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Book Review Constructing Environmental Policy
Good environmental policy is shaped by various factors. Scientific information about the current state of the environment and environmental trends is crucial. Economic factors are also important. What are the likely costs and benefits of adopting different policies? Ethical principles, as well as factual predictions about the consequences of various alternative policies, need to be considered. What principles of justice should determine the distribution of environmental costs and benefits? Questions of value are also important. To what extent, for instance, should living things and perhaps other features of the environment be valued independently of their effects on humans and the extent to which humans value them? Finally, it is necessary to take account of environmental law. It is important to have an understanding both of current law and of what legal change is possible. What, for example, are the constitutional limits on environmental regulation? Foundations of Environmental Law and Policy, edited by Richard L. Revesz, views environmental policy primarily through the lenses of economics, ethics and law. Little information is provided from the environmental sciences. The book is an anthology of forty selections written mostly by economists, philosophers, and legal analysts. The focus is primarily on pollution control with little attention to such topics as wildlife management, forest management, preserving ecosystems, urban blight, land use planning, and the workplace environment. This should not be taken as criticism. Revesz was wise to chose a focus narrow enough to allow for some depth and for the presentation of different points of view on a single topic. All of the selections are of high quality, and several provide an important overview of various policy alternatives. The selections are also clearly written and accessible. The clarity is enhanced by Revesz’s excellent introductory notes to each section. The selections are often controversial and thought provoking, and this is highlighted by Revesz’s notes and questions at the end of each section. The notes raise difficult ethical and legal questions, provide alternative analyses, suggest further readings, and pose hypothetical situations that encourage one to apply the analyzes in the selections. The authors raise a variety of ethical issues. In a selection from Respect for Nature: A Theory of Environmental Ethics, Paul W. Taylor defends a biocentric position according to which humans are not inherently superior to other living things and should be seen simply as a part of nature. Although a number of authors in the anthology consider human values and human welfare, it is unfortunate that none of the selections directly challenges Taylor’s important and controversial position. While several authors take an economics approach and emphasize maximizing human welfare and economic efficiency, Steven Kelman in "Cost-Benefit Analysis: An Ethical Critique," argues that not all human values can be reduced to market values. Environmental justice is one of the recurrent themes of the anthology. Considerations of fairness and justice are raised by Vicki Been who is concerned with the distribution of locally undesirable land uses within the United States and by Henry Shue who is concerned with distribution of the costs of ameliorating the effects of global warming among nations. The anthology does not contain any selections that consider theories of justice or fairness in the abstract, although Been refers to theories by John Rawls and Ronald Dworkin. The authors are instead concerned with the application of principles of justice to environmental issues. In short, we see the philosophical principles in context. Various selections in the anthology do a fine job of showing how seemingly empirical issues such as risk assessment turn on value issues. The selection by William Ruckelshaus, "Risk, Science, and Democracy," for instance, points out how risk assessment is dependent on a variety of assumptions that are influenced by the values of those doing the risk assessment. One of the strengths of Revesz's anthology is the overview it presents of various policy options. Parts III and IV, for example deal with strategies for assessing and managing risk. The selection by Lester B. Lave is especially helpful in laying out the various alternatives for managing risk. Lave also provides criteria for selecting among these alternatives. Part VI considers such regulatory tools as command-and-control regulations, marketable permits, taxes and deposit-refunds. The issue of whether environmental strategy should be centralized or decentralized is also considered, both from the perspective of the United States and at the international level. The relationship between policy and law is intimate. Not only does existing law influence the type of policies that are eventually adopted, but successful policies are typically put forward in the form of proposed law and regulation. Revesz's anthology deals in some detail with the Clean Air Act and the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund). Environmental laws and statutes that require environmental impact statements, the use of best available control technology, prevention of significant deterioration, and the setting of national ambient air quality standards are also discussed in various selections. These laws and regulations are considered primarily from the point of view of policy rather than legal analysis. Since Foundations of Environmental Law and Policy is intended to be used as a textbook for courses dealing with environmental issues, it is important to discuss how well it serves this role. In particular it is designed primarily to be used in conjunction with a traditional textbook on environmental law for courses on environmental law. It serves this function well. The essays explore policy and value issues that motivate the law, and Revesz's questions and notes at the end of each section are helpful for relating the policy and philosophical essays to the relevant law. Foundations of Environmental Law and Policy would also be a good companion book for a course on environmental ethics. Here the anthology would serve to enrich and make relevant more abstract philosophical analyses. Ethical principles and values should be considered with an eye to how they might be embodied in actual policy, and not merely as components of abstract philosophical theories. In either sort of course the book should serve only as a companion book. The anthology, by design, does not contain sufficient excerpts from statutes, regulations, or court decisions to stand alone as the text for an environmental law course. Nor does the anthology contain enough essays on environmental ethics or background philosophy to be the sole text for a course on environmental ethics. The anthology could, however, be used as the main textbook for a course on environmental policy if supplemented with more excerpts from statutes, crucial environmental cases, and perhaps a few more philosophical essays on environmental ethics. Foundations of Environmental Law and Policy was published in 1997 and a new edition has not appeared. A new edition could revise the notes at the end of each section to mention recent changes in environmental regulations and recent scholarship on environmental law and policy. The essays in the current edition, however, raise issues and present approaches that are of continuing importance. Moreover, some of the essays such as "The Tragedy of the Commons," by Garrett Hardin and "The Problem of Social Cost," by Ronald Coase are classics. Aside from updating, the next edition could be improved by the addition of a glossary, as the number of technical terms and acronyms is daunting. More importantly, by adding several essays dealing with background philosophical issues such as distributive justice and some selections from major cases and important statutes, the anthology would be more thorough without detracting from its excellence as a companion text. It would also be helpful to add a brief overview of environmental law. This could include a brief overview of several of the main environmental statutes such as the Clean Air Act and the Federal Water Pollution Control Act, a description of the role of the Environmental Protection Agency, and a discussion of legal remedies that outlines approaches under federal agency regulations, state legislation, and nuisance law, as well as the use of both civil and criminal law. An overview of empirical information regarding the current state of the environment and environmental trends would also be a welcome addition. The overviews could be relatively brief and add perhaps fewer than 30 pages to the next edition. Such additions would provide a more useful anthology for those who purchase the book simply to become more acquainted with environmental law and policy. The legal and empirical overviews would also be helpful when the textbook is used in courses on environmental ethics or environmental policy. Martin Gunderson |
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