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The Temporal Dimension in Environmental Law

September 2001

Citation: ELR 11055

Author: Lisa Heinzerling

Pollution of the air, water, and land increases the risk that human beings will fall ill and prematurely die. Laws restricting this pollution begin to reduce the risk of illness and death as soon as they are implemented. Often, however, the people who would have died in the absence of regulation would not have done so for many years, and thus laws restricting harmful pollution may not reduce the rate of premature human mortality for a long time. This may be because the disease that would have killed people has a long latency period, or because it would have taken many years to amass sufficient exposures to cause death, or because the people exposed to a persistent chemical did not even exist at the time the regulation was imposed. Whatever the reason, it is often the case that the deaths prevented by regulation are deaths that would have otherwise occurred in the remote future. For this reason, it has become commonplace to assume that the benefits of life-saving environmental regulation occur, for the most part, at a large temporal distance from the regulatory activities that reduce risk.

For many, this focus on the future is one of the great triumphs of environmental law. The fact that we have constructed a vast regulatory apparatus aimed at preventing harms in the distant future, harms even to people who do not yet exist, provides a heavy counterweight to claims that individual and collective actions are dominated by shortsightedness, selfishness, and parochialism. Attention to the future also encourages, perhaps even necessitates, the kind of mindset and lifestyle that many environmentalists embrace: frugal and simple, and humble in the face of uncertainty about what the future holds—"conservative" in the old-fashioned sense of the term.

Professor of Law, Georgetown University Law Center. This Article is adapted from Lisa Heinzerling, Environmental Law and the Present Future, 87 GEO. L.J. 2025 (1999) (reprinted, as one of the best environmental law articles of 1999, in 31 LAND USE & ENVTL. L. REV. (2000)). I am grateful to Marguerite McLamb for excellent research assistance.

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