Environmental Law and “The Law of the Horse”
“The Law of the Horse” is the title of the (perhaps apocryphal) treatise on the same subject. The point of the reference is that “there’s no there there,” as Gertrude Stein might have said: the law of the horse would simply be a compendium of contract cases that happened to involve horses, tort cases that happened to involve horses, etc.
Is that also true of environmental law? Is it just a compendium of administrative law issues that happen to involve the environment, tort cases that happen to involve the environment, etc.? Or is there something that gives the field intellectual coherence?
Some fields get their coherence from a single governing legal document, whether that’s the Constitution, the Federal Rules of Civil Procedure, or the Internal Revenue Code. That’s not true of environmental law, which has at least a half dozen major federal statutes.
But environmental law does have some distinctive aspects that cut across specific environmental problems like air pollution or hazardous waste. Here are three that strike me as most significant:
- Regulatory methods. U.S. environmental law has not articulated general principles to the same extent as EU law (for instance, the precautionary principle), but there are standard approaches to assessing possible risks and managing them that cut across specific fields such as air and water pollution.
- Scientific uncertainty. Environmental law is the field of law that most encounters the need to assess scientific evidence and to make decisions in the face of scientific uncertainty. In contrast, most areas of law have zero contact with modern science.
- Environmental economics. Environmental law has been shaped by its relationship with the sister field of environmental economics. Much of environmental law scholarship is defined by its adoption or rejection of ideas from environmental economics, and (for better or worse) economics has deeply permeated the implementation of environmental law.
Others may have their own thoughts about what unifies the field of environmental law. But the three listed above should give some sense of why many of us find the field so intellectually rich
Addendum For another view of this questions, you might want to look at two articles by Todd Aagard, one in the Cornell Law Review and the other in the Duke Law Journal. Aagard stresses two distinctive features of environmental law: physuical public resource and pervasive interrelatedness.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more