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The title of this Essay, "Judging Environmental Law," evokes several different themes. On the one hand, the title presents an occasion to discuss the role of judges in environmental law. On the other hand, it offers an opportunity to judge environmental law itself: whether environmental law is guilty, as charged by some in industry, of overreaching in its regulatory requirements; or, whether environmental law is instead guilty, as charged by some environmentalists, of underreaching, by failing to address pressing pollution control and natural resource management concerns. Finally, the title of the Essay possibly presents an occasion for a more theoretical inquiry: to consider the nature of environmental law itself. What, if anything, makes environmental law unique? Is environmental law just an incidental context for resolving legal disputes in which environmental quality and pollution control are at stake? Or is there something more unique about the nature of laws arising out of such disputes that warrants a distinct label? My objective is to tie together these three seemingly disparate themes. My thesis is that environmental law is one of the law's great success stories of the twentieth century. A major reason for its success, moreover, has been the role of the judiciary. Yet, critical to the role of the judiciary has been judicial apprehension of the particular demands of environmental law: how and why it is unique and important. For that same reason, however, I am concerned about the future of environmental law. I am not as persuaded that judges today possess the necessary appreciation of the nature of environmental law. Indeed, judges today are more likely to harbor heightened skepticism toward, rather than solicitude for, environmental law.


Originally published in 18 Tul. Envtl. L.J. 201-18 (2004). Reprinted with the permission of the Tulane Environmental Law Journal, which holds the copyright.

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18 Tul. Envtl. L.J. 201-218 (2004)