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Culture wars at the Supreme Court (and what they mean for environmental law)

Dan Farber, professor of law | April 24, 2015

Views on environmental issues are related to broader culture differences. According to social scientists, environmentalists tend to be egalitarian, believe in harmony with nature, and stress responsibility over autonomy. Their opponents, who are skeptical about regulation, tend to favor traditional hierarchies, believe in human mastery of nature, and stress autonomy over responsibility.

book coverJon Cannon’s new book, Environment in the Balance, extends this theory to the Supreme Court, with illuminating results.

It is easy to come up with examples of the anti-environmentalist perspective. In Rapanos and Sweet Home, for instance, Justice Scalia makes clear his solicitude for the autonomy of landowners. He has also attempted, with some success, to reinforce the power of traditional hierarchies (governments, corporations) over that of upstart environmental groups by limiting standing.

The standing decisions also illuminate another dimension of the difference in world views. Relating to their emphasis on harmony with nature, environmentalists tend to view the natural world as highly independent, so that harms from human intervention may be difficult to trace. In an early standing case for instance, Justice Blackman invoked the precept that “no man is an island” as a basis for broad standing, making the point that we are all inseparably connected with the environment.

Justice Scalia, in contrast, has required highly particularized proof of injury as a basis for standing. For instance, he scoffed at the idea that harm to one part of an ecosystem might be presumed to harm other parts as well. In dissent, however, Justice Blackmun observed that “[m]any environmental injuries, however, cause harm distant from the area immediately affected by the challenged action.”

As Cannon shows in his detailed analysis of these and many other cases, the fingerprints of these cultural differences are all over the Court’s opinions.  If we focus solely on specific legal issues in the case, we may be able to grasp only part of the dynamic that is driving the outcome of the cases.

Cross-posted from the environmental law and policy blog Legal Planet.