Law, Environment, and Vision
Kysar, Douglas A., Northwestern University Law Review
[A]nalytic effort is of necessity preceded by a preanalytic cognitive act that supplies the raw material for the analytic effort . . . . [T]his preanalytic cognitive act will be called Vision.1
Environmental law rests uncomfortably between competing visions. Once driven by essentially "moral, cultural, aesthetic, and political purposes,"2 the environmental regulatory agenda now seems, like other aspects of the emerging "cost-benefit state,"3 to be emphatically instrumentalist. Although the environmental law framework established during the predominant ethical environmentalism of the 1970s remains largely intact,4 commentators today agree that this framework represents "a failing paradigm."5 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.6 Indeed, scholars have labeled tradable permits "the most fashionable innovation in environmental policy today,"7 promising not only to achieve regulatory goals with less cost than traditional command-and-control techniques, but also promising to inspire reasoned public deliberation regarding such weighty issues as the very type of environment in which we desire to live.8
As Lisa Heinzerling argues, however, the "republican moment"9 promised by tradable permit schemes has proven stubbornly elusive, at least if experience with the sulfur dioxide trading program created by the 1990 Clean Air Act Amendments is indicative.10 According to proponents of tradable permit schemes, enacting such legislation forces explicit discussion by lawmakers and their constituents regarding the goals of environmental protection due to the fact that such schemes require the government to establish an aggregate limit to the amount of pollution emitted or resources used in a given time period.11 Yet, as Heinzerling's study of the legislative history of the Clean Air Act Amendments reveals, no such public discussion took place with regard to the sulfur dioxide trading program.12 Instead, Congress devoted nearly all of its attention to allocating valuable property rights created under the scheme among clamoring interest groups.13 In other words, Congress fixated on dividing up the pork.
This Article argues that the failure of existing environmental trading programs to inspire serious democratic deliberation about environmental goals is caused in no small part by a fundamental conceptual flaw in our background assumptions about the natural world and its relation to our economic activity. Specifically, because mainstream economic accounts generally fail to recognize absolute limits imposed by nature on the ability of humans to appropriate and utilize natural resources, they also fail to provide an adequate conceptual basis on which to make the political judgments required by tradable permit schemes. Just as cost-benefit analysis seems incoherent under the moral absolutism of 1970s-era environmental statutes,14 setting aggregate limits to annual sulfur dioxide emissions appears nonsensical, or at least not urgent, within a theoretical model that recognizes no ultimate constraints to economic growth.
Fortunately, an alternative vision exists: ecological economics. During the shift to efficiency-oriented environmental regulation, legal scholars have paid little attention to this emerging academic field that seeks to bring multidisciplinary rigor to the study of nature's role within human economic production.15 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 on a preanalytic vision of human activity that is presumed to be bounded by natural constraints. …