The Next 40 Years of Environmental Law

University of Maryland Francis King Carey School of Law DigitalCommons@UM Carey Law Faculty Scholarship Francis King Carey School of Law Faculty 2013 Looking Backward, Looking Forward: The Next 40 Years of Environmental Law Robert V. Percival University of Maryland Francis King Carey School of Law, [email protected] Follow this and additional works at: https://digitalcommons.law.umaryland.edu/fac_pubs Part of the Environmental Law Commons Digital Commons Citation 43 Environmental Law Reporter 10492 (2013). This Article is brought to you for free and open access by the Francis King Carey School of Law Faculty at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. Copyright © 2013 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. he one thing we know about predictions for the Looking future of environmental law is that most of them are likely to be wrong . Uncertainty is a funda- Tmental feature of environmental challenges, and the track Backward, record of humans in forecasting future environmental challenges is not one that inspires confidence . In an edition of The Weekly Standardthat went to press on April 16, Looking Forward: 2010—four days before the Deepwater Horizon offshore oil platform exploded, precipitating the worst oil spill in The Next 40 U .S . history—a fellow at the American Enterprise Insti- tute wrote: “Improvements in drilling technology have greatly reduced the risk of the kind of offshore [oil] spill Years of that occurred off Santa Barbara in 1969 . To fear oil spills from offshore rigs is analogous to fearing air travel now because of prop plane crashes in the 1950s ”. 1 Oops . Environmental Some predictions have proven more accurate than oth- ers . The very first report of the Council on Environmen- Law tal Quality (CEQ), published in 1970, devoted an entire chapter to concerns that emissions of greenhouse gases (GHGs) could cause global warming and climate change .2 While this seems prescient today, prior warnings were issued by the French scientist Joseph Fourier in 1824 and the Swedish scientist Svante Arrhenius in 1896 . As sea lev- by Robert V . Percival els have steadily risen, it was well-known at the beginning of the 21st century that a hurricane could devastate New Robert V . Percival is the Robert F . Stanton Professor of Law Orleans or New York City . Following the devastation of and Director of the Environmental Law Program at the New Orleans by Hurricane Katrina, the director of the University of Maryland Francis King Carey School of Law . National Hurricane Center told the U .S . Congress in 2006 that it “is not a question of if a major hurricane will strike the New York area, but when ”. 3 A year before Hurricane Sandy deluged lower Manhattan in 2012, an author noted Summary a NASA climate study forecasting that “if a Category 3 hurricane, like Katrina, were to hit New York, it could cre- The only certainty concerning predictions for the ate a storm surge” that “would destroy billions of dollars future of the environment is that most of them are worth of property and could shut the city down ”. 4 likely to be wrong . This is illustrated by the fate of past To divine the future of environmental law, it is useful first to consider past predictions, how well they have fared, predictions, such as those contained in Paul Ehrlich’s Population Bomb, Gregg Easterbrook’s A Moment Author’s Note: This Article is based on a presentation by the author on the Earth, and Bjørn Lomborg’s The Skeptical at a program on “40 Years of Environmental & Natural Resources Environmentalist . While it is difficult to guess at the Law—A Prospective Look,” at the annual conference of the American future of the environment, predictions concerning Association of Law Schools on January 7, 2013. The author would environmental law are even more hazardous because like to thank Laura Dunn, Emma Currin, Ilana Kerner, and John they turn in large part on the future of politics . After Seery for their research assistance. 1 . Steven F . Hayward, The Energy Policy Morass, The Weekly Standard, Apr . reviewing current political gridlock over environmental 26, 2010 . The author later issued a “mea culpa,” while arguing that the concerns, this Article considers contemporary forecasts basic premise of his previous article was correct, despite the BP spill . Steven F . Hayward, How to Think About Oil Spills, The Weekly Standard, June of the fate of the planet (including those contained in 21, 2010, http://www .weeklystandard .com/articles/how-think-about-oil- Al Gore’s The Future and the 2052 Report) and the spills?page=1 (last visited Apr . 29, 2013) . 2 . CEQ, Environmental Quality—1970 93 (1970) . role of technological change in creating opportunities 3 . Jennifer Peltz, Hurricane Barriers Floated to Keep Sea Out of NYC, Associ- for environmental progress . ated Press, May 31, 2009 . 4 . Alex Prud’homme, The Ripple Effect 211 (2011) (Hurricane Sandy, which flooded New York City in October 2012, was a Category 3 hurricane) . 43 ELR 10492 ENVIRONMENTAL LAW REPORTER 6-2013 Copyright © 2013 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. and why . Thus, this Article begins by reviewing some past would rise with increased demand for a finite supply of the predictions in light of what is known today . It then dis- metals . Simon bet that prices would fall . In 1990, Simon cusses the complicated relationship between public percep- won the bet when the prices of all five metals declined in real tions of environmental problems and legislative responses terms due in part to the development of substitutes .6 to them in light of current political gridlock over environ- The earth now has seven billion people, but population mental concerns . The Article then examines contemporary growth has slowly slipped from the forefront of environ- forecasts of the fate of the planet and the role of techno- mental concerns . As countries develop, birth rates consis- logical change in creating opportunities for environmental tently have fallen and the rate of overall population growth progress . It concludes by offering some observations about has slowed . Ironically, Ehrlich’s warning may have con- the future, extrapolating from emerging global trends 5. tributed to the very trends that defeated his bet . Today, Ehrlich believes that a collapse of global civilization can be I. Looking Backward: Past Predictions of avoided “because modern society has shown some capacity the Future Environment to deal with long-term threats, at least if they are obvious or continuously brought to attention (think of the risks of 7 The U .S . environmental movement has deep historical nuclear conflict) ”. However, Ehrlich has not yet become a roots in warnings concerning the impact of unchecked full-fledged optimist . He is skeptical of how well environ- development . In the first edition of his classic work, Man mental concerns will fare in the political process because and Nature: Or, Physical Geography as Modified by Human “the risks are clearly not obvious to most people” and the Action, former U .S . diplomat George Perkins Marsh cited costs of preventing them are incurred up front, while the deforestation of the Middle East to warn of the importance benefits accrue to unknown future generations . of conserving U .S . forests . The more popular second edition of the work, renamed The Earth as Modified by Human B. Gregg Easterbrook’s A Moment on the Earth Action, provided an important boost to the late 19th century campaign to establish national parks . More than two decades after Ehrlich’s dire warnings, jour- In the post-World War II era, the publication of Rachel nalist Gregg Easterbrook made a splash by arguing that Carson’s Silent Spring is widely credited as a primary environmentalists were alarmists because most of the devel- impetus for the birth of the modern environmental move- oped world’s major environmental problems were nearly ment . Carson alerted the public to the dangers of synthetic solved . In his 1995 book A Moment on the Earth: The Com- organic pesticides that would accumulate in the food chain ing Age of Environmental Optimism, Easterbrook argued and cause severe, long-term environmental damage . In the that “the Western world today is on the verge of the greatest wake of Carson’s warnings, the Environmental Defense ecological renewal that humankind has known; perhaps the Fund was founded in 1967 by a group of scientists eager greatest that the Earth has known ”. Easterbrook predicted to have dichlorodiphenyltrichloroethane (DDT) banned . that in the developed “world pollution will end within our lifetimes, with society almost painlessly adapting a zero- A. Paul Ehrlich’s Population Bomb emissions philosophy ”. He also predicted that “most feared environmental catastrophes, such as runaway global warm- 8 Population growth inspired early predictions of environ- ing, are almost certain to be avoided ”. mental disaster during the formative years of the modern Not surprisingly, Easterbrook’s views generated con- environmental movement . In his 1968 book The Popula- siderable controversy . The Environmental Defense Fund tion Bomb, biologist Paul Ehrlich forecast that population complained that Easterbrook “repeatedly criticizes scien- growth would soon exceed the earth’s carrying capacity, tists whose dire predictions have not come to pass, with- leading to global famines and resource shortages . Calling out fully acknowledging that their forecasts catalyzed Ehrlich a “Malthusian,” economist Julian Simon argued changes in laws and policies that forestalled the predic- 9 in The Ultimate Resource that “[n]atural resources are not tions themselves ”.

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