Regulating from Nowhere: Environmental Law and the Search for Objectivity
Drawing insight from a diverse array of sources, Douglas A. Kysar exposes a critical flaw in the dominant environmental law and policy paradigm of risk assessment and cost-benefit analysis, which asks policy makers to, in essence, "regulate from nowhere." As Kysar shows, such an objectivist stance fails to adequately motivate ethical engagement with the most pressing and challenging aspects of environmental law and policy, which concern how we relate to future generations, foreign nations,...
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Drawing insight from a diverse array of sources — including moral philosophy, political theory, cognitive psychology, ecology, and science and technology studies — Douglas Kysar offers a new theoretical basis for understanding environmental law and policy. He exposes a critical flaw in the dominant policy paradigm of risk assessment and cost-benefit analysis, which asks policymakers to, in essence, “regulate from nowhere.” As Kysar shows, such an objectivist stance fails to adequately motivate ethical engagement with the most pressing and challenging aspects of environmental law and policy, which concern how we relate to future generations, foreign nations, and other forms of life. Indeed, world governments struggle to address climate change and other pressing environmental issues in large part because dominant methods of policy analysis obscure the central reasons for acting to ensure environmental sustainability. To compensate for these shortcomings, Kysar first offers a novel defense of the precautionary principle and other commonly misunderstood features of environmental law and policy. He then concludes by advocating a movement toward environmental constitutionalism in which the ability of life to flourish is always regarded as a luxury we can afford.
PrefaceIntroduction 1PART ONE: REGULATING FROM NOWHERE1 Agency and Optimality 252 Prescription and Precaution 46PART TWO: THE PERILS OF PREDICTION3 Complexity and Catastrophe 714 Interests and Emergence 99PART THREE: THE ENVIRONMENT OF THE OTHER5 Other States 1236 Other Generations 1507 Other Forms of Life 176PART FOUR: OUR ENVIRONMENTAL FUTURE8 Ecological Rationality 2039 Environmental Constitutionalism 229Appendix: The Environmental Possibilities Act 255Notes 259Index 309
\ Concurring Opinions"Regulating From Nowhere is a beautifully written book that would pay dividends even to the casual reader looking for a sharp treatment of the state of environmental regulation in America."--Concurring Opinions\ \ \ \ \ \ \ Environmental Forum"Doug Kysar is one of the brightest scholars in environmental law today and in this book he has taken on the tiger."-- Oliver Houck, Environmental Forum\ \ — Oliver Houck\ \ \ \ "Regulating from Nowhere: Environmental Law and the Search for Objectivity is a beautifully written, relentlessly logical, and richly emotional (in all the praiseworthy senses of that word) book that lays bare flaws of [cost-benefit analysis] that should give thoughtful advocates pause."-- Journal of Occupational and Environmental Medicine\ \ \ \ \ \ "An important contribution to the continuing debate over CBA and environmental policy."--Texas Law Review\ \ \ \
