Читать книгу The Psychology of Environmental Law - Arden Rowell - Страница 15

The environment—or the surroundings in which people and organisms live—exists separate from law: It predates humans, and it persists (even if in an altered state) regardless of legal institutions and human behavior. Yet humans have always affected their environments. Indeed, environmental archaeological evidence suggests that even very small-scale societies routinely and measurably impact the environments in which they live, often through deforestation and hunting, and that semisedentary and agricultural societies have been measurably changing the surface of the planet for over 8,000 years (Reyes-Garcia et al., 2017). More recently, the emissions associated with industrialization have changed not only local environments but the composition and function of the global climate—impacts so profound that the current planetary epoch is now commonly called the Anthropocene, or the “Age of Humans” (Crutzen & Stoermer, 2000; Purdy, 2015).

In many cases, both in the past and today, the environmental impacts of human behavior are inadvertent or incidental. Often, the environmental impacts of behaviors like acquiring and burning fuel, planting crops, killing animals, or gathering resources—impacts that may be latent, distant, and hard to perceive and understand—are invisible to individuals bent only on living their lives. Still, where environmental impacts become acute or otherwise apparent, states have sometimes responded by developing environmental laws: purposeful codes of behavior intended to shape human actions to desired environmental ends. Records from early imperial China, for example, reveal laws undertaken for purposes of conservation and environmental stewardship, including ordinances attempting to protect young animals and birds from being overhunted (Sanft, 2010). The ancient Romans, in addition to building enormous public infrastructure projects for the provision of clean water and the management of municipal sewage and solid waste, also issued laws addressing pollution. They banned lime kilns in highly populated areas because of their impact on air quality and prohibited wagons and chariots being used at night to limit the impact of noise pollution (Havlíček & Morcinek, 2016). In the late Middle Ages, King Edward I of England famously outlawed coal burning in an attempt to clean up London’s highly polluted air. “[W]hosoever shall be found guilty of burning coal,” the law warned, “shall suffer the loss of his head” (Newton, 2007, p. 3; Vesilind et al., 2013). Subsequent English monarchs attempted to enforce similar bans over several centuries, even prior to the Industrial Revolution—though these seem largely to have been ineffective in achieving improved environmental quality (Vesilind et al., 2013).

Indeed, many early environmental laws struggled to achieve their intended ends, whether because of limitations on scientific knowledge (Sanft, 2010; Newton, 2007) or because they failed to effectively understand the motivations underlying regulated behaviors. Still, these laws were distinct from early nonenvironmental laws in their focus on environmental or ecological harm, whether that harm was overhunting, sewage, noise, or smog. These laws sought to change behavior not for its own sake but instead because of the harm that behavior might do to the environment—and which the environment might then impose upon the people who lived within it. Environmental law thus developed only as people began to be purposeful in how their behaviors affected their environments, and as they saw opportunities to address behaviors with undesirable environmental impacts.

In the United States, efforts and laws addressing conservation date at least to the establishment of the National Park Service in 1891. That said, modern environmental law—and particularly pollution control—are conventionally traced to the 1960s and 1970s. That era saw increased awareness of environmental issues, sparked in part by the lyrical scientific writing of Rachel Carson in her book Silent Spring, which introduced many Americans to the notion of ecological injury for the first time. This awareness combined with the movements of the Civil Rights Era and with a string of high-profile, well-publicized disasters, including the Great Smog Disaster of London, which killed 12,000 people in a few days, the Santa Barbara oil spill of 1968, which at that time was the largest in American history, and the well-publicized Cuyahoga River fire, also in 1969.

This social attention and activism culminated in what is sometimes called the “Environmental Decade,” a time of extraordinary social and legislative activity on environmental issues. The decade was kicked off on January 1, 1970, with then-President Richard Nixon signing the National Environmental Policy Act into law. The same year saw the establishment of the Environmental Protection Agency (EPA), the celebration of the first Earth Day, and passage of the Clean Air Act and the Occupational Safety and Health Act. These were followed by an avalanche of environmental legislation at the federal level, including most of the statutes that remain the backbone of environmental law today. These also include the National Environmental Policy Act (1970), the Clean Water Act (1972), the Endangered Species Act (1973), the Safe Drinking Water Act (1974), the Resource Conservation and Recovery Act (1976), the Toxic Substances Control Act (1976), significant amendments to the Clean Air Act and Clean Water Act (1977), and the Comprehensive Environmental Response, Compensation, and Liability Act (“Superfund”/CERCLA) (1980). Although in recent years environmental law and environmental issues have become increasingly partisan (Karol, 2018)—about which we shall say more in subsequent chapters—at the time of passage, the burgeoning environmental movement had such broad support that many foundational environmental statutes generated little to no political controversy, even when they established legal approaches that are now viewed with partisan suspicion. The National Environmental Policy Act, the Clean Air Act, and the Endangered Species Act, for instance, all passed unanimously in the Senate.

The pace of new legislation slowed during the 1980s under the overtly deregulatory presidency of Ronald Reagan, but other important environmental mechanisms developed during that time (Rowell & van Zeben, 2020). In particular, the 1980s saw the creation and entrenchment of new forms of regulatory analysis, including executive orders requiring quantitative cost-benefit analysis for most regulatory (including environmental) decisions. It also saw the participation of the United States in the influential 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. The 1990s saw the substantive amendment of the Clean Air Act and substantial debate regarding U.S. participation in international climate change agreements, particularly the Kyoto Protocol—which the United States ultimately chose not to ratify. During the 2000s and 2010s, the relative scarcity of federal legislation on environmental matters—including climate change—left many substantive environmental policy decisions in the hands of environmental agencies, and the President. At times—as between the presidencies of Barack Obama and Donald Trump—this has led to substantial shifts in federal environmental policy between presidential administrations and has thus heightened the stakes of presidential decision making. Climate change policy, which in the absence of directed legislation on climate change is left largely to the executive to address (Rowell, 2015), has been particularly unstable.

The reasons for the extraordinary period of activity in the 1970s are complex, and commentators have highlighted a number of social, scientific, institutional, and political factors that came together in that period (Tarlock, 2010; Lazarus, 2004; Lewis, 1985). These factors may well have helped legislators of the Environmental Decade note, learn, and care about environmental impacts despite the types of psychological barriers we will discuss throughout the rest of the book that make environmental impacts generally difficult to notice, understand, and engage with emotionally. Yet even when politicians of the 1970s noticed and cared enough about environmental impacts to legislate, they were drafting legislation (which courts and agencies were interpreting) without the support of any substantial social science research to help them accurately understand, predict, or shape human behaviors. Indeed, commentators have rightfully noted that these core environmental statutes were in many cases built on inaccurate and incomplete assumptions—and particularly on an oversimplified account of nature and human impacts upon the environment (Doremus, 2006; Fischman, 2007; Tarlock, 2010). Perhaps unsurprisingly, then, in many cases they have failed to achieve their goals (Lazarus, 2004; Tarlock, 2010). As we will see, some of these inaccuracies and opportunities can be illuminated by research psychology, which can help both in describing and predicting how people engage with their environments, and potentially aid policy makers in more effectively shaping environmental behaviors in light of their preferred environmental ends.