Environmental law is dominated by the orthodox environmentalist perspective. The orthodox perspective often treats the minority views expressed in this article as anti-environmental. Nothing could be farther from the truth, but there is little subtlety or nuance in environmental politics. Though the situation is somewhat better in the legal academy, there is still a long way to go before reasoned discussion is more common than political advocacy. An article on this topic entitled "Protecting the Environment from Orthodox Environmentalism" was published several years ago in this journal. (1) The theme was that orthodox environmentalism made it difficult to evaluate the consequences of the first decades of modern environmental regulation, and it marginalized alternative approaches to accomplishing environmental protection. The orthodoxy may have broken down in small ways over the past fifteen years, but for the most part, mainstream environmentalists consider markets the enemy of the environment. There is a parallel orthodoxy among hardcore free-marketeers who insist that markets will solve every social and environmental problem. It is largely an ideologically polarized debate with no middle ground. This article proposes a middle ground that is substantially to the right of the midpoint between the two extremes.
I. THE ORTHODOX ENVIRONMENTALIST POSITION
The orthodox environmentalist position presumes that markets are at the root of the problem. That is, most environmental problems are the result of our capitalist free-market economy. (2) Those who subscribe to this position find the suggestion that market mechanisms may improve the environment counterintuitive.
The orthodox environmentalist position resists recognizing a middle ground in four ways. First, it underestimates the impact that government has had on environmental degradation during the last few decades. This is especially evident in western states where, on average, the federal government is in the business of managing half of the land. (3) Though orthodox environmentalists in the West are concerned about the poor environmental conditions of those lands, they seldom attribute those conditions to the inherent shortcomings and limitations of public management. (4)
Second, some orthodox environmentalists consider the subject a moral issue. They believe that markets and the alteration of "natural" environmental conditions are immoral. In addition, orthodox environmentalists often argue that government action is necessary to account for the needs and rights of future generations. (5) Centralized control, however, is not the only way to account for the future. Market participants, whether they recognize it or not, know how to discount future uses to present value. Although their time frame may be only a few decades, this is much better than the time frame of most political decisions.
Third, some in the orthodox environmentalist camp are concerned about non-human entities. They call for biocentric thinking, (6) which requires one to think as if he were not a human. This is impossible to do, and anyone who claims to be able to decipher what it is that trees, rocks, and creatures really want out of life should be viewed with skepticism. Lastly, orthodox environmentalists, like most other public policy advocates, have an abiding faith in their unique ability to articulate and advance the "public interest," which they assume to somehow be different from an aggregation of individual interests. (7) This contributes to an uncompromising posture set against using market tools to find solutions to environmental problems.
II. THE HARDCORE FREE-MARKET POSITION
Hardcore free-marketeers constitute the other ideological extreme that conspires to make serious environmental policy discussion difficult. They too can find no middle ground that they will accept. Their position is entrenched in the belief that all public actions involve rent seeking, (8) a notion that perhaps has some truth. …