Regulating Law: Environmental Protection's Belief Systems

• Author: Oliver Houck
• Pages: 132-135

132 Best of the Books: Ref‌lections on Recent Literature

Regulating Law:

Environmental Protection’s

Belief Systems

By Oliver Houck

Regulating From Nowher e: Environmental Law and the Search for

Objectivit y, by Douglas A. Kysar. Yale University Press. 337 pages.

From the November/ December 2010 issue of The Environmental Forum.

Mercury is one of most toxic elements

on earth. Its aictions are accompa-

nied by mental retardation, weak-

ness, and pain. Two thirds of the mercury

emissions in the United States come from coal

red power plants. e Environmental Protec-

tion Agency was recently required to regulate

them under the Clean Air Act, prompting a cost-

benet assessment. e agency limited benets

to reduced mental impairment in babies, mea-

sured by the loss of IQ points, translated to loss

of future earnings due to lower IQ, and reduced

again since many victims were poor and thus

had less earning potential.

Question: What is wrong with this picture?

Answer: to a domi nant strain of current eco-

nomic thinking, nothing. To Yale L aw Professor Douglas A. Kysar, every-

thing. His new book, Regulating From Nowhere: Environmental Law and

the Search for Objectivity, deconstructs the modern economic thin king that

pervades, a nd regulates, environmental law. At bottom his argument is t hat

the approach is not only wrong-headed, inconsistent, and non-objective; it

is also in humane.

For those of us who have followed this dialogue, Kysar’s thesis does not

spring f ull-blown. A growing number of scholars and resource economists

have launched attack s on the peculiarities of cost-benet analysis, provok-