ssrn-id319660 - Copyright 2003 by Northwestern University...

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Copyright 2003 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 97, No. 2 675 LAW, ENVIRONMENT, AND VISION Douglas A. Kysar * I NTRODUCTION [A]nalytic effort is of necessity preceded by a preanalytic cognitive act that supplies the raw material for the analytic effort . . . . [T]his preanalytic cogni- tive act will be called Vision. 1 Environmental law rests uncomfortably between competing visions. Once driven by essentially “moral, cultural, aesthetic, and political purpos- es,” 2 the environmental regulatory agenda now seems, like other aspects of the emerging “cost-benefit state,” 3 to be emphatically instrumentalist. Al- though the environmental law framework established during the predomi- nant ethical environmentalism of the 1970s remains largely intact, 4 commentators today agree that this framework represents “a failing para- digm.” 5 The future of environmental regulation, instead, lies in such effi- ciency-oriented instruments as tradable permits, corrective taxes, disclosure schemes, and other tools designed to replicate the conditions of a well- functioning market. 6 Indeed, scholars have labeled tradable permits “the * Assistant Professor of Law, Cornell Law School. B.A., 1995, Indiana University. J.D., 1998, Harvard University. For helpful comments on earlier drafts, I thank Gregory Alexander, Steven Clymer, George Hay, Lisa Heinzerling, Jeffrey Rachlinski, Mark Sagoff, James Salzman, Steven Shiffrin, David Spence, and participants of the Stanford/Yale Junior Faculty Forum, the Environmental Research Work- shop at the Georgetown University Law Center, the Public Policy Research/Law and the Behavioral Sciences Programs Workshop at the University of California, San Diego, and a faculty workshop at Cornell Law School. I especially thank Vicki Been and Buzz Thompson for their generosity in provid- ing extensive comments and discussing at length the issues addressed herein. All misjudgments, errors, and omissions are my own. 1 J OSEPH A. S CHUMPETER , H ISTORY OF E CONOMIC A NALYSIS 41 (1954). 2 M ARK S AGOFF , T HE E CONOMY OF THE E ARTH 6 (1988). 3 See C ASS R. S UNSTEIN , T HE C OST -B ENEFIT S TATE , at ix (2002) (“Gradually, and in fits and starts, American government is becoming a cost-benefit state.”). 4 See Richard B. Stewart, A New Generation of Environmental Regulation? , 29 C AP . U. L. R EV . 21, 25 (2001). 5 Richard B. Stewart, United States Environmental Regulation: A Failing Paradigm , 15 J.L. & C OM . 585 (1996). 6 See, e.g. , Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context , 108 Y ALE L.J. 677, 682 (1999) (noting consensus among analysts “that incentive-based instru- ments such as taxes and tradeable allowances should generally be chosen over technology requirements and fixed emissions standards because the incentive-based instruments are typically far more cost- effective and innovation-generating than their alternatives”).
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