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Book Review
| The Making of Environmental Law. By Richard J. Lazarus. Chicago: University of Chicago Press, 2004. xvi+318 pp. Notes, index. $35.00.
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| In this book, Richard Lazarus provides a lively, elegant, and comprehensive account of how environmental law came to be, what makes it distinctive among legal institutions, why it has persisted, and its future prospects. As Lazarus reminds us, it was not at all clear in the years immediately following the first Earth Day in 1970 that environmental law would be anything more than a "fad." His narrative details the explosive and, in retrospect still quite stunning, growth of this law in the 1970s and 1980s, culminating in the Clean Air Act Amendments of 1990, and documents its impressive—so far at least—staying power. |
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Federal environmental law in its modern form was enacted by overwhelming bipartisan majorities in Congress, in most cases with the concurrence of presidents, both Democratic and Republican. Lazarus's thesis is that the consensus among lawmakers was driven by the depth of public concern about the environment. In particular, he argues, the public's changing conceptions of space and time—an ecological awareness that had been forming for decades before the legislative breakthroughs of the 1970s—demanded a comprehensive restructuring of institutions affecting the environment. By locating the public's environmental preferences in an emerging view of the world that challenged traditional understandings enshrined in existing political and legal arrangements, Lazarus provides an explanation not only for the strength of these preferences in driving the creation of modern environmental law against formidable institutional odds, but also for the durability of these preferences in the face of repeated subsequent efforts to "reform" environmental law. |
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Both an environmental law professor and frequent Supreme Court advocate for environmental causes, Lazarus combines a knowledge of the scholarly literature, to which he is a significant contributor, and a practitioner's sense of the workings of environmental policy making and adjudication. It is hard to think of an issue or a perspective that is missing from this account, but Lazarus manages adroitly not to get mired in the detail—not an insignificant danger when explicating of body of law notorious for its complexity. |
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Lazarus is hopeful about the future of environmental law. But the hopefulness is qualified. The law is not complete, it must continue to evolve, and in dong so "it will continue to challenge our lawmaking institutions and processes" (p. 208). Of more immediate concern, the bipartisan coalition that produced and defended environmental laws for two decades has disintegrated, and the existing laws are under pressure from the current majority in Congress and the president as well as an increasingly conservative federal judiciary. Unlike earlier episodes in the early 1980s and 1990s, when the White House or factions in Congress sought to weaken environmental protections, there has been no public uprising against the piecemeal changes that are now being carried out through appropriations riders, rule revisions and policy reversals. Noting trends within the electorate that contradict the ecological mindset that seemed so pervasive in the 1970s and 1980s, Lazarus himself is not entirely sure that there will be one. Environmental law has gone on too long and endured too much to be called a fad. But the future is uncertain. Perhaps this means that at some point we can hope for a sequel to this wonderful book. |
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Jonathan Cannon is professor and director of the Environmental Law Programs at the University of Virginia School of Law. Previously, Cannon practiced environmental law in Washington, D.C., and held several senior positions at the U.S. Environmental Protection Agency, including general counsel. |
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