Landmark environmental statutes aspired to constitutional-level transformation, not ordinary lawmaking

Evidence

Also like federal civil rights legislation, many of the landmark federal environmental laws seem on their face to aspire to something more dramatic than businessasusual lawmaking. For instance, unless one is already aware of its subsequent judicial curtailment, the NEPA statute can only be read as a deliberate effort to revolutionize the approach of agencies and courts to the implementation of all law— an aspirant to superstatute status if ever there was one. Indeed, though scarcely noted today, the statute contains a provision that could easily have been read to confer a protoconstitutional right to environmental protection. Equally ambitious from the expanded constitutionalist perspective are the ESA, which prohibits not only government actors from contributing to species loss, but private actors as well; the CWA, which fl atly prohibits the degradation of high quality waters, irrespective of the opportunity costs of doing so; and the CAA, which vests farreaching regulatory power in a federal agency, the full breadth of which only became apparent after the EPA began considering how it might implement a green house gas emissions control program following Massachusetts v. EPA. — Douglas A. Kysar, Regulating from Nowhere, 640

Categorization

• XREF: connects to: Law’s defining trait is its capacity for foundational reordering, which cost-benefit analysis suppresses — Douglas A. Kysar, Regulating from Nowhere: Environmental…, 616; Environmental statutes are radical redistributive acts passed through deliberately conservative institutions — Richard J. Lazarus, The Making of Environmental Law, 18; Environmentalism transformed the content of a dozen unrelated fields of American law — Richard J. Lazarus, The Making of Environmental Law, 28 (+2 more)

Broader Connections

• Law changes by layered accretion rather than revolutionary overhaul. #complicates (0.75) — Lawrence M. Friedman, A History of American Law, 75
• Environmentalism transformed the content of a dozen unrelated fields of American law #expands (0.72) — Richard J. Lazarus, The Making of Environmental Law, 28
• Environmental statutes are radical redistributive acts passed through deliberately conservative institutions #qualifies (0.70) — Richard J. Lazarus, The Making of Environmental Law, 18