Environmental Law, Doctrinal Issues In

Environmental law regulates human interaction with the environment. A complex area of law, its breadth includes controls over land use, the management and protection of natural resources and wildlife, the regulation of hazardous substances, and the remediation of contaminated sites.

Environmental law and policy issues are frequently controversial for several reasons. Environmental impacts can take many years to appear and still longer to repair, if indeed repair is possible. Nor is it always possible to anticipate and avoid such impact altogether because science sometimes cannot predict with certainty the effects human activities will have on the environment. Even when the cause and extent of environmental impact is identified, competing values—social, economic, and ethical—may impede consensus among decision makers on the need for, as well as the form and extent of, a response. Furthermore, environmental effects do not respect political boundaries. A coordinated intergovernmental response is often possible only if the difficult task of bringing different autonomous decision makers together and reconciling competing economic, social, and environmental interests can be successfully accomplished. As a matter of ethics, members of the present generation hold the environment in trust for the benefit of future generations (intergenerational equity) and have a responsibility to share natural resources fairly with other members of the present generation (intragenerational equity). These factors combine with pervasive conflicts between public and private sector interests to make appropriate responses to environmental issues difficult to identify and implement.

In the United States, modern environmental law is based primarily on statutory enactments at the federal, state, and local levels of government. Comprehensive federal statutes dominate the legal landscape. These statutory enactments have largely supplanted common law, which has continuing influence and importance in only a few areas, such as toxic torts and public nuisance. Doctrinally, however, the common law notion that the one who causes harm through pollution should bear responsibility for it is embedded in federal environmental laws, which tend to shift the burden of environmental regulation to those entities responsible for adverse environmental and human health effects. State and local environmental laws—adopted pursuant to the police power for the protection of the health and general welfare of citizens—may increase in importance over time, particularly if proponents of federal deregulation are successful.