A. Dan Tarlock


"Rule of law litigation" is one of the most, if not the, most distinctive features of environmental law. "Rule of law" litigation seeks to convince courts to create new environmental protection rights and duties by strictly construing statutes to hold that an agency action that degrades the environment is ultra vires, by creatively reading statutes to find new substantive or by declaring strict procedural duties in broad delegations of agency discretion. The article asks whether this model of environmental law making can continue to sustain itself as environmental law moves into the second generation. This is an important, if not compelling question for the future of environmental law and protection because new developments in the underlying science on which environmental law has relied, in environmental governance institutions as well as changes in the judiciary and administrative law call into question both the jurisprudential basis and the effectiveness of "rule of law litigation" and require a critical reevaluation of the environmental movement's heavy reliance on this strategy. The article discusses future sustainability of this strategy is open to question for two primary reasons. First, the strategy was always a fiction because courts were creating not "finding" law and all fictions break down over time as the need for them decreases and the fiction becomes more transparent. Second, the evolution of environmental law suggests that the "rule of law litigation" strategy will be less effective in the future as environmental protection and law enter the second generation, which will be less rule and regulation oriented.