Sanne H. Knudsen, The Exoskeleton of Environmental Law: Why the Breadth, Depth and Longevity of Environmental Law Matters for Judicial Review, 2023 Utah L. Rev. 1 (2023), https://digitalcommons.law.uw.edu/faculty-articles/925
Utah Law Review
Environmental law, Statutory interpretation, Collective action
Environmental law is pragmatic, inevitable, and intentional. In the aggregate, the numerous federal environmental statutes are not simply a patchwork of ad hoc responses or momentary political breakthroughs to isolated public health problems and resource concerns. Together, they are a group of repeated, legislatively-backed commitments to embrace self-restraint for self-preservation.
Self-restraint and discipline are the essence of environmental law. Indeed, if one studies the patterns and repeated choices in environmental law 's many statutory texts, one can start to appreciate environmental law 's indispensable role in society: it serves as an enduring "exoskeleton," a sort of protective armor created over time to protect ourselves from collective action problems that inevitably arise in a world of biophysical limits.
Appreciating the exoskeleton that is, appreciating the broader statutory and historical context in which these laws exist has implications for the interpretation and implementation of environmental statutes. It has implications for the weight that regulators and jurists ought to give enacted purpose statements when interpreting the laws, for reviewing agency decisions made in the face of scientific uncertainty, and for the robust review that ought to be given to agency inaction.
Absent a corrected understanding of environmental law, one that aligns the fundamental purpose of the laws with its implementation, the full fervor of Congressional commitment to self-restraint will continue to be met with judicial microscoping, apathy, and sidestepping.