Environmental law: Ethics or science?

Duke Environmental Law and Policy Forum

Volumn 7, Issue 1, 1996, Pages 193-223

  Dan Tarlock, A ^a  

^a STANFORD UNIVERSITY   (United States)

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EID: 0037490828     PISSN: 10643958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (148)

1. For a review of changing theories of cancer causes and their influence on the legitimacy of environmental regulation of potential carcinogens see ROBERT N. PROCTOR, CANCER WARS: How POLITICS SHAPES WHAT WE KNOW AND DON'T KNOW ABOUT CANCER (1995). As with ecology, a major paradigm shift is occurring within the medical community about the best way to assess cancer risk. See Richard Stone, A Molecular Approach to Cancer Risk, 268 SCIENCE 356 (1995).
2. For a review of changing theories of cancer causes and their influence on the legitimacy of environmental regulation of potential carcinogens see ROBERT N. PROCTOR, CANCER WARS: How POLITICS SHAPES WHAT WE KNOW AND DON'T KNOW ABOUT CANCER (1995). As with ecology, a major paradigm shift is occurring within the medical community about the best way to assess cancer risk. See Richard Stone, A Molecular Approach to Cancer Risk, 268 SCIENCE 356 (1995).
3. The non-equilibrium paradigm, as it is being applied to biodiversity protection, potentially dissolves the land boundaries that we have built up over centuries and extends the time scale of management decisions. Public versus private land, national parks versus national forests have no meaning. Under the non-equilibrium paradigm, all natural resources management is an on-going experiment instead of a series of discrete, final decisions. The net result is to raise the level of uncertainty as a constraint on rational decision making and to extend this uncertainty over a long period of time. See NATIONAL RESEARCH COUNCIL, SETTING PRIORITIES FOR LAND CONSERVATION (1993).
4. See Alfred C. Aman, Jr., The Earth As Eggshell Victim: A Global Perspective on Domestic Regulation, 102 YALE L.J. 2017, 2114-22 (1993).
5. For example, Donald T. Hornstein forcefully criticizes reliance on science-based risk reduction because it makes it difficult to move from effects-based to cause-based reforms and "it does not possess a mechanism to aggregate a citizenry's numerous, and subjectively held, individual risk preferences." Donald T. Hornstein, Lessons from Federal Pesticide Regulation on the Paradigms and Politics of Environmental Law Reform, 10 YALE J. ON REG. 369, 440 (1993). In short, science is important but we should not aspire to comprehensive rationality.
6. See HOLMES ROLSTON, III, ENVIRONMENTAL ETHICS: DUTIES TO AND VALUES IN THE NATURAL WORLD 169-191 (1988).
7. James L. Huffman, Markets, Regulation, and Environmental Protection, 55 MONT. L. REV. 425, 427-429 (1994)
8. My argument owes a great deal to CHRISTOPHER D. STONE, EARTH AND OTHER ETHICS: THE CASE FOR MORAL PLURALISM (1987).
9. Elizabeth Ann R. Bird, The Social Construction of Nature: Theoretical Approaches to the History of Environmental Problems, ENVTL. REV., Winter 1987, at 255.
10. For a good articulation of this position see LAWRENCE J. SUSSKIND, ENVIRONMENTAL DIPLOMACY: NEGOTIATING MORE EFFECTIVE GLOBAL AGREEMENTS 62-81 (1994).
11. See discussion, infra Part III, for my list of the necessary conditions for environmental "discourse" in the non-equilibrium paradigm era.
12. James N. Rosneau, Environmental Challenges in a Global Context, in ENVIRONMENTAL POLITICS IN THE INTERNATIONAL ARENA 257, 258 (Sheldon Kamieniecki ed., 1993). For a partial critique of this position see SUSSKIND, supra note 9, at 62-81.
13. The shift from science to ethics is traced in CHARLES T. RUBIN, THE GREEN CRUSADE: RETHINKING THE ROOTS OF ENVIRONMENTALISM (1994). See also Donald A. Brown, After the Earth Summit: The Need to Integrate Environmental Ethics Into Environmental Science and Law, 2 DICK. J. ENVTL. L. & POL'Y 1, 17 (1992). For a recent exploration of the ways in which idealized "nature myths" have impeded the development of science-based environmental management see STEPHEN BUDIANSKY, NATURE'S KEEPERS: THE NEW SCIENCE OF NATURE MANAGEMENT (1995).
14. The shift from science to ethics is traced in CHARLES T. RUBIN, THE GREEN CRUSADE: RETHINKING THE ROOTS OF ENVIRONMENTALISM (1994). See also Donald A. Brown, After the Earth Summit: The Need to Integrate Environmental Ethics Into Environmental Science and Law, 2 DICK. J. ENVTL. L. & POL'Y 1, 17 (1992). For a recent exploration of the ways in which idealized "nature myths" have impeded the development of science-based environmental management see STEPHEN BUDIANSKY, NATURE'S KEEPERS: THE NEW SCIENCE OF NATURE MANAGEMENT (1995).
15. The shift from science to ethics is traced in CHARLES T. RUBIN, THE GREEN CRUSADE: RETHINKING THE ROOTS OF ENVIRONMENTALISM (1994). See also Donald A. Brown, After the Earth Summit: The Need to Integrate Environmental Ethics Into Environmental Science and Law, 2 DICK. J. ENVTL. L. & POL'Y 1, 17 (1992). For a recent exploration of the ways in which idealized "nature myths" have impeded the development of science-based environmental management see STEPHEN BUDIANSKY, NATURE'S KEEPERS: THE NEW SCIENCE OF NATURE MANAGEMENT (1995).
16. The case for this proposition has been eloquently made by Christopher Stone, Moral Pluralism and the Course of Environmental Ethics, 10 ENVTL. ETHICS 139 (1988). The chief proponent of moral monism is J. Baird Callicott. See, e.g., J. Baird Callicott, The Case Against Moral Pluralism, 12 ENVTL. ETHICS 99 (1990).
17. The case for this proposition has been eloquently made by Christopher Stone, Moral Pluralism and the Course of Environmental Ethics, 10 ENVTL. ETHICS 139 (1988). The chief proponent of moral monism is J. Baird Callicott. See, e.g., J. Baird Callicott, The Case Against Moral Pluralism, 12 ENVTL. ETHICS 99 (1990).
18. Frank B. Golley argues that the environmental movement seized on the concept of an ecosystem because it provided both a rational explanation of nature and moral management imperatives and ecologists papered over problems of theory and method as they "passively accepted the buzzing activity." FRANK B. GOLLEY, A HISTORY OF THE ECOSYSTEM CONCEPT IN ECOLOGY: MORE THAN THE SUM OF THE PARTS 3 (1993).
19. ALDO LEOPOLD, A SAND COUNTY ALMANAC AND SKETCHES HERE AND THERE 224-25 (1949). Curt Meine traces the evolution of Leopold's thinking based on his conservation experiences. CURT MEINE, ALDO LEOPOLD (1988).
20. ALDO LEOPOLD, A SAND COUNTY ALMANAC AND SKETCHES HERE AND THERE 224-25 (1949). Curt Meine traces the evolution of Leopold's thinking based on his conservation experiences. CURT MEINE, ALDO LEOPOLD (1988).
21. For good case studies of this evolution see DAVID L. FELDMAN, WATER RESOURCES MANAGEMENT: IN SEARCH OF AN ENVIRONMENTAL ETHIC (1991) and RONALD A. FORESTA, AMAZON CONSERVATION IN THE AGE OF DEVELOPMENT: THE LIMITS OF PROVIDENCE 6-31 (1991). Leopold is the Socrates of post-modern environmental ethics. See e.g., PAUL TAYLOR, RESPECT FOR NATURE (1988); J. BAIRD CALLICOTT, IN DEFENSE OF THE LAND ETHIC (1989); LAURA WESTRA, AN ENVIRONMENTAL PROPOSAL FOR ETHICS: THE PRINCIPLE OF INTEGRITY (1994).
22. For good case studies of this evolution see DAVID L. FELDMAN, WATER RESOURCES MANAGEMENT: IN SEARCH OF AN ENVIRONMENTAL ETHIC (1991) and RONALD A. FORESTA, AMAZON CONSERVATION IN THE AGE OF DEVELOPMENT: THE LIMITS OF PROVIDENCE 6-31 (1991). Leopold is the Socrates of post-modern environmental ethics. See e.g., PAUL TAYLOR, RESPECT FOR NATURE (1988); J. BAIRD CALLICOTT, IN DEFENSE OF THE LAND ETHIC (1989); LAURA WESTRA, AN ENVIRONMENTAL PROPOSAL FOR ETHICS: THE PRINCIPLE OF INTEGRITY (1994).
23. For good case studies of this evolution see DAVID L. FELDMAN, WATER RESOURCES MANAGEMENT: IN SEARCH OF AN ENVIRONMENTAL ETHIC (1991) and RONALD A. FORESTA, AMAZON CONSERVATION IN THE AGE OF DEVELOPMENT: THE LIMITS OF PROVIDENCE 6-31 (1991). Leopold is the Socrates of post-modern environmental ethics. See e.g., PAUL TAYLOR, RESPECT FOR NATURE (1988); J. BAIRD CALLICOTT, IN DEFENSE OF THE LAND ETHIC (1989); LAURA WESTRA, AN ENVIRONMENTAL PROPOSAL FOR ETHICS: THE PRINCIPLE OF INTEGRITY (1994).
24. For good case studies of this evolution see DAVID L. FELDMAN, WATER RESOURCES MANAGEMENT: IN SEARCH OF AN ENVIRONMENTAL ETHIC (1991) and RONALD A. FORESTA, AMAZON CONSERVATION IN THE AGE OF DEVELOPMENT: THE LIMITS OF PROVIDENCE 6-31 (1991). Leopold is the Socrates of post-modern environmental ethics. See e.g., PAUL TAYLOR, RESPECT FOR NATURE (1988); J. BAIRD CALLICOTT, IN DEFENSE OF THE LAND ETHIC (1989); LAURA WESTRA, AN ENVIRONMENTAL PROPOSAL FOR ETHICS: THE PRINCIPLE OF INTEGRITY (1994).
25. For good case studies of this evolution see DAVID L. FELDMAN, WATER RESOURCES MANAGEMENT: IN SEARCH OF AN ENVIRONMENTAL ETHIC (1991) and RONALD A. FORESTA, AMAZON CONSERVATION IN THE AGE OF DEVELOPMENT: THE LIMITS OF PROVIDENCE 6-31 (1991). Leopold is the Socrates of post-modern environmental ethics. See e.g., PAUL TAYLOR, RESPECT FOR NATURE (1988); J. BAIRD CALLICOTT, IN DEFENSE OF THE LAND ETHIC (1989); LAURA WESTRA, AN ENVIRONMENTAL PROPOSAL FOR ETHICS: THE PRINCIPLE OF INTEGRITY (1994).
26. Professor Eric T. Freyfogle is one of the leading academic legal exponents of the relevance of Leopold to environmental law and has extensively documented Leopold's influence on environmental law. See e.g., Eric T. Freyfogle, The Land Ethic and Pilgrim Leopold, 61 U. COLO. L. REV. 217 (1990); Eric T. Freyfogle, The Ethical Strands of Environmental Law, 1994 U. ILL. L. REV. 819 (1994); Eric T. Freyfogle, The Owning and Taking of Sensitive Lands, 43 UCLA L. REV. 77 (1995).
27. Professor Eric T. Freyfogle is one of the leading academic legal exponents of the relevance of Leopold to environmental law and has extensively documented Leopold's influence on environmental law. See e.g., Eric T. Freyfogle, The Land Ethic and Pilgrim Leopold, 61 U. COLO. L. REV. 217 (1990); Eric T. Freyfogle, The Ethical Strands of Environmental Law, 1994 U. ILL. L. REV. 819 (1994); Eric T. Freyfogle, The Owning and Taking of Sensitive Lands, 43 UCLA L. REV. 77 (1995).
28. Professor Eric T. Freyfogle is one of the leading academic legal exponents of the relevance of Leopold to environmental law and has extensively documented Leopold's influence on environmental law. See e.g., Eric T. Freyfogle, The Land Ethic and Pilgrim Leopold, 61 U. COLO. L. REV. 217 (1990); Eric T. Freyfogle, The Ethical Strands of Environmental Law, 1994 U. ILL. L. REV. 819 (1994); Eric T. Freyfogle, The Owning and Taking of Sensitive Lands, 43 UCLA L. REV. 77 (1995).
29. T. O'RIORDAN, ENVIRONMENTALISM (2d ed. 1981) remains the best introduction to the forces which have combined to make natural environments a focus of human perception and intervention.
30. See A. Dan Tarlock, Environmental Law, But Not Environmental Protection, in NATURAL RESOURCES POLICY AND LAW: TRENDS AND DIRECTIONS 162, 167-169 (Lawrence J. MacDonnell & Sarah F. Bates eds., 1993); Joseph L. Sax, The Search for Environmental Rights, 6 J. LAND USE & ENVTL. L. 93 (1990).
31. See A. Dan Tarlock, Environmental Law, But Not Environmental Protection, in NATURAL RESOURCES POLICY AND LAW: TRENDS AND DIRECTIONS 162, 167-169 (Lawrence J. MacDonnell & Sarah F. Bates eds., 1993); Joseph L. Sax, The Search for Environmental Rights, 6 J. LAND USE & ENVTL. L. 93 (1990).
32. Professor Roderick Nash has tried to situate environmentalism within the enlightenment tradition by arguing that environmental protection is a logical progression of the enlightenment legacy of the protection of human dignity. RODERICK NASH, THE RIGHTS OF NATURE: A HISTORY OF ENVIRONMENTAL ETHICS (1989). I am not persuaded. The Enlightenment tradition that we celebrate in our legal system is one of negative entitlements - freedom from presumptively arbitrary state power. In contrast, many of the most important environmental entitlements involve claims to affirmative, substantive resource allocations.
33. See, e.g., Judy L. Meyer, Changing Concepts of System Management, in SUSTAINING OUR WATER RESOURCES 78 (National Research Council ed., 1993).
34. DANIEL B. BOTKIN, DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY FIRST CENTURY (1990). Interestingly and ironically, the book seems to have attracted little attention in the scientific journals when it was first published, with the exception of a laudatory review by a physicist. See James Trefil, Natural Changes Review of Discordant Harmonies: A New Ecology for the Twenty-First Century, 41 BIOSCIENCE 176 (1991).
35. DANIEL B. BOTKIN, DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY FIRST CENTURY (1990). Interestingly and ironically, the book seems to have attracted little attention in the scientific journals when it was first published, with the exception of a laudatory review by a physicist. See James Trefil, Natural Changes Review of Discordant Harmonies: A New Ecology for the Twenty-First Century, 41 BIOSCIENCE 176 (1991).
36. The philosophical basis for the new ecology can be found in Bill McKibben's widely read book which argues the modern mind separates humanity from nature and thus the romantic visions of harmony between humanity and nature are impossible. BILL MCKIBBEN, THE END OF NATURE 213-17 (1989). However, Justice Oliver Wendell Holmes in Abrams v. United States, 250 U.S. 616 (1919) (dissenting opinion), articulated the central message of the non- equilibrium paradigm. In defense of his "market of ideas" theory of the First Amendment, he wrote: "[o]ur Constitution . . . is an experiment, as all life is an experiment." Id. at 630.
37. BOTKIN, supra note 22, at 190.
38. For an early and powerful articulation of the problems of relying on ecosystems as a basis for environmental ethics see Harley Cahen, Against the Moral Considerability of Ecosystems, 10 ENVTL. ETHICS 195 (1988).
39. The major religions have devoted a great deal of effort to constructing an environmental theology. This effort is to be applauded. See e.g., SALLIE MCFAGUE, THE BODY OF GOD: AN ECOLOGICAL THEOLOGY (1993); ROSEMARY R. RUETHER, GAIA AND GOD: AN ECOFEMINIST THEOLOGY OF EARTH HEALING (1992); CHARLES BIRCH & JOHN B. COBB, JR., THE LIBERATION OF LIFE: FROM THE CELL TO THE COMMUNITY (1981). However, environmentalism is a hard issue for the major monotheistic religions because nature worship smacks of paganism. See e.g., Steven S. Schwarzschild, The Unnatural Jew, 6 ENVTL. ETHICS 347 (1984) (arguing that the God of the Old Testament is a transcendent God - above nature). As Maimonidies said "nature is that which works effectively and well for human beings." Id. at 351. Eastern philosophy lacks the dualism of Western philosophy but has no respect for natural systems qua systems. Taoism sees life as a cyclical process with a rhythm and order, Roger Ames, Taoism and the Nature of Nature, 8 ENVTL. ETHICS 316 (1986), but it seems to have no ability to restrain human choice because "natural" and "human" actions are accepted equally as natural. J. Baird Callicott, the leading proponent of nonanthropentric ethics, has recently argued that a deep ecology can be found in Asian religious traditions, but his analysis makes it clear that it would be reconstruction based on environmental philosophy. J.BAIRD CALLICOTT, EARTH'S INSIGHTS: A SURVEY OF ECOLOGICAL ETHICS FROM THE MEDITERRANEAN BASIN TO THE AUSTRALIAN OUTBACK 44-108 (1994).
40. The major religions have devoted a great deal of effort to constructing an environmental theology. This effort is to be applauded. See e.g., SALLIE MCFAGUE, THE BODY OF GOD: AN ECOLOGICAL THEOLOGY (1993); ROSEMARY R. RUETHER, GAIA AND GOD: AN ECOFEMINIST THEOLOGY OF EARTH HEALING (1992); CHARLES BIRCH & JOHN B. COBB, JR., THE LIBERATION OF LIFE: FROM THE CELL TO THE COMMUNITY (1981). However, environmentalism is a hard issue for the major monotheistic religions because nature worship smacks of paganism. See e.g., Steven S. Schwarzschild, The Unnatural Jew, 6 ENVTL. ETHICS 347 (1984) (arguing that the God of the Old Testament is a transcendent God - above nature). As Maimonidies said "nature is that which works effectively and well for human beings." Id. at 351. Eastern philosophy lacks the dualism of Western philosophy but has no respect for natural systems qua systems. Taoism sees life as a cyclical process with a rhythm and order, Roger Ames, Taoism and the Nature of Nature, 8 ENVTL. ETHICS 316 (1986), but it seems to have no ability to restrain human choice because "natural" and "human" actions are accepted equally as natural. J. Baird Callicott, the leading proponent of nonanthropentric ethics, has recently argued that a deep ecology can be found in Asian religious traditions, but his analysis makes it clear that it would be reconstruction based on environmental philosophy. J.BAIRD CALLICOTT, EARTH'S INSIGHTS: A SURVEY OF ECOLOGICAL ETHICS FROM THE MEDITERRANEAN BASIN TO THE AUSTRALIAN OUTBACK 44-108 (1994).
41. The major religions have devoted a great deal of effort to constructing an environmental theology. This effort is to be applauded. See e.g., SALLIE MCFAGUE, THE BODY OF GOD: AN ECOLOGICAL THEOLOGY (1993); ROSEMARY R. RUETHER, GAIA AND GOD: AN ECOFEMINIST THEOLOGY OF EARTH HEALING (1992); CHARLES BIRCH & JOHN B. COBB, JR., THE LIBERATION OF LIFE: FROM THE CELL TO THE COMMUNITY (1981). However, environmentalism is a hard issue for the major monotheistic religions because nature worship smacks of paganism. See e.g., Steven S. Schwarzschild, The Unnatural Jew, 6 ENVTL. ETHICS 347 (1984) (arguing that the God of the Old Testament is a transcendent God - above nature). As Maimonidies said "nature is that which works effectively and well for human beings." Id. at 351. Eastern philosophy lacks the dualism of Western philosophy but has no respect for natural systems qua systems. Taoism sees life as a cyclical process with a rhythm and order, Roger Ames, Taoism and the Nature of Nature, 8 ENVTL. ETHICS 316 (1986), but it seems to have no ability to restrain human choice because "natural" and "human" actions are accepted equally as natural. J. Baird Callicott, the leading proponent of nonanthropentric ethics, has recently argued that a deep ecology can be found in Asian religious traditions, but his analysis makes it clear that it would be reconstruction based on environmental philosophy. J.BAIRD CALLICOTT, EARTH'S INSIGHTS: A SURVEY OF ECOLOGICAL ETHICS FROM THE MEDITERRANEAN BASIN TO THE AUSTRALIAN OUTBACK 44-108 (1994).
42. The major religions have devoted a great deal of effort to constructing an environmental theology. This effort is to be applauded. See e.g., SALLIE MCFAGUE, THE BODY OF GOD: AN ECOLOGICAL THEOLOGY (1993); ROSEMARY R. RUETHER, GAIA AND GOD: AN ECOFEMINIST THEOLOGY OF EARTH HEALING (1992); CHARLES BIRCH & JOHN B. COBB, JR., THE LIBERATION OF LIFE: FROM THE CELL TO THE COMMUNITY (1981). However, environmentalism is a hard issue for the major monotheistic religions because nature worship smacks of paganism. See e.g., Steven S. Schwarzschild, The Unnatural Jew, 6 ENVTL. ETHICS 347 (1984) (arguing that the God of the Old Testament is a transcendent God - above nature). As Maimonidies said "nature is that which works effectively and well for human beings." Id. at 351. Eastern philosophy lacks the dualism of Western philosophy but has no respect for natural systems qua systems. Taoism sees life as a cyclical process with a rhythm and order, Roger Ames, Taoism and the Nature of Nature, 8 ENVTL. ETHICS 316 (1986), but it seems to have no ability to restrain human choice because "natural" and "human" actions are accepted equally as natural. J. Baird Callicott, the leading proponent of nonanthropentric ethics, has recently argued that a deep ecology can be found in Asian religious traditions, but his analysis makes it clear that it would be reconstruction based on environmental philosophy. J.BAIRD CALLICOTT, EARTH'S INSIGHTS: A SURVEY OF ECOLOGICAL ETHICS FROM THE MEDITERRANEAN BASIN TO THE AUSTRALIAN OUTBACK 44-108 (1994).
43. The major religions have devoted a great deal of effort to constructing an environmental theology. This effort is to be applauded. See e.g., SALLIE MCFAGUE, THE BODY OF GOD: AN ECOLOGICAL THEOLOGY (1993); ROSEMARY R. RUETHER, GAIA AND GOD: AN ECOFEMINIST THEOLOGY OF EARTH HEALING (1992); CHARLES BIRCH & JOHN B. COBB, JR., THE LIBERATION OF LIFE: FROM THE CELL TO THE COMMUNITY (1981). However, environmentalism is a hard issue for the major monotheistic religions because nature worship smacks of paganism. See e.g., Steven S. Schwarzschild, The Unnatural Jew, 6 ENVTL. ETHICS 347 (1984) (arguing that the God of the Old Testament is a transcendent God - above nature). As Maimonidies said "nature is that which works effectively and well for human beings." Id. at 351. Eastern philosophy lacks the dualism of Western philosophy but has no respect for natural systems qua systems. Taoism sees life as a cyclical process with a rhythm and order, Roger Ames, Taoism and the Nature of Nature, 8 ENVTL. ETHICS 316 (1986), but it seems to have no ability to restrain human choice because "natural" and "human" actions are accepted equally as natural. J. Baird Callicott, the leading proponent of nonanthropentric ethics, has recently argued that a deep ecology can be found in Asian religious traditions, but his analysis makes it clear that it would be reconstruction based on environmental philosophy. J.BAIRD CALLICOTT, EARTH'S INSIGHTS: A SURVEY OF ECOLOGICAL ETHICS FROM THE MEDITERRANEAN BASIN TO THE AUSTRALIAN OUTBACK 44-108 (1994).
44. The major religions have devoted a great deal of effort to constructing an environmental theology. This effort is to be applauded. See e.g., SALLIE MCFAGUE, THE BODY OF GOD: AN ECOLOGICAL THEOLOGY (1993); ROSEMARY R. RUETHER, GAIA AND GOD: AN ECOFEMINIST THEOLOGY OF EARTH HEALING (1992); CHARLES BIRCH & JOHN B. COBB, JR., THE LIBERATION OF LIFE: FROM THE CELL TO THE COMMUNITY (1981). However, environmentalism is a hard issue for the major monotheistic religions because nature worship smacks of paganism. See e.g., Steven S. Schwarzschild, The Unnatural Jew, 6 ENVTL. ETHICS 347 (1984) (arguing that the God of the Old Testament is a transcendent God - above nature). As Maimonidies said "nature is that which works effectively and well for human beings." Id. at 351. Eastern philosophy lacks the dualism of Western philosophy but has no respect for natural systems qua systems. Taoism sees life as a cyclical process with a rhythm and order, Roger Ames, Taoism and the Nature of Nature, 8 ENVTL. ETHICS 316 (1986), but it seems to have no ability to restrain human choice because "natural" and "human" actions are accepted equally as natural. J. Baird Callicott, the leading proponent of nonanthropentric ethics, has recently argued that a deep ecology can be found in Asian religious traditions, but his analysis makes it clear that it would be reconstruction based on environmental philosophy. J.BAIRD CALLICOTT, EARTH'S INSIGHTS: A SURVEY OF ECOLOGICAL ETHICS FROM THE MEDITERRANEAN BASIN TO THE AUSTRALIAN OUTBACK 44-108 (1994).
45. See JOHN PASSMORE, MAN'S RESPONSIBILITY FOR NATURE (1974).
46. The relationship between environmental rights and human dignity was extensively debated prior to the 1992 Rio Summit. See, e.g., BIODIVERSITY AND INTERNATIONAL LAW 88-91 (Simone Bilderbeek ed., 1992).
47. THE ETHICS OF THE ENVIRONMENT xv-xxiv (Andrew Brennan ed., 1995).
48. The story of the development of anthropocentrisim has been told many times. Among the best are PASSMORE, supra note 27; I.G. SIMMONS, ENVIRONMENTAL HISTORY: A CONCISE INTRODUCTION 157-88 (1993); LUC FERRY, THE NEW ECOLOGICAL ORDER (Carol Volk trans., 1995).
49. The story of the development of anthropocentrisim has been told many times. Among the best are PASSMORE, supra note 27; I.G. SIMMONS, ENVIRONMENTAL HISTORY: A CONCISE INTRODUCTION 157-88 (1993); LUC FERRY, THE NEW ECOLOGICAL ORDER (Carol Volk trans., 1995).
50. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L. Q. 265, 269-275 (1991) (distinguishing among utilitarian, aesthetic and ethical bases of justification for biological diversity); STEPHEN R. KELLERT, THE VALUE OF LIFE: BIOLOGICAL DIVERSITY AND HUMAN SOCIETY 62 (1996) (identifying nine basic values and finding that despite expressions of ethical concerns for biodiversity "most Americans remain fixed on a narrow segment of the biotic community - largely vertebrate animals, particularly creatures of special historical, cultural and aesthetic significance").
51. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L. Q. 265, 269-275 (1991) (distinguishing among utilitarian, aesthetic and ethical bases of justification for biological diversity); STEPHEN R. KELLERT, THE VALUE OF LIFE: BIOLOGICAL DIVERSITY AND HUMAN SOCIETY 62 (1996) (identifying nine basic values and finding that despite expressions of ethical concerns for biodiversity "most Americans remain fixed on a narrow segment of the biotic community - largely vertebrate animals, particularly creatures of special historical, cultural and aesthetic significance").
52. J. Baird Callicott is the leading proponent of this theory. See supra notes 13, 26. For a recent review of his theories by a leading critic see Bryan G. Norton, Why I am Not a Nonanthropocentrist: Callicott and the Failure of Monistic Inherentism, 17 ENVTL. ETHICS 341 (1995).
53. See ROLSTON, supra note 5, at 169-191.
54. MICHAEL E. ZIMMERMAN, CONTESTING EARTH'S FUTURE: RADICAL ECOLOGY AND POSTMODERNITY 374-75 (1994), considers the impact of the new ecology of environmental ethics and reaches this conclusion after an extensive but ultimately frustrating "dialogue" about deep ecology, social ecology and ecofeminism.
55. See WALLACE KAUFMAN, NO TURNING BACK: DISMANTLING THE FANTASIES OF ENVIRONMENTAL THINKING (1994) (arguing that Botkin's book challenges the environmental religion).
56. Most environmental philosophy views the assertion of human primacy over nature as the original sin and tries to rectify this by radically shrinking the human role. See, e.g., Callicott, supra note 26, at 14-43; cf. Judith M. Green, Retrieving the Human Place in Nature, 17 ENVTL. ETHICS 381 (1995).
57. For an extremely factually and analytically flawed presentation of a similar argument, see GREGG EASTERBROOK, A MOMENT ON THE EARTH (1995).
58. See EDWARD O. WILSON, THE DIVERSITY OF LIFE (1992).
59. See Steward T.A. Pickett et al., The New Paradigm in Ecology: Implications for Conservation Biology Above the Species Level, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION, AND MANAGEMENT 65, 82 (1992).
60. Patrick J. Gleason & Peter Stone, Age, Origin, and Landscape Evolution of the Everglades Peatland, in EVERGLADES: THE ECOSYSTEM AND ITS RESTORATION 149, 150 (Steven M. Davis & John C. Ogden eds., 1994).
61. Stephen S. Light & J. Walter Dineen, Water Control in the Everglades: A Historical Perspective, in EVERGLADES: THE ECOSYSTEM AND ITS RESTORATION, supra note 40, at 47, 79.
62. River Basin Monetary Authorization and Miscellaneous Civil Works Amendments Act of 1970, Pub. L. No. 91-282, 84 Stat. 310 (1970).
63. G. Thomas Bancroft et al., Relationships among Wading Bird Foraging Patterns, Colony Locations, and Hydrology in the Everglades, in EVERGLADES: THE ECOSYSTEM AND ITS RESTORATION, supra note 40, at 615, 616.
64. Donald L. DeAngelis, Synthesis: Spatial and Temporal Characteristics of the Environment, in EVERGLADES: THE ECOSYSTEM AND ITS RESTORATION, supra note 40, at 307, 312.
65. For a brief discussion of the recreation of simulated naturalness as a new management baseline, see NATIONAL RESEARCH COUNCIL, RIVER RESOURCE MANAGEMENT IN THE GRAND CANYON 46-48 (1996).
66. Carl J. Walters & Lance H. Gunderson, A Screening of Water Policy Alternatives for Ecological Restoration in the Everglades, in EVERGLADES: THE ECOSYSTEM AND ITS RESTORATION, supra note 40, at 757. The restoration of prior water levels will raise takings issues, an important issue not addressed in this paper. See Sharon S. Tisher, Everglades Restoration: A Constitutional Takings Analysis, 10 J. LAND USE & ENVTL. L. 1 (1994).
67. Carl J. Walters & Lance H. Gunderson, A Screening of Water Policy Alternatives for Ecological Restoration in the Everglades, in EVERGLADES: THE ECOSYSTEM AND ITS RESTORATION, supra note 40, at 757. The restoration of prior water levels will raise takings issues, an important issue not addressed in this paper. See Sharon S. Tisher, Everglades Restoration: A Constitutional Takings Analysis, 10 J. LAND USE & ENVTL. L. 1 (1994).
68. See Thomas T. Ankersen & Richard Hamann, Ecosystem Management and the Everglades: A Legal and Institutional Analysis, 11 J. LAND USE & ENVTL. L. 473, 493-96 (1996).
69. See NATIONAL RESEARCH COUNCIL, RESTORATION OF AQUATIC ECOSYSTEMS 15, 17 (1992).
70. Robert Elliot, Extinction, Restoration, Naturalness, 16 ENVTL. ETHICS 135, 143 (1994); cf. Alastair S. Gunn, The Restoration of Species and Natural Environments, 13 ENVTL. ETHICS 291 (1991); C. Mark Cowell, Ecological Restoration and Environmental Ethics, 15 ENVTL. ETHICS 19 (1993).
71. Robert Elliot, Extinction, Restoration, Naturalness, 16 ENVTL. ETHICS 135, 143 (1994); cf. Alastair S. Gunn, The Restoration of Species and Natural Environments, 13 ENVTL. ETHICS 291 (1991); C. Mark Cowell, Ecological Restoration and Environmental Ethics, 15 ENVTL. ETHICS 19 (1993).
72. Robert Elliot, Extinction, Restoration, Naturalness, 16 ENVTL. ETHICS 135, 143 (1994); cf. Alastair S. Gunn, The Restoration of Species and Natural Environments, 13 ENVTL. ETHICS 291 (1991); C. Mark Cowell, Ecological Restoration and Environmental Ethics, 15 ENVTL. ETHICS 19 (1993).
73. Jonathan B. Wiener, Law and the New Ecology: Evolution, Categories, and Consequences, 22 ECOLOGY L.Q. 325, 338-45 (1995) (reviewing JONATHAN WEINER, THE BEAK OF THE FINCH: A STORY OF EVOLUTION IN OUR TIME (1994)).
74. Jonathan B. Wiener, Law and the New Ecology: Evolution, Categories, and Consequences, 22 ECOLOGY L.Q. 325, 338-45 (1995) (reviewing JONATHAN WEINER, THE BEAK OF THE FINCH: A STORY OF EVOLUTION IN OUR TIME (1994)).
75. Id. at 340.
76. NATIONAL RESEARCH COUNCIL, MANAGING WASTEWATER IN COASTAL URBAN AREAS 32 (1993).
77. Id. at 357.
78. For an insightful case study of the problems that adaptive management poses for "settled" management systems see John M. Volkman & Willis E. McConnaha, Through a Glass, Darkly: Columbia River Salmon, The Endangered Species Act, and Adaptive Management, 23 ENVTL. L. 1249 (1993).
79. CAL. FISH & GAME CODE § 2800-2840 (West 1984 & Supp. 1996). The statute authorizes any person or governmental agency to prepare an NCCP pursuant to an agreement with, and guidelines written by, the Department of Fish and Game. §§ 2810 & 2820. Each such plan is to promote "protection and perpetuation of natural wildlife diversity, while allowing compatible and appropriate development and growth." § 2805(a). Once the Department of Fish and Game approves an NCCP, the department may authorize developments that might otherwise be found to have an adverse impact on listed or candidate species if they are consistent with the NCCP. §§ 2081, 2825(c) & 2835.
80. 16 U.S.C. § 1539(a) (1994).
81. See, e.g., Peter F. Brussard, The Role of Ecology in Biological Conservation, 1 ECOLOGICAL APPLICATIONS 6 (1991); Michael E. Gilpin & Michael E. Soule, Minimum Viable Populations: Processes of Species Extinction, in CONSERVATION BIOLOGY: THE SCIENCE OF SCARCITY AND DIVERSITY 19 (Michael E. Soule ed., 1986); Reed F. Noss, Protecting Natural Areas in Fragmented Landscapes, 7 NAT. AREAS J. 2 (1987); John F. O'Leary & Walter E. Westman, Regional Disturbance Effects on Herb Succession Patterns in Coastal Sage Scrub, 15 J. OF BIOGEOGRAPHY 775 (1988).
82. See, e.g., Peter F. Brussard, The Role of Ecology in Biological Conservation, 1 ECOLOGICAL APPLICATIONS 6 (1991); Michael E. Gilpin & Michael E. Soule, Minimum Viable Populations: Processes of Species Extinction, in CONSERVATION BIOLOGY: THE SCIENCE OF SCARCITY AND DIVERSITY 19 (Michael E. Soule ed., 1986); Reed F. Noss, Protecting Natural Areas in Fragmented Landscapes, 7 NAT. AREAS J. 2 (1987); John F. O'Leary & Walter E. Westman, Regional Disturbance Effects on Herb Succession Patterns in Coastal Sage Scrub, 15 J. OF BIOGEOGRAPHY 775 (1988).
83. See, e.g., Peter F. Brussard, The Role of Ecology in Biological Conservation, 1 ECOLOGICAL APPLICATIONS 6 (1991); Michael E. Gilpin & Michael E. Soule, Minimum Viable Populations: Processes of Species Extinction, in CONSERVATION BIOLOGY: THE SCIENCE OF SCARCITY AND DIVERSITY 19 (Michael E. Soule ed., 1986); Reed F. Noss, Protecting Natural Areas in Fragmented Landscapes, 7 NAT. AREAS J. 2 (1987); John F. O'Leary & Walter E. Westman, Regional Disturbance Effects on Herb Succession Patterns in Coastal Sage Scrub, 15 J. OF BIOGEOGRAPHY 775 (1988).
84. See, e.g., Peter F. Brussard, The Role of Ecology in Biological Conservation, 1 ECOLOGICAL APPLICATIONS 6 (1991); Michael E. Gilpin & Michael E. Soule, Minimum Viable Populations: Processes of Species Extinction, in CONSERVATION BIOLOGY: THE SCIENCE OF SCARCITY AND DIVERSITY 19 (Michael E. Soule ed., 1986); Reed F. Noss, Protecting Natural Areas in Fragmented Landscapes, 7 NAT. AREAS J. 2 (1987); John F. O'Leary & Walter E. Westman, Regional Disturbance Effects on Herb Succession Patterns in Coastal Sage Scrub, 15 J. OF BIOGEOGRAPHY 775 (1988).
85. See, e.g., Dennis A. Albert, Use of Landscape Ecosystems for Species Inventory and Conservation, 10 ENDANGERED SPECIES UPDATE 20 (1993).
86. See CALIF. FISH & GAME CODE, §§ 2081, 2825(c), 2835 (West 1984 & Supp. 1996).
87. See DANIEL J. CURTIN, JR., CALIFORNIA LAND USE AND PLANNING LAW 26-28 (1994).
88. Office of the Secretary, Department of the Interior, News Release, Aug. 11, 1994, available in Westlaw, 1994 WL 440313. For the full test of the Joint FWS/NMFS No Surprises policy, see FISH & WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, PRELIMINARY DRAFT HANDBOOK FOR HABITAT CONSERVATION PLANNING AND INCIDENTAL TAKE PERMIT PROCESSING app. 4 (1994).
89. Recovery plans, which include translocation of a species, are an increasingly used protection strategy. See Federico Cheever, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 ECOLOGY L.Q. 1 (1996). These plans may be mandatory when a species is at extreme risk and previous protection efforts have not succeeded. See Sierra Club v. Lujan, No. MO-91-CA-069, 1993 WL 151353 (W.D. Tex. Feb. 1, 1993).
90. Implementation Agreement Regarding the Natural Community Conservation Plan for the Central/Coastal Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program 100-102 (April 1996) (Copy on file with author).
91. NATIONAL RESEARCH COUNCIL, A BIOLOGICAL SURVEY FOR THE NATION 59 (1993).
92. The leading text is CONSERVATION BIOLOGY: AN EVOLUTIONARY-ECOLOGICAL PERSPECTIVE (Michael E. Soule & Bruce A. Wilcox eds., 1980).
93. See REED F. NOSS & ALLEN Y. COOPERRIDER, SAVING NATURE'S LEGACY: PROTECTING AND RESTORING BIODIVERSITY (1994); DEBORAH B. JENSEN, MARGARET S. TORN & JOHN HARTE, IN OUR HANDS: A STRATEGY FOR CONSERVING CALIFORNIA'S BIOLOGICAL DIVERSITY (1993).
94. See REED F. NOSS & ALLEN Y. COOPERRIDER, SAVING NATURE'S LEGACY: PROTECTING AND RESTORING BIODIVERSITY (1994); DEBORAH B. JENSEN, MARGARET S. TORN & JOHN HARTE, IN OUR HANDS: A STRATEGY FOR CONSERVING CALIFORNIA'S BIOLOGICAL DIVERSITY (1993).
95. For a good short review of the early literature, see Bruce A. Wilcox & Dennis D. Murphy, Conservation Strategy: The Effects of Fragmentation on Extinction, 125 AM. NATURALIST 879 (1985).
96. See, e.g., AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992).
97. See, e.g., City of Las Vegas v. Lujan, 891 F.2d 927 (D.C. Cir. 1989).
98. 509 U.S. 579 (1994).
99. See David A. Wirth & Ellen Silbergeld, Risky Reform, 95 COLUM. L. REV. 1857 (1995) (book review).
100. See CARL F. CRANOR, REGULATING TOXIC SUBSTANCES: A PHILOSOPHY OF SCIENCE AND THE LAW 7, 12 (1993).
101. EPA's Proposed Guidelines for Ecological Risk Assessment, 61 Fed. Reg. 47522, 47600 (1996) (notice of availability and opportunity to comment issued Sept. 9, 1996) [hereinafter Proposed Risk Assessment Guidelines] (lists the "strength of cause/effect relationships" as one of several relevant lines of evidence to support the confidence of ecological risk assessments).
102. 611 F. Supp. 1223 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. denied sub nom. Lombardi v. Dow Chemical Co., 487 U.S. 1234 (1988).
103. Id. at 1231.
104. Dennis D. Murphy & Barry R. Noon, Integrating Scientific Methods With Habitat Conservation Planning: Reserve Design for Northern Spotted Owls, 2 ECOLOGICAL APPLICATIONS 3, 15 (1992).
105. See Sierra Club v. Marita, 46 F.3d 606, 621-22 (7th Cir. 1995).
106. Id. at 622.
107. Proposed Risk Assessment Guidelines, supra note 73, at 47552.
108. See Troyen A. Brennan, Causal Chains and Statistical Links: The Role of Scientific Uncertainty in Hazardous-Substance Litigation, 73 CORNELL L. REV. 469 (1988).
109. Many types of natural resources regulation are based on models. For example, due to the geological complexity of aquifers, ground water regulation and pollution liability is often based on mathematical models. But, models are by definition a partial and evolving representation of reality. Daubert appears to require that they be validated, but many hydrologists doubt whether this is possible and, more importantly, whether the failure to validate a model in any way diminishes its utility and legitimacy. See Maryann Wasiolek, Groundwater Flow Models as Scientific Evidence, Paper Presented at Dividing the Waters III: A Conference for Judges & Masters Involved in Western General Stream Adjudications (May 1-4, 1996), in RESOURCE BOOK: DIVIDING THE WATERS III (1966).
110. As Farber and Hemmersbaugh have expressed this condition, "[f]rom the vantage point of our (possibly imaginary) thoughtful policymaker, workability is more crucial than theoretical rigor." Daniel A. Farber & Paul A. Hemmersbaugh, The Shadow of the Future: Discount Rates, Later Generations, and the Environment, 46 VAND. L. REV. 267, 271 (1993).
111. The tension between private property rights and environmentalism is explored in Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993), and Fred Bosselman, Four Land Ethics: Order, Reform, Responsibility, Opportunity, 24 ENVTL. L. 1439 (1994).
112. The tension between private property rights and environmentalism is explored in Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993), and Fred Bosselman, Four Land Ethics: Order, Reform, Responsibility, Opportunity, 24 ENVTL. L. 1439 (1994).
113. FERRY, supra note 30, at 92-94.
114. Environmentalists have identified the Western tradition, either the Judeo-Christian religious heritage or the Greco-Enlightenment one, as the source of environmental degradation. The central premise of these traditions is the duality between man and nature. No such duality exists in Taoism which has been identified as an environmental ethic because it teaches that one should live in harmony with natural cycles. The well-known yin-yang (active-passive / masculine-feminine) polarity is one manifestation of the non-duality between man and nature. Thus, unlike the Western tradition, stemming from Plato's theory that matter was a plastic feminine form substance upon which order should be imposed, order is not imposed but "arises from the mutual adjustment of the many natural forces." CALLICOTT, supra note 26, at 70. The problem with the variety of East Asian traditions is that they contain no effective theory to restrain human manipulation of nature because they accept manipulation as natural. Confucianism is humanistic to the core and thus human intervention is the norm and the Japanese Buddhist love of nature is a love for the transformation of the imperfect into the perfect - the bonsai or the garden - i.e. a selective love of nature.
115. See, e.g., EDITH WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY, AND INTERGENERATIONAL EQUITY 1-93 (1989).
116. Ferry argues that Kant concluded that "man is an antinatural being, a being who lives by law [and] this, in fact, . . . prohibits . . . the Kantian tradition . . . from identifying with radical ecology." FERRY, supra note 30, at 54.
117. Kant developed his theory that morality procedes from prior principles in his masterwork, IMMANUEL KANT, CRITIQUE OF PURE REASON, (J.M.D. Meiklejohn trans., rev. ed. 1943). There are many commentaries of Kant's theory of the categorical imperative. I have relied on NORMAN KEMP SMITH, A COMMENTARY ON KANT'S "CRITIQUE OF PURE REASON" 570-76 (1984).
118. Kant developed his theory that morality procedes from prior principles in his masterwork, IMMANUEL KANT, CRITIQUE OF PURE REASON, (J.M.D. Meiklejohn trans., rev. ed. 1943). There are many commentaries of Kant's theory of the categorical imperative. I have relied on NORMAN KEMP SMITH, A COMMENTARY ON KANT'S "CRITIQUE OF PURE REASON" 570-76 (1984).
119. J. Baird Callicott describes the thrust of post-modern environmental ethics as an approach which makes "the effects of human actions on individual nonhuman natural entities and on nature as a whole directly accountable . . . ." CALLICOTT, supra note 26, at 10.
120. For a good summary of the movement, see Arne Naess, Deep Ecology Movement: Some Philosophical Aspects, 8 PHILOSOPHICAL INQUIRY 10 (1986), reprinted in THE ETHICS OF THE ENVIRONMENT, supra note 29, at 162.
121. For a good summary of the movement, see Arne Naess, Deep Ecology Movement: Some Philosophical Aspects, 8 PHILOSOPHICAL INQUIRY 10 (1986), reprinted in THE ETHICS OF THE ENVIRONMENT, supra note 29, at 162.
122. For an important modern discussion of this distinction see ROBERT NOZICK, PHILOSPHICAL EXPLANATIONS 535-51, 567-70 (1981).
123. See Ernest Partridge, Nature As a Moral Resource, 6 ENVTL. ETHICS 101 (1984).
124. Seductive as they are, appeals to community must always be viewed with skepticism. R. NISBET, THE QUEST FOR COMMUNITY: A STUDY IN THE ETHICS OF ORDER AND FREEDOM (1951) reminds us that the Western tradition venerates rationalist individualism which, following KARL R. POPPER, THE OPEN SOCIETY AND ITS ENEMIES (5th ed. 1971), is defined as a breaking away from the bounds of culture. The first meaning of community is the cultural community, which is characterized by the hierarchy and order of Christian Europe. The other meaning of community is the political community which is traced from Plato to Rousseau. Rousseau's argument was that conformity to the "general will" will produce a reign of virtue. If the individual freed himself from all other structures and bound himself to the all-powerful political state, there would be a humanitarian redemption. This led to the Reign of Terror in the French Revolution and to the ideas of radical equality and concentrated state power. The idea of the total community supported by mass participation and allegiance led to Napoleon, Marxism and finally Nazism, in short the totally evil but rational state. The tension between environmentalism and authoritarianism was first explored in WILLIAM OPHULS, ECOLOGY AND THE POLITICS OF SCARCITY (1977), revised as WILLIAM OPHULS & A. STEPHEN BOYAN, JR., ECOLOGY AND THE POLITICS OF SCARCITY REVISITED: THE UNRAVELING OF THE AMERICAN DREAM (1992).
125. Seductive as they are, appeals to community must always be viewed with skepticism. R. NISBET, THE QUEST FOR COMMUNITY: A STUDY IN THE ETHICS OF ORDER AND FREEDOM (1951) reminds us that the Western tradition venerates rationalist individualism which, following KARL R. POPPER, THE OPEN SOCIETY AND ITS ENEMIES (5th ed. 1971), is defined as a breaking away from the bounds of culture. The first meaning of community is the cultural community, which is characterized by the hierarchy and order of Christian Europe. The other meaning of community is the political community which is traced from Plato to Rousseau. Rousseau's argument was that conformity to the "general will" will produce a reign of virtue. If the individual freed himself from all other structures and bound himself to the all-powerful political state, there would be a humanitarian redemption. This led to the Reign of Terror in the French Revolution and to the ideas of radical equality and concentrated state power. The idea of the total community supported by mass participation and allegiance led to Napoleon, Marxism and finally Nazism, in short the totally evil but rational state. The tension between environmentalism and authoritarianism was first explored in WILLIAM OPHULS, ECOLOGY AND THE POLITICS OF SCARCITY (1977), revised as WILLIAM OPHULS & A. STEPHEN BOYAN, JR., ECOLOGY AND THE POLITICS OF SCARCITY REVISITED: THE UNRAVELING OF THE AMERICAN DREAM (1992).
126. Seductive as they are, appeals to community must always be viewed with skepticism. R. NISBET, THE QUEST FOR COMMUNITY: A STUDY IN THE ETHICS OF ORDER AND FREEDOM (1951) reminds us that the Western tradition venerates rationalist individualism which, following KARL R. POPPER, THE OPEN SOCIETY AND ITS ENEMIES (5th ed. 1971), is defined as a breaking away from the bounds of culture. The first meaning of community is the cultural community, which is characterized by the hierarchy and order of Christian Europe. The other meaning of community is the political community which is traced from Plato to Rousseau. Rousseau's argument was that conformity to the "general will" will produce a reign of virtue. If the individual freed himself from all other structures and bound himself to the all-powerful political state, there would be a humanitarian redemption. This led to the Reign of Terror in the French Revolution and to the ideas of radical equality and concentrated state power. The idea of the total community supported by mass participation and allegiance led to Napoleon, Marxism and finally Nazism, in short the totally evil but rational state. The tension between environmentalism and authoritarianism was first explored in WILLIAM OPHULS, ECOLOGY AND THE POLITICS OF SCARCITY (1977), revised as WILLIAM OPHULS & A. STEPHEN BOYAN, JR., ECOLOGY AND THE POLITICS OF SCARCITY REVISITED: THE UNRAVELING OF THE AMERICAN DREAM (1992).
127. Seductive as they are, appeals to community must always be viewed with skepticism. R. NISBET, THE QUEST FOR COMMUNITY: A STUDY IN THE ETHICS OF ORDER AND FREEDOM (1951) reminds us that the Western tradition venerates rationalist individualism which, following KARL R. POPPER, THE OPEN SOCIETY AND ITS ENEMIES (5th ed. 1971), is defined as a breaking away from the bounds of culture. The first meaning of community is the cultural community, which is characterized by the hierarchy and order of Christian Europe. The other meaning of community is the political community which is traced from Plato to Rousseau. Rousseau's argument was that conformity to the "general will" will produce a reign of virtue. If the individual freed himself from all other structures and bound himself to the all-powerful political state, there would be a humanitarian redemption. This led to the Reign of Terror in the French Revolution and to the ideas of radical equality and concentrated state power. The idea of the total community supported by mass participation and allegiance led to Napoleon, Marxism and finally Nazism, in short the totally evil but rational state. The tension between environmentalism and authoritarianism was first explored in WILLIAM OPHULS, ECOLOGY AND THE POLITICS OF SCARCITY (1977), revised as WILLIAM OPHULS & A. STEPHEN BOYAN, JR., ECOLOGY AND THE POLITICS OF SCARCITY REVISITED: THE UNRAVELING OF THE AMERICAN DREAM (1992).
128. STONE, supra note 7.
129. STONE, supra note 7.
130. Id. at 132-141.
131. See Bryan G. Norton, Change, Constancy, and Creativity: The New Ecology and Some Old Problems, supra pp. 49-70.
132. See MARK SAGOFF, THE ECONOMY OF THE EARTH: PHILOSOPHY, LAW, AND THE ENVIRONMENT (1988).
133. Mark Sagoff, Settling America or the Concept of Place in Environmental Ethics, 12 J. ENERGY NAT. RESOURCES & ENVT'L L. 349, 379 (1992).
134. The preferred term for wetland value is now wetland function, and scientific research continues to demonstrate that wetlands perform a variety of important functions. See NATIONAL RESEARCH COUNCIL, WETLANDS: CHARACTERISTICS AND BOUNDARIES (1995).
135. For a recent articulation of the intertwinement (arguing, as do I, that the two should not be artificially separated) see Hannu Tapani Klami et al., Evidence and Legal Reasoning: On the Intertwinement of the Probable and the Reasonable, 10 LAW & PHILOSOPHY 73 (1991).
136. In this century, this position has been associated with logical positivism and British empiricism, which have dominated philosophy in the English speaking and Scandinavian countries. Logical positivism asserts that propositions have no meaning unless they can be verified and are closely linked to the main currents of twentieth century science. John Passmore, Logical Positivism, in 5 THE ENCYCLOPEDIA OF PHILOSOPHY 52 (1967).
137. For a concise articulation of the need to maintain the distinction between fact and value in spite of the recognition that facts spell out consequences to be avoided, see CHARLES C. MANN & MARK L. PLUMMER, NOAH'S CHOICE: THE FUTURE OF ENDANGERED SPECIES 204-208 (1995).
138. WILSON, supra note 38, at 351.
139. Professor Eric Freyfogle argues that our changed moral understanding of the natural order "now going on is one of the most profound changes in human history." Eric T. Freyfogle, The Moral Psychology of the Environmental Age, in ENVIRONMENTAL POLICY WITH POLITICAL AND ECONOMIC INTEGRATION: THE EUROPEAN UNION AND THE UNITED STATES 35 (John Braden et al. eds., 1996).
140. The precautionary principle is that international law version of the familiar United States "margin of safety" standard which allows regulators to err on the side of public health and safety. The idea is novel in international law where law is made by consensus and thus tends toward the lowest common denominator. However, there is a movement in international environmental law to shift from post-disaster remedies to prevention. See Alexandre S. Timoshenko, Ecological Security: Response to Global Challenges, in ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW 413 (Edith B. Weiss ed., 1992); HARALD HOHMANN, PRECAUTIONARY LEGAL DUTIES AND PRINCIPLES OF MODERN INTERNATIONAL ENVIRONMENTAL LAW (1994).
141. The precautionary principle is that international law version of the familiar United States "margin of safety" standard which allows regulators to err on the side of public health and safety. The idea is novel in international law where law is made by consensus and thus tends toward the lowest common denominator. However, there is a movement in international environmental law to shift from post-disaster remedies to prevention. See Alexandre S. Timoshenko, Ecological Security: Response to Global Challenges, in ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW 413 (Edith B. Weiss ed., 1992); HARALD HOHMANN, PRECAUTIONARY LEGAL DUTIES AND PRINCIPLES OF MODERN INTERNATIONAL ENVIRONMENTAL LAW (1994).
142. Freyfogle, supra note 105, examines five challenges to utilitarian or anthropocentric environmentalism posed by advocates of the rights of the nature. These challenges include the argument that utilitarian calculations are impossible to make according to their own terms and the need to substitute intuition for empiricism.
143. Holmes Rolston, III, Science-Based Versus Traditional Ethics, in ETHICS OF ENVIRONMENT AND DEVELOPMENT: GLOBAL CHALLENGE AND INTERNATIONAL RESPONSE 64, 71-72 (J. Ronald Engel & Joan G. Engel eds., 1990). Donald Worster has also rejected neopaganism in favor of "the superiority of science over superstitition." DONALD WORSTER, THE WEALTH OF NATURE 218 (1993).
144. Holmes Rolston, III, Science-Based Versus Traditional Ethics, in ETHICS OF ENVIRONMENT AND DEVELOPMENT: GLOBAL CHALLENGE AND INTERNATIONAL RESPONSE 64, 71-72 (J. Ronald Engel & Joan G. Engel eds., 1990). Donald Worster has also rejected neopaganism in favor of "the superiority of science over superstitition." DONALD WORSTER, THE WEALTH OF NATURE 218 (1993).
145. SUSSKIND, supra note 9, at 80-81.
146. Wiener, supra note 50, at 334.
147. Weiss argues that present generations owe conservation duties to future generations and that "[c]onservation of quality . . . cautions against water withdrawals that may result in pollution of water supplies . . . that will be expensive or impossible for future generations to repair." WEISS, supra note 86, at 238.
148. 112. Id. at 17.