Toward a Theory of Statutory Evolution: The Federalization of Environmental Law

TLDR: In this article, the authors trace the life histories of statutes in the environmental area and explore the factors that influence the growth and development of statutory law over time, using a biological analogy.

Abstract: Let us begin by renouncing two of the more ambitious implications of the title. No, we do not believe that any single theory can do justice to all varieties of statutory development. Nor do we believe that everything worth saying about the processes by which statutes change can be captured by analogy to biological evolution. Just as each human being has a unique life history, so too statutes are born, live, and die under circumstances that are unlikely to be duplicated. What we are embarked on is an exercise in statutory biography: by tracing the life histories of statutes in the environmental area, we hope to deepen our understanding of the factors that influence the growth and development of statutory law over time. In this paper, we will not attempt to summarize all our conclusions or provide full documentation. We are presently working on a book which will describe more comprehensively the circumstances which influenced the development of the environmental statutes of the 1970s. Our goal at the moment is more modest. We will describe in general terms what we have in mind when we say that statutes "evolve" and then illustrate by describing a particularly important period in the history of environmental law. During this period, roughly from 1965 through 1970, strong federal environmental legislation was passed, although environmentalists were not yet well-organized as a conventional interest group in Washington. Thus, the period is interesting in its own right because it seems to contradict the usual wisdom that statutes are passed in response to political activity by well-organized pressure groups.