Policy and law

Among the many purposes of environmental law, two stand out: the protection of personal and property rights and the preservation of places. Laws controlling pollution serve primarily the first goal; they constrain the risks people can impose on others. Statutes that pursue the second purpose seek to preserve national forests, landscapes, and landmarks; to protect historical districts; to maintain biodiversity; and to defend the integrity of ecological systems, such as rivers and wetlands.

These two sorts of statutes emerge from two founda-tional traditions in the political culture of the United States, the first of which draws on the values of property and autonomy; the second, on those of community and diversity. The first tradition, which is associated with libertarianism and individualism, would protect each person from involuntary risks and harms. The second tradition, which is associated with Madisonian republicanism, suggests that Americans may use the representative and participatory processes of democracy to ask and answer moral questions about the goals of a good society. Americans, most of whom are immigrants or descended from immigrants, find in the natural environment a common heritage—a res publica— that unites them as a nation. Environmental laws, then, may regard shared nature as having a cultural shape, form, or value we are responsible to maintain for its own sake and for future generations.

Pollution-control law may be understood in ethical rather than economic terms insofar as it protects the sepa-rateness and inviolability of persons rather than satisfies their interests or preferences. Land-use law preserves the ecological and historical character but not necessarily the economic product of landscapes. Environmental law thus responds to intrinsic values, namely, the autonomy of persons and the integrity of places.

This entry provides a brief account of the three stages— aspiration, recrimination, and collaboration—that characterize the historical development of environmental law in the United States since the passage of the National Environmental Policy Act of 1969. It then describes some of the normative and conceptual problems that are most likely to affect the future of environmental policy.

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