Regulating from Nowhere: Environmental Law and the Search for Objectivity

Drawing insight from a diverse array of sources, including moral philosophy, political theory, cognitive psychology, ecology, and science and technology studies, CPR Member Scholar 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.

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What the Experts are Saying about Regulating from Nowhere

This study, deeply and thoroughly informed by philosophical, legal, and political analysis, presents the practical and moral wisdom we need to assess the history and to project the future of environmental law.

-- Mark Sagoff, University of Maryland School of Public Policy

 

Kysar’s book should be indispensable reading for anyone interested in evaluating the use of cost-benefit analysis in the environmental context. His skepticism flows not from a political predisposition but from a highly nuanced argument that will change the course of the debate.

-- Dean Richard Revesz, New York University School of Law 

 

Regulating from Nowhere is a bold, intriguing, innovative, and beautifully written work. It is extremely well thought out and makes an exceedingly important and original contribution to the field. No other work takes on the problems and issues surrounding environmental regulation with such a deep and sophisticated knowledge and understanding of the ideas of philosophy and political theory.

-- Professor Amy Sinden, Temple University School of Law

 

This book makes an important, creative, and highly original contribution to the ongoing debate between advocates of a utilitarian environmental law based on cost-benefit analysis and those who support the normative judgments at the heart of the environmental statutes passed in the 1970s. In Regulating from Nowhere, Kysar adeptly and vigorously reestablishes a place for moral judgment in crafting environmental policy.

-- Professor David M. Driesen, Syracuse University College of Law