May 17, 2021

Environmental Law—sick unto death with that long agony?

Posted on May 17, 2021 by Kevin R. Murray

To the right—to the left—far and wide—with the shriek of a damned spirit; to my heart with the stealthy pace of the tiger!

The Pit and The Pendulum, Edgar Allan Poe

Environmental policy swings like a pendulum without regard to permanency, thus creating unique challenges to environmental improvement. We see pendulums in all areas of our lives—longcase clocks, playground swings, even desk ornaments. It has been said that pendulums demonstrate that the Earth is huge because the swinging motion of a pendulum is due to the force of gravity generated by the size of the Earth. Usually the pendulum will move back and forth without any help outside of gravity until slowed and eventually stopped by friction. The time it takes the pendulum to swing back and forth is known as the period of the pendulum. The period of the pendulum depends on the force of gravity on the bob as well as the length of the pendulum.

I watched some children playing on swings (pendulums) in a schoolyard. Occasionally, a child would grab the swing and hold it at the end of an arc, ultimately letting go with the swing moving in the opposite direction while several others would scamper under the swing to avoid contact. What I really noted was each achieving a sought-after objective.

Over recent decades, it seems as though—with a sweep of a pen and an executive order—the environmental law pendulum makes its arc. At times, it is held at the height of an opposite point before being released on a reverse path, causing stakeholders to scamper and avoid being hit by the swinging pendulum. It seems unlikely that the pendulum will ever be subject to enough force to hold it at a high arc forever; the “Earth” is simply too huge, and forces will effect change. The fundamental question is whether any positive improvement in the environment can be made while the legal equivalent of a plum-bob swings wildly from one arc through the middle to the height of an opposite arc.

As a child, I used to take trips to the planetarium where a huge pendulum was housed. The massive bob moved back and forth among small domino-like sticks standing in the sand. Under the effects of the rotation of the Earth, the pendulum knocked down the sticks, one by one, leaving a trail where the bob had been. The success of the application of environmental law is represented by the “sticks” that have been knocked down. The fallen sticks suggest that success can be achieved while the pendulum swings. Positive environmental impacts have been made during each swing to the left and right, regardless of the height of the arc, direction of the swing, the period, or length of the pendulum. Policy will swing without regard to permanency, bowing only to properly enacted legislative schemes. It is the regulated community, career-agency personnel, and stakeholders that must work together to ensure sustainability and resiliency of the environment. Policy has been and always will be fickle. While it may seem like those in the path of the swing must scamper to avoid being hit, methodical movements and thoughtful planning will ensure a successful outcome rather than an ill-fated end. As the pendulum nears the chest of Poe’s narrator, the narrator finally accepts the inevitable and, in the absence of panic, is suddenly able to think clearly and exclaims, “For the first time during many hours—or perhaps days—I thought . . .” and, as a result, he remembers a half-formed plan of escape, which he successfully implements. Likewise, of science, sustainability, and resiliency, stakeholders must think and launch their plan despite ever-changing political policy.