Recommended Citation
Sanne H. Knudsen, Predicting (and Protecting) the Future of Environmental Law After Loper Bright, 85 Ohio St. L.J. 1055 (2024), https://digitalcommons.law.uw.edu/faculty-articles/1134
Publication Title
Ohio State Law Journal
Keywords
environmental law, agency deference, deregulatory impulse, Loper Bright, Chevron
Document Type
Article
Abstract
Nostradamus, the sixteenth-century French philosopher and seer, is said to have predicted many things: the French Revolution, the rise of Napoleon, the Great Fire of London, the rise of Adolf Hitler, the 9/11 attacks on the World Trade Center. Of course, there are skeptics. The predictions, after all, tended to be “cryptic and vague.”
Still, if alive today, I wonder what quatrain Nostradamus might write—and what elusive meaning his fans might try to decode—about the future of environmental law in the United States. Would he predict that environmental law will be ravaged by the binary politics of the moment, reduced to a pawn in a fight about government overreach? Would he predict it will be saved by a renewed interest by Congress to give federal agencies specific authority to match the scope of modern environmental challenges—like climate change, the inequitable burden of environmental disease, or forever chemicals? In the absence of Congressional inspiration, will courts read old statutes to give agencies the freedom to solve new problems? If not, will states fill the gaps?
Predicting the future is notoriously tricky business, inviting both thrill-seekers and naysayers to witness what is sure to culminate in either a public display of genius or spectacular incompetence. Nevertheless, we persist. In February 2024, a group of scholars convened in Columbus, Ohio, to participate in a symposium hosted by the Ohio State Law Journal to contemplate the future of environmental law. It is from that symposium, and with gratitude to the editors for choosing to focus on environmental law’s future, that this writing originates.