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Journal of Political Ecology: 
Case Studies in History and Society

 

 

VOLUME 6 (1999)

Law and the Environment: A Multidisciplinary Reader. Edited by Robert V Percival and Dorothy C. Alevizatos, Temple University Press, 1997; xvi + 439 pp. 

 

Reviewed by Lynn A. Robbins, Huxley College of Environmental Studies, Western Washington University, Bellingham WA 98225 

This volume makes an important contribution to the works on environmental ethics, law, policy, risk assessment, and regulation. It is a compilation of excerpts or complete articles from major figures in environmental literature from J. B. Marsh (1864) to the report by the President's Council on Sustainable Development (1996). 

Contributions are collected from such well-known and diverse writers as Lenten K. Caldwell, William H. Rodgers, Jr., Robert D. Bullard, Joseph L. Sax, Joel Franklin Brenner, and William D. Ruckelshaus. The editors organized works from these writers into four sections: "Perspectives on Environmental Problems," "Environmental Law and Regulatory Policy," "The Regulatory Process in a Participatory Democracy," and "Global Environmental Concerns and the Future of Environmental Law." The editors divided the major sections into 13 chapters, covering various aspects of environmental affairs, including economics, ethics, nuisance law, justice, regulation, legislation, animal rights, and the future of environmental law. The editors also wrote introductions for each chapter, which discuss the importance of the selections, why they were chosen, and the ways in which they are related to other chapters and the major subjects of the book. Each of the four major sections and chapters would be suitable by themselves for courses on their respective subjects. 

There are lively and engaging perspectives throughout the book and the reader's interest is not likely to wane. Carefully crafted arguments are summarized for a wide range of legal and policy positions: animal rights; the legal standing of objects in nature; inefficiencies and inconsistencies in regulations; a position that regards environmental laws in the U.S. as fundamentally flawed because they favor humans over nature; the hypothesis that polluting industries are often established in neighborhoods before low-income and people of color moved to them (and not the reverse, which forms one of the premises of the environmental justice movement in the U.S.); a solid defense of the permitting process in environmental regulation; and the need for changing the nature of environmental law. 

This anthology would be very useful for undergraduate courses in environmental politics, ethics, and history. It can be recommended for courses in environmental law only under very limited circumstances. Most of the selections are about the ethics and structure of law, rather than case law, and there is no introductory text that explains the basic principles of law, such as "standing" and "due process". Many of the excerpts and articles develop and defend various positions on environmental law such as a refutation of the argument that nuisance law is sufficient to protect human health and the environment, or that judges mistakenly rely too often on public values over scientific evidence in rulings on environmental disputes. 

The most useful and compelling article in the volume is by William H. Rogers, Jr., "The Seven Statutory Wonders of the U. S. Environmental Law: Origins and Morphology." In this piece, Rogers identifies selected environmental laws that he feels have had the greatest benefits in environmental protection. Each of these "statutory wonders" is said to have the following characteristics: 1) strong leadership in its establishment; 2) an inspired and radical message; 3) growth potential and a "sleeper" (inconspicuous when Congress passed the law but it became an important force in environmental protection; 4) the capacity to attract and hold a scientific constituency; and 5) it has required persistent monitoring. The laws and sections are: The Land and Water Conservation Fund Act of 1965, section 2 (land acquisition fund); The Wilderness Act of 1964, section 2 (defines wilderness); The National Environmental Policy Act of 1970, section 102 (requires federal agencies to consider the environmental effects of their actions); The Federal Water Pollution Control Act of 1972, section 301 (outlaws the discharge of pollution); The Endangered Species Act of 1972, section 7 (federal agencies are forbidden to take actions that cause further harm to endangered and threatened species); and The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, section 107 (imposes strict joint and several liability on any person whose disposal of hazardous substances causes the owner of the affected property to incur response costs.

Another selection that deserves special mention is Arthur F. McEvoy's "The Fisherman's Problem: Ecology and Law in California Fisheries" (originally published in 1986). McEvoy describes the dilemmas in California commercial fisheries and makes and intelligent and useful distinctions among three processes in resource management: ecological, economic, and cultural which comprise "interdependent parts of a coherent, indivisible whole". The failure of California fisheries managers to understand this has led to another instance of the "tragedy of the commons."
A final example from the book represents an unusual perspective in environmental literature. Peter W. Huber's "Safety and the Second Best: The Hazards of Public Risk Management in the Courts" (1985) asserts that manufacturers, engineers, and scientists provide goods that are designed to be increasingly safe for public use. Huber concludes "The technological community, far from ushering in an endless series of new terrors, can rightfully claim full credit for the extraordinary safe society it has built. Huber also asserts "the reality is that life has grown safer not because of the legal system but despite it." These statements will surely spark spirited discussions among those who adopt this book for classes.

The volume would have benefited from an additional section focusing on the environmental ethics and laws from outside the U.S., giving readers a clearer perspective on the unique character of U.S. environmental history and affairs. An international comparison of cases would also help to explore the successes and limitations of efforts to export a U.S. model of environmental protection to other national contexts. This is a minor criticism. The book provides a valuable service by compiling in one well-organized volume a selection of key historical and contemporary selections on law and the environment.