Environmental Policy Act (NEPA), the category of Best Available Technology, and the Finding of No Significant Impact.

Aesthetic judgments are notoriously hard to defend, but it does not seem controversial that environmental law is among the driest, most technical, and least thematically coherent fields around. If environmental law has a superstatute, it is the procedural NEPA, which does not engage the substantive values at stake in the natural world. Little in the way of rich or imaginative doctrine has developed: the field remains defined by court review of agency interpretation of statutes — making it, in effect, a subfield of administrative law, only with rivers and trees in the cases. Although much of the scholarship in environmental law has tried to find a master vocabulary in cost-benefit analysis, the law itself has an inconsistent, even erratic relation to economic balancing.

Not to put too fine a point on it, environmental law is often boring. Yet it is among the fields that people come to, and stay in, out of love. It is one area where procedure has not killed off passion. This is true despite the fact that the nature-loving students who fill environmental law classes find little in the statutes and doctrines to match the zeal of their commitments.

Professor Jonathan Z. Cannon knows both sides of this paradox with a rare intimacy. He was general counsel of the Environmental Protection Agency (EPA) from 1995 until 1998, following a nearly twenty-year career practicing environmental law in both the government and private sector. He is currently the Blaine T. Phillips Distinguished Professor of Environmental Law at the University of Virginia Law School, where, along with “hard” environmental law, he teaches a seminar, cross-listed with the English department, on the literature of environmentalism. He has spoken on public occasions about the adult lawyer’s version of the beginning student’s discomfiture: rooms full of high-powered advocates, expertly deploying technical vocabulary, none of them naming the underlying question that fuels their conflict — whether a tract of forest should be logged, a coal-fired turbine installed, or a piece of habitat paved for a highway. The conflicting commitments that bring parties and lawyers to the bar are often so concealed in technical forms that they are irrecoverably invisible.

Cannon’s debut book, Environment in the Balance, sets itself an ambitious task: to overcome this division by showing that environmental law, much as it may appear dry and dull, is deeply infused with conflicts over values. Cannon’s project is to reveal the green ghost in the gray machine, the soul of disagreement that lends shape to arguments that may otherwise seem aridly technical. He does this by carefully reading thirty major Supreme Court decisions in environmental law and teasing out the differences in worldview that animate the Justices’ reasoning — divisions that are not simply over abstract legal questions, but rather reflect divergent views of the natural world and the human place in it.

This Review places Cannon’s arguments at the cusp of a new era in environmental law, politics, and culture that is also a new era of planetary history: the Anthropocene, or “age of humanity.” In the Anthropocene, people have become a force, arguably the force, in the development of the planet. From atmospheric chemistry and global weather patterns to biodiversity, the world we inhabit is increasingly the world we are creating. This suite of changes has great meaning for understanding environmental law.

Parts I and II of this Review present a faithful and admiring account of Cannon’s major arguments. They trace the struggle between environmentalist and anti-environmentalist worldviews in key interpretive contests: over the scope of Article III standing; the place of private property in the Fifth Amendment’s Takings Clause; the prohibition on “taking” a member of an endangered species in the Endangered Species Act (ESA); and the procedural and/or substantive character of NEPA. Section III.A then assesses Cannon’s weighing of the prospects for synthesis among competing environmental worldviews, notably in market-oriented environmentalism and the enthusiasm for technology among, for instance, advocates of geoengineering as a response to climate change. Section III.B locates Cannon’s topic within the last forty-five years of environmental law’s history. The environmental worldviews of judges are particularly interesting now because environmental legislation has stalled, making interpretation by courts and agencies especially salient. Therefore, how these interpreters reason, and how their reasoning is influenced by the environmental worldviews that Cannon traces, contributes significantly to the development of environmental law in practice.

In section III.C, I introduce the concept of the Anthropocene and argue that both types of worldview that Cannon traces, the environmental and ecological and the anti-environmental and pre-ecological, are products of pre-Anthropocene understandings of environmental problems. They presuppose a relatively stable meaning of “nature,” both empirically — what nature is and how it works — and normatively — what the value of nature is and how human values fit within it. Both the empirical and the normative baselines are irrecoverably gone in the Anthropocene. In the future, both the material characteristics of the world and the values embodied in it will be, in important ways, products of human activity and decision.

In Part IV, I argue that the human decisions that shape the Anthropocene should be political and democratic. In section IV.A, I consider the alternatives — market-modeled economic rationality and administrative technocracy — and argue that neither is conceptually adequate to solve a problem that involves not just clarifying and aggregating values, but also choosing those values in the project of choosing what sort of world to inhabit. The source of these choices is not expertise, but the larger ferment of cultural argument, which only politics can make the basis of collective choice; only democratic politics, in turn, can do so legitimately. If Anthropocene choices are not taken democratically, they will amount to the imposition, willy-nilly, of the preferred futures of some on the lives of others.

In section IV.B, I reflect on the difficulty of making good on what I have argued, particularly in light of the gap between the scope and capacity of existing democratic orders and the scale and intensity of interlinked economic and ecological changes. I argue that a choice of environmental futures is inseparable from a choice of economic futures: because economic life is the center of humans’ collective shaping of the planet, there is, in a real sense, no question of economic policy that is not also an environmental question, and no environmental question that can be resolved without corresponding economic judgments. Concurrently, those who recognize this expansion of the meaning of environmental problems must keep in view how very far the ideal of democratic decisionmaking about these linked environmental–economic questions is from the present reality of nominally democratic governments: inefficacy, inadequate scope, the oligarchy-making role of money, and persistent failures of collective self-restraint. For the reasons developed above, an environmental politics adequate to the Anthropocene question can arise only alongside an enhanced and expanded democracy.

 


* Robinson O. Everett Professor of Law, Duke University School of Law. Thanks to David Grewal for perceptive comments on an early draft, and to the Harvard Law Review.