The Anthropocene and public law

Major doctrinal changes could occur in constitutional law, administrative law, criminal law

In this post, I will discuss ways in which the Anthropocene might affect public law doctrines, focusing on constitutional law, administrative law, statutory interpretation and criminal law.

Again, the changes here are driven by three characteristics of the interaction of the Anthropocene with the legal system that I have developed in my prior posts: a rapid increase in the number and scope of ways in which human activities affect the planet; an increasing share of those impacts being driven by the aggregation of millions and billions of individual activities; and the inevitable need for a substantial role for state intervention to address these challenges, no matter the specific policy tools that are relied upon.

In constitutional law, the Anthropocene will force a further blurring in the lines dividing what is local from what is national or what is global, complicating doctrines intended to constrain states or the federal government from exceeding their powers under the Constitution.  For instance, if global impacts such as climate change are the result in substantial part from millions or billions of individual activities around the world, then a wide range of activities that previously would have been considered purely local suddenly have significant global implications.  A significant portion of greenhouse gas decisions are the result of land-use, forestry, and agricultural decisions.  While the Supreme Court in decisions such as Solid Waste Authority of Northern Cook County indicated that it saw land-use regulation as primarily something reserved to the states, if land-use decisionmaking affects climate change, it is also an issue of federal or international importance.

In administrative law, the Anthropocene will present new challenges on an accelerating basis, with new human activities impacting the planet and existing activities becoming increasingly problematic.  That will create pressure on agencies to interpret existing laws to apply to new situations more and more – fueling existing debates about the proper role of agencies interpreting and applying statutes under doctrines such as Chevron.  Likewise, the courts will be faced with increasingly difficult statutory interpretation questions as agencies and litigants are forced to apply old statutes to a rising wave of new problems.  Of course, this problem can be solved if Congress increased its pace of legislation – that seems unlikely, at least in the near future.

Finally, in criminal law, the Anthropocene will put pressure on a range of doctrines that seek to limit the scope and application of criminal penalties, particularly to everyday behaviors.  Doctrines such as mental state requirements for criminal penalties help limit the application of criminal law to everyday activities that most people believe to be acceptable.  But again, these everyday activities will increasingly be the activities contributing to the challenges of the Anthropocene. Doctrines such as the rule of lenity limit the application of vague or broadly worded criminal statutes to new situations not specifically identified in the statute – again, creating a tension with the realities of the Anthropocene where new problems will arise with increasing frequency.  Given these concerns, we might choose to not use criminal law as a tool to address many of the problems of the Anthropocene, but that may place increasing burdens on areas such as administrative law, which will have its own challenges.

(A link to my law review article that is the basis for these posts is here.)

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