U of Ideas of General Interest -- May 1999
University of Illinois at Urbana-Champaign
Contact: Mark Reutter, Business & Law Editor (217) 333-0568
LAW Environmental law now a fragmented discipline, legal scholar says
CHAMPAIGN, Ill. -- Environmental law, once so straightforward in its aims and assumptions, has fragmented into five ideological camps that see issues of land use and endangered species in starkly different terms, a University of Illinois legal scholar argues.
Eric T. Freyfogle, the Max L. Rowe Professor of Law, said that the underlying values of these groups have been little examined by policymakers or fellow scholars to the detriment of public understanding of environmental choices and tradeoffs.
"A quarter century ago there was an obvious, dominant reason why people wrote about environmental law. The problems were unmistakable, they needed to be solved, selfish business and misguided governments were the enemies, and the battle lines were drawn," Freyfogle said in a speech delivered last month at "Innovations in Environmental Policy," a symposium held by the U. of I. College of Law and Institute of Government and Public Affairs.
The situation has changed "for reasons that appear less on the printed page than off," with the field split into five camps that the U. of I. professor dubbed as the libertarians, the fixers, the dispute resolvers, the progressive reformers and the community health advocates.
Libertarians didn't write about the environment until laws restricting the use of private property were enacted, at which time they mounted a vigorous counter offensive. "In the libertarian world view, things are simple -- people alone count, morally and practically," Freyfogle said.
"Maximum liberty is the goal with minimal government the corollary," which in turn means that environmental problems are "already adequately solved or exaggerated and fabricated."
The second camp, the fixers, believe that environmental degradation has been caused by flaws in the marketplace or in the technology used. The job, therefore, is to let private business achieve greater efficiency -- an ironic position, Freyfogle said, given that market mechanisms so often caused the environmental problems to start with.
A broad middle ground is held by the dispute resolvers and progressive reformers who share the assumption that policy-making involves getting pressure groups to agree to compromise.
Cost-benefit analyses and comparative risk analysis are seen by these scholars as fair ways to harmonize the different constituencies.
The big divide involves the final camp that views environmental harm as a manifestation of underlying cultural problems. From this perspective, human beings do not stand apart from nature but are linked to the land, soil, water, air and other life forms. As a result, issues such as pollution and toxic waste aren't discrete problems, Freyfogle said, but instead "symptoms of a more fundamental discontinuity between nature's ways and human ways."
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