Jay D. Wexler

Boston University School of Law Working Paper 05-06


In everyday discourse, the label “environmental law” signifies a distinct and unique area of the law. The uniqueness of environmental law stems most obviously from the subject matter of environmental legislation and regulation. But does environmental law also differ from other areas of law with respect to how judges ought to approach deciding cases? Should judges act differently somehow when they are deciding an environmental law case as opposed to, for example, a labor law or banking law case? At least one influential scholar—Richard Lazarus of the Georgetown University Law Center—has argued that the distinctive features of ecological injury justify treating environmental cases differently from other types of cases. This Article critically examines this claim, by identifying and evaluating seven potential paradigms that federal courts could use to relate environmental law to other areas of law, particularly administrative law, when deciding environmental law cases. In sum, the Article argues that when relevant under the appropriate legal standards, courts should consider the distinctive features of ecological injury when applying facts to law, and in some situations they should draw on their knowledge of those distinctive features when fashioning rules of general application. They should not, however, reach pro-environment decisions in a non-principled manner, automatically vote to protect the environment whenever the relevant legal materials prove substantially indeterminate, or otherwise act as though protection of the environment is an inherent aspect of the judicial role. Nor should they fashion completely distinct rules to govern environmental law cases or alter generally applicable rules to apply differently in environmental law cases. The point of the Article is not to suggest that “environmental law” should not exist as a separate legal category, but rather to suggest that generally judges need not approach environmental law cases differently from how they approach other types of cases.

Keywords: Administrative Law, Environmental Law, Judging (or Judicial Role or Judicial Decision-making)

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Kenneth W. Simons Contact Information
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
(617) 353-2789

Presentation and Publication Information:

Forthcoming in the George Washington Law Review

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