Saving Overton Park: A comment on environmental values.

• Author: Farber, Daniel A.
• Position: Response to articles by Jason Scott Johnston and Richard Warner in this issue, p. 1327, 1287 - Symposium Comments: Law and Incommensurability

To date, cost-benefit analysis has played only a secondary role in environmental law. Instead, regulations typically give a higher priority to environmental values than to monetary costs.(1) This refusal to count environmental values as fully equivalent to money seems, at first blush at least, inconsistent with economic models of rational choice. Are our environmental laws (and most of our fellow citizens) simply irrational?

This reluctance to trade other values for money goes by the general name of incommensurability. A full treatment of incommensurability in environmental law is beyond the scope of this Comment,(2) which instead will focus on the articles by Jason Johnston(3) and Richard Warner(4) in this Symposium. Both articles provide possible justifications for society's reluctance to treat environmental harm as simply another cost. Warner seeks to broaden our concept of rationality to encompass more than the economic model of consumer choice, while Johnston attempts to show how sophisticated economic models might produce rules like those we see in environmental law. This Comment will explore their efforts, which I find helpful but incomplete (if only because neither theory takes advantage of the insights offered by the other).

To assess these explanations, we need to take a close look at environmental decisionmaking in some reasonably straightforward context. To provide such a concrete context, I have chosen one of the leading cases in administrative law, Citizens to Preserve Overton Park, Inc. v. Volpe.(5) Apart from its pivotal role in shaping the law of judicial review of administrative action, Overton Park is also a revealing example of how tradeoffs are made in environmental law. Part I examines how the standards adopted in Overton Park (as well as in many environmental statutes) privilege environmental values in ways that are at odds with cost-benefit analysis and even with some theories of incommensurability. In Part II, I consider Warner's efforts to broaden the concept of reasoned choice. Part III analyzes Johnston's effort to accommodate contemporary environmental law within the rational choice framework.

My goal here is quite limited. I do not attempt to offer a critique of either Warner or Johnston on his own terms, by probing one's philosophy or the other's economics. Nor do I question, for present purposes, that the current regime of environmental law has some claim to respect. It is possible, of course, that in a full-fledged analysis of the subject, conventional cost-benefit analysis would emerge as the victor, both in the academy as against theories like Warner's and Johnston's, and in social desirability as against the current legal regime. But those are larger issues that would take me outside the limitations of this brief Comment.(6)

1. INCOMMENSURABILITY AND FEDERAL ENVIRONMENTAL LAW

   To place the issue in concrete context, we should begin by fleshing out our case study. Overton Park arose from a dispute over highway construction in Memphis.(7) The plaintiffs challenged the decision of the Secretary of Transportation to fund the construction of an interstate highway through Overton Park. They invoked federal statutory prohibitions on the use of federal funds for highways through public parks (and certain other areas) "if a `feasible and prudent' alternative route exists. If no such route is available, the statutes allow [the Secretary] to approve construction through parks only if there has been `all possible planning to minimize harm' to the park. "(8)

   Although the case is best known for its holdings regarding the availability and scope of judicial review,(9) the immediate question before the Court was how to interpret this statutory ban. The government argued that the Secretary had broad discretion, at least as to the "prudence" prong of the statutory standard. It contended that the Secretary "should weigh the detriment resulting from the destruction of parkland against the cost of other routes, safety considerations, and other factors, and determine on the basis of the importance that he attaches to these other factors whether, on balance, alternative feasible routes would be `prudent.'"(10) But the Court concluded that "no such wide-ranging endeavor was intended":(11)

   Congress clearly did not intend that cost and disruption of the community

   were to be ignored by the Secretary. But the very existence of the statutes

   indicates that protection of parkland was to be given paramount importance.

   The few green havens that are public parks were not to be lost unless there

   were truly unusual factors present in a particular case or the cost or

   community disruption resulting from alternative routes reached

   extraordinary magnitudes.(12)

   Thus, the Court said, "[i]f the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems."(13) On remand, the Secretary disapproved construction of the highway, a decision that was upheld by the lower courts.(14)

   Overton Park involved a clash between two methods of making environmental decisions. In the government's view, the funding decision was highly discretionary, based on a case-by-case balancing of the reasons for and against the route, seeking the best decision in light of the balance of all reasons. This view is quite consistent with the usual economic models of rational choice. Not surprisingly, the most explicit version of this balancing process in environmental law is cost benefit analysis, in which conflicting values are reduced to a monetary metric.

   It would be a mistake, however, to identify this balancing approach entirely with cost-benefit analysis. As recent work by Cass Sunstein shows, balancing need not take the form of quantitative cost-benefit analysis. Sunstein's views will help illuminate the relationship between environmental policy and debates over incommensurability. In particular, as Sunstein's work illustrates, not every version of incommensurability can explain the current regulatory regime.(15) Something more basic than the mere unavailability of A single metric must he assumed to make sense of current law.

   In his most recent work, Sunstein has called for a modified form of cost-benefit analysis, which he has formulated in different ways. Sunstein rejects the view that all values can be reduced to a monetary metric. Indeed, he was one of the early legal scholars to embrace some form of incommensurability.(16) Consequently, he does not endorse economic efficiency as the sole basis of regulatory policy. He does, however, call for expanded use of cost-benefit analysis at the expense of more "absolutist"(17) approaches to environmental regulation. In one formulation, officials would engage in a "two-stage decision process. The first stage [w]ould consist of a [quantitative] cost benefit analysis...." The second would introduce "other values, if any are relevant, that [cost-benefit analysis] does not take into account."(18) Another formulation distinguishes between different types of statutes. Some statutes, such as federal pesticide and toxics regulations, are designed to overcome "market failures" such as "an absence of sufficient information on the part of consumers, harms to third parties, or collective action problems of various sorts."(19) For these statutes, Sunstein says, "there is much to be said in favor of [quantitative cost-benefit analysis], though it should be qualified with a recognition that even for `market failure' statutes, goals other than those rooted in economic efficiency may legitimately bear on the decision."(20) Other statutes, which currently are considered "absolutist, could be amended to allow balancing. In short:

   It is therefore best for Congress to understand costs and benefits in

   economic terms only for statutes that are designed to overcome market

   failures. And even here, there is room for qualifying the economic

   analysis--when, for example, the risk at issue is inequitably distributed,

   and when political actors believe that it deserves special attention for

   that reason. When the statute does not involve market failure, Congress

   should still require cost-benefit balancing as the general background

   rule; but it should understand the definition of costs and benefits to

   be sufficiently wide open as to allow...