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Regulating from Nowhere

Regulating from Nowhere: Environmental Law and the Search for Objectivity

Copyright Date: 2010
Published by: Yale University Press
Pages: 288
  • Book Info
    Regulating from Nowhere
    Book Description:

    Drawing insight from a diverse array of sources - including moral philosophy, political theory, cognitive psychology, ecology, and science and technology studies - Douglas Kysar offers a new theoretical basis for understanding environmental law and policy. He exposes a critical flaw in the dominant policy paradigm of risk assessment and cost-benefit analysis, which asks policymakers to, in essence, "regulate from nowhere." As Kysar shows, such an objectivist stance fails to adequately motivate ethical engagement with the most pressing and challenging aspects of environmental law and policy, which concern how we relate to future generations, foreign nations, and other forms of life. Indeed, world governments struggle to address climate change and other pressing environmental issues in large part because dominant methods of policy analysis obscure the central reasons for acting to ensure environmental sustainability. To compensate for these shortcomings, Kysar first offers a novel defense of the precautionary principle and other commonly misunderstood features of environmental law and policy. He then concludes by advocating a movement toward environmental constitutionalism in which the ability of life to flourish is always regarded as a luxury wecanafford.

    eISBN: 978-0-300-16330-8
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-xiv)
    (pp. 1-22)

    By now, the story of modern American environmental law has been redacted into a familiar script, one in which the excesses of our early attempts to regulate the human impact on the environment came to be disciplined by the insights of sound science and economic reasoning, warding off in the process alarmism, inefficiency, and government overreaching. The script is now so well rehearsed and broadly endorsed that it forms a major component of the United States’ intellectual export trade: Through multilateral treaty negotiations and within international forums, such as the World Trade Organization and the Codex Alimentarius Commission, the United...


    • CHAPTER ONE Agency and Optimality
      (pp. 25-45)

      Among the many morbid thought experiments to appear within philosophical writing over the past century, perhaps none is more engrossing and perplexing than Judith Jarvis Thomson’s exploration of the Trolley Problem.¹ Its setup is deceptively simple: Imagine yourself the engineer of a train barreling steadily down a set of tracks toward a group of five unlucky souls who will, with certainty, be killed unless you decide to divert the train to a side track immediately. The only catch: stuck on the side track is a single person who will, again with certainty, be killed if you decide to spare the...

    • CHAPTER TWO Prescription and Precaution
      (pp. 46-68)

      Early domestic and international efforts to eliminate ozone-depleting substances were based largely on theoretical arguments as to their potential for harm, a classic example of precautionary regulation in the face of incomplete information regarding potentially disastrous environmental harms. Years later, empirical investigations have confirmed the grounds of the scientific community’s concerns, and cost-benefit analyses now are capable of “verifying” the wisdom of the early proactive stance on ozone. Significantly, though, precautionary wisdom emerged at the time of that action from a political body that saw itself as standing outside of, and being critically disposed toward, its tools of risk assessment...


    • CHAPTER THREE Complexity and Catastrophe
      (pp. 71-98)

      Rather than emerging from collective deliberation by a political community—from that community’s point of view—policies adopted under optimific approaches such as welfare maximization are said by their proponents to “inevitably and predictably” flow from the calculated effects of state action.¹ As the previous chapter argued, even accepting that adequate knowledge is available to perform this formalized conception of policy making, it is unclear how the results of such an approach can retain authority over time, given that the welfare-maximization framework implicitly denies the distinctiveness of its own audience. That is, rather than appearing within the framework as a...

    • CHAPTER FOUR Interests and Emergence
      (pp. 99-120)

      The U.S. army corps’ planning efforts in New Orleans represent a particularly crude version of risk assessment and cost-benefit analysis. The proper response to such failings therefore might not be to abandon the determination of policy making through quantitative specification but rather to get more rigorous about it, to deploy the latest and most sophisticated risk-assessment models and valuation techniques, so that the results of risk assessment and cost-benefit analysis come to better comport with the theoretical ideal of comprehensive, impartial utilitarian evaluation. As this chapter shows, however, the methodological problems of cost-benefit analysis are not restricted to the version...


    • CHAPTER FIVE Other States
      (pp. 123-149)

      Law contains its own geography. Implicit within the marbled layers of local, state, federal, and international rules that comprise any country’s environmental law regime is a vision of what the world looks like, how its territories are differentiated, how they relate to one another, and whether they are surpassed by forces greater than their sum. The geography implicit in law is often strange, even to lawyers. Many U.S. environmental laws, for instance, do not suggest on their face that there is an environment beyond the nation’s territorial borders. Instead, the geography of U.S. law reflects the traditional Westphalian conception of...

    • CHAPTER SIX Other Generations
      (pp. 150-175)

      Depicting states with strong subjectivity cuts against a dominant progressive thought in international law these days, which is that the state should be de-emphasized as a legal personality on the global stage, or at least that nonstate actors such as advocacy groups, indigenous communities, business alliances, and other entities should be given greater standing and prominence.¹ The argument of the previous chapter, however, does not deny the need for a more inclusive policymaking discourse at the global level, nor does it contend that the state is an unproblematic vehicle for recognizing and redressing policy problems with global environmental dimensions. Instead,...

    • CHAPTER SEVEN Other Forms of Life
      (pp. 176-200)

      The temporal remoteness of future generations exposes significant blind spots within individualism, both as an analytical method and as a normative commitment to read political questions through the eyes of the individual. These blind spots are perhaps most powerfully demonstrated by what Derek Parfit terms the “non-identity problem”: the fact that what ever policy is selected for a given issue may affect the very identity of future individuals.¹ The non-identity problem is related to, but distinct from, the problem of endogenous preferences, which, as discussed in chapter 4, stems from the possibility that environmental policy may have profound effects on...


    • CHAPTER EIGHT Ecological Rationality
      (pp. 203-228)

      The ideal of openness and responsiveness to an unknowable other does not readily lend itself to behavioral prescription; indeed, the very aim of ethics as first philosophy is to refuse to yield programmatic advice regarding how to live up to the infinite responsibility implied by the existence of other life, since all such advice inevitably does violence. Nevertheless, the critical point to take away from the previous chapter is that, although we will never know how to satisfy the infinite ethical demand of the unknowable other,we do know how to fail it. We fail the demand when we deliberately...

    • CHAPTER NINE Environmental Constitutionalism
      (pp. 229-254)

      The united states constitution is one of the few such texts in the world that fails to explicitly address environmental protection.¹ Quite to the contrary, the U.S. Constitution contains a variety of features—including limited enumeration of national legislative powers, strong protection of private property rights, judicial scrutiny of interstate commerce regulation, and imposition of standing and other justiciability requirements—that arguably restrict the country’s ability to address the environmental needs of present and future citizens.² And while it is true that many U.S. state constitutions specifically address concerns of pollution and resource conservation,³ courts typically refuse to give such...

    (pp. 255-258)
  10. NOTES
    (pp. 259-308)
  11. INDEX
    (pp. 309-314)