University of Notre Dame law professor John Copeland Nagle, an insightful commentator on environmental law and ethics, published an article on the Scientific American blog April 22 (Earth Day) that harks back to comments by the original Earth Day’s keynote speaker, Edmund Muskie.
Muskie, who ran for vice president on Hubert Humphrey’s ticket in 1968, was at the time “the leading environmentalist in Congress.” He later became President Carter’s Secretary of State.
“Muskie explained,” writes Nagle, “that the environmental revolution ‘must be one of laws, not men; one of values, not ideology; and one of achievement, not unfulfilled promises.’“ He then asks how the “environmental revolution” is doing on those criteria.
Working in reverse order, he writes first of achievement, and there the assessment is pretty good:
Numerous speakers in 1970 predicted the extinction of countless species, pollution that killed millions of people, and mass starvation resulting from the so-called population bomb. … But nothing even close to those earlier prophecies has happened. To the contrary, fewer people are hungry today, pollution is not nearly as bad as it was in the United States in 1970, and more species are being removed from the list of endangered species because they have recovered, not because they went extinct.
On values versus ideology, the picture is blurry:
The brief era of environmental bipartisanship ended within a few years after the first Earth Day, but environmental issues more polarizing today than they have ever been before. We used to argue about the solutions to environmental problems; now we often argue about whether they even exist. Part of the disagreement involves questions which were unanswered in 1970. The National Environmental Policy Act, enacted a few months before the first Earth Day, states “a national policy which will encourage productive and enjoyable harmony between man and his environment.” ... But what harmony looks like, and how we can build it, remains uncertain.
Nagle suggests that Pope Francis’s 2015 encyclical Laudato Si’ represented the “fullest expression to date” of the sort of values (as distinct from judgments of scientific fact) that should underlie environmental policies, offering “hope for a non-polarized environmental future.”
But the “environmental revolution’s” performance on being “one of laws, not men” is in grave doubt.
Nagle writes approvingly that “Congress quickly fulfilled Muskie’s hope by passing a half dozen statutes which continue to provide the foundation for environmental law today.” But he then points out that since then the executive and judicial branches have exerted more and more power on environmental issues, while Congress has moved increasingly to the sidelines—a development applauded by movement environmentalists who have found it far more difficult to achieve their objectives through legislation than through executive orders, bureaucratic regulations, and court rulings.
That, Nagle says, is the opposite of what Muskie hoped for the “environmental revolution.”
He quotes Muskie: “Few other areas of public policy require the balancing of conflicting interests and the consideration of trade-offs in such agonizing detail, but that detail should not be an excuse for deferring to the courts or to the executive.”
Nagle’s conclusion is worth quoting in full:
Muskie anticipated that impatient environmental revolutionaries would reach for an “excuse” to rely on executive action rather than enduring the agony of waiting on Congress. That is precisely what has happened as President Obama has championed environmental causes while Congress seems hopelessly divided. But Muskie’s counsel is to wait lest we resort to a government of men, not laws. That’s how his Environmental Revolution can remain true to the American Revolution, and how April 22 can be reconciled with July 4.
On February 9, the U.S. Supreme Court granted a stay of implementation of the federal Environmental Protection Agency’s “Clean Power Plan” pending a ruling by the D.C. Circuit Court of Appeals, which will hear oral arguments in the case on June 2. One hopes that Judges Janice Rogers Brown, Sri Srinivasan, and Robert L. Wilkins will recall Muskie’s hopes, strike down the regulation, and let Congress do what only it, of the three branches of government, is best capable of doing: balance competing interests.