By Alexis McCullough | Articles Editor

November 28, 2023

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The law has shaped how humans react and are affected by the environment. Even when the environment is affected by pollution, fires, or other disasters, there is little focus on ecological sustainability and restoration or slow, insidious environmental impacts such as climate change or accumulating plastics on Earth. Instead, the legislature ordered the law around our collective human destiny. Pollution and other environmental disasters can also bring a great risk to nature and to humans, and the cumulative effects are over a long period of time often unknown until too late because of poor cost-benefit and risk analysis.[1] Water and air pollution have been a problem since the earliest days of human civilization––largely because of human activity from farming and metallurgy––and continues even now in the modern era.[2] Humans have a great impact on the Earth’s atmosphere and its water resources, yet the scientific knowledge gained over the last century or so has brought to light just how great our impact really is. 

Rising greenhouse gases drive climate change and alter the atmosphere composition, which can bring dangerous weather and the warming of the Earth.[3] Substances not occurring in nature and human-invented such as per- and polyfluorinated alkyl substances (PFAS), or forever chemicals, can be found in the water and air.[4] Unfortunately, PFAS can also be found in human and animal blood all over the world and cannot safely be broken down.[5] The above environmental problems pose a gap in the law: the law can only go so far in its reach when the scale goes beyond what the human mind can comprehend.

There is a question of risk. How much humans are willing to tolerate if the body was never meant to defend itself against pollution? Quite a lot because humans are adaptable. But tolerance might come from ignorance or the lack of being able to track the changes over years and years. Unravelling the slow violence of environmental harm and harm to human health and starting the path to a sustainable restoration requires restructuring of environmental law. Environmental law needs to adapt so that it can control rapid and far-reaching harms from long-term health effects on humans and the ecosystem, and ensure an obligation to the future to prevent nature from unraveling in response to anthropogenic changes. 

Adapting environmental laws to be more flexible would control situations when harms occur slowly or too quickly.[6] Resonance is likely necessary to allow the law to reach across other timespans––giving the law more flexibility would allow governments to anticipate the new harms and to prepare for the future; flexibility is also needed to adapt from past events.[7] Layering different timespans within the structure of environmental law would provide redress for many different problems that are continuous in nature or accumulate after some period of time.[8] While this kind of structure is not used in environmental statutes listed above, it is used in energy law.[9]

Energy governance already brings infrastructure risks using “statistical and probabilistic calculations, foresight technologies, and construct[ing] . . . scenario models.”[10] By foreseeing future events, energy governance is successful in adapting for disruptive events in the power sector, adjusting as needed based on energy demands and keep the systems functioning.[11] There must be a way to bounce back and to ensure resilience in environmental law just as the energy grid does after a power blackout or if the energy infrastructure breaks down.[12] There are certain scenarios where allowing for more flexibility would assist environmental law.

When an environmental law’s response to risk or harm that is not apparent until later or is rooted far in the past, then a change in the regulatory scheme based on disruptive environmental events in the regulatory scheme is vital to improve responses to disasters. Examples include climate change, accumulated pollution, and reckless harm to the environment such as depleting natural resources. This change in environmental law would assist in reducing the risk and uncertainty of the harms on human health and the environment. The first example would be people who are harmed slowly over a period of years without realizing the effects of the pollutant.[13] The second example would be that the pollution or harm is able to extend beyond the human lifespan or that multiple generations of humans could be affected.[14] This is particularly important in the context of environmental justice where majority poor or minority communities are affected by pollutants. Third, the temporality of pollution exposure reaches across generations and can affect both the longevity and the general health of humans. This concept is particularly worrying in the context of air pollution when it can reduce humanity’s overall lifespan.[15] Unfortunately, with the above scenarios, it is difficult to face human mortality and the environment’s degradation at the same time.

Overall, environmental law needs to change to expand beyond the limitations set in the linear-temporal framework as well as consider the sometimes-deadly temporal amnesia that occurs when society does not remember past harms or accepts the slowly-occurring harms to humans and the environment because it is easier to adapt to slow harms than to perceive the enormity of them. This change should also be in conjunction with allowing for the environment and natural resources to recover as well as ensuring justice for people harmed by long-lived environmental disasters. 

[1] Ecological Disasters, COUNCIL ON FOREIGN RELATIONS, https://www.cfr.org/timeline/ecological-disasters (last visited Nov. 8, 2022).

[2] Joseph Stromberg, Air Pollution Has Been a Problem Since the Days of Ancient Rome, Smithsonian Magazine (Feb. 2013), https://www.smithsonianmag.com/history/air-pollution-has-been-a-problem-since-the-days-of-ancient-rome-3950678/.

[3] Global Climate Change: Vital Signs of the Planet, NASA, https://climate.nasa.gov/ (last visited Nov. 8, 2023).

[4] PFAS Explained, U.S. EPA, https://www.epa.gov/pfas/pfas-explained (last updated Oct. 25, 2023).

[5] Id.

[6] Benjamin J. Richardson, Time and Environmental Law: Telling Nature’s Time 15–18 (2017).

[7] Id. at 7–8.

[8] Id. at 15–18.

[9] Antti Silvast et. al, Energy Governance, Risk and Temporality: The Construction of Energy Time Through Law and Regulation in Law and Time 212–28 (Sian Beynon-Jones & Emily Grabham eds., 2021).

[10] Id. at 213.

[11] Id. at 214.

[12] Id. at 217–18.

[13] Pollution Could Be Harming Every Part of Your Body. Here’s How, WORLD ECONOMIC FORUM (May 23, 2019), https://www.weforum.org/agenda/2019/05/pollution-could-be-harming-every-part-of-your-body-here-s-how/.

[14] Id.; John Voorheis, Air Pollution Diminishes Future Generations’ Economic Opportunities, U.S. Census Bureau (Feb. 22, 2021), https://www.census.gov/library/stories/2021/02/air-pollution-diminishes-future-generations-economic-opportunities.html.

[15] Air Pollution Cuts Life Expectancy By More Than Two Years, Study Says, REUTERS (June 15, 2022), https://www.reuters.com/business/healthcare-pharmaceuticals/air-pollution-cuts-life-expectancy-by-more-than-two-years-study-2022-06-14/.