Uncommon goods: On environmental virtues and voluntary carbon offsets

Harvard Law Review

Volumn 123, Issue 8, 2010, Pages 2065-2087

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EID: 78149476385     PISSN: 0017811X     EISSN: None     Source Type: Journal    
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References (117)

1. See generally Robert R. Nordhaus & Kyle W. Danish, Assessing the Options for Designing a Mandatory U.S. Greenhouse Gas Reduction Program, 32 B.C. ENVTL. AFF. L. REV 97 (2005) (discussing the fact that the federal government has not yet regulated greenhouse gases and providing details of potential regulatory tools, including cap-and-trade).
2. Under a cap-and-trade system, "the government sets an aggregate limit to the amount of pollution that can be emitted, creates permits that allow the holders to emit some predetermined percentage of that total limit, distributes the permits, and then allows firms to trade permits."
3. Lior Jacob Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes, 75 IND. LJ. 1231, 1284 (2000). In this way, "the reductions in emissions will be made by those firms able to do so at the lowest cost." Id.
4. For a comprehensive summary of the nature and mechanics of voluntary carbon markets in recent years, see KATHERINE HAMILTON ET AL., ECOSYSTEM MARKETPLACE & NEW CARBON FINANCE, FORGING A FRONTIER: STATE OF THE VOLUNTARY CARBON MARKETS 2008 (2008), available at http://www.ecosystemmarketplace.com/ documents/cms-documents/2008-StateofVoluntaryCarbonMarket2.pdf;
5. and KATHERINE HAMILTON ET AL., ECOSYSTEM MARKETPLACE & NEW CARBON FINANCE, FORTIFYING THE FOUNDATION: STATE OF THE VOLUNTARY CARBON MARKETS 2009 (2009) [hereinafter HAMILTON ET AL., FORTIFYING THE FOUNDATION], available at http://www.ecosystemmarketplace.com/documents/cms-documents/ StateOfTheVoluntaryCarbonMarkets-2 009.pdf.
6. For a discussion of both regulated and voluntary carbon markets, see KARAN CAPOOR & PHILIPPE AMBROSI, WORLD BANK, STATE AND TRENDS OF THE CARBON MARKET 2008 (2008), available at http://siteresources. worldbank.org/NEWS/ Resources/State&Trendsformattedo6Mayiopm.pdf.
7. Michael P. Vandenbergh & Anne C. Steinemann, The Carbon-Neutral Individual, 82 N.Y.U. L. REV 1673, 1718 n.206 (2007) (listing examples of companies that offer offsets, including DHL, which will make a shipment carbon-neutral for a two percent premium on its usual shipping charge, and Pacific Gas & Electric, which gives customers the option of paying to offset the greenhouse gas emissions from their electricity use).
8. For example, a variety of not-for-profit organizations and governments, id. at 1719, and a lengthening list of big businesses, "ranging from the predictable (Ben & Jerry's) to the surprising (Rupert Murdoch's News Corporation)," have pledged to become carbon-neutral, id. at 1718.
9. For a discussion of the rise of the carbon neutrality norm, see id. at 1717-2 0.
10. HAMILTON ET AL., FORTIFYING THE FOUNDATION, supra note 2, at 6, 31. Note that the aggregate estimates in this report may be conservative; the 2008 figure, for example, is based in part on data obtained from voluntary completion of surveys by 182 developers, aggregators, brokers, and retailers in twenty-eight countries. Id. at 5.
11. Individual purchases accounted for approximately five percent of the market in 2006 and 2007, prior to the recession; in 2008, this number declined to two percent.
12. Id. at 95.
13. The report notes that the number assigned to individuals may be lower than the actual number, as it is "difficult to track credits sold to individuals through companies, such as airlines, whose primary business model is not supplying offset credits." Id.
14. A second type of difference between the markets that might have some bearing on the question lies in the nature of the actors involved. The standard proposals for regulatory markets, for example, would require corporations, but not individual people, to buy offsets - and it is arguable that corporations are not capable of embodying virtues in the same ways that people are. In this case, the use of regulatory offsets would not be objectionable in and of itself, or at least not in all the same ways that it may be when the actors are people. This is not to say, however, that a regulatory offset market would be unobjectionable. At the very least, any concerns that derive from the regulatory offsets' social significance and impact on individual action, if there is any such impact, would still be applicable.
15. To say that the purchases of offsets are "motivated by" this attitude is not to say that the purchasers always believe that they have an ethical obligation to do so. They might, for example, be buying offsets solely to comply with an externally imposed norm, such as social pressure to "be green." But they would only do so if they thought that these purchases were a way of complying with that norm; in this sense, the purchasers are motivated by the norm, whether or not they internalize it. That this norm is widespread is demonstrated by the size and growth of the voluntary market in recent years. See HAMILTON ET AL., FORTIFYING THE FOUNDATION, supra note 2.
16. The most thorough academic discussions of these markets have been positive, recommending them as a way of achieving environmental goals. See, e.g., Vandenbergh & Steinemann, supra note 3, at 1720-24. The limited criticisms fall into two categories. First, in the academic literature, there is a concern that offsets do not always provide genuine emissions reductions - that an offset "may purport to displace a carbon-emitting activity that would not have occurred without the offset in the first place," or that "the offset-generating activity may have uncertain scientific validity." Id. at 1722. However, these claims are not a criticism of the voluntary offset market per se, but rather of the ways in which the voluntary offsets are created - a problem that could be solved through regulation. Second, in the popular media, offsets have also been criticized on the grounds that they are comparable to papal indulgences. See, e.g., Charles Krauthammer, Limousine Liberal Hypocrisy, TIME, Mar. 26, 2007, at 24;
17. Andrew C. Revkin, Carbon-Neutral Is Hip, but Is It Green?, N.Y. TIMES, Apr. 29, 2007, § 4 (Week in Review), at 1;
18. see also Robert E. Goodin, Selling Environmental Indulgences, 47 KYKLOS 573 (1994) (providing a more sophisticated version of the "indulgence" argument, made with respect to pollution offsets and taxes). But this second criticism has generally gained little traction in the academic literature, as it seems that the analogy breaks down in crucial ways: indulgences did not provide an enforceable contract for a place in heaven and did not materially reverse the impact of the predicate sin, whereas a carbon offset can provide an enforceable contract that eliminates carbon from the atmosphere. On the basis of this disanalogy, market advocates reject the "indulgences" criticism. See, e.g., Vandenbergh & Steinemann, supra note 3, at 1722 n.235 (explaining that "[t]he analogy is false," id. at 1723 n.235). However, in making this argument, market advocates assume that eliminating the impact of the emission constitutes an elimination of what, if anything, is ethically objectionable about causing the emission. See, e.g., id. at 1720 ("Carbon neutrality .. . enables individuals to be confident that regardless of others' behavior, they are not contributing to the harm."). It is this assumption that will be challenged in this Note.
19. For a helpful summary of these debates, see Jonathan Remy Nash, Framing Effects and Regulatory Choice, 82 NOTRE DAME L. REV 313, 325-34 (2006); and Strahilevitz, supra note 1, at 1284-88. In general, scholars have long suggested that economic analyses and tools do not adequately protect the good of the environment.
20. But see Barton H. Thompson, Jr., What Good Is Economics?, 37 U.C. DAVIS L. REV 175 (2003) (responding to the standard criticisms and making an environmental case for the use of economics).
21. On the rising role of environmental economics in environmental legal policy over the past thirty years, see Wallace E. Oates, From Research to Policy: The Case of Environmental Economics, 2000 U. ILL. L. REV 135.
22. For a short articulation of this argument, see Nash, supra note 10, at 326. See also John P. Dwyer, The Use of Market Incentives in Controlling Air Pollution: California's Marketable Permits Program, 20 ECOLOGY L.Q. 103, III (1993) (stating that some environmental groups and regulators claim that "creating property rights in pollution is morally wrong");
23. James L. Huffman, Markets, Regulation, and Environmental Protection, 55 MONT. L. REV 425, 432 (1994) ("Most environmental groups have opposed the tradeable emissions approach, generally on the ground that no one should have a right to pollute.").
24. Strahilevitz, supra note i, at 1232; see also STEVEN KELMAN, WHAT PRICE INCENTIVES?: ECONOMISTS AND THE ENVIRONMENT 49 (1981) ("The 'license to pollute' that an economic incentives policy implies may influence citizen preferences in a direction that gives achievement of a clean environment less weight.. ..");
25. Bruno S. Frey, Motivation as a Limit to Pricing, 14 J. ECON. PSYCHOL. 635, 652 (1993) ("Decision-makers fear that the use of pricing instruments would lead to a counterproductive effect: the quality of the environment is improved in those areas where tradeable licenses... are applied, but environmental quality is lowered in all other areas because the guiding environmental ethic has weakened or has been completely destroyed.
26. This reduced ethic moreover hampers individuals' willingness to accept any kind of action to fight pollution, i.e. political support for environmental policies would also be decreased."); Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV 2021, 2045-46 (1996) ("Critics claim that emissions trading has damaging effects on social norms by making environmental amenities seem like any other commodity .. ..").
27. For a review of the critical responses to these lines of argument, see Nash, supra note 10, at 325-34; and Strahilevitz, supra note 1, at 1284-88.
28. It is important to note that, unlike the purchase of regulatory offsets, the purchase of voluntary offsets does not involve the purchase of a right to pollute. If the offset is structured as a contract, it does create a right. But unlike in the regulatory context, it is merely a private right against the seller of the offset; the right against the public - the right to emit the carbon - preexists the creation of the contract or commodity.
29. Cf. H.L.A. HART, THE CONCEPT OF LAW 126 (2d ed. 1994) ("General terms would be useless to us as a medium of communication unless there were such familiar, generally unchallenged cases.")
30. On the historical place of virtue ethics in some key environmentalist writings, see generally Philip Cafaro, Thoreau, Leopold, and Carson: Toward an Environmental Virtue Ethics, in ENVIRONMENTAL VIRTUE ETHICS 31 (Ronald Sandler & Philip Cafaro eds., 2005).
31. See, e.g., JOHN MUIR, OUR NATIONAL PARKS 57-58 (1901) ("[T] he question comes up, 'What are rattlesnakes good for?' As if nothing that does not obviously make for the benefit of man had any right to exist; as if our ways were God's ways. .. . [T]he are all, head and tail, good for themselves, and we need not begrudge them their share of life.");
32. Holly Doremus, The Rhetoric and Reality of Nature Protection: Toward a New Discourse, 57 WASH. & LEE L. REV 11, 32-41 (2000) (providing examples of this theme in American environmental writings and legislation).
33. See, e.g., GEORGE PERKINS MARSH, MAN AND NATURE 42-43 (David Lowenthal ed., Univ. of Wash. Press 2003) (1864) (arguing that destruction of the forests threatened the future availability of natural resources essential to human prosperity); Doremus, supra note 17, at 16-23 (providing examples of this theme in American environmental writings and legislation).
34. For modern theories of environmental virtue ethics, see generally ENVIRONMENTAL VIRTUE ETHICS, supra note 16;
35. RONALD L. SANDLER, CHARACTER AND ENVIRONMENT A VIRTUE-ORIENTED APPROACH TO ENVIRONMENTAL ETHICS (2007);
36. and LOUKE VAN WENSVEEN, DIRTY VIRTUES: THE EMERGENCE OF ECOLOGICAL VIRTUE ETHICS (2000).
37. ROSALIND HURSTHOUSE, ON VIRTUE ETHICS 31 (1999) (internal quotation mark omitted). While this "agent-centered" approach is dominant in the literature, there is an alternative "agent-based" approach, according to which an act is right if and only if it exhibits good motivation.
38. See generally, e.g., MICHAEL SLOTE, FROM MORALITY TO VIRTUE (1992) (developing an agent-based approach).
39. Yochai Benkler & Helen Nissenbaum, Commons-based Peer Production and Virtue, 14 J. POL. PHIL. 394, 404 (2006).
40. See Martha C. Nussbaum, Non-Relative Virtues: An Aristotelian Approach, in 13 MIDWEST STUDIES IN PHILOSOPHY: ETHICAL THEORY: CHARACTER AND VIRTUE 32, 44 (Peter A. French et al. eds., 1988);
41. Eduardo M. Peñalver, Land Virtues, 94 CORNELL L. REV 821, 865 (2009) ("The moral (or, perhaps more frequently, immoral) quality of certain sorts of conduct are often sufficiently categorical that their status can be captured by 'rules of thumb' of varying degrees of breadth.")
42. See Peñalver, supra note 22, at 865 ("An action is virtuous because it is the sort of action a virtuous person undertakes; rules merely describe or generalize about what those actions would be under a range of uncontroversial circumstances.").
43. See ROBERT MERRIHEW ADAMS, A THEORY OF VIRTUE: EXCELLENCE IN BEING FOR THE GOOD 9 (2006) (arguing that virtue is not only a manifestation of action, but a manifestation of appropriate emotions as well).
44. For example, "[ojne who saves a child from drowning solely to enjoy the acclaim and publicity his act would most likely bring, has done the right thing but not in the right spirit, has done a good thing but not done it well, with a good motive." N.J.H. DENT, THE MORAL PSYCHOLOGY OF THE VIRTUES 7 (1984).
45. For example, one "who engages in acts of charity with a sense of condescension or disgust toward the people he helps" has not acted with the right mode of relation. Peñalver, supra note 22, at 865. See also HURSTHOUSE, supra note 20, at 118-19, 123-26 (noting that the agent must have the "appropriate feeling(s) or attitude(s) when she acts," id. at 125).
46. See HURSTHOUSE, supra note 20, at 11 ("If you have the virtues of, say, generosity, honesty, and justice, generous, honest, and just is the sort of person you are."); Peñalver, supra note 22, at 865 ("An action is 'brave' and therefore virtuous, not (ultimately) because it is consistent with a moral rule mandating a particular sort of action under a particular set of circumstances. The action is 'brave' because it is the sort of action that a brave person would undertake when confronted by that situation.").
47. Cf MÁRCIA W. BARON, KANTIAN ETHICS ALMOST WITHOUT APOLOGY (1995) (developing a neo-Kantian, duty-based approach to ethics that treats virtue and character as important);
48. BARBARA HERMAN, THE PRACTICE OF MORAL JUDGMENT (1993) (same).
49. Cf. JULIA DRIVER, UNEASY VIRTUE (2001) (developing a version of consequentialism that draws on the insights of virtue ethics);
50. BRAD HOOKER, IDEAL CODE, REAL WORLD: A RULECONSEQUENTiALisT THEORY OF MORALITY (2000) (same).
51. Cf. Laurence H. Tribe, Ways Not To Think About Plastic Trees: New Foundations for Environmental Law, 83 YALE L.J. 1315 (1974) (discussing the emergence of artificial environments and concluding that the logic that prompts the creation of plastic trees to satisfy our desires "leads finally not to human satisfaction but to the loss of humanity," id. at 1348).
52. See, e.g., ARISTOTLE, NlCOMACHEAN ETHICS bk. Ill, ch. 12, 1. 1119b, at 59 (Lesley Brown ed., David Ross trans., Oxford Univ. Press 2009) ("[TJhe temperate man craves for the things he ought, as he ought, and when he ought; and this is what reason directs.").
53. See, e.g., PLATO, Phaedrus, in SYMPOSIUM AND PHAEDRUS 45, 54 (Candace Ward ed., Benjamin Jowett trans., Dover Publ'ns 1993) ("The desire of eating, which gets the better of the higher reason and the other desires, is called gluttony, and he who is possessed by this is called a glutton . . ..").
54. Cf. WENDELL BERRY, A CONTINUOUS HARMONY m, 181 (1972) (discussing the "way out of the wastefulness of consumerism," id. at in, and, in the context of environmental conservation, referring to the logic of the "glutton" and "man eating himself to death," id. at 181).
55. Benkler & Nissenbaum, supra note 21, at 403-04.
56. See generally, e.g., Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV 943 (1995);
57. Lawrence Lessig, Social Meaning and Social Norms, 144 U. PA. L. REV 2181 (1996);
58. Richard H. McAdams, Comment, Accounting for Norms, 1997 WIS. L. REV 625;
59. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MlCH. L. REV 338 (1997).
60. The scholarship on the expressive functions of law is particularly relevant here. See generally Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV 1503 (2000);
61. Sunstein, supra note 12.
62. For a criticism of this approach to law, see Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV 1363 (2000).
63. See, e.g., Benkler & Nissenbaum, supra note 21 (arguing that participation in commonsbased peer production can foster important moral and political virtues); Peñalver, supra note 22 (developing a virtue-oriented approach to land use). Also relevant here is the scholarship in the social sciences showing that "[vjalues may be 'built into' technical design characteristics of technologies, which, in interaction with the social, political, economic and cultural characteristics of the contexts in which they are embedded, produce outcomes skewed in one way or another." Benkler & Nissenbaum, supra note 21, at 416.
64. See, e.g., Lessig, The Regulation of Social Meaning, supra note 35, at 952 (noting that the meaning conveyed by buckling a seatbelt in a Budapest taxi, where no seatbelt is required by law, may signal mistrust of the driver, but that a similar action in a city with a seatbelt requirement may convey no meaning or, at most, signal that the occupant is law-abiding).
65. For example, even if there were strong agreement that "environmentally conscious activity deserves esteem," or that "one should not pollute unnecessarily," the underlying categories of action might be reconstituted by applications of the norm to new situations. In a world with carbon offsets, there may be new questions about what counts as "polluting." If someone emits carbon, but buys an offset, he has not caused an aggregate increase in carbon, so one might question whether he has "caused pollution."
66. In general, the idea of framing effects is that "the precise way in which a problem or choice is presented - i.e., its frame - may affect the decisionmaker's perception of the problem or choice, and ultimately the decisionmaker's preference." Nash, supra note 10, at 316. For more detailed discussions of this concept, see id. at 316-20 (presenting an overview of behavioral law and economics and its insights into framing effects); and Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, 211 SCI. 453 (1981) (explaining framing effects and their significance to rational-choice theory).
67. See Bruno S. Frey & Reto Jegen, Motivation Crowding Theory, 15 J. ECON. SURVEYS 589, 603-04 (2001).
68. See Uri Gneezy & Aldo Rustichini, A Fine Is a Price, 29 J. LEGAL STUD. 1 (2000).
69. See Frey & Jegen, supra note 41 (surveying the literature on the crowding out effect). For an overview of the literature and some points of disagreement within it, see Yochai Benkler, Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production, 114 YALE LJ. 273, 321-28 (2004).
70. One of the most developed accounts is Professor Bruno Frey's psychological model of crowding out, which Benkler summarizes clearly: A simple statement of this model is that individuals have intrinsic and extrinsic motivations. . .. Extrinsic motivations are said to "crowd out" intrinsic motivations because they (a) impair self-determination - that is, a person feels pressured by an external force, and therefore feels overjustified in maintaining her intrinsic motivation rather than complying with the will of the source of the extrinsic reward; or (b) impair selfesteem - they cause an individual to feel that his internal motivation is rejected, not valued, leading him to reduce his self-esteem and thus to reduce effort.
71. Benkler, supra note 43, at 323-24.
72. Id. at 325 ("Frey's psychologically based extrinsic-/intrinsic- motivation distinction is helpful, and the empirical evidence is powerful. The psychological construct does not, however, seem fully to account for motivation in social sharing frameworks.").
73. Even Frey, the main proponent of the psychological explanation, is sympathetic to the idea that framing plays a central role. See, e.g., Frey & Jegen, supra note 41, at 592 (suggesting that crowding out may be the result of changes in "the perceived nature of the performed task" or "the task-environment" (emphasis omitted)); see also Bruno S. Frey & Alois Stutzer, Environmental Morale and Motivation 14-16 (Univ. of Zurich, Inst, for Empirical Research in Econ., Working Paper No. 288, 2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=900370 (arguing that tradeable emissions rights and emissions taxes could create different crowding-out effects because of differences in their "expressive connotation," id. at 15).
74. Cf. DANIEL BELL, THE CULTURAL CONTRADICTIONS OF CAPITALISM (20th anniversary ed. 1996) (arguing that capitalism and the culture it creates harbors the origins of its own collapse by creating a need among successful people for personal gratification - a need that corrodes the work ethic that originally led to their success).
75. Consumption in this context can be conceptualized in two ways that are directly related: the consumption of the resource that produces the emissions, and the consumption of the ability of the atmosphere to process the emissions.
76. This development parallels one in tort law, where the standard of negligence has shifted from being an evaluation of whether the act that caused the harm was ethically objectionable to being an evaluation of whether the act was economically efficient. See Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 TEX. L. REV 1801, 1802-11 (1997) (providing a brief overview of the corrective justice and economic efficiency views of tort law).
77. For a more detailed exposition and analysis of the development of the dominant theories of tort law in the twentieth century, see generally John CP. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513 (2003).
78. ENVTL. PROT. AGENCY, OFFICE OF TRANSP. & AIR QUALITY, EMISSION FACTS: GREENHOUSE GAS EMISSIONS FROM A TYPICAL PASSENGER VEHICLE 6 (2005), available at http://www.epa.gov/OMS/climate/420fo5004.htm.
79. The average price of carbon in the over-the-counter market in 2008 was $7.34 per metric ton. HAMILTON ET AL., FORTIFYING THE FOUNDATION, supra note 2, at 7.
80. For example, the individual might decide that the cost of driving the SUV over the sedan is not as high as he had thought - that the enjoyment of driving the SUV is worth an extra nine dollars per year - and choose to buy the SUV and pay for this offset, thereby remaining "carbon neutral" (that is, with respect to the baseline of buying the sedan). Or he might conclude that the impact on the environment is not as high as he had imagined, and thus decide to buy the SUV without the offsets, without feeling any guilt.
81. On this account, the consumers without a market are failing to act in accordance with their own environmental preferences or values by over- and under-correcting for their personal emissions.
82. Vandenbergh & Steinemann, supra note 3, at 1725.
83. Samuel Bowles, Endogenous Preferences: The Cultural Consequences of Markets and Other Economic Institutions, 36 J. ECON. LITERATURE 75, 75 (1998); see also id. at 77 ("[EJconomic institutions are situations in the social psychological sense and thus have framing and other situation construal effects; people make different choices depending on whether the identical feasible set they face is generated by a market-like process or not. . ..").
84. See Mark Sagoff, Economic Theory and Environmental Law, 79 MICH. L. REV 1393, 1402-03 (1981);
85. see also Mark Sagoff, At the Shrine of Our Lady of Fátima or Why Political Questions Are Not All Economic, 23 ARIZ. L. REV 1283, 1286 (1981) ("I speed on the highway; yet I want the police to enforce laws against speeding. ... I love my car; I hate the bus. Yet I vote for candidates who promise to tax gasoline to pay for public transportation. ... I support almost any political cause that I think will defeat my consumer interests. This is because I have contempt for - although I act upon - those interests. I have an 'Ecology Now' sticker on a car that leaks oil everywhere it's parked.").
86. See Gneezy & Rustichini, supra note 42.
87. Id. at 13-14. For other possible explanations, see id. at 10-13. Notably, the subsequent removal of the fine did not bring back the norm. Id. at 15. The authors suggest that this might be explained by another social convention: "Once a commodity, always a commodity." Id. at 16.
88. On this view, it would seem that a market may not be democracy-enhancing, as many advocates of regulatory markets suggest. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COLUM. J. ENVTL. L. 171, 178-88 (1988) (arguing that, in the regulatory context, the shift from command and control to cap-and-trade will catalyze meaningful discussion by the public about the environment in which we want to live).
89. Cf. JOHN H. EVANS, PLAYING GOD?: HUMAN GENETIC ENGINEERING AND THE RATIONALIZATION OF PUBLIC BIOETHICAL DEBATE (2002) (arguing that bioethics has become thin in recent decades, focused no longer on an inquiry into what ends are worth achieving, but rather on finding the most efficacious means of achieving assumed ends);
90. Daniel Y. Elstein & Thomas Hurka, From Thick to Thin: Two Moral Reduction Plans, 39 CANADIAN J. PHIL. 515, 515-16 (2009) ("Many philosophers of the last century thought all moral judgments can be expressed using a few basic concepts - what are today called 'thin' moral concepts such as 'good,' 'bad,' 'right,' and 'wrong.' ... In recent decades a contrary view has emerged .... According to its proponents, terms like 'courageous' and 'kindly' have both morally evaluative and descriptive meaning, but the two interpenetrate each other in a way that makes the separation a reductive analysis requires impossible. Thick concepts are therefore not derivative from thin ones.... On the contrary, on some versions of this anti-reductive view it is the thick concepts that are primary, with the thin ones mere abstractions from them."). Advocates of carbon offsets seem to accept the idea that the norm of carbon neutrality is fairly thin, in that it requires only a minimal conception of the nature of the good life.
91. See, e.g., Vandenbergh & Steinemann, supra note 3, at 1721 ("Compliance with the carbon-neutrality norm does not require that individuals adopt other environmental beliefs, norms, or lifestyles that are inconsistent with their own.").
92. Undervaluation is not inherent to the market framework, as the market may just as likely place a dollar value on an activity that is higher than expected or that "overvalues" the environment.
93. See generally GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES 158-65 (1978) (discussing the history of American approaches to military service);
94. JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM 600-11 (1988) (providing an overview of the Civil War system of conscription).
95. The view that embodied action and payment are not morally equivalent presumably prevails in other contexts as well. Take, for example, a debate about vegetarianism. The market logic would suggest that someone who feels compelled by vegetarian arguments could, rather than changing his own eating habits, pay someone else to change instead - that morally speaking, there would be no difference. It seems likely, however, that many people would disagree on the grounds that paying another and changing one's personal consumption are not equivalent.
96. Some people would likely argue that military service is a type of action that can belong in a special category of civic duties that require all individuals to "do their part" by sharing equally in the burden of action - and that environmental duties do not or should not have this status. Others would respond that environmental protection, like national security, is about protecting a special form of common good and that similar types of social norms should protect both.
97. Cf. Carol M. Rose, Rethinking Environmental Controls: Management Strategies for Common Resources, 1991 DUKE LJ. 1, 34 ("When we reconceptualize the use of common resources as individual property rights, we attenuate the moral rhetoric of contribution and trying harder for the common good.").
98. This is, of course, not the only way that a voluntary carbon market might function. For example, one can imagine a society in which it is agreed that only certain types of activities (such as those that are seen as reasonable) can be meaningfully offset - a society in which, for example, the owner of a mega-yacht cannot comply with environmental norms merely by buying offsets for it. In the interest of clarifying the core market case, however, this section will explore the environmental significance of a society in which there are no such limitations.
99. Note that categorical prohibitions do have a place in virtue ethics. See sources cited supra note 22.
100. Nash, supra note io, at 360-61 ("Pollution is a necessary byproduct of many beneficial activities and services; racial discrimination and murder simply are not. Thus, while it is appropriate fully to condemn racial discrimination and murder, the same is not true of pollution." (footnotes omitted)); see also, e.g., Huffman, supra note 11, at 432-33 ("Most environmental groups have opposed the tradeable emissions approach, generally on the ground that no one should have a right to pollute. . .. These moral arguments lead inexorably to the implausible case for zero pollution. In a world of organic and inorganic processes, with or without humans, zero pollution is neither possible nor desirable."); Rose, supra note 65, at 7 ("Most people are willing to put up with some level of air pollution, because we think we need to do so for our transportation and electricity, among other things, which in themselves may be more important to our health and well-being than the next increment of clean air."); Richard B. Stewart, Economic Incentives for Environmental Protection: Opportunities and Obstacles, in ENVIRONMENTAL LAW, THE ECONOMY, AND SUSTAINABLE DEVELOPMENT 171, 199 (Richard L. Revesz et al. eds., 2000) ("The discharge within proper limits of residuals from socially productive activities. . . can by no means be equated with sin or murder or racial discrimination. The laws of physics make such residuals an inevitable consequence of human activity. Zero residuals discharge is an unattainable and undesirable objective."). As Professor Nash notes, however, "even if the eradication of pollution is not itself viable, it can be identified - and indeed is identified in various pollution control statutes - as a societal aspiration."
101. Nash, supra note 10, at 340 n.105;
102. see also Clean Water Act § 101(a)(1), 33 U.S.C § 1251(a)(1) (2006) ("[IJt is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985 . . ..").
103. See Nash, supra note 10, at 334-43;
104. see also Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 YALE LJ. 677, 724 (1999) (noting that "it is conduct rules and fixed quantity rules, ironically, that truly license a right to pollute for free").
105. Nash, supra note 10, at 361.
106. Cf. id. ("The appropriateness of a pollution emission can ... be judged in light of the benefit that results from the activity that produces the pollution as a byproduct").
107. In some cases, there will be disagreement. For example, while the law and economics literature often suggests that a tort is a mere price, there have been some objections to this theory on the grounds that the tortfeasor is being permitted to "steal" or condemn the other's entitlement. See generally, e.g., Daniel A. Färber, Reassessing Boomer: Justice, Efficiency, and Nuisance Law, in PROPERTY LAW AND LEGAL EDUCATION 7 (Peter Hay & Michael H. Hoeflich eds., 1988) (arguing that victims of egregious nuisances "should be presumptively entitled to an injunction," id. at 8);
108. see also Saul Levmore, Unifying Remedies: Property Rules, Liability Rules, and Startling Rules, 106 YALE LJ. 2149, 2165 n.48 (1997).
109. Cf. Saul Levmore, Norms as Supplements, 86 VA. L. REV 1989 (2000) (arguing that "norms help us to know whether to regard legal rules and sanctions as mere prices or as something to be followed even where we are willing to pay the stated, legal price associated with a violation," id. at 1990);
110. see also Robert Cooter, Prices and Sanctions, 84 COLUM. L. REV 1523, 1524-31 (1984) (discussing the different functions of prices and sanctions).
111. In the criminal law context, for example, Professor Dan Kahan has argued that we should reject proposals to replace imprisonment with more cheaply administered sanctions, such as fines, because it is easy to see a fine as a mere price, which fails to condemn the activity sufficiently - an important goal according to both deterrent and retributive theories of punishment. See Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV 591 (1996). Thus, he argues, the government should combine fines with prison sentences, which stigmatize the action in a way that causes internalization of the categorical prohibition. Id. at 650-51; see also Lessig, Social Meaning and Social Norms, supra note 35, at 2188 ("By tying the fine to some other unambiguously condemnatory punishment, one reduces on the margin the ambiguity in fining .. . .").
112. This is an argument that has been widely advanced in the regulatory context. See, e.g., Stewart, supra note 68, at 198 ("[CJommand-and-control regulation does not stigmatize or send any negative signal with respect to the residuals that are permitted by command standards. By contrast, [economic incentive systems] impose an economic cost on all residuals, reminding sources that any level of residuals may impose social costs."); Wiener, supra note 69, at 724 ("Taxes and tradeable allowances, by contrast, force the polluter to pay for every unit of emissions. .. ."). Regarding voluntary offsets, it has been argued that individuals who mitigate their contribution to social harms expect reciprocity from others, including the government. See, e.g., Vandenbergh & Steinemann, supra note 3, at 1723.
113. This is not to say that under the market, no unit can have a high value. Rather, the point is that no unit matters very much relative to any other. There is no differentiation of types of emission units, and in this sense, none has particular significance. All units are fungible.
114. Cf. Benkler, supra note 43, at 324 (noting that the crowding out effect seems to arise from a "culturally contingent notion of what one 'ought' to do if one is a well-adjusted human being and member of a decent society").
115. Cf. HART, supra note 15, at 88-91 (distinguishing between the internal and external view of social rules). Professor H.L.A. Hart explains: What the external point of view, which limits itself to the observable regularities of behaviour, cannot reproduce is the way in which the rules function as rules in the lives of those who normally are the majority of society. .. . For them the violation of a rule is not merely a basis for the prediction that a hostile reaction will follow but a reason for hostility.
116. Id. at 90. On community and reason, Professor Stanley Cavell writes: The philosophical appeal to what we say, and the search for our criteria on the basis of which we say what we say, are claims to community. And the claim to community is always a search for the basis upon which it can or has been established. I have nothing more to go on than my conviction, my sense that I make sense. It may prove to be the case that I am wrong, that my conviction isolates me, from all others, from myself. That will not be the same as a discovery that I am dogmatic or egomaniacal. The wish and search for community are the wish and search for reason.
117. STANLEY CAVELL, THE CLAIM OF REASON 20 (1979).