Using Non-Environmental Law to Accomplish Environmental Objectives

Abstract

The current prolonged period of congressional impasse on environmental issues, in which symbolic ideological skirmishes have largely supplanted constructive engagement, makes clear that Congress is unlikely to generate progress on environmental issues any time soon. In response to this legislative stalemate, some environmental law scholars have advocated for giving the Environmental Protection Agency enhanced capability to take administrative action under the authority of existing environmental statutes.

Without disagreeing with those arguments, this article contends that we also need strategies for environmental law that transcend, not just adapt, the canonical environmental statutes that have been the field’s mainstay since the early 1970s. Some of the more promising prospects for new and creative environmental law lie outside of its traditional realm, in a variety of other fields — energy law, land use law, agriculture law, consumer protection law, securities regulation — that increasingly incorporate environmental concerns. Moreover, these other fields are not simply borrowing from the environmental law canon; their forays into environmental law utilize quite different models for environmental lawmaking. Environmental lawmaking needs to pay more attention and invest more effort in exploring these alternative venues.