The demise of environmentalism in American law

by Michael S. Greve

During the environmental era - the 1970s and the better part of the 1980s - the courts assumed that a fragile, uniquely complex ecosystem required special judicial protection. This ecological paradigm entailed a dilution of private present rights, a vast expansion of standing, and aggressive judicial review on behalf of regulatory beneficiaries. Michael S. Greve argues that these presumptions have ceased to play a formative role in American public law: breaking with the ecological paradigm, the courts have returned to more traditional, common-law-like doctrines. The ecological paradigm, Greve shows, induced or exacerbated much-criticized failures of environmental regulation. The emerging legal doctrines, in contrast, should contribute to more efficient and sensible regulation. Greve cautions, however, that much-needed, wholesale regulatory reforms cannot come from the courts but can come only from Congress.