From an American perspective, environmental law has undergone two bouts of centralization in the past three decades. Round one occurred in the 1970's, as Congress federalized vast areas of environmental law that had previously been the province of state and local governments. Round two, which is still in an incipient phase, represents the effort to internationalize environmental law.
The question I would like to address is what can we learn from round one about what is likely to happen in round two.1 My answer, in a nutshell, is that the primary driving force behind the federalization of environmental law in the 1970's was a form of economic protectionism. The dominant motive for federalization was the desire to protect existing industries, jobs, and tax bases against competition from other states with potentially cheaper environmental regulations. This suggests, in turn, that the most promising vehicle for globalizing environmental law is the same type of protectionist impulse, operating now on an international rather than an intranational scale. The trick will be to harness this protectionist impulse toward proper environmentalist ends without letting protectionism get out of control and killing off trade liberalization altogether.
Let me begin with a clarification. I am not saying that environmentalism is some kind of cover for economic protectionism. It could be that some environmental initiatives are best explained on this basis. But I readily concede that the sudden upsurge in public support for environmental regulation that began in the 1970's and continues today is a phenomenon that exists independently of any desire for economic protectionism. My comments are directed at explaining not the fact of environmentalism, but rather the centralizing tendency in environmentalism. In other words, why does a demand for increased environmental protection translate into a demand for centralized controls, rather than more rigorous local controls?
Thomas W. Merrill,
Panel III: International Law, Global Environmentalism, and the Future of American Environmental Policy,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/364