Recentering Environmental Law: A Thought Experiment

If we had understood then what we know now. . . .

In 1965, scientists sent LBJ a memo mentioning the risks of climate change. Imagine if history had been a little different. Suppose it had been this memo and a follow-up report, rather than Rachel Carson’s attack on pesticides, that sparked the environmental movement. How would environmental law look different and how might we be thinking about it differently?

First of all, we would have had a very different understanding of the air pollution problem. We thought that the key to reducing air pollution was to require better pollution control devices. Instead, we would have understood that the root problem was the burning of fossil fuels in the first place. Conventional pollution controls would have been seen as transition measures until the shift to clean energy, so the Clean Air Act would have been written differently. We would have started pumping money into renewable energy research. We would have known that we needed to build new transmission lines. And we would have created incentives for clean energy sources.  Environmentalists would have been more open to thinking about existing zero-carbon power from nuclear.

We would also have understood the link between energy law and environmental law much earlier.  Energy conservation would have been seen as a key environmental strategy, and we would have understood that that real solution to urban air pollution control was changing the energy mix away from fossil fuels in general and coal in particular.  We would not have been surprised to see state governments, with their direct involvement in approving new power generation, taking a leading role in this area.

Similarly, we would have understood that the problem wasn’t just cars producing smog but urban designs and transportation systems that produced a car-based society.

Other parts of environmental law might also have looked different.  We might have thought more about the need to preserve carbon sinks like forests and soil, and we would have focused a little more on habitat conservation and a little less on saving individual species. Knowing that we would be unable to completely avoid higher carbon levels, we would also have realized that the idea of protecting “untouched nature” was a mirage, and that we really needed to think more broadly about biodiversity and ecosystem reliance.

The point that I’m trying to make is not about alternative history but about our ways of conceptualizing environmental law.  Environmental law is not all about climate change, but climate change is the central issue today. Understanding that should lead us to reconceptualize the field as a whole.


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Reader Comments

6 Replies to “Recentering Environmental Law: A Thought Experiment”

  1. Dan, I Hope and Pray you have better luck with the Powers That Be this time than you did with:

    “Where Berkeley falls short, in my view, is that there’s little leadership from the top and little structure at the campus level to organize climate efforts.”

    But when someone like Hansen concludes:

    “We Are Damned Fools”

    there seems to be no possibility that The Powers will care about the survival of the human race more than they do about MONEY in time to allow you to save future quality of life for our newest generations.

  2. The chapter on Climate Modification in the very first CEQ annual Environmental Quality report, required by NEPA and published in 1971, is thought-provoking. One section discusses the possibility that the earth is getting seriously cooler, while another discusses the reverse possibility, serious warming. The general theme is that scientists didn’t know yet. I don’t recall whether fossil fuel burning impacts were mentioned. I wonder how the ‘65 statements to LBJ relate to the CEQ’s statements.

    1. Ken – I used to read the CEQ reports religiously and regret that they’re no longer produced.. I have to admit, though, that I have no recollection of the first report. It’s definitely clear, however, that climate science has dramatically firmed up over the past forty years.

  3. You might also thought-experiment with the year 2000 election of President Gore.

    Here in reality, we may find that Florida’s electile dysfunction sealed its coastal destruction…

  4. In – I agree with everything you say, but it’s really 30 years too late. I was in the Carter Administration’s NOAA, when the general reading of the climate problem was “that’s a problem for the 21st Century. We’ve got more urgent issues, like racism and poverty and global inequality and colonialism.” Generally, I say better late than never, but we experts haven’t begun to prepare humanity for what’s coming on the nightly news over the next 4 decades, and I expect humanity will pay a steep price, if modern civilization and social order survive at all. The political disfunction that will follow on significant climate changes, mostly irreversible, will not be accepted rationally by the unprepared masses (already fighting about the higher prices of food, gasoline, and energy.) But keep up the fight!

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About Dan

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…

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About Dan

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