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Looking Back on Looking Forward In Energy and Environmental Law

In 1978, The Ohio State Law Journal published a symposium issue on a topic near and dear to Law 2050–the future of law. One contribution was The Future of the Law for Energy and the Environment (39 Ohio State Law Journal 752 (1978)), by the late Earl Finbar Murphy. The time frame between its publication and the present–35 years–is about the same as the time frame of Law 2050’s look into the future, so I thought it might be interesting to look back on Murphy’s look forward.

The article is well worth the time for anyone interested in current energy and environmental law and policy. Although I did not know Murphy personally, his credentials in natural resources and energy law were impressive, and this article certainly demonstrates the command he had of our energy and environmental law and policy world in the 1970s. The article is part history, part assessment of the status of energy policy at the time, and a smaller part of prediction. Murphy did not build scenarios of the future, but rather extrapolated from energy history to project a crisis in energy supply by the end of the 20th century. Having just come off the 1973 OPEC oil embargo, that’s understandable, and of course only a year after the article’s publication Murphy’s concern became the reality of the 1979 oil crisis. Much of the article, therefore, is a critique of the government’s dependence on incessant economic growth as the foundation of its social and economic policies, which in turn depended on essentially unlimited access to energy at the expense of the environment. Murphy lamented that the public’s concerns about population growth, pollution, and shortages of energy and capital had not translated into a more coherent set of government policies at the time, and he anticipated a protracted period of political reluctance to change course toward greater integration of renewable energy sources. Legal change plays a small role in the article–much smaller than politics–his central prediction being that the fragile fossil-fuel energy system would eventually crack beyond repair, and then law’s role in retooling the nation’s energy profile would be sweeping in scope.

Ultimately, Murphy was half right and half wrong. He was remarkably prescient in linking energy policy and environmental policy, a pairing we take for granted today but which was not so common in the 1970s. His projection of a shortage-phobic national energy policy also held true for about two decades. Yet, although he recognized the unrelenting investment we would make in finding new sources of fossil fuels, he, like many others, did not anticipate how successful we would be at it. Who was thinking of fracking in 1978?

But the glaring omission from Murphy’s prediction is climate change politics. Climate change is not mentioned at all in the article, which is not the least bit unusual for legal scholarship from the 1970s. Yet fear of climate change, not fear of oil shortages, has become the catalyst for a deep (and controversial) reexamination and fusing of our nation’s energy and environmental policies.  One cannot fault Murphy for missing the big game changer–everyone missed it. The lesson for legal futurism, however, is that extrapolation-based projection of a single future is risky. Scenario building, in which multiple possible descriptive futures are constructed, some of which integrate what might seem like “far out” ideas, is a more robust way of testing normative legal futures. Still, I found great value in reading Murphy’s prediction for our present time and highly recommend the article as an exercise in looking back on looking forward.

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