Environmentalism in Decline?
AEI Newsletter

Federal courts have become increasingly skeptical of environmental regulation and now treat environmental groups and regulators more harshly than they did two decades ago, in the heyday of the environmental era, argues Michael S. Greve, executive director of the Center for Individual Rights and an AEI adjunct scholar, in his new book, The Demise of Environmentalism in American Law. The book's publication was marked by a lecture and discussion at AEI on September 9.

The skepticism of the courts, according to Mr. Greve, signals a more profound shift in American constitutional and administrative law away from environmental values and ideology and toward more traditional legal doctrines.

"Environmentalism," Mr. Greve writes, "is not simply a sentiment for clean air or endangered species." It is, above all, an ideology that sees the world as infinitely complex, interdependent, and fragile. "Everything is connected to everything else" has been the central tenet of modern environmentalism. While the ecological premise of interconnectedness has some surface plausibility, its legal implications are so absurd and extravagant that we would not think of accepting them outside the environmental context. For instance, we do not solve the problem of hunger in America by permitting poor people to take food off supermarket shelves without paying for it. But federal law effectively grants an analogous right to every endangered species: if a woodpecker decides to build its nest where you want to build your house, the bird wins and you lose.

Over the past decade, however, the courts have played a leading role in the return to more realistic assumptions, providing an institutional outlet for the growing discontent with environmental regulation. At a time when the Congress was still passing, with broad public support, ambitious new laws (for example, the Clean Air Act Amendments), the courts questioned the nature of environmental values. The courts have reminded us of the costs and dangers of an unconstrained political process and, in so doing, have resurrected questions that environmentalism had suppressed and cannot answer. Intellectually and politically, environmentalism has been put on the defensive.

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