The Progressive Ratcheting of Environmental Laws: Impact on Public Management

One of the problem‐making tendencies in environmental policymaking has been an incremental approach to regulation and control. Either because the full dimensions of an environmental problem are not perceived or because political resistance compels step‐by‐step action, environmental controls tend to be applied progressively, beginning with nominal, largely ineffectual, retroactive declarations. Failing to meet objectives, laws are toughened and extended year by year until the severty of sanctions begins to defeat their intended effects. The fractionized state of environmental law, focusing on specific problems of pollution and subject to changes in interpretation, makes observance and enforcement difficult. The National Environmental Policy Act of 1969 could have facilitated the unification of environmental policy; unfortunately presidents and congresses have not chosen to use it for this purpose. Meanwhile, because environmental protection per se is relatively new to public law and policy and has few roots in the common law, private citizens aggrieved by political obstruction of their expectations have appealed to the courts for relief and compensation. Conservative courts have granted this relief under the “taking” clause of the Constitution. Extraordinary measures in constitutional law may be necessary to resolve an impasse in public policy resulting from conflict between public interests and private rights as interpreted by the judiciary.