Panel Explores Role of the Humanities in Environmental Law

October 11, 2005

Speakers at the final panel of last week's interdisciplinary conference on environmental law and the humanities explored why lawyers and humanities scholars have trouble speaking the same language on environmental issues, as well as the apparent contradictions between environmental law's goals and its means. The conference, which also included panels led by scholars of history, literary criticism, and ethics, ended Friday with a law panel featuring Georgetown law professor Richard Lazarus and Eric T. Freyfogle, a law professor from the University of Illinois.

Prof. Eric Freyfogle

While "humanist perspectives could aid the law," said Freyfogle, they are not likely to influence it anytime soon "unless humanists put their observations in more useable forms."

Freyfogle suggested there were limits in taking an interdisciplinary approach to environmental issues. Whereas lawyers are logical problem-solvers who pay more attention to means than ends, humanists tend to ask big questions about ultimate goals and ignore the minutiae of implementation, he said. "The humanist agenda is simply too vast to put to use," he said. "It doesn't start from where we are today and identify the next few steps."

Humanists might play significant roles in the shaping of environmental goals and the critiquing of modern culture's relationship with the environment, Freyfogle said, but their long-range perspective leaves them ill-equipped to help lawyers achieve those goals.

"If the humanities writers want to contribute effectively to the environmental effort, broadly defined, they'll need to make their work more relevant," Freyfogle said. "The place to do that, perhaps, is by speaking not to legal scholars and lawyers directly but instead to the environmental movement as a social cause."

Lazarus opened his presentation with a quotation from John Roberts that received a great deal of attention before his confirmation as the new Chief Justice of the Supreme Court: "The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California, constitutes regulating 'Commerce among the several states.'"

Although Roberts's interpretation of the interstate commerce clause might have legal merit, to a non-lawyer the point seems entirely irrelevant, Lazarus said. "Why should it make a difference whether the toad lives entirely in California?"

Lazarus described other apparent loopholes and absurdities in environmental law. "If you take all the water out of Lake Tahoe — every single drop out of Lake Tahoe — you have not violated the Clean Water Act," he said.

Environmental issues often "rest on legal issues that seem so far removed from what is really important" for three reasons, Lazarus suggested: human nature, the laws of nature and the nature of the nation's lawmaking institutions.

According to Lazarus, human nature prioritizes solving problems that are present here and now, but the laws of nature cause environmental effects to be spread out over vast distances of time and space. To make matters worse, he said, the myopia caused by short-term elections, the protection of private property rights enshrined in the Bill of Rights, and the fragmentation of America's lawmaking institutions all stand in the way of achieving the goal of "mutual coercion, mutually agreed upon."

Courts need to become more aware of the factors that enmesh environmental law in legal technicalities, Lazarus said. In recent years, the Supreme Court has been eager to quash "over-reaching" environmental laws but not "under-reaching," he said.

Lazarus said that he will be watching the Supreme Court under its new Chief Justice to see whether Roberts, who came of age during a high point in environmental law, will lead the court in a new direction.

After the presentations, Holly Doremus, a law professor from the University of California at Davis, and Peter Brooks, University Professor and Director of the Law & Humanities Program at the University of Virginia, gave the panel's closing remarks.

Doremus traced the history of environmental law from the 1970s, when the movement was full of energy and optimism, to the current time, when a sense of "malaise" seems to dominate. She suggested that the humanities can help lawyers with communication about environmental issues and can help reinvigorate the "heart" of environmentalism.

"Despite all the barriers to implementing it, we have to have law for this project because, as Professor Lazarus points out, human nature is not very well suited to this task of environmental protection," Doremus said. "Law, more than other methods of altering human behavior, can tie us to the mast and make us solve or address these kinds of problems. Law can make us trust that our opponents are going to be held to their side of the bargain."

Brooks noted that the same age that produced the U.S. Constitution also produced numerous European accounts of so-called "primitive" native peoples who seemed to live in great harmony with their environment. According to Brooks, new environmental ideas circulated along with these accounts of "cultures that conceived their relation to nature differently" than Europeans did. Those new environmentalist ideas were not incompatible with the Constitution that was emerging at the same time, he said. 

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