Document Type

Article

Publication Date

2024

Abstract

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious nature of the nation’s environmental laws, the environment and environmental law in the United States today face many pressing challenges, among them climate change, political vacillations, and a currently antiregulatory Supreme Court that uses unpredictable linguistic games and fact-free exaggerations to reject protective actions. This six-justice antiregulatory majority on the Supreme Court has, in 2022 and 2023, begun to embrace its newfound power and act to further its preferred views of the world, politics, and environmental policy. As discussed below, these antiregulatory justices don’t like agencies, don’t like deference, don’t trust Congress, and find statutes wanting. These justices seem confident in their analytical rigor and integrity, yet often paint skewed views of regulatory actions, trod sloppily over what statutes actually say and do—especially in their neglect of laws’ protective designs and choices—and instead focus almost exclusively on resultant costs claimed by those opposed to the laws’ protective goals.

This article, based on a 2023 Distinguished Lecture at Florida State University College of Law, focuses on the role and possible corrective power of facts, science, and other sorts of “effects claims” in environmental law policymaking. After briefly identifying the fact and science-linked problems motivating this article, I turn to several predictable sorts of fears that both shape our environmental laws and motivate resistance norms that threaten environmental progress. I next turn to the double-edged sword of faith—not in the religious sense, but in the sense of trust or confidence in people and institutions that affect environmental outcomes. Different sorts of faith are displayed by, and motivate, both environmental interests and those seeking to shelve or weaken environmental laws.

This article argues that more rigorous documentation and testing of facts, science, and other effects observations, assertions, and predictions—which this article labels as “effects claims”— and overt challenges to conjecture, dissembling, and exaggerations, could force all to engage with evidence and empirical judgments made salient by legally binding choices reflected in this nation’s environmental statutes. The focus should be on facts, science, and tested effects claims linked to each statute’s particular express goals and action criteria. This increased reliance on and documentation of facts should include development of scientific evidence, assessments of technological and business practice capacities, and on-the-ground observations about environmental ills and effects claims about such risks, harm-creating actions, and regulatory responses. More factually-tethered regulatory actions, built on such documented and tested effects claims, could reduce wild oscillations, check judicial overreach, and even build trust and lock in progress. Law—especially environmental law—as mostly a word-based power game must be de-emphasized.

Publication Citation

Journal of Land Use & Environmental Law, Vol. 39, Fall 2023, Pp. 1-39.

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