On this episode of Free Range, host Mike Livermore is joined by Harvard Law professor Richard Lazarus. Lazarus is the author of the book “The Making of Environmental Law”, which is now out in its second edition.

On of the key takeaways from Lazarus’ book is that environmental law is especially difficult because environmental science and economics collide with the lawmaking system. Ecosystems naturally spread cause and effect out over time and space. Therefore, activities that occur in one place at one time have consequences that arise at another place and time. Regulation and lawmaking systems struggle with this because these laws regulate people at one place in time for the benefit of another group at another time, leading to substantial distributional consequences. (0:36-16:03)

The distributional effects of environmental law have also contributed to the current polarized political situation regarding environmental action. In a state like West Virginia, there were political gains to be made by the Republican party by opposing climate regulation, because of the local economic costs of reducing the nation’s reliance on coal. As the parties vie for different constituencies, polarization naturally arises when groups opposed to or supportive of environmental protection sort into the two parties. This dynamic has played out over many issues in the past decades, but environmental policy may be particularly prone. (17:50-31:05)

The two then discuss environmental justice and its ties to the polarization of environmental law. Lazarus reflects on how his view of the topic was changed when a student in his hazardous waste class inquired about his theory that waste sites are more prevalent in minority neighborhoods. That interaction ultimately led Lazarus to rethink how he approached environmental law to focus more on race, class, and fairness issues. (33:30-44:21)

The conversation wraps discussing polarization and the role of the courts. Lazarus offers his view that attention to fairness issues and the commercial opportunities presented by environmental transitions can help build a bipartisan coalition in favor of environmental protection. The two then discuss the two most recent major environmental cases in the Supreme Court: West Virginia v EPA and the Sackett case. For Lazarus, the West Virginia decision to uphold the repeal of the Clean Power Plan was irresponsible but not out of bounds; it prevented an ambitious future plan for environmental protection, which had a solid, but not unassailable, statutory basis. He sees Sackett because it relied on shoddy interpretation of the Clean Water Act to undermine a longstanding and successful environmental program. Despite this, Lazarus has a somewhat optimistic view of the Court. Even if it will continue to be an obstacle to executive action to protection the environment, if it is possible to pass new environmental legislation to address issues like climate change, he believes that the Court will not get in the way. (47:28-1:06:23)