Beyond Zero-Sum Environmentalism

Date01 April 2017
AuthorShalanda Baker, Robin Kundis Craig, John Dernbach, Keith Hirokawa, Sarah Krakoff, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, Jim Salzman, Inara Scott, and David Takacs
Beyond Zero-Sum
by Shalanda Baker, Robin Kundis
Craig, John Dernbach, Keith Hirokawa,
Sarah Krako, Jessica Owley, Melissa
Powers, Shannon Roesler, Jonathan
Rosenbloom, J.B. Ruhl, Jim Salzman,
Inara Scott, and David Takacs
Environmental law and environmental protection are
often portrayed as requiring trade os: “jobs versus
environment,“markets versus regulation,” “enforce-
ment versus incentives.” In the summer of 2016, mem-
bers of the Environmental Law Collaborative gathered
to consider how environmentalism and environmen-
tal regulation can advance beyond this framing to
include new constituents and oer new pathways to
tackle the many signicant challenges ahead. Months
later, the initial activities of the Trump Administra-
tion highlighted the use of zero-sum rhetoric, with the
appointment of government ocials and the issuance
of executive orders that indeed seem to view environ-
mental issues as in a zero-sum relationship with jobs
or economic progress. In the essays below, the authors
explore the meaning and the role of zero-sum environ-
mentalism as a rst step in moving beyond it.
I. What We Talk About When We Talk
About Zero-Sum Environmentalism
 
Bualo Law School.
In the summer of 2016, a small but hardy group of law pro-
fessors gathered to discuss the concept of zero-sum envi-
ronmentalism. We had set for our agenda to get “beyond”
zero-sum environmentalism. e suggestion was that there
is a dominant approach to environmental law issues that
frames them as zero-sum and that this framing can be
damaging to environmental progress. What we grappled
with, though, is whether environmental problems really are
(at least at times) zero-sum. Is the description of an envi-
ronmental issue as z ero-sum ever accurate? A re laws treat-
ing issues as zero-sum when they should not be doing so?
Or maybe ignoring a zero-sum framework that is at play?
Perhaps there a re no zero-sum dynamics in the real
world and instead “zero-sum” is just the langua ge we
(or some of us) use to describe environmental trade os.
Zero-sum a s used in the context of environmental policy
implies stark winners and losers. If the environment wins,
the economy must lose. To protect the owls, we destroy
the lives of the loggers. To prevent global climate change,
Americans must completely change life as they know it.
Indeed, the concept, if not language, of zero-sum appears
particularly prevalent in the new Donald Trump Adminis-
tration, where actions in favor of environmental protection
are couched as actions against the economy.
Our discussions revealed (unsurprisingly) that we all
came to this question with dierent examples, assump-
 e authors collectively engaged in this work as part
         
also enriched by Holly Doremus and Stephen Miller who, while they
     
Law Reporter (ELR)  [See Michael Burger et al.,
Rethinking Sustainability to Meet the Climate Change Challenge,
43 ELR 10342 (Apr. 2013)].
   [R S  M
 C C C (Jessica Owley & Keith
Hirokawa eds. 2015)].   
ELR in 2015. [Sarah Adams-Schoen et al., 
 45 ELR 10027 (Jan. 2015)],  
book [C I  C C L 
P: E I   IPCC (Robin Kundis Craig &
Stephen R. Miller eds., 2016)].
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
4-2017 NEWS & ANALYSIS 47 ELR 10329
tions, and solutions. Some people rejected the idea that
zero-sum problems ever actually exist, and suggested that
reliance on the framework and use of the term can be dam-
aging to environmental governance—not just because it is
an overly constrained view of how trade os actually work,
but also because the language of zero-sum necessarily cre-
ates a combative stance that can impede collaboration and
creative thinking. Others suggested t hat for some environ-
mental concerns, the zero-sum framework was underused.
at is, we might reach better results if we confront the
actual trade os. W hat work does it do to label environ-
mental problems as a zero-sum game? In this ca se, climate
change and biodiversity protection serve as key examples.
Maybe we do need to emphasize that you cannot have your
cake and eat it too. Building that hospital will indeed lead
to the extinction of a species. Putting the conundrum in
stark terms might help highlight the need for embracing
the principle of in dubio pro natura1 (when in doubt act in
favor of nature).
Most of us agreed, however, that when we see t he zero-
sum rhetoric or when we use it ourselves, we are not really
talking the language of economists.2 We are tak ing their
term and simplifying it (taking a complex topic from
another discipline and simplifying it for our use is some-
thing we legal academics are good at).3 But more than that,
1. Josena Russo & Ricardo Russo, In Dubio Pro Natura: 
, 5 T T
1659 (2009).
2. See, e.g., A K. D   S S, G  S:
F I S E 225 (2015) (describing basic
principles of zero-sum and nonzero-sum games in economics).
3. Or perhaps not that good at. See, e.g., Richard A. Posner, Legal Scholarship
Today, 115 H. L. R. 1314, 1326 (2002) (“Remarkable, too, is the
insouciance with which they discuss concepts from other elds, such as
political science, with nary a reference to the scholarly literature in those
elds.”). See also Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4
we rea lized that we are not the ones using this term. In
fact, it is not heavily used in the legal academy. It is used in
the media, though, and by politicians.
Figure 1, above, (created by Google’s Ngram function)
shows an increased use of the phrase “zero-sum” in books
rst appearing a round 1940 and increasingly u sed since
then, with a tapering o beginning in 2000. However,
overall, there i s not a high frequenc y of use of the phrase.
And “zero-sum environmentalism” did not appear often
enough to be plotted with Google’s Ngram funct ion.4
Following this train of thought, maybe the mission of
going beyond zero-sum environmentalism is to reject the
use of the term—to emphasize that it is not really occur-
ring. Or maybe it is to show the strength of the attitude of
zero-sum. If we think that a zero-sum approach is awed
as overly simplistic, then highlighting where actors/policy-
makers are treating complex environmental problems as
zero-sum issues can reveal aws in policymaking. Daylight-
ing the zero-sum framework c an expose overly simplied
approaches to environmental protection eorts, allowing
one to target those arenas as needing richer analyses.
Once I began looking for it, I saw zero-sum issues
throughout my work. For example, I have often complained
about the nature of property law arrangements (specically
conservation easements) to break instead of bend.5 at is,
Y J.L.  H. 79, 79-80 (1992) (suggesting that often legal academics
incorporate other disciplines in a “sub-standard” or “supercial” way).
4. See G B, N V,
(last visited Mar. 3, 2017). What would be more interesting is to chart this
phrase in speeches, academic publications, and news articles, but Google has
yet to make such an Ngram (at least not one that is publicly available), and
searching through such piles of documents is beyond the task of this essay.
5. See, e.g., Jessica Owley, Conservation Easements at the Climate Change
Crossroads, 74 L  C. P. 199 (2011); Jessica Owley, Property
, in E L 
C I  N: A C A 64 (Keith
Hirokawa ed. 2014).
1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
zero -
Figure 1: Ngram of “Zero-Sum”
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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