The Environmentalist Attack on Environmental Law
16 Pages Posted: 6 Sep 2014 Last revised: 29 Sep 2015
Date Written: September 4, 2014
This essay reviews two books written by leading scholars that express profound dissatisfaction with the ability of environmental law to actually protect the environment. Mary Wood’s “Nature’s Trust: Environmental Law for a New Ecological Age” calls for “deep change in environmental law,” emphasizing the roles that agency issuance of permits to modify the environment and excessive deference to agency decisions play in ongoing environmental destruction. Wood proposes a “Nature’s Trust” built on the public trust doctrine to empower courts to play a much more aggressive role in overseeing environmental decisionmaking. In “Green Governance: Ecological Survival, Human Rights, and the Law of the Commons,” Burns Weston and David Bollier identify the state/market alliance is the problem, and their solution is decentralized governance based on informal norms. Both books are especially effective in identifying the shortcomings in how environmental law actually operates today. But their proposed solutions are likely to fall short absent a more fundamental transformation on how we imagine the natural environment and humanity’s relationship to it. The public trust doctrine and the commons have been part of the fabric of the law for centuries, yet they have failed to accomplish the environmental goals that Wood, Weston, and Bollier hope to achieve now. And if we do experience a fundamental transformation in environmental thinking, then the existing environmental laws may finally fulfill their original purposes.
Keywords: public trust, commons, vernacular law, deference, permits, human rights, subsidiarity
JEL Classification: K32
Suggested Citation: Suggested Citation