Next Generation Environmental Law: A Response to Richard Stewart

Abstract

Richard Stewart's paper, A New Generation of Environmental Regulation?, provides a comprehensive and insightful tour of U.S. environmental regulatory history. Professor Stewart also surveys a range of new approaches to environmental law that have been brought forward under the auspices of regulatory reform efforts over the last several decades. He discusses in considerable detail how these "second generation" tools work and the contexts in which particular strategies are likely to be successful. He delves into a number of the reasons why regulatory reform efforts have not succeeded in recent years and closes with a set of interesting views on how to encourage movement toward a more refined environmental regulatory structure. Much of what Professor Stewart suggests makes eminent sense. I will focus, therefore, on two areas where I think the Stewart analysis can be broadened and deepened, perhaps leading to a more optimistic result than Stewart's conclusion about the prospect for an improved structure of environmental law and better ecological and public health results over time. In particular, I believe that Professor Stewart overlooks the transformative power of the "information" revolution.