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Certainly, the most pressing issue of modern times is to develop a body of environmental law (that includes climate change) that is highly responsive to science. Without demeaning the many distinctions between the exercise of science and the practice of law, let me cut to the chase and declare that science is mostly about the "pursuit of truth" and law is mostly about "who wins." Anybody who doubts this proposition should examine the radical differences between the "Supreme Court of Science" in the United States and the Supreme Court of Law. The Supreme Court of Science, the National Research Council, is not even an "agency" of the United States. It is a mad-cap collective of boards, councils, committees, and advisors. It has its own administrative structure, of course, but in behavior, output, and reputation, it does display a decidedly non-structured "pursuit-of-truth" personality. The Supreme Court of Law hardly could be more different. In its practices of secrecy, isolation, choice of cases, in-house politicking, and selection of members, this club is all about control. The discipline of the legal system is quite remarkable when compared to the non-discipline of the scientific system. Instantly, upon utterance, all courts must fall in line with the latest word or directive. The same is true for attorneys who as officers of the court must implement that which is said without objection, quibbling, or scorn. Of the two, the Supreme Court of Science and the Supreme Court of Law, the one that looks like the "clique of geniuses" at work in the Planet of the Apes is the Supreme Court of Law. They are "Keepers of the Word." Thus, in ironic fashion, the rise of environmentalism has brought with it the rise of science in law. The rise of science has buoyed hopes and expectations for addressing the "pressure cooker" of climate change. Yet, typical of the times, the largest obstacle to fulfillment of these higher ends is the strongest voice on today's high court—a bullying, intimidating presence that has no discernible ...

This article looks at the "top ten" environmental laws enacted in the 1970s, including the Clean Air Act, the Endangered Species Act, the National Environmental Policy Act, and the Resource Conservation and Recovery Act. It asks: What were the pin-up qualities that made these laws look good on paper? What were the features sponsors bragged about or critics deplored? How were they understood and described at the time of legislative birth? What was thought to be new, different, and better? We know some of these things about all of these laws. I'll exercise editorial judgment and declare four common features of these revolutionary laws to be the most conspicuous displays of merit and excellence. These are (1) best science, (2) public participation, (3) effective and aggressive judicial review, and (4) citizen enforcement. Retrospective criticisms of the environmental laws confirm that they did not meet the higher ambitions of their creators. The environmental agenda is glaringly unfinished, and it is topped by the climate change issue that is deservedly mentioned as the gravest challenge ever faced by human civilization. Still, the environmental laws of the 1970s reached boldly, challenged deeply, and provoked the settled order profoundly. That they fell short is not necessarily attributable to drafting errors or failures of imagination. All statutes mark out a range of prospects and every goal achieved could have been otherwise.

Presidential executive orders are legal and political documents. They are also uniquely personal utterances of the president and the administration. The right words at the appropriate time can motivate and move the human spirit, and they can link this president and this moment to the strongest of ideas. Being personal and tending to the heroic, the executive order can thus be perceived as accomplishing a great public good. This article will explore the pros and cons of the executive order tool. I will then evaluate a number of executive orders that have impacted contemporary environmental policy. I will conclude by offering my nominees for the Ten Most Influential Executive Orders in the annals of environmental law.

There is a windowof opportunity in the wave of Endangered Species Act salmon listings that has descended on the Pacific Northwest in 1998 and 1999. Federal law links listings to the "inadequacy of existing regulatory mechanisms." Experience in Oregon has shown that EPA listings cannot be avoided by "voluntary or future conservation efforts." Meaningful state law that will deter federal overrides must be "current" and "enforceable." With salmon stocks plummeting and with "inadequate" regulation prominently confirmed, what would the naive observer expect from a Washington State legislature intent upon saving the salmon and protecting its authority? A spate of stunning new laws pushing the outer limits of environmental protection? A declaration that the better-documented offenses to the salmon (unscreened water withdrawals, forest practices, outright obstructions) are now "point sources" that can be summarily suppressed under the clean water laws? An insistence that Atlantic salmon escaping from West Coast fishing operations are "pollutants" that should be curtailed under penalty of law? Not quite. Lawmakers in Washington State are motivated to secure their "state lead" in salmon recovery. But the means to this end is not an enthusiastic embrace of environmental law. The centerpiece of the latest efforts to save the salmon is Senate Bill 5595, which was approved with partial veto of Governor Gary Locke on June 11,1999. Senate Bill 5595 redefines the salmon problem as something that can be fixed by "activities" and "projects" such as habitat restoration and corrective maintenance. In this respect, it resembles the federal Superfund law which attacked contaminated sites and lands by selectively framed and directed cleanup strategies. Also like the Superfund law, Senate Bill 5595 anticipates a priority list and a chipping away at worst things first. Finally, like the Superfund law, Senate Bill 5595 is erected atop a failed superstructure of preexisting law—solid waste, air, and water pollution law, on the one hand, ...

My approach in this Essay is to look at the Native Hawaiian Sovereignty conflict through a lens suggested by evolutionary theory, sometimes described in the law schools as "Law and Biology." In this world, the sense of justice is a set of expectations about how others should behave, backed by a proclivity towards moralistic aggression against deviators. The sense of justice entails both cognition and emotion, with a match of expectations and then the fit that follows if there is no fit. Compare and despair is the name of the game. Explored in detail are the actions of Dennis "Bumpy" Kanahele that lead to a federal trial. The Kanahele case is a shining example of the sense of justice at work in human affairs. Kanahele was prosecuted because he threatened the authorities, defected from the group, offended the elite, alienated his peers, and tarnished the reputations of officials. But what makes the U.S. courts the envy of the world is that people who come there expect to see justice happen. The same sense of justice that drove this case can be turned on its managers, and what do we find? Trumped-up charges and self-deceptions by a bunch of nervous authorities who are protecting their status and reputations by manipulating the laws of the greatest democracy the world has ever seen.

Students from around the world often ask my opinion on the most influential or effective of the United States environmental laws. I offer an opinion based on two criteria: What laws have contributed most to protection of the natural world and what laws have been most emulated? The second criterion is obviously an indicator of output, not of direct consequence. However, a linkage between the spread of strong laws and degree of environmental protection is assumed. In theory, of course, the questions of "how much protection" and "how many laws" can be answered empirically. But this story is available only in the sketchiest of terms, so opinions will have to suffice. Nominees include the National Environmental Policy Act of 1969, the Federal Water Pollution Control Act Amendments of 1972 (the Clean Water Act), the Endangered Species Act, and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. Common features of these laws show strong leadership, an inspirational and radical message, growth and "sleeper" potential, research implantation, and attentive monitoring. The secrets of the seven great environmental laws are simple enough: All that is needed is a messianic leader with a stirring message containing seeds of growth in a sustainable environment. In practice, legal oases of this sort are few and far between. [Part of the Symposium: Twenty-Five Years of Environmental Regulation. Article reprinted in An Environmental Law Anthology 82-90 (Robert L. Fischman et al. eds., Anderson, 1996.]

The subjects of legislation and legislative change are undergoing a revival of sorts in United States' law schools. The academic community has offered a variety of theoretical visions on the nature of legislation—purposive and rational, irrational and political, the accidental outcome of competing interests, the imperfect product of high philosophy; the legislative process—formal and ritualistic, markets and auctions, plots and cabals, or publicregarding negotiations; and the individual legislators themselves—ritual players, auctioneers, maximizers of political gain, profiteers, and philosopher kings in shiny suits. This author's personal approach to legal affairs of this sort is to draw on the laws of biology (loosely construed to include a range of sciences) to gain insights into the workings of complex social systems. This is familiar ground for students of environmental law since the classical conservation writers (including George Perkins Marsh and Aldo Leopold) often applied the lessons of a dynamic physical environment to human cultural choices. The centerpiece of this type of analysis is game theory. This analytical approach is premised on the idea that "the choice of the 'best' is not formal and definitive" but "is uniquely dependent upon what the other players do." A simple illustration will suffice: the red squirrel developed a chattering strategy to discourage predators like the great homed owl; it was a good strategy because owls don't waste their time pursuing prey that is alert and prepared. Unfortunately now, there is a new predator on the block—humans armed with rifles. Chattering is no longer a good strategy for red squirrels. What do legislators have in common with chattering red squirrels? More perhaps than we would care to admit. It should be emphasized, however, that legislators (and we are interested specifically in the ones who are enacting the environmental statutes) do their best to get along in two distinctly different environments. In environment one, the statute is assembled in a ...

As the Washington State Environmental Policy Act of 1971 (SEPA)'approaches its fourteenth birthday, the time is ripe for an assessment of its recent history and foreseeable future. Several SEPA milestones have come and gone in the last several months, and a period of stability is in order. Reported Washington decisions citing SEPA now number close to one hundred; more than fifty of these are decisions of the Washington Supreme Court. The books are closed on the two-year efforts of the Washington Commission on Environmental Policy (the SEPA Commission), whose work culminated in a report to the 1983 Legislature. There was a legislative response, albeit one more noteworthy for what it did not do than for what it did; the 1983 Amendments to SEPA are decidedly a job of fine tuning rather than crude wrecking. As directed by the 1983 Amendments, the Department of Ecology has finished work on the SEPA Rules. Known popularly as the Green Book, these rules will serve as the principal reference on SEPA for thousands of public officials across the state in the decade ahead. Differences between the federal National Environmental Policy and SEPA are clearly discernible, and will be presented in the course of a discussion organized around the issues of: (1) threshold applicability of the Environmental Impact Statement (EIS) requirements; (2) statement adequacy or content; (3) SEPA substance; and (4) responsibility for statement preparation.

Law teachers and researchers are inveterate seekers of metaphors. The metaphor, even if glib and obvious, invariably suggests further parallels and relationships, the conjoinder of phenomena. This is the road to uncovering unsuspected linkages and building simple descriptive models. Theory building, in administrative law as elsewhere, begins with the capture and expression of the convincing metaphor. Extracting metaphors from the natural sciences to account for social happenings begins with a figure of speech and often ends there. Legislatures now are squeezing fat out of administrative agencies, an apt biological picture of a weight watcher's rigor being imposed on flabby, middle-aged institutions. Some agencies are considered senile (the ICC), others appeared on this planet stillborn (the Department of Energy), still others are going through an identity crisis or are in hibernation (the EPA). Yet others survive by establishing parasitic or symbiotic relationships with supporting institutions. Is the Corps of Engineers a leech or a virus? Those water projects are buried so deeply in the body politic that the Reagan cutbacks cannot reach them; they are cancers immune from cosmetic surgery. And so on. We draw our metaphors from horticulture: a little pruning here will concentrate growth over there. From navigation: "midcourse corrections" (the Clean Air and Water Acts), "fogbound and foundering." From paleontology: the dinosaur (the Bureau of Land Management) is ill-suited to survival under contemporary conditions. The important step, of course, is to move beyond the mere figure of speech to the convincing metaphor that has some explanatory and organizing persuasiveness.

In the specialty of natural resources law, there is no reason to expect our tasks of description and prescription to be any easier. We deal, after all, with the allocation of scarce resources where there are winners and losers. This leads us quickly into substantive justice theories based on entitlements, needs, and deserts and process justice theories extending to each loser his due. Justice theory is implemented through judicial review, and what courts do depends importantly upon behavioral assumptions about people, agencies of government, and empirical proof. The sources of these assumptions and evidence are often the sciences, and I would like to speculate a bit about how these sciences might influence the role of the courts. I will attempt to suggest lines of inquiry where descriptive and normative legal theories of natural resource allocation might draw upon insights from disciplines other than economics which has claimed such a prominent, and some would say disproportionate, role in contemporary legal scholarship. [This paper was presented initially to the Institute for Natural Resource Law Teachers, May 28-30, 1981, University of Colorado School of Law, Boulder, Colorado.]

This article considers problems of "regulatory reform" in the context of environmental and health decisionmaking. Specifically, in Part I, this article defines cost-benefit analysis, explores its advantages and limitations, and assays cost-benefit practice in light of descriptive theoretical and practical demands of formal decisionmaking within administrative agencies. The two remaining sections of this article focus on the question of how Congress and the courts can, do, and should structure environmental and health regulation. In Part II, the article explores legislative models for agency consideration of costs and benefits in promulgating regulations. It examines four alternative models, and identifies normative considerations influencing the choice of formulation. Structuring agency consideration of costs in promulgating regulations, however, is but a partial solution. Under any model of cost consideration, critical policy issues remain—the resolution of uncertainty and the protection of agencies' predictive judgments. Decisions of whether to regulate, and to what degree, often depend as much upon what to do when facts are unavailable as upon assessment of statutory criteria. Therefore, Part III looks at standards of judicial review, and the assignment of burdens of production and proof as techniques of addressing uncertainty.

This article analyzes three aspects of the National Industrial Pollution Countrol Coucil's performance: (1) the promise and risks it has presented; (2) its procedural performance, as tested by governing law; and (3) its accomplishments, both on the record and sub rosa, as measured by the expectations. In brief, NIPCC is portrayed as a dangerously anticompetitive institution occasionally doing business in violation of the law. The Council has published both public relations material and some useful data, but it has served more importantly as a lobbying forum for industries chafing under the regulatory bit. The experience of NIPCC forms the basis for section (4) of this article, which offers recommendations designed to make more responsive that potent fourth branch of government—the advisory committee. It is submitted that the emergence of the advisory committee from the shadows of the administrative process is long overdue.

The primary purpose of this Article is to encourage a forceful implementation of the Refuse Act as a second chance to achieve water quality. The presentation commences in Section I with a brief outline of the dimensions of industrial water pollution and the legal and scientific barriers to effective control. Against this background, Section II summarizes the central features of the Refuse Act, presents a narrative history of its recent renovation, and analyzes the major issues arising under the statute. Section III discusses the traditional industrial and governmental view of water pollution and how a change in regulatory attitude invites revitalization of the Refuse Act. The discrete roles of the private citizen, the Department of Justice, the Army Corps of Engineers (the Corps), and the Environmental Protection Agency (EPA) are discussed critically in Section IV with the aim of aborting regulatory blunders which might retard improvements in water quality that could be achieved through the wise use of the 1899 Act. The Article concludes in Section V by presenting two scenarios of polar utilizations of the Refuse Act, which may unfold within the next few years-one optimistic, the other pessimistic, either quite possible. [Reprinted in Mercury Pollution and Enforcement of the Refuse Act of 1899, Part 1: Hearing Before the H. Subcomm. on Conservation and Natural Resources of the H. Comm. on Government Operations, 92nd Cong. 567-629 (1971).]