Human Nature, the Laws of Nature, and the Nature of Environmental Law

Abstract

This article explores the roles that human nature, the laws of nature, and the nature of the nation's lawmaking institutions have all played in the emergence and evolution of domestic environmental law and how the interrelated difficulties presented by each are reflected in the kinds of legal issues that surround environmental lawmaking. The article also discusses how these same difficulties impede environmental lawmaking by obscuring from lawmakers, judges, and the general population what is truly important about environmental law. Part I considers the ways in which the need for environmental law derives from the tendency of human nature to cause adverse environmental consequences and the ways in which the laws of nature make it more difficult to prevent those consequences absent the imposition of external legal rules. Part II describes how our nation's lawmaking institutions are similarly challenged by the laws of nature. This includes a discussion of how the kinds of laws necessary to bridge the gap between human nature and the laws of nature are systematically difficult for our lawmaking institutions to develop in the first instance and to maintain over time. Part III takes a closer look at one of the nation's most important legal institutions - the United States Supreme Court - and briefly discusses both its past shortcomings in environmental lawmaking and its potential in the future.