The market is not the only institution that organizes collective activity in our society. Politics operates alongside markets as an additional mechanism of social organization. While market failure is an important aspect of the problem, environmental degradation also stems in part from a kind of political failure. Environmental disputes involve asymmetries of power that consistently skew governmental decisionmaking in favor of less stringent environmental regulation and against the interest of environmental protection. First, a group whose interests are diffuse and have less marginal impact on each individual member will have far more difficulty organizing into an effective pressure group than a smaller group in which each member suffers substantial economic harm. Second, other things being equal, wealthier and more powerful groups tend to have far more political clout than individuals, because of the privileged position they occupy in politics. As a result, environmental disputes almost always involve an asymmetry of power that weighs against environmental protection. Current problems with environmental lawmaking can also be traced to the broader structural problems created by the current legislative processes that allow, or at least fail to discourage, powerful interests from securing legislation and application thereof that would not pass muster on their own merits.
The power imbalance endemic to environmental lawmaking and disputes has the potential to skew governmental decisionmaking in the legislative, executive, and judicial branches. As we perceive the challenges presented by the mismatch between the spatial and temporal reach of modern technology and the tendency of human nature to underestimate the related consequences, we need lawmaking institutions deliberately designed to produce environmental laws capable of overcoming the tendency of human nature to distort disproportionately the consequences of human conduct that are distant rather than immediate. Just as recognized by the Constitution itself in its separation of powers structure, the necessary lawmaking institutions in the area of environmental lawmaking may sometimes require some immunization from the inevitable political pressures created by more short-term and narrow interests, so that environmental lawmaking can deliberately limit the legislature's own perceived accountability for decisions that are unpopular in the short term. Environmental law is, by its nature, difficult to enact because it is so redistributive in its thrust. Because of the nature of ecological cause and effect, which is spread out over time and space, environmental protection laws naturally tend to impose costs currently on some persons for the benefit of other persons in other locations, sometimes far removed in time and space. This can be resulted only when deliberative democracy is working at its best. Only then are lawmakers able to rise above the near-term and more immediate concerns to establish the kind of broader social vision needed to secure and maintain environmental protection law.