Incorporating emergy synthesis into environmental law: an integration of ecology, economics, and law.

AuthorAngelo, Mary Jane
PositionSymposium
  1. INTRODUCTION II. THE NEED FOR A NEW APPROACH A. General Considerations B. Ecological Considerations C. Economic Considerations III. THE EMERGYALTERNATIVE A. Overview of Emergy Synthesis B. Potential Uses of Emergy in Environmental Law and Policy 1. General Considerations 2. Valuing Environmental Services and Products 3. Comparing Options in Environmental Decision Making 4. Methodology for Evaluation Under Existing Regulatory Standards IV. CONCLUSION I. INTRODUCTION

    Virtually all areas of environmental law are concerned in some way with both the ecological and economic impacts of environmental decision making. Unfortunately, existing environmental law statutes tend to incorporate ecological and economic considerations in a simplistic, piecemeal, and awkward fashion. Moreover, these laws have not kept pace with significant developments in ecological and economic research. Emergy synthesis, (1) which incorporates both ecological and economic considerations through a sophisticated scientific methodology, holds the potential to not only inform the law, but also perhaps to revolutionize environmental decision making.

    Emergy synthesis, first developed by Dr. Howard T. Odum in the 1970s, (2) and further expanded and refined by other scholars over the past thirty years, (3) relies on the "intrinsic" value of a resource or service. Rather than relying on consumer preferences, emergy synthesis might be called a "donor" value system as it is based on the principle that the energy embodied in a resource or service determines its value. (4) In recent years, emergy synthesis has reached a high level of sophistication with increasing acceptance by the scientific community and scholars worldwide. (5) However, to date, this approach has not been embraced, or even seriously considered, by the legal community. (6)

    This interdisciplinary Article explores the viability of incorporating the methods of emergy synthesis into environmental law and policy decision malting. Specifically, it examines the viability of emergy synthesis in decision making by analyzing the advantages emergy synthesis offers and the mechanics of how to make it work in a variety of different contexts. To that end, this Article uses a number of existing statutory frameworks, including the cost-benefit standard of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7) and the pure science standard of the Endangered Species Act (ESA), (8) as illustrations. This Article demonstrates that emergy synthesis has the potential to revolutionize environmental law by providing a well-developed scientific methodology that addresses both ecological and economic considerations in a comprehensive manner. Although emergy synthesis has not been used by environmental regulators in the United States, the Environmental Protection Agency (EPA) offers a two-week emergy short course (9) and in 2005 published the report Environmental Accounting Using Emerge: Evaluation of the State of West Virginia. (10) Moreover, University of Florida researchers currently use emergy synthesis as part of a United Nations Environment Programme project to restore West African drylands and improve rural livelihoods. (11) Perhaps these actions indicate emergy's time has come.

  2. THE NEED FOR A NEW APPROACH

    1. General Considerations

      The majority of existing environmental law statutes were adopted during the 1970s and early 1980s in a piecemeal fashion in response to public demand that the government address specific environmental crises resulting from water pollution, air pollution, and hazardous waste disposal. (12) Consequently, the existing suite of environmental statutes is primarily media-based and rife with inconsistencies, gaps, and overlaps. (13) These laws incorporate a variety of different approaches to considering the economic impacts of environmental regulation (14) or decision making, but do not address ecological concerns in any comprehensive science-based manner. (15) By using emergy synthesis as an alternative to current methodologies, ecological as well as economic considerations are evaluated using an objective methodology to inform environmental decision making. Environmental law's current integration of ecological science is overly simplistic, ad hoc, and outdated. (16) Moreover, environmental law's integration of neoclassical economics has numerous shortcomings. (17) Emergy synthesis methodology, on the other hand, is scientific, well-developed, remedies many of the shortcomings of neoclassical economics, and as described below, is compatible with most existing environmental laws and programs.

    2. Ecological Considerations

      The ecological shortcomings in current environmental statutes are rooted in the fact that most environmental statutes were enacted in the 1970s and 1980s, prior to many of the recent developments in the ecological sciences, and most of these statutes are media-based rather than "system"-based. In fact, Congress has not adopted any significant amendments to any major environmental statutes in many years. The most recent significant changes to major federal environmental laws were: the Clean Air Act amendments of 1990; (18) the Food Quality Protection Act of 1996, which amended portions of FIFRA; (19) the Food, Drug and Cosmetic Act; (20) and the 1996 amendments to the Safe Drinking Water Act, (21) which primarily address human health concerns rather than ecological concerns. The interpretations of ecological realities on which existing statutes are based are outdated and in need of serious reexamination. (22) Although many existing environmental laws pay lip service to ecological science, (23) they do not incorporate scientific understanding of the ecological world in any meaningful way or are not implemented in a manner that significantly incorporates ecological science. (24) Emergy synthesis is one of the best studied developments in ecology, and is one that holds significant promise for transforming environmental law and policy. (25)

    3. Economic Considerations

      In the past thirty-plus years of environmental regulation, perhaps no topic has dominated the scholarly debate as much as the proper role of economic considerations in environmental decision making. (26) Economic considerations arise in the form of cost-benefit balancing or feasibility analysis required by environmental statutes, and economic analyses are often used to choose between competing project sites, pollution control technology, and environmental restoration approaches. (27) More recently, economics has been used in the valuation of ecosystem services for ecosystem services payment programs. (28) Despite the widespread use of economics in environmental law, many legal scholars, practitioners, and policy-makers have been uncomfortable with such analysis due to its numerous shortcomings. (29) The economic shortcomings of current environmental laws are partially attributable to the lack of an adequate comprehensive methodology. (30) More significantly, however, is the current reliance on neoclassical economics to value ecological resources and services. (31)

      The legal scholarly literature is rife with discussions of the shortcomings of neoclassical economic analysis in environmental law. (32) It is extremely difficult, if not impossible, to assign a dollar value to many environmental resources and services using neoclassical economic methods. (33) For example, although some ecological resources and services are bought and sold on the market and thus have a market value, most are not bought and sold on the market and thus do not have a market value. (34) To assign a value to non-market goods, neoclassical economists use "contingent valuation" which determines consumers' willingness to pay for that good or service. (35) A controversial issue in the cost-benefit debate is whether environmental values are significant only to the extent that consumers are willing to pay to preserve. (36)

      There is widespread criticism of whether contingent valuation is an appropriate method for valuing ecological resources and services. (37) As an initial matter, most consumers do not have perfect information or the technical understanding to determine how much money they would be willing to pay for an ecological resource or service. (38) For example, how would the typical consumer determine how much she would be willing to pay for phosphorus cycling through a cypress dome? Moreover, scholars have repeatedly demonstrated that the concept of "willingness-to-pay" typically used in contingent valuation is inherently skewed toward valuing the right to use resources rather than the right to preserve resources. (39) In fact, studies have shown that typical consumers are only willing to pay about half as much to protect resources and services as they would be willing to accept to allow the resources and services to be destroyed. (40) Other criticisms of contingent valuation include the obvious fact that if consumers cannot afford to protect a resource, they will not be willing to pay, regardless of that resource's value to human or ecological well-being. Finally, many have pointed out that consumer preferences have nothing to do with the importance ecological resources and services have in sustaining life on earth. (41) Many ecological goods and services are not assigned any value by neoclassical economic analysis, despite the fact that they are integral in making economically valuable products and may even be essential for life on earth. Such economic analysis is criticized as "knowing the price of everything and the value of nothing." (42)

      Because the value of many ecological goods and services are not readily quantified, they are rarely included in any meaningful way in traditional cost-benefit analysis. (43) Consequently, human disruptions to ecological systems are rarely a part of cost-benefit analyses. Values inherent in ecological integrity or biodiversity are particularly ill-suited for reduction...

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