This article will describe the legal and policy burdens of proof applicable to environmental decision-making and the shifts that have occurred in allocating those burdens. The initial change occurred when common-law principles gave way to a pro-protection legal framework established during an "environmental era." The second change occurred more recently when a new environmental policy law agenda was set. Through regulatory reforms, policy alterations, statutory proposals and budgetary and personnel actions, the federal executive is now seeking to develop a more pro-development structure and again place the burden of proof on those seeking to secure government action to protect the environment. The result is that those seeking protective action must present a greater amount of evidence than previously necessary to justify federal government intervention.
Parts I and II of this article review the state of environmental law prior to the Reagan Administration. Until the "environmental era," commencing in the mid-1960's, environmental protection law was limited. Under traditional common law rules, the burden was on those opposing development to show how an identifiable entity had unreasonably and specially harmed or damaged them. That burden was difficult to meet. In the late 1960's and early 1970's, increasing public awareness of environmental dangers, and the inability of traditional legal doctrines to deal with those dangers, led to the passage of numerous laws seeking to assure protection of the environment, and the creation of institutions to implement those laws. Mechanisms were adopted to force environmental values to be considered in all actions, to prescribe protective national environmental standards, to force technology to meet those standards, and to increase the number and size of areas to be protected from improper use. In burden of proof terms, in choosing between protection and development, the government was to "err on the side of caution."
Part III of this article discusses the changes adopted by the Reagan Administration. Based on careful planning and research, the new political leaders fixed and then implemented a fully developed agenda. The philosophy of "limited government" was carried out under the doctrines of "regulatory reform" and "balancing the budget." The ideology of "state's rights" was pursued through "new federalism." Finally, the belief in "self-government" was promoted through "privatization." In the area of environmental protection, each of these policies was used to justify fundamental institutional and legal changes. The burden of proof was placed on those seeking to have controls adopted or enforced or seeking to restrict development. These persons would now have to overcome the presumption against such controls or limitations, especially if action was to be taken by the federal government.
Part IV of this article considers the results of this shift in the burden of proof and what it suggests for the future of environmental law and policy. Early in the Reagan Administration, environmental policies became a major political issue. In response to concerns expressed by the public, Congress and even members of the business community, the Administration made some fine tuning and better articulation of policies. Controversial proposals and personalities were dropped; however, the goal has not changed. The presumption remains against imposing additional controls or restricting development and those seeking to overcome this presumption must come forward with sufficient evidence to justify intervention.
Ecology Law Quarterly
Martin H. Belsky, Environmental Policy Law in the 1980's: Shifting Back the Burden of Proof, 12 Ecology Law Quarterly 1 (1984).