Competing narratives of nature and culture common to the American environmental imagination play a more significant role in environmental law and litigation than previously acknowledged. These competing narratives, communicated through a known set of environmental stories and tropes, are used by attorneys to establish, frame, narrate and argue their cases, and they are absorbed, reimagined, reframed and retold by judges in their written opinions, making environmental law a kind of expressive, literary event.
To illustrate this process, the Article examines two important and highly visible case studies: the reintroduction of gray wolves into the Northern Rocky Mountains and the public nuisance climate change lawsuit that culminated in the Supreme Court’s decision in Connecticut v. American Electric Power. A close reading of the pleadings, legal briefs and judicial opinions in these case studies demonstrates that courts respond to and reinforce traditional environmental stories, such as wilderness tales and the environmental apocalyptic, but evince a strong preference for a less well-known story, which I call the Progressive Management Machine. The Progressive Management Machine promises reconciliation of competing environmental narratives through administrative process and science-driven decision making, but, in so doing, masks its own contravention of those same narratives.
Thursday, May 23, 2013
Burger on Environmental Law/Environmental Literature
The latest issue of Ecology Law Quarterly has an article by Michael Burger on "Environmental Law/Environmental Literature", in which he examines the role of certain environmental narratives in contemporary environmental law. From the abstract: