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1 

Restating Environmental Law 

Tracy Hester,* Robert Percival,** Irma Russell,*** 

Victor Flatt**** & Joel Mintz† 

Introduction ........................................................................................ 2 
I.  Is U.S. Environmental Law Ready for a Restatement? ................. 5 

A.  The Current State of U.S. Environmental Law ........................ 5 
B.  The ALI’s Mission and Methodology ..................................... 10 
C.  Prior Work by the ALI on Environmental Law ...................... 12 
D.  Considering U.S. Environmental Law in Light of the 

ALI’s Expectations ................................................................... 13 
1.  The Problematic Realm of Statutory Law ........................... 15 
2.  The Caveat of Unmanageable Complexity ......................... 16 
3.  The Trap of Irreconcilable Controversy ............................. 17 
4.  A Related Concern:  Opportunity Cost .............................. 18 
5.  The Limiting Factor of Specialization ................................ 18 

II.  First Steps:  Possible Projects or Principles on Selected 
Aspects of Environmental Law .................................................... 21 

A.  Principles of Environmental Law ........................................... 22 
B.  Taking a Smaller Bite:  Stand-Alone Projects on Discrete 

Areas of Environmental Law ................................................... 22 
1.  A Project on the Law of Environmental Assessment .......... 23 
2.  A Project on the Law of Environmental Enforcement 

and Remedies ....................................................................... 27 
C.  Current Status of Proposals to the ALI for an 

Environmental Law Project .................................................... 30 

 
* Tracy Hester is a Professor of Practice at the University of Houston Law Center and lead 
author to whom inquiries should be directed, at tdheste2@central.uh.edu. 
** Robert Percival is the Robert Stanton Professor and the Director of the Environmental 
Law Program at the University of Maryland Francis King Carey School of Law. 
*** Irma Russell is Professor and immediate past Dean of the University of Montana Law 
School.  
**** Victor Flatt is the Tom and Elizabeth Taft Distinguished Professor of Law and 
Director, Center for Law, Environment Adaptation and Resources (CLEAR) at the University 
of North Carolina School of Law.  
† Joel Mintz is a Professor of Law at the Shepard Broad Law Center at Nova Southeastern 
University. 



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III.   Should There Be a Full Restatement of Environmental 
Law? .............................................................................................. 30 

IV. Next Steps and Possible Future Directions ................................ 36 
 

INTRODUCTION 

Although environmental law springs from deep roots in centuries 
of common law, during the last forty years in particular it has 
grown into a well-established and important legal field in the 
United States with enormous practical consequences.1  Maturity, 
however, has also made it notoriously complex, and environmental 
law’s overlapping statutory schemes and inconsistent federal and 
state programs have sparked recurring conflict, controversy, and 
criticism.2  This fractured and complicated network of 
environmental laws and programs has become increasingly difficult 
to modify or update to account for emerging environmental 

 
1. Economists have hotly debated the full extent of costs imposed on U.S. economic 

activity by federal environmental laws and regulations, but most generally agree that the costs 
viewed in isolation are significant.  For example, one study estimates that the cost of 
compliance with environmental regulations equals roughly two percent of the gross domestic 
product of the United States.  Joel Darmstadter, Greening the GDP, RESOURCES, Spring 2000, 
at 11, 13, available at http://www.rff.org/RFF/Documents/RFF-Resources-139-greengdp.pdf 
[http://perma.cc/L8YD-7BTD] (stating that environmental control expenditures such as 
scrubbers account for about two percent of GDP).  EPA has also estimated that compliance 
costs under the federal Clean Air Act alone totaled approximately $523 billion from 1970 
through 1990.  U.S. ENVTL. PROT. AGENCY, THE BENEFITS AND COSTS OF THE CLEAN AIR ACT, 
1970 TO 1990, at ES-2 (1997) [hereinafter EPA CLEAN AIR ACT COST REPORT], available at 
http://yosemite.epa.gov/ee/epa/eerm.nsf/vwAN/EE-0295-2.pdf/$file/EE-0295-2.pdf 
[http://perma.cc/FY4J-3NFR].  More recently, the General Accountability Office has 
asserted that the future economic health of the petroleum-refining sector will depend on 
developments of key Clean Air Act regulations.  U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-
14-249, PETROLEUM REFINING:  INDUSTRY’S OUTLOOK DEPENDS ON MARKET CHANGES AND KEY 

ENVIRONMENTAL REGULATIONS 12-20, 26-35 (2014), available at http://www.gao.gov/ 
assets/670/661710.pdf [http://perma.cc/Z48J-GYEG]. 
While economists can readily assess direct costs of regulation, their ability to quantify the 
benefits of environmental protection often triggers fierce disagreement.  See, e.g., EPA CLEAN 

AIR ACT COST REPORT, supra, at 53 (benefits of Clean Air Act compliance during same time 
period estimated to have exceeded $22 trillion); WINSTON HARRINGTON, RFF DP-06-39, 
GRADING ESTIMATES OF THE BENEFITS AND COSTS OF FEDERAL REGULATION:  A REVIEW OF 

REVIEWS (2006), available at http://www.rff.org/Documents/RFF-DP-06-39.pdf 
[http://perma.cc/GJA3-YHSY] (comparing estimates of benefits and costs of federal 
environmental regulation prepared by the Office of Management and Budget and the Small 
Business Administration). 

2. RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 16 (2008) (“For those who 
study, teach, or practice environmental law, its complexity is virtually a mantra.”).  See also 
infra Part I.A. 



2015] Restating Environmental Law 3 

 

concerns.  As a result, numerous experts, scholars, and advocacy 
groups have offered proposals to reform U.S. environmental laws, 
but these initiatives have failed to produce significant statutory 
advances or implementation.3  In fact, Congress has not enacted 
major new environmental legislation since its passage of the Clean 
Air Amendments of 1990, and existing federal environmental 
statutes have remained essentially unchanged for over twenty 
years.4 

Even without statutory action by Congress, a steady increase in 
regulatory actions has required courts to reconcile statutes with 
implementation.  Scholars have recognized the increasing 
importance of clarifying existing environmental laws and policies as 
interpreted by state and federal common law to try and create an 
understandable body of environmental law as it exists. 

One organization that has not yet offered its assessment or 
proposal for environmental law is the preeminent entity in the 
United States for the formulation and clarification of law:  the 
American Law Institute (“ALI”).  While the ALI’s Restatements and 
Projects have helped crystallize core U.S. legal doctrines,5 mold 
 

3. See infra Part I.A. 
4. See Jody Freeman & David B. Spence, Old Statutes, New Problems, 162 PENN. L. REV. 

(forthcoming 2014) (cited with permission), available at http://papers.ssrn.com/sol3/ 
papers.cfm?abstract_id=2393033 [http://perma.cc/QJF5-MAKV]; CTR. FOR PROGRESSIVE 

REFORM, CPR FOR THE ENVIRONMENT:  BREATHING NEW LIFE INTO THE NATION’S MAJOR 

ENVIRONMENTAL STATUTES 1 (2007), available at http://www.progressivereform. 
org/articles/CPR_701.pdf [http://perma.cc/T3WS-VHJK]. See also Professor Richard 
Lazarus, Address at His Appointment as the Howard and Katherine Aibel Professor of Law at 
Harvard Law School:  Environmental Lawlessness (April 10, 2013), available at https:// 
www.youtube.com/watch?v=50KY8e1tQAs [https://perma.cc/KC35-C3M5] (“But the 
nation’s principal environmental statutes show their age.  New problems—how to deal with 
climate change, endocrine disruptors, and genetically modified foods—have arisen.  Industry 
efforts to evade the law, inconsistent or toothless federal enforcement, and in recent years, 
blatant efforts by the Executive Branch to undermine the laws, have all taken their toll, signi-
ficantly affecting the efficacy of the laws, in some cases, effectively undercutting them.  At the 
same time, the past decade has seen little legislative progress on environmental matters.  
Each of the nation’s major environmental statutes is long past due for reauthorization.”).  In 
contrast to the ongoing stasis in federal environmental statutes, federal environmental 
regulations have steadily expanded and now occupy a key role in environmental regulatory 
action in the absence of statutory dictates.  See, e.g., Memorandum from President Barack 
Obama to the Adm’r of the Envtl. Prot. Agency, 78 Fed. Reg. 39,535 (June 25, 2013) available 
at http://www.whitehouse.gov/the-press-office/2013/06/25/presidential-memorandum-
power-sector-carbon-pollution-standards [http://perma.cc/83LA-YDER] (directing EPA to 
undertake development of carbon pollution standards for new and existing power plants in 
the absence of Congressional statutory action).   

5. See, e.g., RESTATEMENT (SECOND) OF CONTRACTS (1981); RESTATEMENT (SECOND) 

CONFLICT OF LAWS (1971); RESTATEMENT (SECOND) OF TORTS (1965–79).  For a full listing of 
the ALI’s previously issued Restatements and Principles of the Law, see Publications Catalog 



4 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

emerging fields of law,6 and explore complex international and 
administrative topics,7 the Institute has not undertaken any major 
projects to clarify environmental, natural resource, or energy law 
(even as some Restatements and Projects on other topics have 
included collateral environmental provisions).8  The ALI’s restraint 
may arise from several historical and policy factors,9 which we will 
explore in this article.  This article explores those factors and 
considers whether they militate against the ALI’s exploration of 
environmental projects. 

Against this backdrop of restraint, a debate within the ALI has 
emerged over the last few years about the usefulness and feasibility 
of a Restatement or Project on environmental, energy, or natural 
resource laws, and at least one leading scholar has argued that the 
ALI should not attempt to craft a broad Restatement of 
Environmental Law, because such a project could hobble the ability 
to make fundamental changes needed to better protect the 
environment.10  Other scholars have also questioned whether the 
entire field of U.S. environmental law remains too immature and 
undeveloped to benefit from a comprehensive Restatement or 
broad Project.11 

This article explores whether U.S. environmental law needs 
either a Restatement or other Project that would offer a 
 
Restatements and Principles of the Law, AM. LAW INST., http://ali.org/index.cfm? 
fuseaction=publications.categories&parent_node=999 [http://perma.cc/ZHR5-VGBK] (last 
visited Dec. 15, 2014). 

6. See, e.g., PRINCIPLES OF THE LAW OF SOFTWARE CONTRACTS (2010); INTELLECTUAL PROP. 
PRINCIPLES GOVERNING JURISDICTION, CHOICE OF LAW, AND JUDGMENTS IN INT’L DISPUTES 
(2010).  Ongoing projects that have not yielded final statements of Principles or 
Restatements include the RESTATEMENT (THIRD) OF EMPLOYMENT LAW (Proposed Final Draft 
2014) and the RESTATEMENT (THIRD) OF THE U.S. LAW ON INTERNATIONAL COMMERCIAL 

ARBITRATION (Tentative Draft No. 3, 2013). 
7. See, e.g., PRINCIPLES OF THE LAW OF LIABILITY INSURANCE (Tentative Draft No. 2, 2014); 

RESTATEMENT OF THE LAW OF AMERICAN INDIANS (Discussion Draft No. 2, 2014). 
8. The ALI has explored some collateral environmental implications of some provisions 

in its Restatements and Projects on other topics, but it has never fully delved into a dedicated 
environmental project or statement.  See infra Part I.A. 

9. See infra Part I.C. 
10. Dan Tarlock, Why There Should Be No Restatement of Environmental Law, 79 BROOK. L. 

REV. 663, 667–68 (2014).  See infra Part III. 
11. See, e.g., Elizabeth Fisher, Bettina Lange, Eloise Scotford & Cinnamon Carlarne, 

Maturity and Methodology:  Starting a Debate About Environmental Law Scholarship, 21 J. ENVTL. L. 
213, 218 (2009) (“To put it bluntly—environmental law scholarship is characterised as 
immature.  Moreover, these perceptions have not shifted in over two decades.  Indeed, for 
environmental law scholars, environmental law scholarship seems to be like the Peter Pan of 
legal scholarship—‘the discipline that never grew up.’” (citations omitted)); A. Dan Tarlock, 
Is There a There There in Environmental Law?, 19 J. LAND USE & ENVTL. L. 213 (2004). 



2015] Restating Environmental Law 5 

 

comprehensive analysis, and it overviews possible reasons why the 
ALI has not previously undertaken such a Project.  Second, we 
report on an ongoing effort by a workgroup of ALI members to 
define a potential environmental or natural resource law Project 
that might offer the best opportunity for clarification or reform.  
This workgroup of nearly fifty ALI members includes leading 
environmental practitioners and academics, and it has proposed 
two carefully defined and limited Projects in the environmental law 
area.12  If the ALI undertakes one of the more focused Projects 
suggested by the workgroup, however, the Institute would not 
foreclose its ability to develop a broader Principles of 
Environmental Law or a full Restatement in the future.  Third, we 
assess arguments that any comprehensive analysis of environmental 
law by the ALI might do more harm than good because it would 
“freeze” environmental and natural resource law at a point where it 
still needs further fundamental reform.  Finally, we discuss possible 
future steps to facilitate comprehensive work by the ALI on 
environmental issues. 

I. IS U.S. ENVIRONMENTAL LAW READY FOR A RESTATEMENT? 

A. The Current State of U.S. Environmental Law 

U.S. environmental law13 has enormous impact on our physical 
environment, society, and economy.  It embodies an accumulation 
of complex legal and policy decisions intended to protect human 
health and the environment, it regulates particularly dangerous 
substances, and it expressly focuses on resources deemed 
particularly vulnerable such as endangered species.  Not 

 
12. The workgroup also received unofficial input on these proposals from attorneys 

outside of the ALI who work on environmental issues at government agencies or with non-
partisan environmental advocacy groups.  While we greatly appreciate the suggestions and 
information provided by these outside sources, the opinions expressed in this article are 
solely those of the authors. 

13. The critical initial step of defining which laws constitute “environmental law” could 
pose challenging practical and doctrinal challenges.  Todd S. Aagaard, Environmental Law as 
a Legal Field:  An Inquiry into Legal Taxonomy, 95 CORNELL L. REV. 221, 259–64 (2010) 
(outlining the difficulties of defining environmental law as a distinct legal field).  Many fields 
of law overlap with environmental interests, and as a result any credible assessment of 
environmental law principles and doctrine will need to include some examination of 
important related concepts in tort law (e.g., nuisance, trespass, and strict liability for 
management of ultrahazardous materials), property law, foreign relations law, conflict of 
laws, remedies, and other fields.  The ALI, of course, has already spoken in all of these 
arenas.  See supra notes 5–8; infra note 46. 



6 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

surprisingly, these wide-ranging goals and aspirations have spawned 
overlapping and often discordant legal doctrines. 

While U.S. environmental law has roots in long-standing 
common law actions under tort, property, and contract law, its 
modern era began with the passage of several key federal statutes in 
the 1970s.  In just over a decade, Congress passed virtually every 
federal law that continues to govern environmental law today.  
These statutes include well-known federal programs such as the 
National Environmental Policy Act14 (“NEPA”) (which requires 
environmental impact assessments for major federal actions), the 
Endangered Species Act (“ESA”),15 the Toxic Substances Control 
Act (“TSCA”),16 the Resource Conservation and Recovery Act17 
(“RCRA”) (which governs solid and hazardous waste management), 
the Comprehensive Environmental Compensation and Liability 
Act18 (otherwise known as the “Superfund Act” or “CERCLA”), the 
Clean Air Act,19 the Clean Water Act,20 and the Federal Insecticide, 
Fungicide and Rodenticide Act (“FIFRA”)21 (which regulates 
pesticides and herbicides).  Other than reauthorizations and 

 
14. National Environmental Policy Act of 1969, Pub. L. No. 91–190, 83 Stat. 852 (codified 

at 42 U.S.C. §§ 4321–4347 (2012)). 
15. Endangered Species Act of 1973, Pub. L. No. 93–205, 87 Stat. 884 (codified at 16 

U.S.C. §§ 1531–1544 (2012)). 
16. Toxic Substances Control Act, Pub. L. No. 94–469, 90 Stat. 2003 (1976) (codified at 

15 U.S.C. §§ 2601–2697 (2012)). 
17. Resource Conservation and Recovery Act of 1976, Pub. L. No. 94–580, 90 Stat. 2795 

(codified as amended at 42 U.S.C. §§ 6901–6992k (2012)).  RCRA was implemented through 
an extensive revision to the prior Solid Waste Disposal Act, Pub. L. 89–272, 79 Stat. 997 
(1965) (codified as amended at 42 U.S.C. §§ 6901–6992k (2012)), and RCRA in turn 
underwent significant modification through the Hazardous and Solid Waste Amendments of 
1984, Pub. L. No. 98–616, 98 Stat. 3221 (codified as amended at 42 U.S.C. §§ 6917–6991i 
(2012)).  

18. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 
Pub. L. No. 96–510, 94 Stat. 2767 (codified at 42 U.S.C. §§ 9601–9675 (2012)) (significantly 
amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99–
499, 100 Stat. 1613 (codified as amended in scattered sections of 10 U.S.C., 26 U.S.C., and 42 
U.S.C. (2012))). 

19. Clean Air Act Amendments of 1977, Pub. L. No. 95–95, 91 Stat. 685 (codified as 
amended at 42 U.S.C. §§ 7401–7515 (2012)) (significantly amended by the Clean Air Act 
Amendments of 1990, Pub. L. 101–549, 104 Stat. 2399 (codified as amended at 42 U.S.C. §§ 
7401–7515 (2012))). 

20. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92–500, 86 
Stat. 816 (codified as amended at 33 U.S.C. §§ 1251–1388 (2012)) (significantly amended by 
the Clean Water Act of 1977, Pub. L. No. 95–217, 91 Stat. 1566 (codified as amended at 33 
U.S.C. §§ 1251–1388 (2012))). 

21. Federal Insecticide, Fungicide, and Rodenticide Act, Pub. L. No. 94–140, 89 Stat. 751 
(1975) (codified at 7 U.S.C. §§ 136–136y (2012)). 



2015] Restating Environmental Law 7 

 

amendments to these statutes,22 Congress has not passed a new 
major environmental statute since 1990.23 

Although Congress implemented most of these laws within a 
narrow time frame, it did not attempt to integrate the laws into a 
consistent and comprehensive environmental program.  As a result, 
federal environmental laws and regulations have overlapping 
jurisdictions that can create multiple and conflicting legal 
obligations as well as duplicative and confusing regulation.24  
Despite several proposals by scholars, public interest groups, and 
practitioners,25 neither Congress nor any federal agency has 

 
22. Some of the more notable reauthorizations and amendments include the Clean Air 

Act Amendments of 1990, Pub. L. 101–549, 104 Stat. 2399 (codified as amended at 42 U.S.C. 
§§ 7401–7515 (2012)) and the Water Quality Act of 1987, Pub. L. 100–4, 101 Stat. 7 (codified 
as amended at 33 U.S.C. §§ 1251–1388 (2012)). 

23. The last major federal environmental legislation successfully passed by Congress and 
signed by the President was the Clean Air Act Amendments of 1990, Pub. L. 101–549, 104 
Stat. 2399 (codified as amended at 42 U.S.C. §§ 7401–7515 (2012)).  While this act 
technically only amended the prior federal Clean Air Act, it wrought such fundamental 
changes to the statute that most commentators and practitioners view it as a fundamentally 
new major environmental law. 

24. Multiple federal environmental provisions may cover similar activities or materials 
and create a possibility for conflicting mandates.  See, e.g., Coeur Alaska, Inc. v. Se. Ala. 
Conservation Council, 557 U.S. 261, 283–86 (2009) (requiring memorandum of agreement 
between EPA and the U.S. Army Corps of Engineers to resolve permit obligations where 
conflicting potential regulatory requirements for mining materials discharged into waters of 
the United States).  Commentators have also long noted that the federal environmental 
statutory framework’s reliance on delegation to state authorities for implementation and 
enforcement can create complex and difficult challenges.  See, e.g., Richard B. Stewart, 
Pyramids of Sacrifice?  Problems of Federalism in Mandating State Implementation of National 
Environmental Policy, 86 YALE L.J. 1196, 1197 (1977).  See also Daniel C. Esty, Revitalizing 
Environmental Federalism, 95 MICH. L. REV. 570, 587–94 (1996) (describing structural 
mismatches between structure of proposed regulation and scale of environmental problem 
at issue, and how local entities may face regulatory incentives that fail to reflect the full scope 
of costs and benefits); Robert L. Glicksman, From Cooperative to Inoperative Federalism:  The 
Perverse Mutation of Environmental Law and Policy, 41 WAKE FOREST L. REV. 719, 786–800 
(2006) (discussing the conflict between state efforts to innovate and expand environmental 
regulation and less ambitious federal policies); Robert V. Percival, Environmental Federalism:  
Historical Roots and Contemporary Models, 54 MD. L. REV. 1141, 1171–78 (1995) (analyzing 
modern models of environmental federalism approaches and difficulties of assuring 
sufficient state compliance); Richard L. Revesz, Federalism and Environmental Law:  A Public 
Choice Analysis, 115 HARV. L. REV. 553, 583–630 (2001) (pointing out that many states adopt 
environmental programs even when not compelled by federal dictate, thereby contradicting 
public choice theory justifications for federal intervention into environmental policy). 

25. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 
STAN. L. REV. 1333, 1333 (1985) (“The present regulatory system wastes tens of billions of 
dollars every year, misdirects resources, stifles innovation, and spawns massive and often 
counterproductive litigation.”); Richard J. Lazarus, Environmental Law After Katrina:  
Reforming Environmental Law by Reforming Environmental Lawmaking, 81 TULANE L. REV. 1019, 
1042–49 (2007); DAVID SCHOENBROD, RICHARD B. STEWART & KATRINA M. WYMAN, BREAKING 



8 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

successfully consolidated multiple federal environmental programs 
into an overarching statute or unified regulatory program.26  While 
some state agencies have implemented “one-stop” permitting 
procedures for certain facilities, these administrative programs do 
not address the underlying fragmentation of multiple 
environmental legal authorities.27 

The potential for overlap and conflict arises in part from the 
fundamental federalist design underlying most major federal 
environmental statutes.  These laws expressly reserve a prominent 
role for states to implement their own environmental programs 
within the federal framework.  For example, the federal Clean 
Water Act, Clean Air Act, and RCRA allow states to seek authority 
to implement air, water, and waste programs under their respective 
state laws in lieu of the federal programs.28  The principles of 

 
THE LOGJAM:  ENVIRONMENTAL REFORM FOR THE NEW CONGRESS AND ADMINISTRATION (2009) 
available at http://www.breakingthelogjam.org/wpcontent/uploads/sites/23/2014/06/ 
BreakingLogjamReportfinal.pdf [http://perma.cc/SL55-L4M2].  See also Jonathan H. Adler, 
Conservative Principles for Environmental Reform, 23 DUKE ENVTL. L. & POL’Y F. 253, 253 (2013) 
(“Major environmental policy reform is long overdue.”).  

26. EPA and the U.S. Army Corps of Engineers have attempted to craft a unified 
framework for regulation of wetlands under multiple statutes, but those efforts have not yet 
yielded a final integrated statute or rules.  As a result, EPA and other agencies have 
frequently relied instead on Memoranda of Understanding to clarify which federal 
environmental statute will take precedence in specified circumstances and to identify which 
federal agency will take the lead in addressing those situations.  See, e.g., Coeur Alaska, 557 
U.S. at 286.  Congress has also set out a clear framework to identify lead agencies to 
coordinate responses to releases of petroleum or hazardous substances into the environment 
that warrant an emergency abatement effort or a removal action.  See National Response 
Team, 40 C.F.R. § 300.110 (2014); Regional Response Teams, 40 C.F.R. § 300.115 (2014); 
On-Scene Coordinators and Remedial Project Managers:  General Responsibilities, 40 C.F.R. 
§ 300.120 (2014). 

27. For example, Texas attempted to streamline and harmonize its environmental 
permitting programs by consolidating various state agencies with environmental authority 
into a single entity that would offer “one-stop” permitting.  The History of the TCEQ and Its 
Predecessor Agencies, TEX. COMM’N ON ENVTL. QUALITY, http://www.tceq.state.tx.us/ 
about/tceqhistory.html [http://perma.cc/28A7-LSL9] (last visited Dec. 16, 2014) (The 
Texas Legislature created the Texas Natural Resource Conservation Commission in 1993 to 
“make natural resource protection more efficient.”).  While this approach minimized 
complexity and inefficiencies within the Texas environmental administrative system, it did 
not address the underlying difficulties posed by multiple statutory programs that impose 
different permitting obligations and procedures. 

28. 42 U.S.C. § 6926(b) (2012) (authorized state programs under RCRA); 33 U.S.C. 
§ 1342(b) (2012) (delegation of Clean Water Act discharge permit programs to states); 42 
U.S.C. § 7410 (2012) (state implementation plan process for attainment of national ambient 
air quality standards under Subchapter I of the Clean Air Act).  CERCLA does not allow 
states to seek delegation, but it requires that federal response actions meet applicable or 
relevant and appropriate requirements under state law.  42 U.S.C. § 9621(d)(2) (2012).  
States also frequently establish their own mini-Superfund programs to address contaminated 



2015] Restating Environmental Law 9 

 

cooperative federalism have far-reaching implications.  States that 
receive delegated authority under environmental laws must meet 
minimum federal standards and legal requirements.  Moreover, the 
federal government generally retains independent oversight and 
enforcement authority when it delegates operating authority for an 
environmental program to a state.29  These states can also impose 
more stringent requirements or their own varying regulatory 
mandates onto broader categories of activities and materials.30  This 
arrangement has created situations where the law is unclear or in 
conflict, and it can raise unresolved issues arising from possible 
federal preemption of state law.31 

While legitimate and foundational principles of sovereignty and 
federalism help explain the current structure of U.S. 
environmental law, the fragmented, overlapping, and diffuse 
distribution of statutory environmental authority can have 
significant negative consequences.  Most obviously, the vitality and 
integrity of the environment play a critical role in protecting 
human health and biological systems, and those laws empower and 
guide governmental programs to protect rare and precious natural 
resources such as endangered species, pristine national parks, 
reserves, and biological and ecological assets.32  The economic 
ramifications of environmental regulation are similarly profound:  
the implementation of this “complex array of rules and 

 
sites that fall outside the CERCLA program.  ENVTL. LAW INST., AN ANALYSIS OF STATE 

SUPERFUND PROGRAMS:  50-STATE STUDY 7–9 (2002), available at http://www.eli.org/sites/ 
default/files/eli-pubs/d12-10a.pdf [http://perma.cc/4JTS-NBEL]. 

29. 42 U.S.C. § 6926(b) (2012) (authorized state programs under RCRA); 33 U.S.C. 
§ 1342(b) (2012) (delegation of Clean Water Act discharge permit programs to states); 42 
U.S.C. § 7410 (2012) (state implementation plan process for attainment of national ambient 
air quality standards under Subchapter I of the Clean Air Act). 

30. For example, states with delegation to implement their own hazardous waste 
regulatory programs in lieu of the federal requirements under RCRA can regulate some 
secondary materials as “solid wastes” even if federal programs would not classify them as 
hazardous.  They can also regulate certain activities more strictly as long as their programs 
are (i) at least as strict as, and (ii) equivalent to federal standards.  40 C.F.R. § 271.4 (2014) 
(consistency requirements for state programs seeking delegation from EPA); see, e.g., MD. 
CODE REGS. 26.13.05.19 (2014) (banning disposal of hazardous wastes in underground 
injection wells, which is typically allowed under federal regulations).  

31. See infra note 68 (describing potential preemption of state tort remedies by federal 
permitting regimes). 

32. See generally J.B. RUHL, STEVEN E. KRAFT & CHRISTOPHER L. LANT, THE LAW AND POLICY 

OF ECOSYSTEM SERVICES 57–83 (2007) (providing an overview of economic approaches to 
valuation of ecosystem services). 



10 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

regulations . . . costs the private sector approximately $200 billion 
per year.”33 

B. The ALI’s Mission and Methodology 

The ALI describes itself as “the leading independent 
organization in the United States producing scholarly work to 
clarify, modernize, and otherwise improve the law.”34  It currently 
has over 4,000 members (including about 2,700 elected 
members).35  The elected members are nominated and elected to 
the ALI by existing members through a rigorous screening process.  
The appointed members are judges and deans of law schools.  All 
of these members work on a wide range of projects to further the 
organization’s stated goals.36  The ALI initially focused on the 
development of Restatements of core areas of law.  According to 
the ALI, Restatements seek to address uncertainty in the law by 
providing a concise restatement of what the law actually was in 
those areas.37 

After the adoption of its charter in 1923, the ALI spent twenty-
one years developing its first set of Restatements on the central 
common law subjects.38  After preparing subsequent additional 
Restatements in 1952, the ALI began drafting its set of Third 
Restatements in 1987 and has continued to work on them to this 
day.39  These latest Restatements have expanded beyond traditional 
 

33. ROBERT V. PERCIVAL, CHRISTOPHER H. SCHROEDER, ALAN S. MILLER & JAMES P. LEAPE, 
ENVIRONMENTAL REGULATION:  LAW, SCIENCE, AND POLICY 5 (7th ed. 2013).  See also supra 
note 1 (discussing economic impacts of federal environmental regulation).   

34. About ALI:  ALI Overview, AM. LAW INST., http://www.ali.org/index.cfm?fuseaction= 
about.overview [http://perma.cc/U6UR-7ZDB] (last visited Dec. 16, 2014). 

35. AM. LAW INST., ANNUAL REPORT 2013–2014, at 26 (2014), available at 
http://www.ali.org/doc/ALI_Annual_Report_2014_web_2.pdf [http://perma.cc/5J93-
LBKE]. 

36. The ALI limits its elected membership of judges, lawyers, and law professors to 3,000.  
The membership also includes ex officio members, honorary members, and lifetime members 
that increase total overall membership to more than 4,400.  The American Law Institute Elects 
45 New Members, AM. LAW INST. (Jan. 24, 2014), http://www.ali.org/index.cfm? 
fuseaction=news.prelease_01242014 [http://perma.cc/R9AM-FBKC]. 

37. About ALI:  Overview:  Projects, AM. LAW INST., https://www.ali.org/index.cfm? 
fuseaction=about.instituteprojects [https://perma.cc/U5L6-8G4J] (last visited Dec. 16, 
2014). 

38. The initial Restatements summarized the law of “Agency, Conflict of Laws, Contracts, 
Judgments, Property, Restitution, Securities, Torts, and Trusts.”  Id. 

39. The ALI recently began work on its initial Fourth Restatements of Law.  See The 
American Law Institute Announces Four New Projects, AM. LAW INST. (Nov. 17, 2014), 
http://www.ali.org/email/pr-14-11-17.html [http://perma.cc/AJV3-2A3G] (announcing 
that the ALI has begun work on Restatement (Fourth) of Property); Publications Catalog:  



2015] Restating Environmental Law 11 

 

common law practice areas to include a broad array of topics 
including American Indian law, employment law, non-profit 
governance, information privacy principles, and unfair competition 
law.40 

The ALI has also expanded to other types of legal tools and 
pronouncements beyond Restatements to help clarify new areas of 
law.  For example, the ALI has prepared Statements of Principles in 
legal areas that might need reform or modification.41  These 
Principles typically result from intense legal analysis and debate, 
and convey in-depth recommendations for changes in that field of 
law.  Such projects have dealt with relatively non-traditional legal 
fields outside core common law practice areas such as aggregate 
litigation, family dissolution, transnational insolvency, and software 
contracts.42 

The ALI relies on an intensively collaborative process to develop 
its Restatements, Projects, and Principles.  After selecting topics for 
work, the ALI appoints two or more Reporters who oversee and 
curate work on the project.  An advisory board of leading 
practitioners and academics provides substantive support for the 
effort, and a larger consultative group allows multiple ALI 
members to participate in drafting and editing at key junctures.  As 
the draft emerges from this collaborative process, the Reporters 
typically present portions of the effort for review and comment to 
the full ALI membership during the annual meeting.  This process 
prizes broad and varied input to provide thorough and nuanced 
analysis of existing laws and principles, and as a result it can take 
extraordinary effort and time.  The tendency to shy away from 
controversial topics which frustrate consensus can also foster the 
perception among outside parties (or even ALI members) that the 

 
Restatement of the Law Fourth, The Foreign Relations Law of the United States, AM. LAW INST., 
http://www.ali.org/index.cfm?fuseaction=publications.ppage&node_id=148 [http://perma 
.cc/A7RY-7ZBR] (last visited Dec. 16, 2014). 

40. See, e.g., RESTATEMENT OF THE LAW OF AM. INDIANS (Discussion Draft No. 2, 2014); 
RESTATEMENT (THIRD) OF EMP’T LAW (Proposed Final Draft 2014); RESTATEMENT OF THE 

LAW OF CHARITABLE NONPROFIT ORGS. (Tentative Draft No. 4, 2013); RESTATEMENT OF DATA 

PRIVACY PRINCIPLES (in progress); RESTATEMENT (THIRD) OF UNFAIR COMPETITION (1995). 
41. See, e.g., PRINCIPLES OF THE LAW OF AGGREGATE LITIG. (2010); PRINCIPLES OF THE LAW 

OF FAMILY DISSOLUTION:  ANALYSIS AND RECOMMENDATIONS (2002); INT’L STATEMENT OF U.S. 
BANKR. LAW (2003); PRINCIPLES OF THE LAW OF SOFTWARE CONTRACTS (2010). 

42. See supra note 41. 



12 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

ALI moves especially slowly with such issues, or that such 
controversies can even derail difficult aspects of some projects.43 

C. Prior Work by the ALI on Environmental Law 

The ALI began its mission to reduce the complexity and 
uncertainty of U.S. law decades before the creation of the first 
modern environmental laws,44 but it has not yet produced any 
major work focused directly on environmental or natural resource 
law.  Nonetheless, prior Restatements and Projects have touched 
on important environmental issues in other contexts.  For example, 
the Reporters’ Study on Enterprise Responsibility for Personal Injury 
sparked an intense discussion on the appropriate scope of joint and 
several liability for environmental harms.45  Other Restatements 
have discussed environmental liabilities or obligations within the 
context of unrelated legal fields such as trusts, restitution, torts, 
and judgments.46 

The ALI has also prepared Projects that discuss legal issues 
related to U.S. environmental law.  For example, its Model Land 
Development Code of 1976 addressed environmental issues related to 

 
43. In addition to Restatement, Principles, and Projects, the ALI can also offer guidance 

on specific legal subjects through model codes.  For example, the ALI’s pioneering work on 
the Model Penal Code and its support of the Uniform Commercial Code has profoundly affected 
subsequent developments in criminal law and commercial law.  The ALI has not broached 
any environmental topics through a model code project in the past, and the Model Penal Code 
does not contain any provision that specially addresses environmental injuries or offenses.   

44. See supra notes 37–38 & accompanying text. 
45. For example, Lois Schiffer, Assistant Attorney General for the U.S. Department of 

Justice’s Environment and Natural Resources Division, submitted comments in her personal 
capacity to object to proposed language that arguably reduced environmental liability for 
certain joint environmental tortfeasors.  Memorandum from Lois J. Schiffer, Assistant Att’y 
Gen., U.S. Dep’t of Justice, to Reporters for Restatement (Third) of Torts:  Apportionment 
of Liability (1998), available at http://www.ali.org/ali_old/shiffer.htm [http://perma.cc/ 
PZ25-2ZRA]. 

46. A comprehensive compilation of the existing provisions touching on environmental 
aspects of other projects would be a worthwhile resource.  See, e.g., RESTATEMENT (THIRD) OF 

TRUSTS § 86(f) (2007) (fiduciary duties of trustees faced with real property assets that might 
contain environmental contamination); RESTATEMENT (FIRST) OF RESTITUTION § 115 cmt. 
(1937) (referring to cases where plaintiffs sought restitution for cleaning up contamination 
caused by other parties); RESTATEMENT (SECOND) OF TORTS § 523 cmt. (1979) (liability for 
environmental cleanups discussed in cited cases); RESTATEMENT (SECOND) OF TORTS §§ 
821B, 821D, 832, 849 (1979); RESTATEMENT (SECOND) OF JUDGMENTS § 39 cmt. (1982) 
(citing cases discussing preclusive effect of prior judgment for penalties and injunction 
against environmental violations); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW 

OF THE U.S. §§ 601–604 (1987); RESTATEMENT (THIRD) OF PROP. (SERVITUDES) §§ 7.11, 8.5 
(2000) (modification and enforcement of conservation servitudes).   



2015] Restating Environmental Law 13 

 

the management and development of real property.47  The 
Restatement (Third) of the Foreign Relations Law of the United States 
includes extensive discussions of the environmental rights and 
obligations of littoral states with jurisdiction over adjacent water 
bodies,48 and the Restatement (Second) of Torts outlines the potential 
use of public and private nuisance to abate threats to the 
environment embodied by incursions into the enjoyment of private 
property.49  These collateral discussions of environmental issues 
within other legal fields, however, fail to provide the kind of 
comprehensive and ambitious assessment provided by the ALI for 
most major areas of U.S. law.  As a result, a discipline of great 
importance to society and to the health of the public and the 
planet—environmental law—has fallen outside the ALI’s efforts to 
“clarify, modernize, and otherwise improve the law.”  The current 
state of environmental law presents exactly the specter of 
disorganization that the ALI has sought to remedy as part of its 
mission. 

D. Considering U.S. Environmental Law in Light of the ALI’s 
Expectations 

To our knowledge, the ALI has not published official criteria or 
guidelines for how it evaluates and chooses new projects.  On its 
public website, the organization describes in general terms its 
process of choosing projects and notes that the “nature, content, 
and scope of each project are initially developed by its Reporter in 
consultation with the Institute’s Director.”50  While this description 
seems intuitive, it mingles the role of the project reporter (who 
remains unnamed until the ALI accepts the project) and the 
Director, and consequently it gives no insight into the factors that 
influence the Director to initially identify a particular project as 
worthy of pursuit.  Likewise, the description points out that the 
“Director’s recommendations that particular projects be 
undertaken and designations of specific Reporters are subject to 

 
47. See generally MODEL LAND DEV. CODE arts. 3, 7–8 cmts. (1976) (discussing, respectively, 

objectives of local land development planning, state land development regulation, and state 
land development planning). 

48. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE U.S. §§ 511–517 
(1987). 

49. See supra note 46. 
50. Projects:  Overview, AM. LAW INST., http://ali.org/index.cfm?fuseaction=projects.main 

[http://perma.cc/45HB-Y3RT] (last visited Dec. 16, 2014). 



14 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

the approval of the Council or Executive Committee.”51  As a result, 
the Director, the Council, and the Executive Committee appear to 
use reasonable general criteria to select projects, but the factors 
that weigh in their respective decisions on specific projects remain 
somewhat opaque. 

Discussions at recent ALI annual meetings, as well as two 
informal articles from the ALI Reporter, have yielded a general 
description of the ALI’s current process and outlined some aspects 
of the ALI’s selection criteria.52  Most notably, the ALI recently 
issued a listing of its current projects that discussed how it develops 
and drafts projects.53  Its description of the ALI’s selection process 
notes that: 

1) Project ideas are generated by the Director and the Program 
Committee.  These ideas may include suggestions received 
from ALI members. 

 
51. Id. 
52. The ALI discussed its process to select new projects at a special session during its 2010 

annual meeting, and it followed with another special session on new project development 
hosted by the chair of the ALI’s Programs Committee and the Executive Director.  See 88th 
Annual Meeting Events and Speakers, AM. LAW INST., http://2011am.ali.org/events.cfm 
[http://perma.cc/7NZS-J24H] (last visited Dec. 16, 2014) (2011 annual meeting); 87th 
Annual Meeting Events and Speakers, AM. LAW INST., http://2010am.ali.org/events.cfm 
[http://perma.cc/KYA2-4B4M] (last visited Dec. 16, 2014) (2010 annual meeting).  In 
addition, the ALI has included overviews of its selection process in recent issues of its 
newsletter.  For example, immediate past Director Liebman recently noted that: 
 

Second, and much harder, is the matter of what projects to start, no matter what they 
may be called. . . . In a concluding contribution [to a recent symposium at Brooklyn Law 
School], I wrote that, to be taken up by the Institute, “a subject of law must be 
substantial enough to need several years of intellectual effort to distill it into principles.  
It must be worthy of review by Advisers. . . . It must support interesting and constructive 
debate by the ALI Council and at annual meetings.  And finally, it must be capable of 
being debated without descending into political dust-ups.  The goal is work that benefits 
lawyers and judges, whether or not they are persuaded by every sentence.” 

 
Lance Liebman, My Time as Director and Possible Next Steps for the ALI, A.L.I. REP., Spring 2014, 
available at http://www.ali.org/_news/reporter/spring2014/03-My_Time.html [http:// 
perma.cc/7ZYR-SDPS].  See also Lance Liebman, The Director’s Role, A.L.I. REP., Winter 2006, 
available at http://www.ali.org/ali_old/R3099-01-President.htm [http://perma.cc/W6QM-
EGCA].  See also G. Edward White, From the Second Restatements to the Present:  The ALI’s Recent 
History and Current Challenges, 16 GREEN BAG 305, 316–19 (2013), available at http://www. 
greenbag.org/v16n3/v16n3_articles_white.pdf [http://perma.cc/HBJ9-5YGN] (providing 
an overview of project selection and discussing the need to bridge gap between subject 
matter interests and techniques of legal academics and other sectors of the legal profession). 

53. AM. LAW INST., How a Project is Developed and Drafted, in CURRENT PROJECTS OF THE 

AMERICAN LAW INSTITUTE 8–9 (unpublished newsletter distributed at the ALI Annual 
Meeting on May 18–21, 2014) (on file with Tracy Hester).  



2015] Restating Environmental Law 15 

 

2) The Director investigates a potential project and develops a 
project proposal, which usually includes a prospectus from a 
proposed Reporter or Reporters. 

3) The Director provides the project proposal to the Program 
Committee for its advice and recommendation. 

4) An invitational conference might be held to discuss the scope 
of the project and to help identify potential Advisers.  (This 
could instead happen after Step 5.) 

5) The Director recommends the project and Report to the 
Council for approval.54 

This process description highlights several important themes.  
The ALI selects topics and projects where its deliberative consensus 
process can yield a legal analysis and formulation within a workable 
timeframe, and that analysis can both help to clarify areas of 
confusion and ambiguity in the law and to foster any needed legal 
reforms.  These guiding principles naturally generate some broad 
criteria for the desirability of a proposed new project.  Professor 
Lance Liebman, formerly the long-time Director of the ALI, has 
provided a pithy summary of these factors:  “[t]he key criteria for 
contemporary ALI work are relevance, need, competency, balance, 
and diversity.”55 

Despite the absence of explicit selection criteria, several factors 
appear to influence the ALI’s choice of projects, including some of 
the following considerations.  

1. The Problematic Realm of Statutory Law 

ALI members assert that the ALI’s approach does not mesh well 
with topics that are purely statutory in nature or too deeply rooted 
in statutes and regulatory dictates, because such subject areas seem 
better suited to efforts to craft model legislation or other legislative 
avenues.  Under this rationale, legislation apparently demands 
pragmatic trade-offs that legal principles alone cannot explain.  
Other groups have taken the lead on efforts to craft model statutes 
or rules, although the ALI has also played an important role in 
crafting important model and uniform laws.  
 

54. Id. at 8. 
55. Liebman, The Director’s Role, supra note 52.  The ALI recently named Professor Richard 

Revesz as the next Director, and he assumed his new duties at the ALI’s Annual Meeting in 
May 2014.  See Aboout ALI:  ALI Officers & Council, AM. LAW INST., http://ali.org/index. 
cfm?fuseaction=about.officers [http://perma.cc/N6CA-HVU3] (last visited Dec. 16, 2014).  
To date, Professor Revesz has not made any statements or published any earlier writings that 
would reflect a different approach to the ALI’s process to select new projects. 



16 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

While the ALI has undoubtedly balanced these concerns when it 
selected projects that may involve political or compromise statutory 
decisions along the lines noted above, the ALI nonetheless has 
historically made significant contributions in such areas.  Indeed, 
some of these efforts have proven extraordinarily successful (e.g., 
the Uniform Commercial Code56 and the Model Penal Code57).  Other 
projects have helped influence future legal developments without 
becoming laws themselves (e.g., the ALI’s Model Code of Evidence58 
and federal securities law statutory project59).  Nonetheless, a 
perception that statutory treatments have dominated a legal field 
may discourage hopes that an ALI project could contribute to 
advancing the law of an area. 

2. The Caveat of Unmanageable Complexity 

Another characteristic that apparently militates against the ALI’s 
pursuit of a particular subject is the field’s reputation for unusual 
complexity.  If a legal subject poses especially sprawling and broad 
complex issues that resist summary or reformulation, the ALI’s 
leadership may conclude that it cannot readily distill that area into 
a Restatement or Project.  This concern could justify refocusing the 
effort to a narrower subfield of the broader topic.  Some 
descriptions of environmental law, including the assessments of the 
complexity of cooperative federalism noted previously, as well as 
other overviews of scalable authorities60 and interests involved in 
environmental disputes, may add to this perception of complexity 
and discourage the ALI from entering the field. 

On the other hand, the ALI has taken up work in areas of 
formidable complexity with success.  For example, the current 
projects in progress on Restatement (Fourth) of the Foreign Relations 
Law of the United States include complexity of impressive 
dimensions.61  An update of the twenty-five-year-old Restatement 

 
56. THE AM. LAW INST. & NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE CODES, THE 

UNIFORM COMMERCIAL CODE 2013-2014 EDITION OFFICIAL TEXT AND COMMENTS (2014). 
57. THE MODEL PENAL CODE (1962). 
58. THE MODEL CODE OF EVIDENCE (1942). 
59. THE FEDERAL SECURITIES CODE (Supp. 1981). 
60. See, e.g., Hari M. Osofsky, The Future of Environmental Law and Complexities of Scale:  

Federalism Experiments with Climate Change Under the Clean Air Act, 32 WASH. U. J.L. & POL’Y 79 
(2010). 

61. Projects:  Current Projects:  Restatement of the Law Fourth, the Foreign Relations Law of the 
United States, AM. LAW INST., http://ali.org/index.cfm?fuseaction=projects.proj_ip& 
projectid=28 [http://perma.cc/32DJ-CFR2] (last visited Dec. 16, 2014). 



2015] Restating Environmental Law 17 

 

(Third) of the Foreign Relations Law of the United States includes 
daunting topics such as jurisdiction, the domestic effect of treaties, 
and sovereign immunity.  Similarly, the current project on 
Restatement (Third) of the U.S. Law of International Commercial 
Arbitration includes an impressive array of difficult and intertwined 
issues, involving perplexing issues of extraterritoriality and tenuous 
jurisdiction of international arbitral proceedings in the United 
States, the enforcement of international arbitral from abroad, and 
arbitration under an international convention.62 

The law of unfair competition also presents a dizzying 
combination of property, tort, and statutory law.  Nevertheless, this 
topic is the subject of the Restatement (Third) of Unfair Competition’s 
comparison and reconciliation of common law principles 
regarding deceptive practices with federal and state statutes, 
including the Unfair Trade Practice and Consumer Protection Act, 
the Lanham Act, and state anti-dilution acts.63 

3. The Trap of Irreconcilable Controversy 

The ALI’s goal of consensus and its reliance on discussion among 
its members to reach conclusions mean that hotly disputed topics 
or fields of law may delay or even prevent agreement.  Accordingly, 
even with a history of reconciling controversy and eventually 
concluding projects, there is perhaps a natural reluctance to 
pursue projects so controversial that a consensus is deemed 
impossible.  If the leadership concludes that environmental law 
poses such a risk of heated disagreement, the ALI may avoid a 
project in the area because the effort’s opportunity costs would 
outweigh the unlikely potential benefit of a success.  Of course, this 
objection may prove self-fulfilling:  concerns over the level of 
controversy in environmental law may foreclose the very debate 
and analysis needed to determine whether agreement and work in 
this field is possible.  In addition, controversy certainly has not 
prevented the ALI from shouldering major projects in other 
difficult and controversial areas of the law.  For example, the ALI is 

 
62. Projects:  Current Projects:  Restatement of the Law, the U.S. Law of International Commercial 

Arbitration, AM. LAW INST., http://ali.org/index.cfm?fuseaction=projects.proj_ip& 
projectid=20 [http://perma.cc/49MR-3GTF] (last visited Dec. 16, 2014). 

63. Publications:  Publications Catalog:  Restatement of the Law Third, Unfair Competition, AM. 
LAW INST., http://ali.org/index.cfm?fuseaction=publications.ppage&node_id=58 [http:// 
perma.cc/ARK9-5ALB] (last visited Dec. 16, 2014). 



18 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

currently addressing mandatory penal sentencing,64 current death 
penalty practices, and a Restatement of Employment Law.65 

4. A Related Concern:  Opportunity Cost 

When a proposed topic will require significant time and 
resources, it may affect the organization’s commitment to other 
proposed projects.  As a result, the ALI may lean against selecting 
subjects that will likely require a commitment of resources that may 
detract from other projects.  This observation assumes, of course, 
that the ALI members whose expertise and preferences would 
qualify them to work on a particular project (such as 
environmental law) could also instead devote that same time and 
effort to different unrelated projects.66 

5. The Limiting Factor of Specialization 

Areas that are so narrow and specialized that few members or 
lawyers have occasion to need or be affected by the area are 
unlikely candidates for attention by the ALI.  When a particular 
area of law is of such a specialized nature that few are involved and 
few interested, it is unlikely to spark interest by the ALI 
membership.  While the ALI’s membership is broad enough to 
support workgroups on a large number of legal areas, the current 
members may yet not include sufficient specialists in a particular 
area that the ALI has not previously explored. 

 
* * * * 

 
Whether environmental law matches up well or fails the 

hypothesized tests set forth above is a difficult and subjective 
judgment.  While some would see environmental law as a clearly 
worthwhile choice for the organization’s process, others have 
challenged this judgment and argue that the ALI should avoid the 
topic entirely or set a narrow scope for an initial environmental 
 

64. Projects:  Current Projects:  Model Penal Code:  Sentencing, AM. LAW INST., http:// 
www.ali.org/index.cfm?fuseaction=projects.proj_ip&projectid=2 [http://perma.cc/4CZ3-
VVDX] (last visited Dec. 16, 2014). 

65. Projects:  Current Projects:  Restatement of the Law, Employment Law, AM. LAW INST., 
http://www.ali.org/index.cfm?fuseaction=projects.proj_ip&projectid=11 [http://perma.cc/ 
A33E-4P3P] (last visited Dec. 16, 2014).  See also supra note 6. 

66. In light of the expressions of interest in an environmental project by over fifty ALI 
members who are currently environmental scholars and practitioners, the ALI may not face a 
significant opportunity cost if it pursues an environmental project.  See infra Part I.D.5. 



2015] Restating Environmental Law 19 

 

project.67  Thus, we have an open question and one that has been 
considered by the leadership but neither rejected nor publicized 
for consideration by the membership.  Several strong reasons, 
however, still militate in favor of a Restatement of Environmental 
Law or a Project on Principles of Environmental Law. 

First, while U.S. environmental law undoubtedly has strong ties to 
federal statutes and regulations, it also has deep historical roots in 
common law tort that shape core aspects of its statutory and 
regulatory framework.  For example, environmental law includes 
well-developed notions of nuisance, trespass, and negligence that 
operate in concert with statutory and regulatory claims to provide 
broader avenues of redress for environmental injury.68  Second, the 
ALI has tackled other areas of law that spring from heavily statutory 
sources, and its work has yielded both Restatements and 
elaborations of Principles nonetheless.69  Third, even common law 
fields of practice that the ALI has explored in the past are now 
dominated or heavily shaped by statutes and regulations.  The 
presence of a legislative voice—especially if it is inconsistent in 
different areas and varies substantially over time—may actually 
increase the need for an authoritative distillation of the 
appropriate fundamental concepts that should drive future 
legislative and legal development. 

More importantly, environmental law has also seen substantial 
elaboration and development at the state and local levels in both 
federal and state common law.  At the federal level, questions of 
how to interpret statutory terms in varying contexts and among 
multiple statutes have become increasingly important as regulatory 
expansion of statutes increases. 

At state and local levels, most major federal environmental 
statutes allow states to obtain authorization to operate their 
environmental programs in lieu of the federal program.70  These 
state programs can impose varying and more stringent standards 
than the federal framework.  As virtually every state has 

 
67. See, e.g., Tarlock, supra note 11. 
68. The complex interplay of preemption doctrine, displacement caselaw, and federal 

statutory savings clauses makes the availability of common law remedies highly dependent on 
the specific environmental injury at issue and the statutory claim.  See, e.g., North Carolina ex 
rel. Cooper v. Tennessee Valley Auth., 615 F.3d 291 (4th Cir. 2010) (finding that federal 
Clean Air Act broadly preempted state law public nuisance and other tort claims against a 
facility that held a permit issued by a delegated state program). 

69. See supra notes 40–41.   
70. See supra notes 28–29. 



20 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

implemented its own programs to regulate air, water, and waste 
pollution, environmental law has bloomed into a rich and fractious 
body of environmental decisions and standards.  Some fields of 
natural resource law, by contrast, have remained deeply rooted in 
state law from their inception and have always varied widely 
between states (e.g., water law). 

Second, environmental law has earned a well-deserved reputation 
for complexity, and it has led to the creation of a bar of 
environmental specialists who practice full-time in their respective 
fields.71  Large portions of environmental law, however, rely on 
areas of litigation and common law principles that should ring 
familiar to all ALI members, regardless of their practice area.  For 
example, portions of a Project that address environmental 
enforcement would likely draw on principles of litigation and 
defense that parallel other areas of law where the ALI members 
may have expertise (e.g., criminal law, corporate responsibility, and 
principles of restitution and equitable remedies).  In addition, the 
ALI already has over 100 members who have identified themselves 
as practicing in environmental law or related fields.72  These areas 
of complexity therefore should not bar the ALI from productively 
working on an environmental project. 

Third, U.S. environmental law is not needlessly or 
insurmountably controversial.  Some issues in environmental law 
are obviously contentious, and federal environmental programs 
frequently become the subject of political disputes and public 
scrutiny.  Despite that controversy, typically most adversaries 
involved with environmental issues agree on the importance of 
protecting against pollution that causes injury or needless and 
expensive damage to ecosystems.  Recent attempts to rationalize 
environmental law and promote reforms have attracted cooperative 
efforts from multiple parties with differing political views.73 

 
71. See, e.g., Irma S. Russell, The Sustainability Principle in Sustainable Energy, 44 TULSA L. 

REV. 121, 134 (2008) (stating that the “patchwork of legislation and regulation” in 
environmental law raises the question of effectiveness and noting the need for “coordination 
between governmental entities”). 

72. The roster of the ALI members who identified themselves as having an interest in 
environmental law is available in Tracy Hester’s files, although any distribution will be strictly 
limited by confidentiality policies and privacy expectations of the American Law Institute 
and its members. 

73. For example, NYU Law School consulted with a broad array of stakeholders and 
opposing viewpoints when it prepared its BREAKING THE LOGJAM report.  See SCHOENBROD, 
STEWART & WYMAN, supra note 25. 



2015] Restating Environmental Law 21 

 

For example, while disputes in the United States over climate 
change law invoke deeply held beliefs and disputes over the 
existence and importance of anthropogenic climate disruption, 
recent federal judicial decisions so far have firmly established the 
viability of federal climate change regulation.74  These rulings 
foreshadow future developments in this area even if politicized 
controversy continues over the extent and causes of climate 
change. 

Last, a properly defined environmental law Restatement, Project 
or statement of Principles could have a workable scope.  The 
proposed project or Restatement must encompass a task that the 
ALI can reasonably hope to complete in a productive and timely 
manner.  While the ALI willingly enters into ambitious and lengthy 
projects—the Restatement of Trusts took over twenty-one years to 
complete—forays into fresh fields should probably first focus on 
discrete and achievable goals that members can support. 

II. FIRST STEPS:  POSSIBLE PROJECTS OR PRINCIPLES ON SELECTED 
ASPECTS OF ENVIRONMENTAL LAW 

If a full Restatement of Environmental Law poses daunting 
conceptual and logistical challenges, the ALI has a broad and 
sophisticated palette of alternative tools to help crystallize core U.S. 
environmental legal concepts.  As noted previously, these options 
 

74. Massachusetts v. EPA, 549 U.S. 497 (2007) (relying on uncontroverted factual 
assertions about damages from climate change to find standing by state governmental 
plaintiffs); Coal. for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012) 
(upholding EPA’s finding under a deferential standard of review that greenhouse gas 
emissions endanger human health and the environment, and rejecting challenges to EPA 
regulations of greenhouse gas emissions from mobile sources and from stationary sources 
under the Prevention of Significant Deterioration program).  While the U.S. Supreme Court 
granted certiorari to review the Coalition for Responsible Regulation decision, it only agreed to 
review the narrower question of whether the EPA correctly concluded that regulation of 
greenhouse gases under the Clean Air Act’s mobile source program would require 
imposition of permitting under the Prevention of Significant Deterioration program for 
major stationary sources of greenhouse gases.  Coal. for Responsible Regulation v. EPA, 684 
F.3d 102 (D.C. Cir. 2012), cert. granted sub. nom. Util. Air Regulatory Grp. v. EPA, 134 S. Ct 
418 (Oct. 15, 2013), (No. 12–1146).  The Court’s ultimate decision rejected EPA’s claim that 
regulation of greenhouse gases emitted by mobile sources under Title II of the Clean Air Act 
automatically mandated subsequent regulation of greenhouse gas emissions from major 
sources, but the Court did not question Massachusetts v. EPA’s foundational conclusion that 
EPA had authority to regulate greenhouse gases as “pollutants” under the Clean Air Act.  
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014).  The Court also concluded that EPA 
and delegated states could regulate greenhouse gas emissions through their selection of Best 
Available Control Technologies in permits controlling emissions of other criteria pollutants.  
Id. at 2447–49. 



22 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

include preparing a statement of Principles of Environmental Law 
rather than a full Restatement as well as a Project dedicated to a 
discrete subset of environmental law. 

A. Principles of Environmental Law 

The ALI typically pursues Principles in areas of law “thought to 
need reform”75 and will seek to produce recommendations for 
changes to the law in the field.76  Because of the wider latitude 
offered by this approach, the ALI has prepared (or is currently 
working on) statements of Principles in emerging or controversial 
fields of law including election law, aggregate litigation, nonprofit 
organizations, transnational insolvency, and corporate 
governance.77 

Statements of Principles present a promising middle path by 
offering a normative or aspirational vision of a legal subject rather 
than an authoritative Restatement of its full body.  Rather than 
attempting to capture the complex and shifting universe of federal 
and state environmental laws and regulations, a Statement of 
Principles would allow the ALI to focus on distilling that 
complexity into coherent sets of principles to guide interpretation 
and implementation of specific environmental legal requirements.  
As noted above, a Statement of Principles might also allow the ALI 
to avoid ensconcing outdated or harmful environmental legal 
concepts into a full Restatement by instead pointing out normative 
goals that environmental law should seek to achieve. 

B. Taking a Smaller Bite:  Stand-Alone Projects on Discrete Areas 
of Environmental Law 

Alternatively, the ALI could also limit the scope of the 
investigation to a specific subject or subtopic of environmental law.  
This approach would generally yield a Project rather than a 
Restatement or Principles declaration.  By preparing a Project on 
an important issue or domain within a larger field, the ALI can 
offer guidance on particular key questions while exploring the 

 
75. See supra notes 41–42 & accompanying text (describing the purpose and scope of ALI 

statements of Principles of Law). 
76. Id. 
77. Id.  The ALI recently announced that it would begin work on a new Principles of the 

Law, Compliance, Governance and Enforcement for Corporations, Nonprofits, and Other 
Organizations.  See The American Law Institute Announces Four New Projects, supra note 39. 



2015] Restating Environmental Law 23 

 

feasibility of the field for a fuller Restatement or Principles 
formulation. 

To date, efforts within the ALI have focused first on identifying a 
promising subtopic or field for a project on environmental law.  To 
explore a possible project or Restatement in environmental law, 
over fifty ALI members who practice or teach and study 
environmental or natural resource law formed a workgroup in 2012 
to survey and rank possible environmental law projects.  The 
workgroup first concluded that beginning with a full Restatement 
of Environmental Law would pose significant difficulties and 
resource demands.  Accordingly, the workgroup suggested that an 
initial effort by the ALI in environmental law should focus on a 
manageable subtopic.78 

The workgroup identified over thirty different potential projects, 
discussed and ranked each suggestion, and evaluated the entire 
array of concepts under consistent criteria.79  After this process and 
several additional discussions, the workgroup identified two areas 
within environmental law as best suited for a Project:  (i) a Project 
on the Law of Environmental Assessment (which would include 
environmental impact statements and might encompass 
international elements), or (ii) a Project on the Principles of 
Environmental Enforcement and Remedies. 

1. A Project on the Law of Environmental Assessment80 

A project on the law of environmental impact assessment (“EIA”) 
would seek to restate and clarify the developing body of case law in 
the United States on the obligation to assess the environmental 
impact of activities likely to significantly affect the quality of the 
human environment.  At the federal level this law predominantly 
arises out of the National Environmental Policy Act,81 and federal 

 
78. Memorandum from Professors Robert Percival, Irma Russell, Victor Flatt, Joel Mintz, 

and Tracy Hester to the Honorable Lee Rosenthal, Chair of the Programs Comm. for the 
Am. Law Inst. 5–17 (Oct. 2, 2012) (on file with Tracy Hester). 

79. The workgroup expressly ranked each proposed environmental and energy project 
based on the project’s statutory nature, complexity, controversy, specialization, and overlap 
with other ALI Restatements and Projects.  The ranking scores and comments for each 
proposed project are available in Tracy Hester’s files. 

80. This discussion includes substantially most of the recommendations provided by the 
ALI Workgroup on a Project on the Law of Environmental Impact Assessments, which we 
provided to the ALI Program Committee in 2012.  The original submission to the ALI is 
contained in the authors’ files.  We especially wish to acknowledge the EIA Workgroup’s 
valuable work and thank its members for allowing the inclusion of its work in this article.  

81. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4347 (2012) (“NEPA”). 



24 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

agency regulations, litigation practice, and forty years of judicial 
opinions have provided substantial additional clarification.  State 
and local laws set out similar statutes and regulations.  Although 
NEPA is generally not delegable to States, currently seventeen 
states have their own laws that require an actor to prepare an 
environmental impact assessment for certain governmental and 
private actions.82 

While the EIA Workgroup initially focused on U.S. 
environmental laws and remedies, the workgroup members did not 
decide whether to include potentially instructive laws or regulations 
from other nations or international legal instruments (beyond 
those that directly affect or influence U.S. legal requirements).  
Many countries adopted their own environmental impact 
assessment laws after the United States enacted NEPA in 1970.83  In 
these nations, the EIA process in fact supplies the basis for project-
specific standards and requirements, and as a result the EIA 
process plays a central role in their environmental governance 
regimes.84  Environmental impact assessment has also become a 
central tenet to some international legal instruments.85  Looking at 
other countries’ laws and doctrines and the international usage of 
EIA may help illuminate strengths and weaknesses in the domestic 
U.S. approach. 

The workgroup added that the scope of a Project on the Law of 
Environmental Impact Assessment should not include liabilities 
arising under tort law that might characterize such assessments as a 
 

82. Office of NEPA Policy and Compliance, U.S. Dep’t of Energy, States with NEPA-Like 
Environmental Planning Requirements, U.S. DEP’T OF ENERGY, http://energy.gov/nepa/ 
downloads/states-nepa-environmental-planning-requirements [http://perma.cc/3YNA-
SYLV] (last visited Dec. 16, 2014).  These states include California, Connecticut, Georgia, 
Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New 
York, North Carolina, South Dakota, Virginia, Washington, and Wisconsin.  In addition to 
such states, the District of Columbia, Guam, Puerto Rico, and the City of New York have 
similar requirements for environmental impact statements.  Id.  

83. Nicholas Yost writes that “NEPA . . . may well be the most imitated law in American 
history.”  Nicholas Yost, The Background and History of NEPA, in THE NEPA LITIGATION GUIDE 
1, 1 (Albert M. Ferlo, Karin P. Sheldon & Mark Squillace eds., 2d ed. 2012). 

84. CHRISTOPHER WOOD, ENVIRONMENTAL IMPACT ASSESSMENT:  A COMPARATIVE REVIEW 3 
(2d ed. 2003) (“[A]bout two-thirds of the approximately 110 developing countries had 
enacted some form of [environmental impact assessment] legislation by the mid-1990s.”); see 
also ANNIE DONNELLY, BARRY DALAL-CLAYTON & ROSS HUGHES, A DIRECTORY OF IMPACT 

ASSESSMENT GUIDELINES (2d ed. 1998), available at http://pubs.iied.org/pdfs/7785IIED.pdf 
[http://perma.cc/D4VK-TQND]. 

85. See, e.g., Protocol on Environmental Protection to the Antarctic Treaty art. 8, opened for 
signature Oct. 4, 1991, S. TREATY DOC. NO. 102–22, 30 I.L.M. 1455, available at http:// 
www.ats.aq/documents/recatt/Att006_e.pdf [http://perma.cc/FX5J-GSVV]. 



2015] Restating Environmental Law 25 

 

predicate for a duty of due care in certain circumstances.  They also 
felt an EIA Law Project should exclude emerging law for due 
diligence in commercial contexts (e.g., ASTM standards for Phase I 
assessments) or brownfields redevelopment under CERCLA, 
RCRA, or similar state programs. 

Congress passed NEPA in 1969 and President Richard Nixon 
signed it into law on January 1, 1970.  NEPA inaugurated a long 
string of modern environmental laws passed in the 1970s, and it 
offered a unique and groundbreaking approach at the time of its 
enactment.86  Unlike other federal environmental laws, NEPA 
contains no enforcement mechanism and no provision for 
delegation to States.  Nonetheless, an active array of citizen suits 
over the past 40 years has spurred the development of a rich body 
of judicial opinions.87  The U.S. Supreme Court has considered at 
least fifteen significant NEPA controversies.88  Of the seventeen 
states with environmental impact assessment laws, many states 
enacted them in the 1970s shortly after the federal NEPA and 
imported procedural requirements similar to the federal statute’s 
provisions.  These state laws have also sparked considerable 
litigation since their enactment. 

Notwithstanding the frequent characterization of NEPA as a 
primarily procedural statute, EIAs have proven enormously 
important as a substantive step to assure that governments act 
thoughtfully before causing significant alterations to the 

 
86. In near-poetic prose, Section 2 of NEPA states that: 
The purposes of this chapter are:  To declare a national policy which will encourage 
productive and enjoyable harmony between man and his environment; to promote 
efforts which will prevent or eliminate damage to the environment and biosphere and 
stimulate the health and welfare of man; to enrich the understanding of the ecological 
systems and natural resources important to the Nation; and to establish a Council on 
Environmental Quality. 

42 U.S.C. § 4321 (2012). 
87. “To a degree equaled only by the civil rights movement, lawyers and courts have been 

critical to the success of NEPA.”  Yost, supra note 83, at 7. 
88. See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010); Winter v. Natural 

Res. Def. Council, 555 U.S. 7 (2008); U.S. Dep’t of Transp. v. Public Citizen, 541 U.S. 752 
(2004); Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989); Robertson v. Methow 
Valley Citizens Council, 490 U.S. 332 (1989); Baltimore Gas & Elec. Co. v. Natural Res. Def. 
Council, Inc., 462 U.S. 87 (1983); Metro. Edison Co. v. People Against Nuclear Energy, 460 
U.S. 766 (1983); Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980); 
Andrus v. Sierra Club, 442 U.S. 347 (1979); Vermont Yankee Nuclear Power Corp. v. Natural 
Res. Def. Council, 435 U.S. 519 (1978); Kleppe v. Sierra Club, 427 U.S. 390 (1976); 
Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures 
(SCRAP), 422 U.S. 289 (1975) (SCRAP II); United States v. Students Challenging Regulatory 
Agency Procedures (SCRAP), 412 U.S. 669 (1973). 



26 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

environment.  The U.S. Supreme Court concluded that NEPA 
requires federal agencies to take a “hard look” at environmental 
consequences89 and has acknowledged that NEPA intends to be 
“action-forcing.”90  An EIA has developed into a key step in virtually 
every significant federal action and has played a critical role in 
avoiding fundamental environmental missteps.  Despite forty years 
of experience with implementing the statute, however, certain 
disputes have repeatedly recurred over fundamental questions of 
EIA law.  Similar issues arise under the state laws or even local 
ordinances.  These recurring foundational issues include the 
correct time to trigger an obligation to conduct an assessment, the 
appropriate document that an assessment should produce, the 
correct scope of an assessment, the best way to include cumulative 
impacts, the extent of obligations to assess indirect impacts (such as 
induced growth) and health or socioeconomic impacts, the proper 
weighing of remote yet catastrophic risks, and the adequacy of 
alternative impacts analyses.91  Other key issues include the proper 
use of exclusions (e.g., categorical exclusions), the appropriate 
scope for the doctrine of functional equivalence, and the 
management of cross-border issues (for example, when—if ever—it 
is necessary to consider impacts outside the geographic borders of 
the United States for a federal EIA or outside the state for a state 
EIA). 

In light of these numerous substantive issues, the EIA Workgroup 
concluded that the law of environmental impact assessment offers 
an important area where ALI can provide serious and substantive 
assistance. 

 
89. Kleppe, 427 U.S. at 410 n.21 (citing Natural Res. Def. Council v. Morton, 458 F.2d 827, 

838 (D.C. Cir. 1972)). 
90. Methow Valley Citizens Council, 490 U.S. at 348. 
91. See, e.g., COUNCIL ON ENVTL. QUALITY, NEPA AND CEQA:  INTEGRATING FEDERAL AND 

STATE ENVIRONMENTAL REVIEWS 3–42 (2014), available at http://www.whitehouse. 
gov/sites/default/files/page/files/nepa_ceqa_handbook_feb2014.pdf [http://perma.cc/ 
ML5Y-WHCJ] (last visited Dec. 16, 2014). 



2015] Restating Environmental Law 27 

 

2. A Project on the Law of Environmental Enforcement and 
Remedies92 

The Project on the Law of Environmental Enforcement and 
Remedies would seek to restate and clarify the developing body of 
law in the United States on the enforcement of environmental laws 
as well as the appropriate type and scope of remedies to address or 
prevent violations.  This effort would include relevant state and 
local environmental laws that offer varying remedies and tools for 
enforcement. 

While the workgroup members generally agreed to focus on U.S. 
environmental laws and remedies, they did not decide whether to 
include potentially instructive laws or regulations from other 
nations or international legal instruments (beyond those that 
directly affect or influence U.S. legal requirements).  After 
discussion, the workgroup recommended that the ALI include 
some examination of international enforcement issues (particularly 
enforcement of international environmental treaty obligations that 
might affect U.S. legal rights or defenses), but this additional 
inquiry should focus on illuminating core principles of U.S. 
environmental enforcement law and providing helpful examples.  
This use of international environmental enforcement precedents 
would also need to avoid duplication of any impending work on the 
Restatement (Fourth) of the Foreign Relations Law of the United States.  
The workgroup also believed that this proposed scope for the 
Project on the Law of Environmental Enforcement and Remedies 
would avoid undue overlap with existing or pending Restatements 
or Projects that address certain categories of remedy or assess 
enforcement or remedies in other fields of law.93 

At its heart, this Project would focus on the aspects of 
environmental enforcement that differ from traditional 
enforcement tools generally used in other fields of law.  To do so, it 
would need to start with a workable and comprehensive definition 

 
92. This discussion includes substantially most of the recommendations provided by the 

ALI Workgroup on a Project on the Law of Environmental Enforcement and Remedies, 
which we provided to the ALI Program Committee in 2012.  The original submission to the 
ALI is contained in the authors’ files.  We wish to acknowledge the Enforcement Law 
Workgroup’s excellent work as well and thank its members for allowing the inclusion of its 
work in this article. 

93. See supra note 46 for prior ALI Restatements or Projects that touch on environmental 
remedies or specific enforcement options relevant to environmental interests (e.g., 
Restitution, Judgments, Torts, and Property). 



28 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

of environmental law as a foundation for its analysis.94  This 
definition would include areas of law addressed by traditional 
federal and state environmental statutes and regulations as well as 
common law tort actions that focus on environmental concerns 
(public and private nuisance).  It would also include both civil and 
criminal violations.  For now, however, the workgroup assumes that 
the definition would exclude related legal areas that overlap with 
environmental law but raise substantially different concerns and 
historical legal principles.  Some of these excluded areas would 
include natural resource law, water law, environmental impact 
assessment law, and general criminal law. 

Some of the most notable features of environmental 
enforcement and remedies arise from distinct and unusual aspects 
of the underlying environmental laws that drive them.  In general, 
environmental statutes and regulatory requirements share the basic 
concepts of causation, proof, and liability that underlie other 
substantive fields of law.  As a result, this Project would necessarily 
focus on those legal areas that go beyond these core concepts and 
are strongly associated with environmental law.  In particular, 
environmental laws have fostered distinct enforcement doctrines in 
three areas: 

How can persons incur liability for environmental violations?  For 
example, environmental enforcement and remedies have built 
strong legal doctrines for the imposition of strict liability for civil 
violations and certain environmental crimes, expanded 
misdemeanor liability for crimes rooted in simple negligence 
(under certain environmental statutes) and gross negligence, and 
felony liability for “knowing” violations which only require a 
showing of general intent. 

Who can be a liable party for an environmental violation?  Like other 
legal fields, environmental enforcement relies heavily on particular 
doctrines that expand the universe of parties who can face 
enforcement liability.  For example, environmental law has made 
extensive use of the doctrine of respondeat superior to establish 
liability for corporate defendants, and it has relied on the 
responsible corporate officer doctrine to reach management as well 
as corporate officers and executives for environmental criminal 
misdeeds. 

 
94. See supra note 13. 



2015] Restating Environmental Law 29 

 

Who can seek enforcement of environmental requirements?  
Environmental enforcement relies on a federalist structure for 
enforcement to an unusual degree.  For example, most states have 
received delegation to implement and enforce environmental 
programs, and the federal government retains authority to oversee 
and overfile on state environmental programs to assure their 
effectiveness.  Similar issues arise when different government 
agencies retain overlapping authority as trustees for wildlife and 
natural resources under various environmental laws.  
Environmental law also has served as the primary legal field for the 
development of citizen suits for enforcement by affected 
individuals and non-governmental entities. 

The workgroup concluded that environmental enforcement and 
remedies law offers an important area where the ALI could offer 
serious and substantive assistance.  First, and most fundamentally, 
environmental enforcement is absolutely essential to the effective 
implementation of environmental programs and obligations.  
Without credible enforcement, environmental laws and regulations 
would offer only an illusion of protection of public health and 
natural resources.  Given estimates that the private sector spends 
over $200 billion annually to satisfy environmental compliance 
requirements,95 environmental enforcement and remedies law has 
enormous implications for economic activity as well as the 
protection of public welfare, vital ecosystems, and historical and 
cultural values shared by most of the public. 

More directly, environmental enforcement programs now involve 
the allocation of billions of dollars in civil and criminal penalties as 
well as the funding of large-scale governmental enforcement 
programs at the federal and state levels.  Environmental 
enforcement leads to the direct incarceration of numerous 
individuals in the United States every year.  In fiscal year 2013, 
enforcement efforts by the U.S. Environmental Protection Agency 
led to the imposition of $1.1 billion in administrative and civil 
judicial penalties,96 over $1.2 billion in commitments to remove or 

 
95. See supra note 1 (discussing economic impacts of federal environmental regulation).  

See also PERCIVAL ET AL., supra note 33. 
96. U.S. ENVTL. PROT. AGENCY, OFFICE OF ENFORCEMENT & COMPLIANCE ASSURANCE, 

FISCAL YEAR 2013 EPA ENFORCEMENT AND COMPLIANCE ANNUAL RESULTS 3, available at 
http://www.epa.gov/compliance/enforcement/annual-results/eoy2013.pdf [http://perma. 
cc/K6JL-DGXZ] (last visited Jan. 8, 2015).  Over $1 billion of this total arose from 
enforcement actions related to the Deepwater Horizon disaster.  Id. 



30 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

remediate hazardous waste sites under the Superfund program,97 
and over $7 billion in injunctive relief to require investments to 
improve environmental performance.98  These figures do not 
include the results of parallel enforcement activities by other 
federal agencies and state environmental compliance programs. 

C. Current Status of Proposals to the ALI for an Environmental 
Law Project 

After each subgroup prepared its assessment and proposals for 
focused projects on environmental enforcement principles and 
environmental assessment law, the full workgroup prepared a 
collective report that summarized the full rationale for proceeding 
with an effort.  The workgroup submitted its report and suggestions 
to the ALI’s Programs Committee in 2013.  In its submittal, the 
members offered to participate and support a symposium or 
workshop by the ALI to explore the feasibility of environmental or 
natural resource law for additional work by the ALI. 

The ALI recently declined the workgroup’s proposals for 
immediate work, but it has not ruled out a future effort on 
environmental law.  The ALI continues to evaluate proposals for 
potential future work, and its process to identify and select topics 
has no deadlines or timeframes for action.99 

III. SHOULD THERE BE A FULL RESTATEMENT OF ENVIRONMENTAL 
LAW? 

While the discussion within the ALI of a Restatement of 
Environmental Law arose only recently, some scholars have already 
raised objections to the entire enterprise.  Their concerns, as 
cogently outlined by Professor Dan Tarlock in a recent article, fall 
into four general categories. 

The ALI hasn’t done it that way historically.  The first critique points 
to the ALI’s historical focus and preference for subject areas with a 
strong body of judge-made law.  At heart, this objection highlights 
the ALI’s original choices for restatements, which consisted of core 
common law subjects with roots in Roman law that constituted the 
heart of traditional first-year law school curricula.  While the ALI’s 

 
97. Id. at 7. 
98. Id. at 8. 
99. E-Mails from Judge Lee Rosenthal, U.S. Dist. Court for the S. Dist. of Tex., to Tracy 

Hester (Oct. 30, 2014 & Mar. 30, 2014) (on file with author). 



2015] Restating Environmental Law 31 

 

agenda has since evolved to include complex and novel subjects 
that fall outside this traditional agenda, the disjuncture with the 
ALI’s historical practice and current preferences offers some 
difficult—albeit surmountable—difficulties.100 

Environmental law pursues goals at odds with core common law precepts.  
According to this critique, the positivist nature of environmental 
law requires it to use a forward-looking perspective to forestall and 
avoid future environmental damage.  This central quality of 
environmental law allegedly poses a fundamental problem for the 
entire enterprise of restating it:  the principles of environmental 
law are “profoundly antithetical to both the function of the 
common law and to the Restatement tradition.”101  In essence, this 
position contends that environmental statutes respond to the 
shortfalls of prior common law doctrines and allocations of 
property entitlements that allowed the use of air, water, and soil as 
dumping grounds.  In addition, environmental law seeks to protect 
functioning ecosystems and wildlife that common law historically 
had tended to destroy102 and also seeks to protect against a 
constellation of future or emerging risks.  Common law doctrines 
and concepts of due process, by contrast, require proof of “but for” 
causation and linkages between specific conduct by defendants and 
identifiable consequences to plaintiffs.  As a result, the courts have 
struggled with crafting effective legal responses to risks of future 
harm that have not yet materialized.103 

The courts have not created a true quasi-constitutional environmental 
body of law that would support a Restatement.  Moving to 
environmental caselaw, the third argument attacks the feasibility of 
distilling U.S. environmental decisions into a Restatement at all 
because those rulings lack a developed core of foundational 
principles that a Restatement could readily capture.  As an 
outgrowth of positive law created predominantly by U.S. federal 
statutes, environmental judicial law purportedly has failed to 

 
100. Tarlock, Why There Should Be No Restatement of Environmental Law, supra note 10, at 

666 (“[T]he fact that a subject was not a historic Roman law derived first-year subject area is 
not a per se barrier to the development of a Restatement today.”). 

101. Id. at 667. 
102. Id. at 668. 
103. Id. at 669 (“The Constitution gives the legislature considerable discretion to base 

health-protection regulations on the risk of future harm, but judges have much less 
discretion to do so.  Due process requires that responsibility for exposure injuries in toxic-
tort suits must be assigned to a specific emitter and that the plaintiff establish that the 
exposure to a toxic substance caused a specific injury.”). 



32 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

coalesce around the type of judge-made principles that underlie 
other areas where the ALI has focused its efforts.104  In contrast to 
the forward-looking positivist nature of environmental statutory 
law, traditional U.S. environmental common law based in tort seeks 
to “administer corrective justice by compensating the victims of 
injuries to their health and property”105—and restating the 
principles from those cases would necessarily require a backward-
looking perspective incompatible with principles from the statutes. 

There is no substantive environmental law at all.  This line of 
objection climaxes with a startling claim:  because current 
environmental laws result from the messy intersection of rational 
responses to novel and emerging problems with the raw jostling of 
interest-based politics, any attempt to identify common 
fundamental legal principles from them strains to discern a 
coherent set of axioms that simply don’t exist.106  At heart, this view 
of environmental law concludes that there isn’t a “there” there to 
restate.107  Because environmental statutes offer a positivist response 
to fast-moving problems and developing science through the lens 
of current political expediencies and dysfunctions, they essentially 
must resort to procedural solutions that assure fairness without 
providing a substantive core.  These types of procedural fields of 
law, according to the critique, necessarily offer poor grist for the 
Restatement process.108 

These criticisms understate work by other scholars that points to 
the link between environmental statutes and prior common law 
principles.  For example, one of us has urged further examination 
of those links to guide the proper application of environmental 
statutes.109 

 
104. Id. at 671–75. 
105. Id. at 667.  Professor Tarlock adds further that common law not only fails to provide 

protection for biodiversity, it actively encourages its destruction through creating property 
rights that foster its exploitation.  He concludes that “there is no distinctive quasi-common 
law of biodiversity protection for the ALI to restate.”  Id. at 668. 

106. Id. at 670–71. 
107. Tarlock, Is There a There There in Environmental Law?, supra note 11, at 213. 
108. Tarlock, Why There Should Be No Restatement of Environmental Law, supra note 10, at 

671. 
109. Victor B. Flatt, This Land is Your Land (Our Right to the Environment), 107 W. VA. L. 

REV. 1 (2004).  But see Tarlock, Why There Should Be No Restatement of Environmental Law, supra 
note 15, at 672 nn.40–41 (citing Professor Flatt, but concluding that “[o]nce one concedes 
that citizens have no right to a zero-risk environment, it is not possible to specify with any 
level of confidence the content of a potential environmental right”). 



2015] Restating Environmental Law 33 

 

But more fundamentally, this argument goes to the heart of the 
debate over whether the ALI should pursue a Restatement or other 
environmental law Project.  While modern U.S. environmental law 
springs predominantly from statutory sources and suffers from 
conflicting goals and processes, it undeniably exists.110  A vast array 
of treatises, textbooks, articles, and scholarly advice have already 
recognized long-standing common law principles in the area and 
have created a deep body of work describing environmental law 
precepts; the existence of those writings strongly implies that 
critical facets of environmental law can be captured in a systematic 
form through a Restatement or Principles Project.  These materials 
should also considerably smooth the transition of those core 
principles into work by the ALI.  To the extent that environmental 
law also includes procedural elements as a surrogate for substantive 
goals that elude political consensus, a Restatement or Principles 
Project could note that interaction and—more importantly—
identify the limits where even a properly followed procedural path 
typically will not intrude on a substantive goal.111  Claiming that it is 
impossible to restate or capture the principles of environmental 
law—like many a historical pronouncement that a task simply 
cannot be done—only highlights the need to actually make the 
attempt. 

On a more tactical level, these objections also minimize the ALI’s 
capacity and flexibility to tackle areas of law that lie outside 
traditional common law spheres.  As noted above, the ALI has 
already produced groundbreaking work in disparate topics as far 
flung as software contracts, unfair competition, international 
commercial arbitration, and family dissolution.  While the ALI’s 
early efforts undeniably focused on traditional common law fields, 
nothing about the ALI’s current deliberative approach and 
consensus-based process makes it unfit for other fields of law that 
arise from statutory roots.  The core prerequisites—richness of 
caselaw, complexity of issues, and need for clarity—apply equally to 

 
110. See, e.g., Aagaard, supra note 13, at 223 (“There is no doubt that something we call 

environmental law exists.”). 
111. For example, NEPA famously imposes only a procedural requirement that federal 

agencies rigorously assess the potential environmental impacts of their major actions without 
setting substantive limits on agency actions after that review is complete.  This simple 
formulation, however, fails to account for the critical role that this procedural process plays 
in invoking and buttressing substantive limits on judicial review of arbitrary and capricious 
final agency action under other federal statutes (including environmental laws). 



34 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

code-driven law that has spurred the development of its own dense 
caselaw and regulatory framework. 

More importantly, the ALI can expressly mold its approach to 
reflect the novelty or lack of doctrinal development within a legal 
subject.  If the ALI believes that the area needs substantial reform 
or normative analysis, it can choose to adopt its work through a 
Project or a Principles statement rather than a full-bore 
Restatement.112  As Professor Tarlock notes, the ALI has already 
successfully wrestled with some of the concerns during its 
Restatement (Third) of Torts on toxic torts and has expanded concepts 
of causation to the use of probabilistic risk.113 

The final critique raises a policy concern rather than a legal one.  
Assuming that the ALI could readily capture positivist and 
prospective environmental law principles in a Restatement, critics 
question whether such a full Restatement would do more damage 
than good.  This critique builds on the larger belief that the ALI’s 
efforts can have the perverse effect of freezing developing fields of 
law in undesirable and stunted positions.114  Environmental law, as a 
response to emerging science and often fast-moving risks, is still 
evolving and needs the flexibility to expand and adapt to 
environmental dangers.  By attempting to capture current U.S. 
environmental law principles in a Restatement, according to this 
criticism, the ALI may unintentionally solidify current standards 

 
112. In fact, several members of our workgroup have expressed a preference to pursue a 

Project on Principles of Environmental Law rather than a full Restatement for these very 
reasons.  We note, however, that the ALI’s Projects have apparently wielded less influence 
than its Restatements.  See Liebman, My Time as Director and Possible Next Steps for the ALI, supra 
note 52 (“I allowed ‘Principles’ to grow to about half the agenda, because a number of 
projects seem to have as their audience legislators and administrators as well as common law 
judges. . . . We now know two things:  that Principles projects receive fewer court citations 
than Restatements, and that the boundary [between Restatements and Principles and 
Projects] is not clear. . . . There is a strong argument for staying with ‘Restatement,’ the word 
our founders brilliantly contributed to the legal vocabulary.”). 

113. Tarlock, Why There Should Be No Restatement of Environmental Law, supra note 10, at 
668–70 (“The ALI’s effort to stake out a position in a dynamic, science-based area could be a 
useful precedent for a Restatement (First) of Environmental Law.”). 

114. See, e.g., id. at 665 (“Because the ALI process is primarily backward-looking, there is a 
risk that a Restatement would freeze the law in its current dysfunctional and anti-
environmental protection mode.  Consequently, a Restatement now would impede the 
greater goal of effectively incorporating new interdisciplinary insights to address the 
continuing challenges of environmental degradation and global climate change.”).  See also 
Kristen Adams, Blaming the Mirror:  The Restatements and the Common Law, 40 IND. L. REV. 205, 
214–15, 226–30 (2007) (summarizing criticisms that the ALI’s mission to restate or 
summarize existing law leaves the ALI ill-equipped to act progressively when change to that 
law is needed). 



2015] Restating Environmental Law 35 

 

that are too meek or timorous to effectively address fundamental 
environmental challenges such as climate change, biodiversity loss, 
or the expanding integration of synthetic toxic chemicals into the 
environment.115 

This bleak view of current U.S. environmental law, however, 
generates its own riposte.  It eschews a fundamental study of 
environmental law to identify its most important core principles 
and doctrines in the hope that future developments might lead to 
stronger standards.  But that same argument posits a lack of a 
current political consensus and an ability of special interests to 
frustrate stronger environmental standards that will likely continue 
for the indefinite future absent an effort to identify and address 
shortfalls in current law.  By holding onto today’s dross in hopes of 
future gold, such a cautious strategy might forego the opportunity 
to make significant progress now. 

In addition, the ALI can forthrightly seek to point out future 
actions and doctrines to strengthen environmental law to respond 
to anticipated or emerging future threats or needs.  Restatements 
have the ability to include normative directions for additional legal 
clarification and growth.116  While the ALI typically subordinates its 
efforts at legal reform when it undertakes a Restatement in pursuit 
of accurately capturing the current state of law, it can nonetheless 
identify areas where existing legal practices are in conflict and 
identify the preferred choice between them.  Given the number 
and significance of conflicting approaches and precedents between 
federal and state environmental programs, the ALI may find an 
unusual degree of freedom to identify areas where U.S. 
environmental law can be improved. 

Even if the ALI does not wish to freeze existing U.S. 
environmental law because of its shortfalls, the ALI can still tackle 

 
115. For example, this criticism surfaced during floor comments on the draft Principles 

of Labor Law during the ALI Annual Meeting in 2011.  Kristen Adams, Loyalty By Any Other 
Name?, AM. LAW INST. ANNUAL MEETING BLOG (May 17, 2011, 7:30 PM) http:// 
2011am.ali.org/blog.cfm?startrow=11 [http://perma.cc/D3RQ-UPQU] (“As other bloggers 
have noted during this meeting, this is one of the important recurring debates in the 
American Law Institute:  Should an Institute project—and especially a Restatement project—
seek to mirror existing law and existing terminology or seek to influence the direction of the 
law and, as part of that effort, seek to change the vocabulary we use to describe that law?”). 

116. When Restatements or other ALI pronouncements have fallen into obsolescence or 
contain damagingly outdated legal statements, the ALI has also demonstrated a 
commendable ability to update and reform its conclusions even in areas as controversial as 
the death penalty and sentencing for sexual offenses.  See, e.g., MODEL PENAL CODE:  SEXUAL 

ASSAULT AND RELATED OFFENSES (Tentative Draft No. 1, 2014). 



36 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 40:1 

 

these concerns expressly by pursuing other approaches short of a 
full Restatement.  In particular, a Principles of Environmental Law 
project would explicitly acknowledge areas where U.S. 
environmental law needs reform or clarification, and even a Project 
in a limited subset of U.S. environmental law would provide clarity 
in important areas without risking calcification of other 
fundamental environmental law doctrines. 

IV. NEXT STEPS AND POSSIBLE FUTURE DIRECTIONS 

The question of a full Restatement remains on the table.  The 
benefits of such an effort seem clear, and its drawbacks—while 
acknowledged—can be managed and overcome.  The ALI 
currently has a proposal before it to undertake a limited Project on 
important aspects of U.S. environmental law such as environmental 
assessment law or environmental enforcement law.  If the ALI 
adopts either of these suggested Projects, however, its work in the 
foreseeable future will likely focus on relatively modest goals.117 

The approach and content of a Principles of Environmental Law 
statement fall outside the scope of our current work, but we can 
assay some possible fruitful directions for initial drafting efforts.  
For example, even parties holding deeply opposing views about the 
basis and goals of environmental law will agree that the legal field 
seeks to protect a valuable public good:  the environment itself.  As 
a result, the likely first tenet of any statement of environmental law 
principles will be that the environmental law accords protection to 
the environment apart from the benefits or property rights held in 
it by individuals or private entities.118  A natural corollary to this 
opening axiom would be that the degree of protection accorded to 

 
117. When considering other potential subject areas to study, the ALI has recently begun 

to convene exploratory panels or symposia to develop background information for a 
proposed project and to assess the scope of a workable proposal.  For instance, a workshop 
was convened in 2012 for the ongoing Restatement of the Law of American Indians.  Of course, 
independent work on possible avenues for restating or reforming U.S. environmental law 
could proceed in parallel or independently with such a workshop. 

118. This principle, however, could face the challenge that current U.S. environmental 
common law actively refuses to accord any protection to natural resources beyond the 
assignment of private property rights that can hasten their degradation.  Tarlock, Why There 
Should Be No Restatement of Environmental Law, supra note 10, at 668 (“The common law 
offered (and continues to offer) virtually no protection for biodiversity.  Instead, by creating 
property rights to exploit ‘nature,’ the common law encourages its destruction.”). 



2015] Restating Environmental Law 37 

 

the environment depends on the nature of the environmental 
value at issue.119 

Restatements and Projects have helped not only to clarify the 
existing law, but also to highlight where legal growth needs to 
occur and offer wisdom on the best paths to reach those goals.  A 
Restatement of Environmental Law, or a Project on the Principles 
of Environmental Law, can dispel doctrinal conflict and confusion 
and help provide a clear path ahead in an area of law that, by its 
very nature, touches us all. 

 

 
119. See, e.g., Dan Tarlock, Is a Substantive, Non-Positivist United States Environmental Law 

Possible?, 1 MICH. J. ENVTL. & ADMIN. L. 159, 192–207 (2012) (suggesting that any principles 
of environmental law principles must assure that procedural duties promote substantive 
outcomes, and that environmental decisions should seek to implement core concepts such as 
the polluter-pays principle, the use of best available technology, and the incorporation of 
accepted standards of sustainable development).  In fairness, Professor Tarlock has also 
emphasized that this “small core of mixed procedural and substantive rules” does not detract 
from his belief that “current United States environmental law is not suitable for 
restatement.”  Tarlock, Why There Should Be No Restatement of Environmental Law, supra note 10, 
at 676 n.58.