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

• Author: Schroeder, Christopher H.

ECO-PRAGMATISM. By Daniel A. Farber. Chicago: University of Chicago Press. 1999. Pp. xi, 210. $23.

I.

Americans from every demographic, socioeconomic, racial, and ethnic category identify themselves as concerned about the environment, and most say that they have personally taken steps to reduce pollution or improve environmental quality in some way.(1) One of the most salient cultural and social signatures of the contemporary era in the United States, and throughout much of the world, has been the diffusion of a desire to protect, preserve, and restore features of the natural environment to a greater degree than current practices and policies do.(2) These environmental concerns are not only widely shared, they have been extended to become a wide policy agenda. No longer confined to preserving national parks or eliminating the most noxious forms of smog and the most obvious kinds of water pollution, the environmental agenda has expanded to embrace the preservation of open spaces, critical habitats, wetlands, tropical rain forests, and other natural areas; the reduction of all forms of harmful pollution and emissions; and the reformation of personal habits of consumption and corporate practices of production that underlie the supply and demand of products that directly or indirectly harm the environment. Environmental implications are everywhere and they have seeped into everyone's consciousness.

The first Earth Day, April 22, 1970, is a convenient marker for the launch of the Environmental Era, in which this pro-environment attitude gained a political critical mass, producing an impressive set of legislative and policy responses.(3) In a frenzied half-decade after Earth Day, Congress enacted almost all of the major pillars of modern federal environmental policy -- the National Environmental Policy Act of 1969,(4) the Clean Air Act Amendments of 1970,(5) the Federal Water Pollution Control Act Amendments of 1972,(6) the Federal Environmental Pesticide Control Act of 1972,(7) the Marine Protection, Research, and Sanctuaries Act of 1972,(8) the Coastal Zone Management Act of 1972,(9) the Endangered Species Act of 1973,(10) the Safe Drinking Water Act of 1974,(11) the Federal Land Policy and Management Act of 1976,(12) the Resource Conservation and Recovery Act of 1976,(13) and the Toxic Substances and Control Act of 1976.(14) A number of other statutes could be added to this list.(15) Together, they constitute the foundation of an elaborate regulatory system that has undergone a number of refinements and midcourse corrections, a few significant additions, such as the Superfund legislation,(16) increased commitments to cooperating in improving international environmental problems, and accretions of additional complexity, but very little significant retrenchment.

When the Republican Party assumed control of Congress in 1994 for the first time in forty years, Republican leaders in the House thought they had caught the crest of a wave of citizen discontent toward every manifestation of big government, including the extensive federal regulation of the environment. Trying to cash in on that momentum, they made rollback of environmental regulation one of their prime objectives.(17) Although the House succeeded in enacting a majority of the other elements of the Republicans' Contract with America, its leaders were quite chastened by the backlash of voters toward their environmental deregulatory agenda. The 104th Congress closed its books with very little to show for the House leadership's deregulatory efforts.(18) While the Republicans have not abandoned their ambitions to rein in environmental regulations, they have "shrunk back from trying to restructure the system."(19) As Republican Senator John McCain put it, by showing themselves "too eager to swing the meat ax of repeal when the scalpel of reform is what's needed," the Republican leadership had succeeded in making their stewardship of the environment "the voters' number-one concern about continued Republican leadership of Congress."(20) After narrowly retaining the House majority in the 1996 elections, this leadership turned in the meat ax, and is now trying the scalpel approach, seeking more measured and selective efforts to reduce the burden of complying with environmental laws -- estimated to equal about $143 billion in 1999.(21) In the words of one Republican congressional leader, "If you have reasonable goals and you sit down with reasonable people in the administration, then maybe you can accomplish something."(22)

These recent events confirm that environmentalism has had a staying power on the public agenda that is surprising to political observers who have seen other policy issues rise and then fade. On the twentieth Earth Day, David Broder, columnist for the Washington Post, captured a prevailing interpretation of this persistent environmental concern when he wrote that:

[a]t one level, the environmentalists have swept away all opposition. The `conservation ethic' has become one of the fixed guiding stars of American politics -- a `value question' that permits only one answer from anyone who hopes to be part of the public dialogue.... [T]he argument is no longer about values. That's over, and the environmentalists have won. The argument is now about policies. And those with the best evidence and the best arguments, not just the purest hearts, will prevail.(23) Environmental protection has thus become a "valence issue[]" -- like improving the economy or reducing crime -- "where virtually everyone supports the goal, thus confining potential disagreement to the means by which these ends can be achieved."(24)

Of course, disputes ostensibly about means can be just as contentious and long-standing as disputes explicitly addressed to ends. Notwithstanding their valence status -- or perhaps because of it -- environmentalism and environmental issues remain major sources of policy disagreement due to the fact that after thirty years of grappling with environmental issues, environmental questions press us more than ever, with some of them, such as global warming, posing challenges to our governance institutions that never have been faced before.

II.

In Eco-pragmatism, Daniel Farber(25) attempts to sketch a consensus approach to environmental policy built upon the claim that we have moved beyond the "value question." The book takes our "profound national commitment to environmental protection" (p. 1) as a "given" (p. 3). It suggests that the next stage in developing our environmental problem-solving capabilities requires determining "how best to use whatever tools are available to make intelligent judgments in hard cases" (pp. 70-71). Hard cases are those that pose the vexing question of what "priority [we ought to give our environmental] values" (p. 3), when those values clash with others that we also think important, such as the value of maintaining and improving economic well-being. Eco-pragmatism argues that we can discover a basic framework for addressing those hard cases by examining the content of the commitment our society already has made to the environment.

Eco-pragmatism rewards the reader in many different ways. For instance, environmentalism's forward-looking, preventative focus often entails actions that have significant benefits and costs spread across long time spans, under conditions of substantial uncertainty about their actual effects. Any framework for environmental decisionmaking must cope with the problems posed by such long time frames and uncertainty. The book contains valuable discussions of these problems offering important insights into dealing with them.(26) Professor Farber also draws on his extensive study of the landmark Reserve Mining(27) litigation, interleaving more analytical discussions of issues with close attention to the facts of that dispute and its aftermath to illustrate various points in his argument. Anyone who has taught or studied Reserve Mining will value the book as an extended commentary on the case.

The central claim of the book is that our already-in-place national commitment to environmental values implies that we should approach all environmental decisions using a framework that Professor Farber dubs "eco-pragmatism." The book's main pre-occupation, and this Review's main focus, is Professor Farber's defense of this claim.

Eco-pragmatism starts from a "pro-environmental baseline" (pp. 93-132), from which analysis of environmental problems always begins "with a presumption in favor of protecting the environment except where infeasible or [where costs are] grossly disproportionate to the benefits" (p. 94). These exceptions are necessary because it would be "absurd" to embrace a policy that completely ignores the burdens of compliance costs (p. 3). Concern about such compliance costs can sometimes elide two kinds of hard cases, which Professor Farber distinguishes. First, we can face serious hazards where the costs of reducing those hazards further is disturbingly high. Second, we can face hazards where the probability of harm is extremely low, or where the harm is not severe (or some combination of these), such that most people would evaluate the risk as insignificant. The disproportionate costs proviso addresses the first set of cases. The insignificant risk proviso addresses the second set. In toto, then, Professor Farber argues for a "hybrid approach" to environmental problem solving, according to the principle that "[t]o the extent feasible without incurring costs grossly disproportionate to any benefit, the government should eliminate significant environmental risks" (p. 131).

In theory, the insignificance proviso should be less controversial than the one addressing gross disproportionality. Only the hardiest zealot wants society to expend scarce resources eliminating insignificant risks. If we ever reach the, point where our most serious policy disputes arise over the desirability of pursuing...