Regulating from Nowhere: Domestic Environmental Law and the Nation-State Subject

40 Pages Posted: 26 Jun 2007

See all articles by Douglas A. Kysar

Douglas A. Kysar

Yale University - Law School

Ya-Wei Li

Cornell University - Law School

Date Written: March 2008


Using the examples of invasive species and transpacific air pollution, this essay outlines challenges to U.S. domestic environmental law and policy posed by global dimensions of sociolegal and biophysical systems. As will be seen, the deep interconnectivity of such systems suggests that significant determinants of environmental sustainability will always remain outside the predictive and protective capacities of U.S. regulators, even with respect to matters that conventionally have been regarded as primarily domestic environmental problems. This irreducible interdependency in turn suggests an underappreciated shortcoming of the risk-assessment/cost-benefit analysis paradigm that currently dominates the United States environmental policymaking discussion: By implying that the normativity of national environmental policy can be determined by empirical assessment of individual welfare consequences, such a paradigm fails to promote an ethos of national subjectivity, in which nation-states such as the United States recognize themselves as responsible actors on the global stage, standing in relations of moral and political obligation with other sovereigns, other generations, and other communities of life. Such an ethos, this essay concludes, is essential to successful environmental governance, whether or not nominally domestic in orientation.

Keywords: environmental law, cost-benefit analysis, extraterritoriality, invasive species, transpacific air pollution

Suggested Citation

Kysar, Douglas A. and Li, Ya-Wei, Regulating from Nowhere: Domestic Environmental Law and the Nation-State Subject (March 2008). Cornell Law School Legal Studies Research Paper Series. Available at SSRN: or

Douglas A. Kysar (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Ya-Wei Li

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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