Throughout his remarkable career, Lawrence Friedman has explored how social forces shape law and how law, in turn, influences society. Although he has not written extensively about environmental law, his work provides valuable insights for understanding issues that have puzzled scholars in the environmental law field. This chapter explores how Friedman's work can help illuminate why we have environmental laws, how they have evolved over time, and why they have been highly successful in solving some problems but not others.

The chapter begins by discussing the evolution of environmental law from its common law roots to the vast federal regulatory infrastructure that prevails today. Reflecting Friedman's conviction that appellate case law often provides a distorted lens for viewing the development of law, it examines how common law principles of liability for environmental harm were adapted in practice to preserve the economic vitality of economically important polluters, while ultimately encouraging the development of pollution-control technology. Mindful of Friedman's emphasis on empirical historiography, it presents some previously unpublished data concerning an early-twentieth-century effort to supplement nuisance law with an alternative system of administrative compensation for environmental harm.

Political theory predicts that federal regulatory legislation to protect the environment should not exist because it imposes concentrated costs on politically powerful industries to provide diffuse benefits to the general public. Yet during the 1970s Congress adopted transformative environmental legislation, which it expanded and strengthened during the 1980s.