The COVID-19 pandemic has pushed environmentalism to the back of many citizens' minds as the importance of public health has exponentially risen. The spread of COVID-19 has created a public health crisis along with an economic crisis. It caused the shutdown of small businesses, disrupted lives across the globe, pushed the boundaries of the hospital system, created a global economic slowdown, highlighted racial disparities within our country, and increased our reliance on single-use plastic following a long period of environmental provisions that restricted their usage. Not only has it directly impacted people's lives through death, sickness, unemployment, and financial hardship, but it created a demand shock, a supply shock, and a financial shock all at once (Triggs and Kharas). As the pandemic continues to impact our lives in various ways, it continues to change the way that our society conceptualizes our interaction with the environment and highlights current tensions between environmental protection and public health, ultimately altering our foundational understanding of environmental law.

Investigating these ideas is particularly important because the judicial branch and Supreme Court are less influenced by special interests and “big money” than their other governmental counterparts. This may pave the way for the judiciary to be a key actor in combating climate change, but the courts have a shaky past with environmental law. One of the first known cases involving legal action to affect climate change was a class-action suit of 43 students against the Phillipine government in the hope of preserving a forest surrounding the students’ village. Many of these types of cases involve youth in order to broaden the appeal of the judicial action since they are the group that will be most affected by government inaction (Ellison). While we observe various nuances in climate change mitigation, the COVID-19 pandemic has served to complicate our understanding of environmental law even more. 

How COVID is changing commonly understood foundations of environmental law

The global shift towards stay-at-home initiatives and expectations has led to decreases in production and  transportation, decreasing the levels of pollution associated with those behaviors. These stay-at-home initiatives have also produced changes in our behaviors surrounding environmentalism that have direct implications on environmental law.  Environmental law seeks to shape human behavior in light of its environmental impacts, yet environmental laws are designed to operate on the basis of pre-pandemic presumptions about human behaviors and the environmental impacts of those behaviors (Rowell). As a result, significant changes in either behaviors or in environmental impacts can confound environmental laws in how they may attempt to regulate behaviors that no longer exist, miss behaviors that do exist, or regulate based on impacts that are no longer likely to occur. Here lies the importance of changes in behavior, as we see that environmental law must take those behaviors into account when interpreting the law. Pre-existing regulatory schemes are in place to address the environmental impacts of human behavior, but they have been created based on various pre-pandemic climate levels. Since many have been informed by statistics and behaviors from pre-pandemic conditions, they need to be revisited to accurately reflect the implications of the pandemic.

Moreover, it will be interesting to analyze whether new provisions that are informed by current pandemic impacts work to create a new normal or are acting under the assumption that they are exceptions to the status quo. “Antidegradation” is a concept that operationalizes the supposition that environmental qualities should not decrease (EPA). This is an influential norm in environmental law and policy makers will have to decide whether to apply antidegradation principles to uphold climate expectations that have changed during the COVID-19 pandemic or if they will be informed by pre-pandemic conditions. We will also be forced to ask: Do pandemic-related changes to the environment inform how the courts think about what is attainable and feasible for areas of the country? Or will they use pre-pandemic levels to inform those decisions? In answering these questions, we must keep in mind that “slow” emergencies, such as a pandemic, generally involve emergency legal requirements but gradual decision making as well. These emergency legal requirements, such as those under NEPA, acts under the presumption of urgency that may not exist for the less time-pressured decisions such as reopening schools, parks, etc. (Rowell). 

Normative values are also shifting, especially COVID-19 specific values, such as those relating to human-wildlife interactions and single-use plastics. Social norms and law can mutually influence one another: when citizens are convinced of the efficacy of a policy, as a result, legislators begin considering a law requiring them. This debate may cause more people to approve of seat belt wearing, which may cause more people to wear them along the way, which may lead to momentum for the legislature to enact the provision. In this situation, individuals realize that others would approve of their wearing a seatbelt, which caused them to engage in the behavior, but it is not independent of the law. Understanding how law works requires recognizing how law influences and interacts with individual attitudes and behavior and, more broadly, social norms, social movements, and political institutions and their leaders (Rowell). However, existing environmental laws were adopted in light of social values that existed pre-pandemic, yet massive disruptive events, such as pandemics, can have far-reaching impacts on the normative and political values that people hold. Additionally, research in psychology suggests that people perceive and value risks differently when they perceive themselves to be under threat or under conditions of anxiety (Lerner & Dacher). These perceptions can be enough to measurably shift their normative and political values, portraying how influential this pandemic period has been in altering normative values which must be addressed by environmental law. These types of changes may help lawmakers to develop reflective, effective strategies as we’re faced with the outcomes of the pandemic--necessary for our society’s physical, emotional, economic, and environmental recovery.

The tension between environmental protection & public health

The COVID-19 pandemic has highlighted the constitutive tension between public health and environmental protection. While businesses struggled to stay open and people struggled to pay bills, many had better things to think about than reusing a cup. Through the pandemic, we have seen environmentally destructive human activities thought to be the causes of transmission of the virus in tandem with environmental benefits arising from lockdown-like policies. The balance between sustainability and public health and safety is being currently tested; more than 6 years of momentum towards banning various single-use plastics is now at standstill.  Some states (CA, CT, MA, ME, NY) have recently lifted bans (some temporarily, some long term) on single-use plastics to accommodate for pandemic needs, but the environmental implications are still extreme. The pandemic is decreasing some behaviors such as transportation and production and pressure on national parks, while increasing others such as generating medical and plastic waste, and production and use of disinfectants. This generation of plastic waste has been caused by increased use of medical items like personal protective equipment (PPE), disposable masks, face shields, masks, gloves, and packaging materials, which cannot typically be broken down in recycling. Some states (CA, CT, MA, ME, NY) have recently lifted bans (some temporarily, some long term) on single-use plastics to accommodate for pandemic needs, but this surge in plastic usage will have various implications to environmental law and policy making. Pre-pandemic research suggests that annual ocean plastic pollution could triple by 2040, but this risk may prove more sudden than expected (Randol & Bourque). 

COVID-19 has also further portrayed the systems of oppression within our country and how inequalities in social determinants of health (education, occupation, income, discimination) and how they interact to posit racial and ethnic minorities at an increased risk of getting COVID-19 (Bauer). Since these inequalities are the byproduct of systematic, historical discimination through governmental policy, we must keep the racially unbalanced impacts of COVID-19 and their causes in the forefront of conversations surrounding environmental law in the future. While the COVID-19 pandemic will probably go away, pollution and waste will remain to ravage vulnerable communities, so we must ensure that changes in environmental law occur in equitable ways. 

References

Bauer, Lauren, et al. "Ten Facts about COVID-19 and the US Economy." Brookings: Washington, DC, 2020.

Ellison, Katherine. "An Inconvenient Lawsuit: Teenagers Take Global Warming to the Courts". The Atlantic, 2012.

“Key Concepts Module 4: Antidegradation.” EPA, Environmental Protection Agency, 2020.

Lerner, Jennifer S., and Dacher Keltner. "Fear, Anger, and Risk." Journal of Personality and Social Psychology, 2001.

Randol, Chandler, and Martin Bourque. “Single-Use Plastics and the Pandemic.” The Environmental Law Reporter, April 2021. 

Rowell, Arden. “COVID-19 and Environmental Law.” Environmental Law Reporter, April 22, 2020. Retrieved April 19, 2021. 

Triggs, A., & Kharas, H. “The Triple Economic Shock of COVID-19 and Priorities for an Emergency G-20 Leaders Meeting.” Brookings Institute, 2020. Retrieved April 19, 2021.