Environmental Harms, Use Conflicts, and Neutral Baselines in Environmental Law
Aagaard, Todd S., Duke Law Journal
Accounts of environmental law that rely on concepts of environmental harm and environmental protection oversimplify the tremendous variety of uses of environmental resources and the often complex relationships among those uses. Such approaches are analytically unclear and, more importantly, insert hidden normativity into putatively descriptive claims. Instead of thinking about environmental law in terms of preventing environmental harm, environmental problems can be understood more specifically and more meaningfully as disputes over conflicting uses of environmental resources. This Article proposes a use-conflict framework as a means of acquiring a deeper understanding of environmental problems and lawmaking without favoring any particular normative approach. The framework does not itself propose a resolution of any environmental problems but rather describes environmental problems and environmental lawmaking conceptually in a manner that exposes normative claims and attempts to establish some common ground across diverse normative perspectives.
TABLE OF CONTENTS Introduction I. Inadequacies of Environmental-Harm Frameworks A. Environmental Problems B. The Environmental-Harm Framework 1. General Problems 2. Problems with Baselines II. The Use-Conflict Framework A. Basics of the Framework B. Uses C. Use Conflicts D. Managing Use Conflicts E. Illustrations III. Implementing the Use-Conflict Framework A. Structure of Environmental Lawmaking B. Relationship to Analytical Methods IV. Insights into Environmental Law's Challenges A. Identifying Uses and Use Conflicts B. The Role of Values C. Values Conflicts versus Use Conflicts V. Neutral Baselines Conclusion
Accounts of environmental law often invoke the concept of environmental harm to explain environmental lawmaking. The goal of environmental law, for example, frequently is characterized as preventing environmental harm or protecting the environment. (1) As a way of understanding environmental problems and environmental law, however, environmental harm is often illusive and inefficacious, oversimplifying many complex realities of environmental lawmaking.
Conceptualizing environmental law in terms of environmental harm is not just analytically unclear. Environmental harm's ambiguity inserts hidden normativity into putatively descriptive claims. This is because the concept of harm necessarily requires a comparison with some normatively superior baseline condition. Environmental harm, however, does not specify a baseline or justify the baseline's normative superiority over the harmed condition. Descriptions of environmental harm thereby incorporate implicit normative judgments in the form of unspecified and undefended baselines.
Ambiguous baselines, such as those embedded in environmental harm, can be employed strategically, facilitating confusing and conflicting claims. Because the premises of the claims are concealed, those who encounter competing claims have no basis for resolving the confusion or the apparent inconsistencies. In such situations, it would be tremendously valuable to have an approach that does not assume a particular normative viewpoint--that is, a way of thinking that can serve as an honest broker among competing claims and ideas.
This Article argues that a use-conflict framework for environmental law has promise as just such an honest broker. As an alternative to an environmental-harm approach, environmental problems can be understood more specifically and meaningfully in terms of environmental uses, the various benefits people derive from environmental resources. Such an approach avoids collapsing the tremendous variety of uses of environmental resources--which affect each other in ways that are complex and often poorly understood--into broad, simple categories, such as environmental harm and environmental protection. …