Environmentalism versus Energy Development

The primary institution in American society for the allocation of resources is the free-or at least theoretically free-market, working through privately negotiated exchanges between individual buyers and sellers. Given the priority of economics over politics in the American tradition, the governmental system must be viewed as a subordinate institution-as a secondary or back-up mechanism-to assist in the allocation of resources, or to correct gross inequities, when the market fails. Thus, Adam Smith in The Wealth of Nations, published in the year of the Declaration of Independence, observed that we simply cannot rely on the market to provide certain kinds of goods. For instance, the private market invariably proves an inadequate mechanism for the production and distribution of public such as defense forces or constabulary services.' So in such cases, we see the operation of a fall-back system-the political process which, inter alia, mounts our armies, equips navies, raises police forces, and the rest. And if the political system, in its turn, does not work? Then the phrase typically leaps to the lips: Sue the bastards! Our judicial system, then, has been set up as a sort of secondary fall-back mechanism. Courts exist to help insure fair or decent or equitable allocation of the valued goods and services in our society. So when the market and the legislative-administrative process alike fail, the citizen may go to law for satisfaction. Such a theory explicitly underwrote the extreme activism of post-New Deal Supreme Court justices on behalf of the so-called Preferred Freedoms, such as freedom of speech, of assembly, and of the press.2 At least in its periods of greatest activity in the 1940s and 1960s, the Court showed a willingness to strike down acts of legislatures which trenched on such rights-justified on the ground that repression of First Amendment freedoms interfered with the workings of the democratic political process itself. Conversely, this doctrine implied, so long as the political process seemed to be working, judges would remain reluctant to inject judicial will into the workings of the more basic political system. Against this background, the following pages briefly recount the record of contemporary environmentalism in the economic market, in the political arena, and in the judicial process, in order to provide a setting for an analysis of the administrative context in which the energy versus environment confrontation of the late 1970s will probably have to be resolved

Administration (probate law · Environmental planning · Environmental protection · Environmentalism · Political science · Politics · Environmental law and policy · Environmental Science · Law · Legal and Constitutional Studies · Property Rights and Legal Doctrine

• Energy Development, Environmental Protection, and Public Policy

  Open Access•James L Regens•American Behavioral Scientist•1978

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