Protecting the environment does not require us to abandon the rule of law

This week, briefing began in WildEarth Guardians v. U.S. Department of Justice, a case of critical importance to anyone concerned about federal overcriminalization. The Endangered Species Act makes it a crime to “knowingly violate” the statute’s prohibition against taking listed species. For decades, the United States has interpreted this to mean that, to be convicted, a defendant must know his actions will cause take and know the species that will be taken. The case seeks to overturn that interpretation in the case; in effect, to force federal prosecutors to convict and imprison people for innocent mistakes resulting from ordinary, traditionally lawful activity. [Disclaimer: I, along with several of my PLF colleagues, represent agricultural organizations in the case. You can find our brief here.]

Overcriminalization is another example of the due process deficit in environmental law. Traditionally, the rule of law has prevented this sort of abuse. Lon Fuller famously summed up the rule of law—which he called the inner morality of law—as requirements that law be even-handed, public, prospective rather than created ex post, coherent, clear, stable, and practicable. Together, these principles shield people from the exercise of arbitrary power, particularly when that power takes the form of criminal punishment. Modern environmental regulation fairs very poorly on these criteria.

Reading the Endangered Species Act’s knowledge requirement out of the statute will not result in a coherent, clear, and practicable rule. It could lead to people being imprisoned and fined for innocent accidents resulting from ordinary, lawful conduct. (It is no exaggeration that, under WildEarth Guardians’ theory, which the district court accepted, you could be sentenced to a year in federal prison if you accidentally struck an endangered insect with your windshield while driving down the highway.) It also won’t be evenhanded; it’s unimaginable that federal prosecutors would pursue everyone who innocently violates the law. Instead, they would arbitrarily pick and choose their defendants.

Much of environmental regulation presents rule of law problems. In a recent post, I discussed several Supreme Court Justice’s concern about the consequences of that overly vague law. Justice Kennedy has even suggested that it may be unconstitutionally vague. Justices Roberts and Alito haven’t gone that far yet but have expressed concern about a statute that cannot be interpreted or understood by an ordinary person without an army of lawyers. This law is not clear, coherent, or practicable. And most people only learn what bureaucrats expect of them after-the-fact, when they show up on their doorstep accusing them of violating the law and threatening tens of millions in fines.

Unfortunately, rather than confronting environmental law’s rule-of-law problem, the trend is instead to redefine the rule of law for environmental law and, thereby, sweep the problem under the rug. (This shouldn’t be too surprising. If “navigable waters” can be redefined to include dry land, why should any concept not bend to will?)

In 2016, the IUCN World Environmental Law Congress (no, I did not make that up) proposed a new definition of the rule of law for environmental law. Whereas the rule of law has been primarily focused on protecting individuals from arbitrary exercises of power, the new environmental rule of law is focused on empowering regulators and avoiding deregulation.

Is this erosion of the rule of law inevitable? No. One of the most attractive aspects of free market environmentalism is that, far from requiring the abandonment of our values, it relies upon and reinforces them. Free market environmentalism needs little more than simple, clear rules and stable property rights. These make it possible for environmentalists, industry, and property owners to reach mutually beneficial solutions to environmental issues.

Private individuals and organizations have the greatest knowledge and incentive to get things right, allowing them to work out all of the more complicated questions that arise. You’re far more likely to reach the right result that way than if you assume that distant beltway bureaucrats will know everything and solve every conflict. Regulators are human like the rest of us; they have limited knowledge and time and are thus prone to mistakes. Sometimes those mistakes may be embarrassing, like when EPA threatened Andy Johnson and his family with $20 million in fines based on an errant assumption that water flowed uphill. Other times they’ll result in rules that undermine the values regulations purport to protect.

Such mistakes may also occur under voluntary and free market conservation. But their consequences will be limited to the areas involved, rather than nationwide (which is the case when federal bureaucrats get regulations wrong). And those mistakes are more easily fixed. It’s a Herculean effort to change a controversial federal statute or a regulation, but private parties renegotiate private contracts and property rights all the time. Over the long run, that flexibility, combined with better incentives, allows voluntary conservation to achieve much better results than heavy-handed regulation.


  1. I would add to the definition that the offence must be objective, not a subjective view. No doubt Fuller couldn’t conceive of a non-objective law, but we have plenty of them now, in particular hate-crime where a party (not even the direct “offended” party) can decide a crime has been committed just because they think it has.


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