Law, Environment, and Vision
Douglas A. Kysar
Yale University - Law School
Northwestern University Law Review, Vol. 97, No. 3, Winter 2003
Environmental law stands uncomfortably poised between visions. Once driven by essentially moral, cultural, and aesthetic purposes, the environmental regulatory agenda now seems, like other aspects of the emerging cost-benefit state, to be emphatically instrumentalist. Although the legal framework established during the primarily ethical environmentalism of the 1970s remains largely intact, the consensus view of commentators today is that this framework represents a failing paradigm. The future of environmental regulation instead lies in such efficiency-oriented instruments as tradable permits, corrective taxes, disclosure schemes, and other tools designed to replicate the conditions of a well-functioning market. Indeed, the tradable permit has been called "the most fashionable innovation in environmental policy today," promising not only to achieve regulatory goals with less cost than traditional command and control techniques, but also to inspire reasoned deliberation by the public and its representatives regarding such weighty issues as the very type of environment in which we desire to live.
This Article argues that the republican moment promised by tradable permit schemes will remain stubbornly elusive so long as environmental law and policy is dominated by either the ethical environmentalism of the 1970s or the stark instrumentalism of conventional economic theory. Because many mainstream approaches to economics fail to recognize absolute limits imposed by nature on the ability of humans to appropriate and utilize natural resources, they also fail to provide a sound conceptual basis on which to make the political judgments required by tradable permit schemes. Just as cost-benefit analysis seems incoherent under the absolutism of 1970s-era environmental statutes, setting aggregate limits to annual pollutant emissions appears nonsensical -- or at least not urgent -- within a theoretical model that recognizes no binding constraints to economic growth.
Fortunately, an alternative vision exists. More or less simultaneous with the shift to efficiency-oriented environmental regulation has been the development of ecological economics, an emerging field that seeks to bring multidisciplinary rigor to the study of nature's role within human economic production. By fusing insights from ecology, population biology, and physics with the theoretical framework of economics, ecological economists attempt to provide a more nuanced understanding of human-ecosystem interactions than those offered independently by either economists or conservationists. Significantly, ecological economists rely upon a preanalytic vision of human activity that is bounded by natural constraints. This vision or worldview provides a simple yet surprisingly radical departure from mainstream economic thought. As this Article attempts to demonstrate, it also provides the basis for an alternative conception of the goals of collective governance, one that brings much-needed coherence to environmental decision-making within the reign of market-based regulation.
Number of Pages in PDF File: 55
JEL Classification: K0, Q0, K32Accepted Paper Series
Date posted: July 30, 2002 ; Last revised: July 6, 2011
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