Eco-Pragmatism: Making Sensible Environmental Decisions in an Uncertain World.

• Author: Epstein, Richard A.
• Position: Review

Eco-Pragmatism: Making Sensible Environmental Decisions in an Uncertain World. By Daniel A. Father.(*) Chicago: University of Chicago Press, 1999. Pp. 210. $23.00.

1. AN ENVIRONMENTAL BASELINE?

   The environment has always been with us; but environmental law, as a unified and self-contained discipline, is a social construction--perhaps the social construction--of the last thirty years. The field, qua field, received its first visible external boost with Earth Day in 1972, two years after Congress passed the National Environmental Policy Act.(1) More than any other event, that Act transformed the ambition, structure, and scope of environmental law. Haphazard reliance on common-law remedies, specialized statutes, and sleepy administrative oversight were replaced by a new, comprehensive set of legislative initiatives. From their incubation in the early 1970s, environmental protection programs have proliferated at the national, state, and local levels, and today virtually every proposed use of land, water, or air runs headlong into one or more complex environmental statutes or regulations.

   In the abstract, it is hard to say whether this environmentalism is a good or a bad thing. The nub of the difficulty is that the term "environmentalism" has no traction until it is placed in opposition to some other movement or world view. By parity of reasoning, unless it is viewed as an epithet, the term "antienvironmentalist" also has no particular content. So-called antienvironmentalists generally oppose pollution, just as the National Rifle Association is on record against gun violence. But with environmental (and gun) regulation, the real battle is over two familiar questions. First, what counts as the proper mix of government and private remedies: private damage actions, class actions, injunctions, fines, inspections, and the like? Second, who should have the power to address environmental issues: Congress, the EPA, state agencies? Should other parties be added to the mix, such as nongovernmental organizations, private conservation groups, and ordinary businesses that find it useful to adopt a pro-environmental stance?

   These sprawling and complex topics cannot be resolved by a set of ad hoc political compromises, nor can the central principles of an environmental program be successfully encapsulated in a few stale slogans. The fate of the nation--and, one is often reminded, that of the world--deserves a more systematic and hard-headed examination. Yet too often environmental issues evoke inconsistent forms of quasi-religious fervor. On one side stand those individuals and groups who insist, with Vice President Al Gore,(2) that stringent environmental measures such as the Kyoto accords(3) are needed to save the planet from destruction by its most notorious species. On the other side, many commentators with equal intensity bemoan the bloated, officious, and heavy-handed bureaucracy that comes in the wake of high-minded environmental regulation.

   This contentious battlefield seems to cry out for some comprehensive and detached overview. One recent effort is Daniel Farber's book Eco-Pragmatism,(4) which carries with it the ponderous, if soothing, subtitle Making Sensible Environmental Decisions in an Uncertain World. This title sets out Farber's overall take on environmental issues. He places himself squarely in the environmentalist camp, but tries at every stage to distance himself from what he perceives, rightly, as the mindless fervor of some of the movement's zealots. The word "pragmatism" in his title conveys his two joint commitments: unflagging support for the environmental cause and allegiance to the institutional and political safeguards needed to curb the excesses of the environmental movement. Farber's "sensible" pragmatism always seeks refuge in some safe middle ground; it is animated by his keen awareness of the massive uncertainty that plagues all large-scale environmental decisions. His program searches diligently for the right mix of abstract principle and practical wisdom. Farber's pragmatism cuts an uncertain path between two extremes. In one breath, he recoils from "ad hoc decision making [and] raw intuition."(5) In the next, he derides the use of "mechanical technique to give cut-and-dried answers to hard policy questions."(6) Commendably, Farber sees no shortcuts; a successful environmental policy requires one to marry shrewd political judgments to solid empirical work.

   To deliver on this avowedly middle-of-the-road observation, Farber cautions us repeatedly on the limitations of stripped-down economic cost-benefit analysis in guiding our social decisions. In line with fashionable neo-republican sentiments, he constantly exhorts us to go beyond cost-benefit analysis by taking into account the political sensibilities generated through democratic institutions: Dialogue and deliberation not only record and tally individual preferences, but they also shape and enrich them. Farber claims that a national consensus backs his overall position, and, too quickly for my taste, he invokes the republican "we" by opening his book with the portentous statement, "We have made a profound national commitment to environmental protection."(7) He then backs this claim by noting that Republicans and Democrats alike embrace the environmental agenda: In 1988 George Bush ran, and won, in part as the "environmental president."(8) Seven years later, he reports, the Republicans learned to their sorrow that neither party can afford to abandon an environmentalist image.

   For Farber, the difficult task is how to cash out this national commitment in a pragmatic way. With evident pride, Farber is an "on-the-one-hand, on-the-other-hand" kind of guy. He champions an "environmental baseline" for testing all forms of private and governmental behavior, but in the next breath, he seeks to avoid excessive expenditures that produce only marginal environmental benefit. The sentence that best captures both his conciliatory tone and his wobbly thesis reads: "To the extent feasible without incurring costs grossly disproportionate to any benefit, the government should eliminate significant environmental risks."(9) It is within the context of this thesis that his environmental baseline takes hold. Like other baselines, Farber's sets the default position in the event that the evidence is uncertain. As with other presumptions, that baseline controls unless and until it is displaced by further evidence that suggests that some other interest should be paramount (or at least respected) in any given case. Given his baseline, ties go to the environmentalists, both for statutory construction and for factual disputes.

   At one level it is hard to dispute so reasonable a thesis, stated at such a high level of abstraction. But there is much to be troubled by in his soothing proposition. At a theoretical level, pragmatism is hardly an uncontested philosophy. Its lack of coherence and structure frustrates the articulation of any set of principles--such as those based on justice or utility--to guide our basic inquiry. This want of structure permits Farber to overestimate the social consensus behind his own preferred outcomes, so that he never articulates or responds to views that are foreign to his environmental parade. For those of us schooled in the laissez-faire tradition, it is easy to envision yet another presumption: Government intervention is an evil unless and until it can be shown to be a good.(10) That presumption is often more easily rebutted in environmental cases than in other contexts, but it still sets the default position 180 degrees opposite Farber. Yet Farber never so much as addresses the relative strengths of that alternative baseline (or the case for having no baseline at all). Nor does he examine any of the arguments of writers who see in the self-professed environmental movement an arrogance that results in the trampling of individual liberty and ordinary communities without advancing any legitimate environmental ends. Strong feelings run in both directions, yet Farber imagines a tranquil environmentalist consensus that keeps him aloof from today's contentious struggles.

   Within the compass of a single review, it is difficult to develop an alternative environmental framework that addresses both the conceptual and political issues. But I do hope to demonstrate why Farber's approach should be rejected. I see no reason for any special baseline for environmental interests, any more than I accept a "labor" baseline that favors workers over employers, a "health" baseline that favors patients over physicians and managed care organizations, or an "agricultural" baseline that favors farmers over industrialists. Quite the opposite: I am deeply suspicious of any and all forms of special pleading that claim exemption from the general rules of property, contract, and tort. In taking this position, I do not wish to claim that no government intervention (including intervention supported by taxes) is appropriate. Rather, I take a position that comes closer to that associated with the traditional accounts of laissez faire, that government intervention

   (being costly) is an evil until it is shown to be a good. But that proposition in turn yields to one that treats it as a proper function of government to protect the common-law property rights of ordinary individuals. Under this proposition, the government also should provide some mechanism to deal with common-pool assets that are neither owned by any individual nor, under many circumstances (as with the open seas), subject to reduction to private ownership at all.(11)

   I believe that this standard common-law approach to property rights, which draws heavily on economic literature, is more likely to achieve the results that Farber desires for environmental reasons than the shapeless environmental baseline he champions. The basic position here is that the modern environmental movement has fundamentally...