Is U.S. Environmental Law Ready for a Restatement?

Since their inception over 40 years ago, modern U.S. environmental laws have grown more complex, have generated conflicts between overlapping statutory schemes and inconsistent federal and state environmental programs, and have become increasingly difficult to modify or update to account for emerging environmental concerns. As a result, numerous environmental and public policy groups have offered proposals to reform U.S. environmental laws. None of these initiatives, however, has achieved broad acceptance or implementation. In fact, Congress has not enacted major new environmental legislation since passage of the Clean Air Act Amendments of 1990, and existing federal environmental statutes have remained essentially unchanged for over 20 years. One organization that has not yet offered an 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 ALI has explored the environmental implications of some provisions in its Restatements and Projects on other legal topics, ALI has not chosen to undertake any major projects dedicated to environmental, natural resource or energy law. ALI’s restraint arises from several historical and policy factors, but those constraints may not necessarily bar ALI from changing course and exploring environmental or natural resource laws in the future. This presentation explores whether U.S. environmental law is ready for a restatement, and overviews possible reasons why ALI has not previously made the leap. It then reports on an ongoing effort by a workgroup of ALI members to define a potential environmental or energy law project that might offer the best initial opportunity for clarification or reform. This workgroup includes over 40 ALI members who are leading environmental practitioners and academics. The initiative has already led to an internal debate and polling process to identify aspects of environmental law that offer the best prospects for restatement or clarification. It will culminate in a proposal and white paper to ALI in September 2012 that will outline the state of environmental law, identify aspects of environmental law that offer the best promise for a Restatement or Project, and then provide preliminary recommendations on the structure and key points of such an effort