Is a Substantive, Non-Positivist United States Environmental Law Possible?

Abstract

U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental law is not possible because the law can only serve to establish rational processes for resolving deep and bitter resource use conflicts. This Article argues that international environmental law can serve as a source of mixed procedural substantive principles because it has taken a much more holistic view of the environment, developed a set of overarching norms—soft as they are—that apply to almost all environmental problems, and has done a better job of linking procedure with substance in order to constrain decisions that adversely impact human and ecosystem “health.” The Article offers three proposed principles to strengthen the unfulfilled project of environmental protection. First, procedural duties must be linked to the implementation of substantive outcomes. Second, incomplete information must be a basis for regulatory actions, provided that a minimal scientific threshold of risk is established, processes are in place to acquire additional information, and the decision maker can adjust to changed circumstances. Third, decisions should exhibit planetary stewardship by applying the best available technology, utilizing the polluter pays principle, promoting an accepted standard of sustainable development, adopting the least intrusive resource use option with adaptive feedback, and restoring degraded ecosystems.