The Demise of Environmentalism in American Law. - book reviews

Reason, Jan, 1997 by Lynn Scarlett

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.