Beyond the balance of nature

Duke Environmental Law and Policy Forum

Volumn 7, Issue 1, 1996, Pages 1-23

  Wiener, Jonathan Baert ^a,b  

^a DUKE UNIVERSITY   (United States)

^b Cummings Colloquium on Environ Law ^*

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EID: 0001787684     PISSN: 10643958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (94)

1. The landmark work is Daniel Botkin's DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY-FIRST CENTURY (1990). An excellent synthesis is provided by Judy L. Meyer, The Dance of Nature: New Concepts in Ecology, 69 CHI.-KENT L. REV. 875 (1994). See also Stewart T.A. Pickett et al., The New Paradigm in Ecology, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION AND MANAGEMENT 60, 80 (Peggy L. Fiedler & Subdoh K. Jain eds., 1992); William K. Stevens, New Eye on Nature: The Real Constant is Eternal Turmoil, N.Y. TIMES, July 31, 1990, at Cl; William K. Stevens, Balance of Nature: What Balance is That?, N. Y. TIMES, Oct. 22, 1991, at C4.
2. The landmark work is Daniel Botkin's DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY-FIRST CENTURY (1990). An excellent synthesis is provided by Judy L. Meyer, The Dance of Nature: New Concepts in Ecology, 69 CHI.-KENT L. REV. 875 (1994). See also Stewart T.A. Pickett et al., The New Paradigm in Ecology, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION AND MANAGEMENT 60, 80 (Peggy L. Fiedler & Subdoh K. Jain eds., 1992); William K. Stevens, New Eye on Nature: The Real Constant is Eternal Turmoil, N.Y. TIMES, July 31, 1990, at Cl; William K. Stevens, Balance of Nature: What Balance is That?, N. Y. TIMES, Oct. 22, 1991, at C4.
3. The landmark work is Daniel Botkin's DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY-FIRST CENTURY (1990). An excellent synthesis is provided by Judy L. Meyer, The Dance of Nature: New Concepts in Ecology, 69 CHI.-KENT L. REV. 875 (1994). See also Stewart T.A. Pickett et al., The New Paradigm in Ecology, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION AND MANAGEMENT 60, 80 (Peggy L. Fiedler & Subdoh K. Jain eds., 1992); William K. Stevens, New Eye on Nature: The Real Constant is Eternal Turmoil, N.Y. TIMES, July 31, 1990, at Cl; William K. Stevens, Balance of Nature: What Balance is That?, N. Y. TIMES, Oct. 22, 1991, at C4.
4. The landmark work is Daniel Botkin's DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY-FIRST CENTURY (1990). An excellent synthesis is provided by Judy L. Meyer, The Dance of Nature: New Concepts in Ecology, 69 CHI.-KENT L. REV. 875 (1994). See also Stewart T.A. Pickett et al., The New Paradigm in Ecology, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION AND MANAGEMENT 60, 80 (Peggy L. Fiedler & Subdoh K. Jain eds., 1992); William K. Stevens, New Eye on Nature: The Real Constant is Eternal Turmoil, N.Y. TIMES, July 31, 1990, at Cl; William K. Stevens, Balance of Nature: What Balance is That?, N. Y. TIMES, Oct. 22, 1991, at C4.
5. The landmark work is Daniel Botkin's DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY-FIRST CENTURY (1990). An excellent synthesis is provided by Judy L. Meyer, The Dance of Nature: New Concepts in Ecology, 69 CHI.-KENT L. REV. 875 (1994). See also Stewart T.A. Pickett et al., The New Paradigm in Ecology, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION AND MANAGEMENT 60, 80 (Peggy L. Fiedler & Subdoh K. Jain eds., 1992); William K. Stevens, New Eye on Nature: The Real Constant is Eternal Turmoil, N.Y. TIMES, July 31, 1990, at Cl; William K. Stevens, Balance of Nature: What Balance is That?, N. Y. TIMES, Oct. 22, 1991, at C4.
6. Norman L. Christensen, Jr., Science and the Sustainable Use of Land, in THE USE OF LAND 273, 283-84 (H.L. Diamond and P. Noonan, eds., 1996).
7. See, e,g., Fred P. Bosselman & A. Dan Tarlock, The Influence of Ecological Science on American Law: An Introduction, 69 CHI.-KENT L. REV. 847 (1994); A. Dan Tarlock, The Nonequilibrium Paradigm in Ecology and the Partial Unraveling of Environmental Law, 27 LOY. . L.A. L. REV. 1121 (1994); Jonathan Baert Wiener, Law and the New Ecology: Evolution, Categories and Consequences, 22 ECOL. L. Q. 325 (1995).
8. See, e,g., Fred P. Bosselman & A. Dan Tarlock, The Influence of Ecological Science on American Law: An Introduction, 69 CHI.-KENT L. REV. 847 (1994); A. Dan Tarlock, The Nonequilibrium Paradigm in Ecology and the Partial Unraveling of Environmental Law, 27 LOY. . L.A. L. REV. 1121 (1994); Jonathan Baert Wiener, Law and the New Ecology: Evolution, Categories and Consequences, 22 ECOL. L. Q. 325 (1995).
9. See, e,g., Fred P. Bosselman & A. Dan Tarlock, The Influence of Ecological Science on American Law: An Introduction, 69 CHI.-KENT L. REV. 847 (1994); A. Dan Tarlock, The Nonequilibrium Paradigm in Ecology and the Partial Unraveling of Environmental Law, 27 LOY. . L.A. L. REV. 1121 (1994); Jonathan Baert Wiener, Law and the New Ecology: Evolution, Categories and Consequences, 22 ECOL. L. Q. 325 (1995).
10. See Wiener, supra note 3.
11. See Wiener, supra note 3, at 338-57.
12. See RODERICK NASH, THE RIGHTS OF NATURE 17-18, 70, 88-90 (1989).
13. For a much more thorough and historically rich survey of attitudes toward nature and humanity's role, see Nash, supra note 6.
14. Many historians view a society's conception of the human role in nature as the predominant force shaping the social rules that amount to environmental law. See, e.g., UNCOMMON GROUND: TOWARD REINVENTING NATURE (William Cronon, ed., 1995); Luc FERRY, THE NEW ECOLOGICAL ORDER (Carol Volk, trans., 1995); CAROLYN MERCHANT, THE DEATH OF NATURE: WOMEN, ECOLOGY, AND THE SCIENTIFIC REVOLUTION (1980); NASH, supra note 6; KEITH THOMAS, MAN AND THE NATURAL WORLD: A HISTORY OF THE MODERN SENSIBILITY (1983); DONALD WORSTER, NATURE'S ECONOMY: A HISTORY OF ECOLOGICAL IDEAS (2d ed., 1994).
15. Many historians view a society's conception of the human role in nature as the predominant force shaping the social rules that amount to environmental law. See, e.g., UNCOMMON GROUND: TOWARD REINVENTING NATURE (William Cronon, ed., 1995); Luc FERRY, THE NEW ECOLOGICAL ORDER (Carol Volk, trans., 1995); CAROLYN MERCHANT, THE DEATH OF NATURE: WOMEN, ECOLOGY, AND THE SCIENTIFIC REVOLUTION (1980); NASH, supra note 6; KEITH THOMAS, MAN AND THE NATURAL WORLD: A HISTORY OF THE MODERN SENSIBILITY (1983); DONALD WORSTER, NATURE'S ECONOMY: A HISTORY OF ECOLOGICAL IDEAS (2d ed., 1994).
16. Many historians view a society's conception of the human role in nature as the predominant force shaping the social rules that amount to environmental law. See, e.g., UNCOMMON GROUND: TOWARD REINVENTING NATURE (William Cronon, ed., 1995); Luc FERRY, THE NEW ECOLOGICAL ORDER (Carol Volk, trans., 1995); CAROLYN MERCHANT, THE DEATH OF NATURE: WOMEN, ECOLOGY, AND THE SCIENTIFIC REVOLUTION (1980); NASH, supra note 6; KEITH THOMAS, MAN AND THE NATURAL WORLD: A HISTORY OF THE MODERN SENSIBILITY (1983); DONALD WORSTER, NATURE'S ECONOMY: A HISTORY OF ECOLOGICAL IDEAS (2d ed., 1994).
17. Many historians view a society's conception of the human role in nature as the predominant force shaping the social rules that amount to environmental law. See, e.g., UNCOMMON GROUND: TOWARD REINVENTING NATURE (William Cronon, ed., 1995); Luc FERRY, THE NEW ECOLOGICAL ORDER (Carol Volk, trans., 1995); CAROLYN MERCHANT, THE DEATH OF NATURE: WOMEN, ECOLOGY, AND THE SCIENTIFIC REVOLUTION (1980); NASH, supra note 6; KEITH THOMAS, MAN AND THE NATURAL WORLD: A HISTORY OF THE MODERN SENSIBILITY (1983); DONALD WORSTER, NATURE'S ECONOMY: A HISTORY OF ECOLOGICAL IDEAS (2d ed., 1994).
18. Many historians view a society's conception of the human role in nature as the predominant force shaping the social rules that amount to environmental law. See, e.g., UNCOMMON GROUND: TOWARD REINVENTING NATURE (William Cronon, ed., 1995); Luc FERRY, THE NEW ECOLOGICAL ORDER (Carol Volk, trans., 1995); CAROLYN MERCHANT, THE DEATH OF NATURE: WOMEN, ECOLOGY, AND THE SCIENTIFIC REVOLUTION (1980); NASH, supra note 6; KEITH THOMAS, MAN AND THE NATURAL WORLD: A HISTORY OF THE MODERN SENSIBILITY (1983); DONALD WORSTER, NATURE'S ECONOMY: A HISTORY OF ECOLOGICAL IDEAS (2d ed., 1994).
19. Other examples are offered in the references cited supra note 3.
20. Francis Bacon, quoted in Merchant, supra note 8, at 169-72.
21. Andrew Jackson, message to the Congress of December 1830, quoted in Robert O. Keohane, Commitment Incapacity, the Commitment Paradox, and American Political Institutions 16 (1996) (working paper on file with the author).
22. Governor George C. Gilmer, quoted in Keohane, supra note 11.
23. See Wiener, supra note 3, at 341 & n.84 (citing rules of adverse possession in the U.S., and forest ownership in Brazil, which require land to be cleared as a predicate to secure ownership).
24. The Act predicates claims of ownership on aggressively mining the land, even where such exploitation is not economically efficient. See JOHN LESHY, THE MINING LAW (1985).
25. See Wiener, supra note 3, at 342 & n.85.
26. See JOHN McPHEE, THE CONTROL OF NATURE 3-92 (1989); Jon Christensen, California Floods Change Thinking on Need to Tame Rivers, N. Y. TIMES, Feb. 4, 1997, at C4.
27. See JOHN McPHEE, THE CONTROL OF NATURE 3-92 (1989); Jon Christensen, California Floods Change Thinking on Need to Tame Rivers, N. Y. TIMES, Feb. 4, 1997, at C4.
28. See Trees Not for Sale to a Savior, Environmentalist Discovers, N.Y. TIMES, Feb. 17, 1997, at 12.
29. Lynn White, Jr., The Historical Roots of Our Ecologic Crisis, 155 SCIENCE 1203, 1205 (1967). White's critique draws on Genesis 1:26-28, which exhort humans to "have dominion over" and "subdue" life on earth.
30. Advocates of this view are collected and analyzed in Chuck D. Barlow, Why the Christian Right Must Protect the Environment: Theocentricity in the Political Workplace, 23 ENVT'L AFFAIRS 781, 791-809 (1996).
31. Joseph Sax, Mountains Without Handrails: Recreation Policy for the Federal Lands, 23 LAW QUADRANGLE NOTES (Univ. of Michigan Law School) 14 (1978).
32. AL GORE, EARTH IN THE BALANCE: ECOLOGY AND THE HUMAN SPIRIT 243 (1992) ("In the Judeo-Christian tradition, the biblical concept of dominion is quite different from the concept of domination, and the difference is crucial. Specifically, followers of this tradition are charged with the duty of stewardship, because the same biblical passage that grants them 'dominion' also requires them to 'care for' the earth even as they 'work' it.").
33. GEORGE PERKINS MARSH, MAN AND NATURE 29 (1864), quoted in BOTKIN, supra note 2, at 54.
34. This interpretation of Darwin's view is explained in JONATHAN WEINER [no relation to author], THE BEAK OF THE FINCH: A STORY OF EVOLUTION IN OUR TIME 6, 9 (1994).
35. See Nash, supra note 6, at 56-57.
36. Roderick Nash cites Ernst Haeckel as the originator of the term "oecologie," derived from the Greek "oikos" (house), in 1866. Nash, supra note 6, at 55.
37. See Bosselman and Tarlock, supra note 3. The historical allegiance of ecologists and environmentalists to the notion of "balance" is elaborated and critiqued by Botkin, supra note 1. I have speculated on several possible sources of the normative cast that human action is a malign taint on the balance of nature, but I know of no definitive historical explanation for this twist in the tale. See Wiener, supra note 3, at 343. Bryan Norton's essay in this symposium issue suggests that people have always had a deep-seated psychological need to see order, stability, and balance in the world. If so, one wonders why such a viewpoint would be so ingrained; did it once confer some evolutionary advantage? Attachment to the "balance of nature" may now be a heuristic framework of bounded rationality that is now producing irrational and undesirable errors in decisionmaking.
38. BILL McKIBBEN, THE END OF NATURE 48, 55 (1989).
39. See Wiener, supra note 3, at 344-345, for several examples, including such diverse settings as "takings" doctrine and food safety rules. See generally Bosselman and Tarlock, supra note 3.
40. 16 U.S.C. § 1131(c) (1988).
41. Sierra Club v. Morton, 405 U.S. 727, 728 (1972).
42. 33 U.S.C. § 1362(19) (1988). This distinction was quickly criticized by an expert panel, which said that under the Clean Water Act "pollution" is defined as "'man-made or man-induced' .... Thus, natural water quality appears to be regarded as a norm from which any deviation constitutes pollution. This is not a good standard on which to base the definition of pollution. In some places water is naturally toxic ... Man-induced changes ... can actually improve the usefulness of water .... " NATIONAL WATER COMMISSION, WATER POLICIES FOR THE FUTURE 69-71, quoted in PETER S. MENELL & RICHARD B. STEWART, ENVIRONMENTAL LAW AND POLICY 450 (1994).
43. 33 U.S.C. § 1362(19) (1988). This distinction was quickly criticized by an expert panel, which said that under the Clean Water Act "pollution" is defined as "'man-made or man-induced' .... Thus, natural water quality appears to be regarded as a norm from which any deviation constitutes pollution. This is not a good standard on which to base the definition of pollution. In some places water is naturally toxic ... Man-induced changes ... can actually improve the usefulness of water .... " NATIONAL WATER COMMISSION, WATER POLICIES FOR THE FUTURE 69-71, quoted in PETER S. MENELL & RICHARD B. STEWART, ENVIRONMENTAL LAW AND POLICY 450 (1994).
44. More stringent limits on substances and activities of human origin, as compared to toxins and processes of nonhuman origin, appear to be a systematic feature of modern American environmental law. See LESTER B. LAVE, THE STRATEGY OF SOCIAL REGULATION 12 (1981); W. Kip Viscusi, Carcinogen Regulation: Risk Characteristics and the Synthetic Risk Bias, 85 AMER. ECON. REV. 50 (1996) (Papers & Proceedings).
45. More stringent limits on substances and activities of human origin, as compared to toxins and processes of nonhuman origin, appear to be a systematic feature of modern American environmental law. See LESTER B. LAVE, THE STRATEGY OF SOCIAL REGULATION 12 (1981); W. Kip Viscusi, Carcinogen Regulation: Risk Characteristics and the Synthetic Risk Bias, 85 AMER. ECON. REV. 50 (1996) (Papers & Proceedings).
46. 33 U.S.C. § 1313(d)(1)(D) (1988). More generally, EPA is required to set quality-based standards to attain a "balanced population of shellfish, fish, and wildlife" (among other objectives) wherever technology-based effluent controls on point sources have proved inadequate to achieve this objective. See 33 U.S.C. § 1312(a) (1988).
47. FLA. STAT. ANN. § 373.4592(4)(e)(2) (West 1996).
48. See Christensen, supra note 16. Christensen quotes federal and state officials recanting "the values of 50 years ago - when we built dams upstream and straightened our rivers and put them in concrete channels," and recognizing that "rivers are going to flood and meander and shift their alignments," and that after a flood overruns a human levee system "we're starting to look at the big picture instead of just putting things back the way they were." Id. Says river expert Jeffrey Mount, "I think we should turn flood control on its head. We should seek flood promotion. Flooding in one place spares another." Id.
49. Nash, supra note 6, at 202.
50. See supra note 1.
51. Christensen, supra note 2, at 277.
52. See Weiner, supra note 23.
53. Nash, supra note 7, at 70.
54. A fundamental tenet of the new ecology is that not only does the environment modify organisms (Darwin's thesis of evolution by selection pressures), but organisms also modify the environment. See Meyer, supra note 1.
55. Human activities - recently but also over thousands of years - have remade landscapes we now think of as pristine (e.g., rainforests), and have emitted substances found at all corners of the earth. See BOTKIN, supra note 1, at 194 ("there is no longer any part of the earth that is untouched by our actions in some way"); Carol K. Yoon, Rain Forests Seen as Shaped By Human Hand, N.Y. TIMES, July 27, 1993, at C1 (stating that "virgin" forests were cleared and burned by humans hundreds or thousands of years ago); David W. Steadman, Prehistoric Extinctions of Pacific Island Birds: Biodiversity Meets Zooarcheology, 267 SCIENCE 1123 (1995) (suggesting that humans caused mass extinctions thousands of years ago); Reservoirs May Be Altering Speed of Earth's Orbit, RALEIGH NEWS & OBSERVER, March 3, 1996, at 13A (reporting that by slightly shifting the global distribution of surface water away from the Equator, human reservoirs may have kept the earth spinning slightly faster than it otherwise would and slightly shifted the earth's axis).
56. Human activities - recently but also over thousands of years - have remade landscapes we now think of as pristine (e.g., rainforests), and have emitted substances found at all corners of the earth. See BOTKIN, supra note 1, at 194 ("there is no longer any part of the earth that is untouched by our actions in some way"); Carol K. Yoon, Rain Forests Seen as Shaped By Human Hand, N.Y. TIMES, July 27, 1993, at C1 (stating that "virgin" forests were cleared and burned by humans hundreds or thousands of years ago); David W. Steadman, Prehistoric Extinctions of Pacific Island Birds: Biodiversity Meets Zooarcheology, 267 SCIENCE 1123 (1995) (suggesting that humans caused mass extinctions thousands of years ago); Reservoirs May Be Altering Speed of Earth's Orbit, RALEIGH NEWS & OBSERVER, March 3, 1996, at 13A (reporting that by slightly shifting the global distribution of surface water away from the Equator, human reservoirs may have kept the earth spinning slightly faster than it otherwise would and slightly shifted the earth's axis).
57. Human activities - recently but also over thousands of years - have remade landscapes we now think of as pristine (e.g., rainforests), and have emitted substances found at all corners of the earth. See BOTKIN, supra note 1, at 194 ("there is no longer any part of the earth that is untouched by our actions in some way"); Carol K. Yoon, Rain Forests Seen as Shaped By Human Hand, N.Y. TIMES, July 27, 1993, at C1 (stating that "virgin" forests were cleared and burned by humans hundreds or thousands of years ago); David W. Steadman, Prehistoric Extinctions of Pacific Island Birds: Biodiversity Meets Zooarcheology, 267 SCIENCE 1123 (1995) (suggesting that humans caused mass extinctions thousands of years ago); Reservoirs May Be Altering Speed of Earth's Orbit, RALEIGH NEWS & OBSERVER, March 3, 1996, at 13A (reporting that by slightly shifting the global distribution of surface water away from the Equator, human reservoirs may have kept the earth spinning slightly faster than it otherwise would and slightly shifted the earth's axis).
58. See Cronon, supra note 8.
59. Kathleen Donnelly, The New Buzz Word in Cigarettes? Natural, RALEIGH NEWS & OBSERVER, Feb. 18, 1996, at 7E.
60. See BOTKIN, supra note 1, at 153-54; ASHLEY SCHIFF, FIRE AND WATER: HERESY IN THE FOREST SERVICE (1962).
61. See Wiener, supra note 3, at 339 & n.74; Stephen J. O'Brien & Ernst Mayr, Bureaucratic Mischief: Recognizing Endangered Species and Subspecies, 251 SCIENCE 1187 (1991).
62. Susan Putnam and Jonathan Baert Wiener, Seeking Safe Drinking Water, in RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT 124-148 (John D. Graham & Jonathan Baert Wiener, eds., 1995).
63. See Wiener, supra note 3, at 351-354. The separatist-taint paradigm cannot deal with such dangers; it lamely asks which is "natural," the asteroid or the human response. But that unanswerable riddle is the wrong question. The issue is whether the world will be better off if we let the rock hit or if we intervene (recognizing that there are risks to both options).
64. I am indebted to Robert Keohane for exploration of this point.
65. ALDOUS HUXLEY, BRAVE NEW WORLD (1956).
66. See M. Alice Ottoboni, THE DOSE MAKES THE POISON: A PLAIN-LANGUAGE GUIDE TO TOXICOLOGY (2d ed. 1991); George M. Gray & John D. Graham, Regulating Pesticides, in John D. Graham & Jonathan Baert Wiener, eds., RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT 173-92 (Harvard Univ. Press 1995).
67. See M. Alice Ottoboni, THE DOSE MAKES THE POISON: A PLAIN-LANGUAGE GUIDE TO TOXICOLOGY (2d ed. 1991); George M. Gray & John D. Graham, Regulating Pesticides, in John D. Graham & Jonathan Baert Wiener, eds., RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT 173-92 (Harvard Univ. Press 1995).
68. The point that "better safe than sorry" is an inadequate heuristic for making good judgments is articulated in Howard Margolis, DEALING WITH RISK 75-79 (Univ. of Chicago Press 1996). The need to compare the health and environmental risks of not regulating ("target risks") with the health and environmental risks caused by regulating ("countervailing risks"), and ways to do so, are presented in John D. Graham & Jonathan Baert Wiener, eds., RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (Harvard Univ. Press 1995). Specific examples of harm caused by the "precautionary" approach are analyzed in Frank Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851 (1996). Systematic approaches to "market externalities" and "regulatory (or "derived") externalities" are developed in Charles Wolf, MARKETS OR GOVERNMENTS: CHOOSING BETWEEN IMPERFECT ALTERNATIVES (MIT Press 1988), and Jonathan Baert Wiener, The Nosocomial State (forthcoming).
69. The point that "better safe than sorry" is an inadequate heuristic for making good judgments is articulated in Howard Margolis, DEALING WITH RISK 75-79 (Univ. of Chicago Press 1996). The need to compare the health and environmental risks of not regulating ("target risks") with the health and environmental risks caused by regulating ("countervailing risks"), and ways to do so, are presented in John D. Graham & Jonathan Baert Wiener, eds., RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (Harvard Univ. Press 1995). Specific examples of harm caused by the "precautionary" approach are analyzed in Frank Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851 (1996). Systematic approaches to "market externalities" and "regulatory (or "derived") externalities" are developed in Charles Wolf, MARKETS OR GOVERNMENTS: CHOOSING BETWEEN IMPERFECT ALTERNATIVES (MIT Press 1988), and Jonathan Baert Wiener, The Nosocomial State (forthcoming).
70. The point that "better safe than sorry" is an inadequate heuristic for making good judgments is articulated in Howard Margolis, DEALING WITH RISK 75-79 (Univ. of Chicago Press 1996). The need to compare the health and environmental risks of not regulating ("target risks") with the health and environmental risks caused by regulating ("countervailing risks"), and ways to do so, are presented in John D. Graham & Jonathan Baert Wiener, eds., RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (Harvard Univ. Press 1995). Specific examples of harm caused by the "precautionary" approach are analyzed in Frank Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851 (1996). Systematic approaches to "market externalities" and "regulatory (or "derived") externalities" are developed in Charles Wolf, MARKETS OR GOVERNMENTS: CHOOSING BETWEEN IMPERFECT ALTERNATIVES (MIT Press 1988), and Jonathan Baert Wiener, The Nosocomial State (forthcoming).
71. The point that "better safe than sorry" is an inadequate heuristic for making good judgments is articulated in Howard Margolis, DEALING WITH RISK 75-79 (Univ. of Chicago Press 1996). The need to compare the health and environmental risks of not regulating ("target risks") with the health and environmental risks caused by regulating ("countervailing risks"), and ways to do so, are presented in John D. Graham & Jonathan Baert Wiener, eds., RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (Harvard Univ. Press 1995). Specific examples of harm caused by the "precautionary" approach are analyzed in Frank Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851 (1996). Systematic approaches to "market externalities" and "regulatory (or "derived") externalities" are developed in Charles Wolf, MARKETS OR GOVERNMENTS: CHOOSING BETWEEN IMPERFECT ALTERNATIVES (MIT Press 1988), and Jonathan Baert Wiener, The Nosocomial State (forthcoming).
72. The point that "better safe than sorry" is an inadequate heuristic for making good judgments is articulated in Howard Margolis, DEALING WITH RISK 75-79 (Univ. of Chicago Press 1996). The need to compare the health and environmental risks of not regulating ("target risks") with the health and environmental risks caused by regulating ("countervailing risks"), and ways to do so, are presented in John D. Graham & Jonathan Baert Wiener, eds., RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (Harvard Univ. Press 1995). Specific examples of harm caused by the "precautionary" approach are analyzed in Frank Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851 (1996). Systematic approaches to "market externalities" and "regulatory (or "derived") externalities" are developed in Charles Wolf, MARKETS OR GOVERNMENTS: CHOOSING BETWEEN IMPERFECT ALTERNATIVES (MIT Press 1988), and Jonathan Baert Wiener, The Nosocomial State (forthcoming).
73. U.S. v. Carroll Towing, 159 F.2d 169 (2d Cir. 1947).
74. See Wiener, supra note 3, at 350-57.
75. That nature undergoes some change may not have been a revolutionary insight, but Darwin's appreciation that the environment modifies itself through perpetual selection pressure was one of the few true conceptual scientific revolutions. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 171-72 (2d ed. 1970); FREEMAN DYSON, ÍMAGINED WORLDS (forthcoming 1997).
76. That nature undergoes some change may not have been a revolutionary insight, but Darwin's appreciation that the environment modifies itself through perpetual selection pressure was one of the few true conceptual scientific revolutions. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 171-72 (2d ed. 1970); FREEMAN DYSON, ÍMAGINED WORLDS (forthcoming 1997).
77. Nash, supra note 6, at 70.
78. See WORSTER, supra note 8, at 432.
79. See Wiener, supra note 3, at 350-57.
80. Still, it would derive from a quite different ethical starting point: human superiority.
81. See Robert T. Deacon, Deforestation and the Rule of Law in a Cross-section of Countries, 70 LAND ECON. 414 (1994) (suggesting insecure property rights induce more rapid deforestation); David A. Dana, Natural Preservation and the Race to Develop, 143 U. PA. L. REV. 655 (1995) (same).
82. See Robert T. Deacon, Deforestation and the Rule of Law in a Cross-section of Countries, 70 LAND ECON. 414 (1994) (suggesting insecure property rights induce more rapid deforestation); David A. Dana, Natural Preservation and the Race to Develop, 143 U. PA. L. REV. 655 (1995) (same).
83. See ROBERT V. PERCIVAL, ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 67-69 (2d ed., 1996).
84. See Donald Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562 (1992); Lisa Heinzerling, Political Science, 63 U. CHI. L. REV. 449 (1995) (reviewing STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARDS EFFECTIVE RISK REGULATION (1993)); Clayton Gilette & James Krier, Risk, Courts, and Agencies, 138 U. PA. L. REV. 1027 (1990); KRISTIN SHRADER-FRECHETTE, RISK AND RATIONALITY: PHILOSOPHICAL FOUNDATIONS FOR POPULIST REFORMS (1991). Note that valuations based on public preferences, such as "willingness to pay" estimates derived from markets or contigent valuation surveys, incorporate public perceptions of risk.
85. See Donald Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562 (1992); Lisa Heinzerling, Political Science, 63 U. CHI. L. REV. 449 (1995) (reviewing STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARDS EFFECTIVE RISK REGULATION (1993)); Clayton Gilette & James Krier, Risk, Courts, and Agencies, 138 U. PA. L. REV. 1027 (1990); KRISTIN SHRADER-FRECHETTE, RISK AND RATIONALITY: PHILOSOPHICAL FOUNDATIONS FOR POPULIST REFORMS (1991). Note that valuations based on public preferences, such as "willingness to pay" estimates derived from markets or contigent valuation surveys, incorporate public perceptions of risk.
86. See Donald Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562 (1992); Lisa Heinzerling, Political Science, 63 U. CHI. L. REV. 449 (1995) (reviewing STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARDS EFFECTIVE RISK REGULATION (1993)); Clayton Gilette & James Krier, Risk, Courts, and Agencies, 138 U. PA. L. REV. 1027 (1990); KRISTIN SHRADER-FRECHETTE, RISK AND RATIONALITY: PHILOSOPHICAL FOUNDATIONS FOR POPULIST REFORMS (1991). Note that valuations based on public preferences, such as "willingness to pay" estimates derived from markets or contigent valuation surveys, incorporate public perceptions of risk.
87. See Donald Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562 (1992); Lisa Heinzerling, Political Science, 63 U. CHI. L. REV. 449 (1995) (reviewing STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARDS EFFECTIVE RISK REGULATION (1993)); Clayton Gilette & James Krier, Risk, Courts, and Agencies, 138 U. PA. L. REV. 1027 (1990); KRISTIN SHRADER-FRECHETTE, RISK AND RATIONALITY: PHILOSOPHICAL FOUNDATIONS FOR POPULIST REFORMS (1991). Note that valuations based on public preferences, such as "willingness to pay" estimates derived from markets or contigent valuation surveys, incorporate public perceptions of risk.
88. See Donald Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562 (1992); Lisa Heinzerling, Political Science, 63 U. CHI. L. REV. 449 (1995) (reviewing STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARDS EFFECTIVE RISK REGULATION (1993)); Clayton Gilette & James Krier, Risk, Courts, and Agencies, 138 U. PA. L. REV. 1027 (1990); KRISTIN SHRADER-FRECHETTE, RISK AND RATIONALITY: PHILOSOPHICAL FOUNDATIONS FOR POPULIST REFORMS (1991). Note that valuations based on public preferences, such as "willingness to pay" estimates derived from markets or contigent valuation surveys, incorporate public perceptions of risk.
89. See BREYER, supra note 62; Frank B. Cross, The Public Role in Risk Control, 24 ENVTL. L. 887 (1994).
90. See Cass R. Sunstein, Preferences and Politics, 20 PHILOSOPHY & PUBLIC AFFAIRS 3 (1991); Cass R. Sunstein, Endogenous Preferences, Environmental Law, 22 J. LEGAL STUDIES 217 (1991).
91. See Cass R. Sunstein, Preferences and Politics, 20 PHILOSOPHY & PUBLIC AFFAIRS 3 (1991); Cass R. Sunstein, Endogenous Preferences, Environmental Law, 22 J. LEGAL STUDIES 217 (1991).
92. See Christopher Stone, The Environment in Moral Thought, 56 TENN. L. REV. 1 (1988). Stone argues that nonhuman interests should be morally "considerable," and attempts to answer critics such as Mark Sagoff who have questioned how humans would divine the interests of nonhumans. Stone's argument is not as radical a departure from utilitarian thought as one might think. Indeed, Jeremy Benthem argued that utilitarianism should incorporate the preferences of nonhuman organisms. NASH, supra note 6, at 23.
93. This will be the topic of the Second Annual Cummings Colloquium on Environmental Law, held at Duke during the 1996-97 academic year.
94. This argument is a variant of the "prophylactic" justification for the "taint" paradigm, discussed above.