Environmental Nihilism

Abstract

Information is the lifeblood of environmental law. It is a prerequisite for standard setting, permitting, and enforcement; without information, these and other components of environmental law remain dormant and ineffective. This essay tentatively diagnoses a new, subversive approach to controlling environmental law — “environmental nihilism” — that seeks to manipulate substantive environmental law by suppressing or manipulating information.

Environmental nihilism may become an increasingly common component of disputes over environmental law. Environmental protection remains popular with the American public. Technological changes increasingly enable the public to generate vast quantities of environmental information, which will often trigger specific regulatory consequences. Moreover, administrative law principles constrain the ability of agencies to change policies without engaging the body of information before the agency. Information may, therefore, increasingly lie in the crosshairs of those opposed to federal environmental regulation.

Environmental nihilism is not currently a dominant component of American politics. Its extreme forms have yet to materialize. Yet, this essay identifies laws, regulations, and other government actions that obstruct the generation of information, or constrain the government’s ability to use information for regulatory purposes, that appear consistent with environmental nihilism. These examples are of sufficient number and variety to suggest that environmental nihilism is something to be taken seriously. The stakes are high. Where legal rules block the ability of private parties to obtain information, they cannot call public attention to issues of concern, initiate citizen suits against violators, or petition the federal government for relief. Where information lies beyond the purview of government, people suffer, ecological systems deteriorate, and polluters evade legal obligations.

Keywords: environmental law, administrative law, information, data