Environmental Law in a Polarized Era

Solving environmental problems in a polarized era requires avoiding failures of imagination. The remarkable framework of constitutional interpretations, statutes, regulations, policies, agencies, and courts that developed over the last half century remains in place and dominates how we think about environmental law and policy and how many lawyers still practice. But the political system that gave birth to it no longer exists. In its place is a political system characterized by polarization, sorting, and gridlock. Understanding the organizations and tools available to environmental law in a polarized era requires updating mental models, and an initial step is to recognize the Panacea Bias, Disney’s Law, and other conceptual barriers. New models and tools are needed, and the emergence of complements to public governance becomes apparent once the standard model of public governance loses its privileged position. Four examples demonstrate the types of models and tools that have emerged. The first is the beneficiary pays concept -- the transition of public governance from regulating bad behavior to subsidizing good behavior. The second is the development of de facto national standards -- the extension of one state or local government’s requirements to other jurisdictions through public and private governance measures. The third is the behavioral wedge concept—the emissions reductions achieved by focusing on households as a source of emissions reductions. The fourth is the private sector wedge concept—the emissions reductions achieved by focusing on private environmental governance, which occurs when private organizations perform the functions performed by governments in an earlier era. The architects of the regime that has dominated environmental law for its first half century had the courage to imagine a new governance system adapted to the political milieu and environmental problems of their time. Do we?