Legal Mythmaking in a Time of Mass Extinctions: Reconciling Stories of Origins with Human Destiny

Abstract

Biodiversity loss represents humanity's most urgent challenge. No other scientific problem, if left unsolved, will take longer to correct. A proper sense of natural history, spanning at a minimum the entirety of the Phanerozoic eon, informs us that human civilization represents the sixth major extinction event in the last 600 million years of geological history. At a practical level, American environmental law has two basic tools for forestalling the apocalyptic destruction of the biosphere. The National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) as leading environmental super-statutes fulfill a legal function served by constitutional provisions in other countries. American leadership on environmental protection, particularly in the realm of biodiversity conservation, is threatened by the public's failure to understand evolution, natural history, and the significance of the on-going crisis in biodiversity loss. Opinions by Justice Antonin Scalia in prominent Supreme Court controversies over the teaching of evolution give unjustified aid and comfort to advocates of ignorance in American politics. Justice Scalia's pandering undermines thoughtful efforts to invigorate American environmental law with a conservationist ethic. If human society wishes to retard, let alone to reverse, its tragic record of spurring one of only six mass extinctions among complex life forms in the history of the planet, environmental law must embrace the scientifically valided history of the earth as its story of origins.

Keywords: Biodiversity, conservation, NEPA, endangered species, environmental law, mass extinctions, Scalia, evolution, creationism