The End Environmental Externalities Manifesto: A Rights-Based Foundation for Environmental Law

37 Pages Posted: 18 Feb 2021

See all articles by E. Donald Elliott

E. Donald Elliott

Yale Law School; Antonin Scalia Lw School

Daniel C. Esty

Yale Law School

Date Written: January 7, 2021

Abstract

The authors argue that the goal for the next stage of U.S. environmental law should be to internalize environmental externalities (principally harms to health from releases to the environment) to the maximum extent feasible. Where it is not possible to eliminate harms entirely, as a second best solution the authors propose financial compensation to compensate victims to the fullest extent possible plus disclosure of the basis for a polluter's conclusion that their releases will not harm others. The authors argue this goal -- rather than benefit-cost analysis or economic efficiency -- should be the guiding principle for the environmental law of the future, based on the natural law and philosophical principle that members of a community have an ethical obligation not to harm one another.

Keywords: environmental law, natural law theories, Kaldor-Hicks efficiency

Suggested Citation

Elliott, E. Donald and Esty, Daniel Cushing, The End Environmental Externalities Manifesto: A Rights-Based Foundation for Environmental Law (January 7, 2021). NYU Environmental Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3762022

E. Donald Elliott (Contact Author)

Yale Law School ( email )

P.O. Box 208215
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202 256-4149 (Phone)

Antonin Scalia Lw School ( email )

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Arlington, VA 22201
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Daniel Cushing Esty

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1602 / 6256 (Phone)
203-432-4871 / 3817 (Fax)

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