The Environment and the Rule of Law

Without the rule of law, environmental protection has no chance of succeeding.

Trump is on a rampage. He has big plans for a mass repeal of existing regulations; he’s trying to use emergency declarations to short circuit normal environmental protections; and he’s savaging environmental agencies. He’s also at war with the rule of law, dodging court orders, ignoring statutes, and punishing lawyers and law firms that have dared to challenge him.

In area after area, Trump has tried to sweep aside legal constraints.  Part of the point of Trump’s “shock and awe” campaign has been to overwhelm the ability of opponents and the courts to keep up with his legally questionable actions. Trump’s attack on the bureaucracy is also an attack on the rule of law, because one of the key functions of bureaucrats is to ensure that the government follows the rules. Trump has also tried to impede access to the courts by demanding that opponents of Administration decisions provide expensive bonds to get injunctions.  Judges who rule against the Administration are attacked by government officials and in organized campaigns on social media.

It’s no coincidence that the environment and the rule of law are both targets, because environmental protection is particularly dependent on the legal system for support.  There is a lot of wisdom to the slogan, “The Earth needs a good lawyer.”

In any given clash, industry always has the edge over the environment in economic terms and the influence that generates.  It is hard to mobilize diffuse groups like victims of widespread pollution or people who care about endangered species or climate change. Their opposition consist of companies with big economic stakes — and, typically, with a lot of political clout. Given the imbalance in resources, piecemeal lobbying for help in individual cases is often impractical; the best hope is often to organize to obtain general rules and then use the courts and bureaucracies to ensure the rules are followed.

Crony capitalism is especially damaging to the environment. If government influence is for sale, that’s an auction that environmental groups cannot hope to win.  Crony capitalism means governing by granting favors to allies, often in return for tangible benefits, rather than following uniform rules. Environmental groups have few favors to grant, whereas powerful industries like gas and oil thrive around the world in settings where government favor are bought and sold.

This is going to be a very difficult four years for environmental protection. The Trump Administration has apparently never met an environmental law it liked. Defending the rule of law will be crucial if we are to prevent irreparable harm to our environment, not to mention our democratic system.

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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

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