Incorporating Emergy Synthesis into Environmental Law: An Integration of Ecology, Economics, and Law

Article excerpt

  I. INTRODUCTION
 II. THE NEED FOR A NEW APPROACH
     A. General Considerations
     B. Ecological Considerations
     C. Economic Considerations
III. THE EMERGYALTERNATIVE
     A. Overview of Emergy Synthesis
     B. Potential Uses of Emergy in Environmental Law and Policy
        1. General Considerations
        2. Valuing Environmental Services and Products
        3. Comparing Options in Environmental Decision Making
        4. Methodology for Evaluation Under Existing Regulatory
           Standards
 IV. CONCLUSION

I. INTRODUCTION

Virtually all areas of environmental law are concerned in some way with both the ecological and economic impacts of environmental decision making. Unfortunately, existing environmental law statutes tend to incorporate ecological and economic considerations in a simplistic, piecemeal, and awkward fashion. Moreover, these laws have not kept pace with significant developments in ecological and economic research. Emergy synthesis, (1) which incorporates both ecological and economic considerations through a sophisticated scientific methodology, holds the potential to not only inform the law, but also perhaps to revolutionize environmental decision making.

Emergy synthesis, first developed by Dr. Howard T. Odum in the 1970s, (2) and further expanded and refined by other scholars over the past thirty years, (3) relies on the "intrinsic" value of a resource or service. Rather than relying on consumer preferences, emergy synthesis might be called a "donor" value system as it is based on the principle that the energy embodied in a resource or service determines its value. (4) In recent years, emergy synthesis has reached a high level of sophistication with increasing acceptance by the scientific community and scholars worldwide. (5) However, to date, this approach has not been embraced, or even seriously considered, by the legal community. (6)

This interdisciplinary Article explores the viability of incorporating the methods of emergy synthesis into environmental law and policy decision malting. Specifically, it examines the viability of emergy synthesis in decision making by analyzing the advantages emergy synthesis offers and the mechanics of how to make it work in a variety of different contexts. To that end, this Article uses a number of existing statutory frameworks, including the cost-benefit standard of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7) and the pure science standard of the Endangered Species Act (ESA), (8) as illustrations. This Article demonstrates that emergy synthesis has the potential to revolutionize environmental law by providing a well-developed scientific methodology that addresses both ecological and economic considerations in a comprehensive manner. Although emergy synthesis has not been used by environmental regulators in the United States, the Environmental Protection Agency (EPA) offers a two-week emergy short course (9) and in 2005 published the report Environmental Accounting Using Emerge: Evaluation of the State of West Virginia. (10) Moreover, University of Florida researchers currently use emergy synthesis as part of a United Nations Environment Programme project to restore West African drylands and improve rural livelihoods. (11) Perhaps these actions indicate emergy's time has come.

II. THE NEED FOR A NEW APPROACH

A. General Considerations

The majority of existing environmental law statutes were adopted during the 1970s and early 1980s in a piecemeal fashion in response to public demand that the government address specific environmental crises resulting from water pollution, air pollution, and hazardous waste disposal. (12) Consequently, the existing suite of environmental statutes is primarily media-based and rife with inconsistencies, gaps, and overlaps. (13) These laws incorporate a variety of different approaches to considering the economic impacts of environmental regulation (14) or decision making, but do not address ecological concerns in any comprehensive science-based manner. …