Environmental Law Prof Blog

On Faith, Science, and the Environment

Brigham Daniels, a professor at BYU Law School, spoke today at Salt Lake City's March for Science. We asked for permission to post his remarks, and he agreed.

According to Daniels, it was a challenging speech to give. He said, "I knew that many in the crowd of a few thousand people would not be religious and some would dislike religion, and yet, I was asked to talk about faith and science."

Here are the written remarks he prepared for the speech: 

I am a person of faith. I am going to speak about how I view the connection between science and faith.

I would like to begin with a story. A few years ago, my spouse was diagnosed with cancer. As we waited in the Huntsman Cancer Institute for the doctors to operate on her, I tried to put on a brave face. In my heart though, I prayed with desperation.

The operating team assembled. Each of them were women who had devoted their lives to the study of science. Each had allowed the scientific method, research, and peer review to train their judgment.

I felt this team was an answer to my prayers. As so frequently has been the case, God answered my prayers through the goodness of other people—this time good people guided by cutting edge science. Beyond medicine, science blesses our lives in so many ways. It has given us unparalleled libraries at our fingertips, made it possible to better face the challenge of world hunger, provided vaccinations to deadly diseases, increased our quality of life, made us prosperous, freed up our time, and extended our life span.

As a person of faith, I am embarrassed that others would use their faith to deny empirical findings of science. In some cases, this not only is dishonest, but denying the blessings and findings of science also turns a blind eye to God’s goodness, discounts the prayers and service of others, and reduces our ability to help and love each other. Much of the perceived conflict between faith and science comes from people trying to fit God and empirical findings into a tight box that meshes with our prior understanding of God and Universe.

All of us should approach the many difficult questions posed by both science and religion with humility. There is so much we don’t know. There is no shame in this. Rather, it is the beginning of wonder and the seeds of progress.

I would say that rather than shaking my faith, science has helped shape my faith. Science provides glimpses into the grandeur of the Creation, and thereby the greatness of the Creator. MRI machines, DNA research, computer modeling, satellites, experiments, labs, and statistical analysis all provide lenses to enhance our understanding and can add to our gratitude and awe. Even simple observations can do the same thing. Consider the complexity of your hand or the view into the Universe from the night sky.

While science often provides facts relevant to moral decisions, faith and ethics tells us how to act. My faith tells me that air pollution is more than a public health problem. It is a moral problem. Part of loving my neighbor means loving my neighbor’s lungs. My neighbors are also those who live on the Marshall Islands, who are losing their homes due to sea level rise caused by climate change. If we don’t make significant changes, 100s of millions more—the vast majority of whom are poor—will join their ranks by the end us the century. Once understood, faith tells me to show love by driving less, using green energy, and consuming less.

One of my heroes, John Muir, once said of his most treasured landscape, Yosemite, “Yet this glorious valley might well be called a church, for every lover of the great Creator who comes within the broad overwhelming influences of the place fails not to worship as they never did before. The glory of the Lord is upon all God’s works; it is written plainly upon all the fields of every clime, and upon every sky, but here in this place of surpassing glory the Lord has written in capitals.” Protecting open spaces and wildness—and all parts of the creation—is a way to show gratitude to God. 

I truly believe that protecting the environment is vital for the human soul.

Summer Reading for a soon-to-be Environmental Law Student

At a recent admitted students event, a soon-to-be 1L with an interest in environmental law asked me what she should read this summer.  I thought it was a good question, so I shared it with an environmental law professors’ listserve.  This post takes suggestions I received and turns them into a short summer reading list.

The list comes with a few caveats.  First, I focused on environmental law books.  There are many wonderful books about environmental issues more generally, including classics like A Sand County Almanac and Silent Spring that helped inspire the environmental movement, and thus helped create environmental law.  Many wonderful books have also been written about law more generally.  Those other categories contain enough good books for many summers of happy reading, and perhaps in another post I’ll say more about the general environmental category, but the focus here will be somewhat narrower.

Second, while this list reflects the input of dozens of professors, I didn’t do a formal poll, and any glaring omissions or weird choices can be blamed on me alone.

So, the recommendations:

1. The Favorite

Three decades ago, industrial solvents contaminated two wells that the City of Woburn used for municipal water supplies.  The awful consequence was a leukemia cluster that killed many Woburn residents.  The tragic story also produced what I think is the greatest environmental law book ever written.  Jonathan Harr’s A Civil Action tells the story of the contamination and the subsequent litigation.  The book is as gripping as a top-notch thriller, rich enough in its legal discussion to be assigned as a companion to first-year civil procedure courses, and deeply humane in its treatment of the human dramas of the tragedy.  If you want to read just one environmental law book, this is it. 

There’s also a movie, but don’t bother.

2. The Storytellers

There are many great storytellers in the field of environmental law, but among academics, no one spins tales better than Oliver Houck and Zyg Plater.  In The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River, Plater (now a professor at Boston College) tells the story that gave rise to (and followed) Tennessee Valley Authority v. Hill, a classic case you’re likely to read in your environmental class, if not before.  And in Taking Back Eden: Eight Environmental Cases that Changed the World, Houck tells the stories behind a series of David v. Goliath environmental cases from around the world—with David sometimes winning.

3. The Backstories

You’ll read a lot of cases in law school.  And you’ll often wonder about the stories behind the cases.  Some cases—like TVA v. Hill—have whole books devoted to them.  But if you want shorter summaries, as well as an introduction to the lawyering that goes into an environmental case, Environmental Law Stories is a great choice.  Each chapter in the book tells about a major environmental case and the details are sometimes surprising and occasionally even humorous.  For example, Jody Freeman’s account of befuddled, bored, sleepy judges stumbling their way through environmental cases is not to be missed.

4. The Consolidated History

In 2004, Richard Lazarus, who now teaches environmental law at Harvard, published what is still the most comprehensive historical account of American environmental law.  The Making of Environmental Law is wonderfully accessible—it would make a great companion to an environmental law course, but you would also be able to follow it without prior legal coursework—and it does a great job of explaining the interplay between legal developments and changes in politics and society.

5. Coal

If you’ve followed environmental controversies recently, you’ve heard about coal.  President Obama’s efforts to tighten environmental regulation of the coal industry were widely cheered by environmentalists (and economists), but Donald Trump has now made a coal revival into a major priority.  But this is nothing really new; coal has been generating environmental controversies, and good writing, for a long time.  In The Buffalo Creek Disaster, Gerald Stern tells the story of a disastrous coal sludge spill in the early 1970s and the litigation that followed.  Like A Civil Action, the book sometimes serves as a companion to first-year law courses; it introduces you to a wide variety of lawyering challenges in the context of a compelling story.  It also is just part of a longer tradition of environmental writing about coal country, with older and more recent examples here and here.

The books I’ve listed here are, of course, just the tip of an iceberg, and if I were to include general environmental writing, the list would grow much, much longer.  The list also leaves off several books (Paul Barrett’s The Law of the Jungle is one example) that colleagues recommended and that are now on my own summer reading list.  In other words, it’s not at all complete.  But sampling some of the works mentioned here would be a great way to introduce yourself to the study of environmental law.

- Dave Owen

Seven Reasons Why Gutting EPA is Bad for Business

The Trump Administration plans massive cuts to EPA’s budgets (the latest numbers suggest a cut of around thirty percent).  For people who care about environmental quality, this is very alarming.  But suppose you don’t personally value blue skies, clear lungs, clean water, or any other environmental amenity, and instead care only about the well-being of American businesses (suppose, also, that you do still acknowledge the reality that other people do value those things).  Would you have any reason share the concerns about the proposed EPA budget cuts?  The answer, I think, is yes, and here are just a few reasons why.

1. Your business may sell environmental quality. Imagine that you run a beachfront hotel, or sell real estate in an area with natural amenities, or you manufacture clothing or equipment for outdoor recreation, or you’re a rafting or fishing guide, or you own a restaurant near a national park, or you sell bottled or tap water, or you run a ski area threatened by warming temperatures.  Environmental quality is the part of the good you’re selling, but you probably can’t protect it on your own.  For that, you’ll need regulatory oversight, which means you’ll need something like EPA.
2. Your business may depend upon environmental quality for manufacturing inputs. Many businesses depend upon a quality environment for their raw materials.  Clean water, for example, isn’t just a human health need.  It’s also important for many manufacturing processes.  If your manufacturing plant can’t use tap water because it’s too polluted—which recently happened to a GM factory in Flint, Michigan—replacing that water could cost you a lot of money.  If your city has to pay higher treatment costs because its source water is contaminated, those costs will likely be passed on to businesses.  Similar issues can arise if dirty air damages crops or forests, if lost pollinators lead to damaged crops, or if damaged habitat quality leads to declining fish catches.
3. Environmental quality may help your business recruit. I used to live in Maine, and quality of life—including environmental quality—was a huge part of Maine employers’ recruiting pitches.  Live here, the argument went, and these beaches and rivers and lakes can be part of your daily life (it was a pretty good pitch).  Companies in many other parts of the country can offer the same argument.  Indeed, in an international recruiting battle with, say, Beijing or New Delhi, any American metropolitan area could offer those arguments, largely because of our history of EPA-led environmental protection.  But if the environmental quality goes away, so too does the recruiting pitch. 
4. Your employees (or their family members) may drink water and breathe air. You might not think of environmental health problems as a business expense.  But they are; if an employee’s daughter has a pollution-induced asthma attack, that employee is probably staying home for a day, or coming to work with a lot of extra stress.  Either way, productivity drops.  Similarly, if lead exposure does permanent damage to a child’s intelligence, that child’s economic productivity is also likely to drop.  A healthy population provides a major economic asset (among other benefits).  And that’s an asset we ought to grow, not give up.
5. Your business model may depend upon environmental mandates. The Trump Administration’s rhetoric includes mantra-like accusations that environmental regulations kill jobs.  But there are many jobs that owe some of their value, if not their entire existence, to environmental regulation.  Many companies’ business models revolve around finding ways to reconcile environmental protection and economic activity.  The environmental consulting industry, which helps businesses figure out how to comply with environmental regulations while continuing to make money, is one example.  Wetlands mitigation bankers are another.  Manufacturers and installers of energy efficiency technologies are a third.  The list could go on and on.  Without regulatory oversight from EPA, the incentive to hire these businesses would diminish, if not disappear. 
6. Your business may want clarity about its environmental obligations. Sometimes businesses need help understanding their environmental obligations.  Businesses will often turn to consultants or lawyers for the answers—thus creating work, and jobs, for the lawyers and consultants—but sometimes they will want a cheaper explanation (and sometimes the consultants and lawyers also have questions).  A well-staffed environmental regulatory agency can answer those questions when people call, or can put out guidance documents that anticipate the questions before they are asked.  In other words, it can provide regulated entities with clarity and predictability, both of which can be very valuable.  But if one-third of the office staff are gone, there may be no one to put out those guidance documents or answer the calls.
7. Your business may require innovative regulation. Suppose your business model is new, and existing regulations cover its operations—but not very well.  You might want regulatory changes that are responsive to the unique needs of your business while also providing the public (and your employees) with the traditional protections of environmental laws.  That will mean asking government to work with you to come up with new regulations or new permitting approaches.  A well-staffed agency can provide that kind of support.  But an agency with bare-bones staffing—or much less than that—is highly unlikely to take on the labor-intensive task of coming up with new and better ways to regulate.  Instead, your business is likely to remain burdened with rigid, potentially obsolete obligations.

There is a broader point here.  Quite often, we think of relationships between environmental regulators and businesses as adversarial, and sometimes that traditional view is accurate.  But business-regulator relationships are also often collaborative, and those collaborative relationships have played a huge part in improving our environmental quality in many ways at the same time our economy has grown.  Because collaboration requires staff time, gutting EPA means cutting that collaboration.  That will leave many businesses worse off.

- Dave Owen

Calling for a Constitutional Convention!

By: Lesley McAllister

When I teach environmental law, I dislike teaching the material dealing with constitutional law.  I am thinking, for example, of the commerce clause cases challenging the constitutionality of the Endangered Species Act and wetlands regulation, the cases on standing to bring environmental citizen suits, and regulatory takings. Students often enjoy this material, but I am embarrassed by the legal gymnastics that are required for courts to approve of federal action, to hear citizen-initiated environmental cases, and to decide them in a way that favors the broad public interest in environmental protection. 

It shouldn’t be this way. To start with, the commerce clause should have nothing to do with environmental law.  Do most Americans think that our national government should be able to make comprehensive laws to protect human health and the environment? I am pretty sure they do. There are many reasons that we would want the federal government to be the primary actor in environmental protection aside from the fact that economic interests are at stake.  Wetlands are a valuable national resource, as are threatened and endangered species.  State governments often don’t have the expertise to evaluate and protect these resources, and even if they did, would we really want all 50 states to do it themselves?  For its part, standing doctrine was rewritten in the past thirty years by a few Supreme Court justices who were hostile to environmental law who wanted to keep environmental cases out of the courts. The hoops that citizen groups are required to jump through just to stay in court are ridiculous. 

We really need to amend the Constitution. Perhaps the best option would be to create an express right to clean air, safe drinking water and a healthy environment.  The right to a healthy environment is widely recognized in international law and endorsed by an overwhelming proportion of countries. Environmental rights are included in more than 90 national constitutions (see graphic below), and they are having significant impacts, ranging from “stronger environmental laws and landmark court decisions to the cleanup of pollution hot spots and the provision of safe drinking water.”[1]  Many U.S. states also have environmental rights provisions in their state constitutions.[2]

While creating an environmental right seems reasonable and makes good sense to me, I think that many would say that it is out of line with the US’s constitutional tradition.  They may be more open to a more limited, but still useful option: an “environmental responsibility” provision.[3]   Twenty-five years ago, one legal academic suggested the following wording for an amendment: “In all acts of government, the integrity and sustainability of natural systems shall not be impaired except to protect health and safety where no acceptable alternative exists. Maintenance, restoration, and renewability of natural systems, enhancement of environmental quality, and fairness to posterity shall be governing principles of policy.”  With such a statement in the Constitution, the Supreme Court and the federal government generally would have to consider the protection of our environment as their responsibility.   What a difference that could make.

And while we are amending the constitution, let's talk about the electoral college!

[1] D.R. Boyd, The Constitutional Right to a Healthy Environment, Environment Magazine (Jul/Aug 2012) available at http://www.environmentmagazine.org/Archives/Back%20Issues/2012/July-August%202012/constitutional-rights-full.html; See also D. R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: University of British Columbia Press, 2012).

[2] Audrey Wall, State Constitutions and Environmental Bills of Rights (Sept. 1, 2015) at http://knowledgecenter.csg.org/kc/content/state-constitutions-and-environmental-bills-rights 

[3] Lynton K. Caldwell, The Case for an Amendment to the Constitution of the United States for Protection of the Environment, Duke Environmental Law & Policy Forum 1 (1991), available at available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1198&context=delpf.