The struggle for the self in environmental law: the conversation between economists and environmentalists.

• Author: Browne, M. Neil

Those who draft, analyze, and evaluate environmental law do so on the basis of foundational assumptions that are as influential as they are hidden from explicit review. No one approaches environmental law without the baggage of a congeries of value preferences, ontological assumptions, and social aspirations.(1) Instead, we think about environmental law from a personal perspective informed by our experiences and dreams,(2) and especially by our descriptive assumptions, the priors that function below the surface to push and pull our arguments in particular directions.

Foremost among those guiding assumptions is a sense of "self."(3) Do we see others and ourselves through the individualistic lens of personal responsibility,(4) wherein the individual charts and maintains a personal course through life? Or do we see the self as something emerging from a wealth of social interactions, abidingly interdependent, ineluctably bound to others?(5)

How is the concept of the self integrated into environmental law? The initial component of the article describes alternative visions of the self to provide a framework for the argument. The second step in the argument is the establishment of the link between the prevailing concept of the self and the extent to which market arguments are given credence in establishing and enforcing environmental law. The subsequent analysis of the frequently unfriendly discourse between economists and environmentalists(6) is designed to illustrate the impact of specific ontological assumptions about who we are on our assessment of environmental law. The concluding section urges those who wish to effect change in environmental law to do so with a more robust understanding of the self than is typically deployed in debates about particular environmental statutes.

I.

THE SELF AND ENVIRONMENTAL LAW

When we speak about who we are or believe ourselves to be, we adumbrate both the limits and possibilities for our development. Specifically, who we think we are shapes our attitude toward the environment and the alternative social mechanisms for interacting with it.(7) For instance, when we tell ourselves that life is a jungle, we compel ourselves to rely on our own strengths to counter a hostile environment.(8)

Especially important for American conceptions of the self is the Robinson Crusoe story,(9) a tale of self-reliant mastery of the environment. Self-reliance is the necessary change agent for those who see the self as independent.(10) In turn, the social perspective that respects and applauds that self-reliance is known as "individualism."(11) This perspective is one that encourages personal domination of a hostile life space;(12) individualism in the United States(13) directs both the promise and constraints of our legal development.(14)

The atomistic,(15) or isolated self, views social and community interests, such as environmental protection, as extrinsic to its nature and identity as a moral agent.(16) Michael Sandel calls this radically independent self "irreducibly" decontextualized.(17) His point is that the independent self is situation dependent; choice arises from inside the character and cognitive structures of the individual person. The environment from this perspective is an omnipresent instrument available for use to activate personal ends.

II.

THE SELF, INDIVIDUALISM, AND MARKET ARGUMENTS

Individualism in any of its guises is characterized by the elevation of the individual's interests over the interests of the collective. Individualistic thinkers downplay their ties to others, the very links that are emphasized by those seeking more aggressive environmental regulation. A community from this perspective is just an aggregation of egos.(18) From inside the individualism perspective referring to a community as an organic endeavor is a major mistake that threatens to weaken the potential muscle of personal agency.(19) Hence, language of unification(20) and communal responsibility, such as claims that it takes a whole village to accomplish a goal, is seen as misguided in that it detracts from personal responsibility and thereby weakens social character.

However we conceive ourselves, we face a common problem--one that impinges regularly on our intelligent stewardship over the environment. Together we face a tragic gap between what we want from the world and what the world can provide. Consequently, we face the necessary yet daunting task of making decisions about the use of scarce resources. Mainstream economists are especially impressed with the efficacy of markets in answering the questions of allocation and distribution of these scarce resources.(21) To be highly impressed with market decisions requires economists to make certain assumptions about the market.(22) Most prominent, perhaps, among those assumptions is the ontological reality of the solitary, independent self.

Economists tend to argue that the individual reaches decision internally.(23) In other words, preferences are given and are thus not affected by external forces. Individuals are seen as mindful of these same external forces only insofar as they can harness them as productive inputs. Consequent distrust for collective institutions, like government, follows. While the assumptions implicit in this allegiance to market decisions have been questioned,(24) the link between the isolated self and the market as responsive to those individual desires is a powerful leitmotif for appreciating the evolution of environmental law.(25)

Especially important for discussions of environmental law is the criticism of the isolated self on grounds that we are inculcated with certain norms of cooperation, and these norms sometimes dictate actions that are not purely self-interested.(26) These criticisms focus on the affiliative and empathetic aspects of the human character and are particularly significant to those hoping to strike chords of solidarity in discussions of environmental dilemmas.(27) In the environmental realm, the quality of market decisions is likely to fall under attack in particular industries when interactive effects or externalities(28) result in market prices and consequent purchases that fail to reflect consumer preferences, broadly construed.(29)

When markets fail,(30) we turn to political solutions by default.(31) However, mainstream economists would rarely argue for the government to step in to improve our interaction with the environment(32) because they generally believe that the government should play a minimal role in the market.(33) More specifically, mainstream economists want the government to play the role of rule-maker and umpire.(34) Yet, the environmental hazards of such an abstract verity are multiple and significant.(35) Businesspeople do not plan to pollute;(36) their pollution is the result of the natural process of obeying the dictates of the solitary self for profit and low prices.(37)

III.

THE UNCOMFORTABLE CONVERSATION BETWEEN ECONOMISTS AND ENVIRONMENTALISTS

A recent comment made about prominent economist and former Secretary of the Treasury, Lawrence Summers, by Jane Perkins, president of Friends of the Earth, in the Wall Street Journal on April 2, 1993 illustrates the extent to which some environmentalists disparage economists.(38) Concerned about Summers' potential appointment to a key international post in the Treasury Department, Perkins advised that the post, instead of going to an economist, should go to "a thinking, but feeling person with a sense of justice" (emphasis added). For environmentalists, the concept of justice(39) is inextricably bound to environmental protection.(40) As Perkins' contrast of Summers with a person having "a sense of justice" might imply, environmentalists believe economists generally lack appreciation for the gravity of environmental degradation.(41)

Instead, economists both articulate and, in effect, support a conception of the self that has wide resonance in our culture. Reflecting the classical liberalism(42) that was its intellectual soil, the mainstream of the profession sees human agency as a matter of acting to advance our self-interest by exercising reason instrumentally to choose the most efficient means toward the pursuit of human ends. This view sees the essence of the solitary self in willing to pursue certain ends rather than others, and rationality as exclusively instrumental, acting as an adjunct to the will.(43) The environment is but an input, something for the marketplace to organize on behalf of consumer statements of preferences as they are read from demand curves.

As a result economists and environmentalists often keep their distance from one another. While this paper argues that differing views of the self are responsible for the lack of productive interchange between the two groups, the actual discourse focuses on derivative levels of trust in market prices as a prescriptive guide for environmental policy. On several grounds, environmentalists are hesitant to heed economic guidelines for decision making.(44)

From the perspective of the typical economist, market price reflects a useful measurement of the economic value of goods and services,(45) while providing important incentives to buyers and sellers to use resources consistent with these measurements.(46) Thus, naturally enough, economists attempt to use price as a means to value air,(47) water,(48) species preservation,(49) and other environmental goods,(50) The result logically enough would be to create environmental policies based on comparing the willingness to pay for the protection of some environmental asset with the willingness to pay for a product, where in the parlance of economics "willingness to pay" reflects an ascribed price. This process of cost-benefit analysis is a form of economic decision making that aims to maximize the welfare of individuals and ipso facto, from their perspective, the welfare of society.(51)

One reason environmentalists reject the use...