DOUGLAS A. KYSAR
Cornell University - School of Law
Duke University - School of Law
Minnesota Law Review, Vol. 87
Recent writings by Dan Farber and J.B. Ruhl have put forward a strong case for "eco-pragmatic" and "radical middle" approaches to environmental policymaking. Rather than debate the merits of such an approach, in this Article we examine whether eco-pragmatic policy development is likely in practice and where it might occur, given the tribal nature of public environmental advocacy. We use the remarkably polarized reaction to Bjorn Lomborg's book, "The Skeptical Environmentalist," as a vehicle to explore the seemingly fundamental divide that exists between warring parties within the environmental law and policy communities. By offering a more complete understanding of why parties involved in environmental policymaking exhibit such stark bipolarism, we seek to help proponents of pragmatic, inclusive approaches to environmental law and policy overcome the field's tribal dynamics.
While many commentators point to the apparently incompatible worldviews of "bean counters" and "tree huggers" as the primary explanation for the lack of a strong middle ground in environmental advocacy, the differences may prove less profound than commonly assumed. After all, like the public at large, bean counters and tree huggers seem to recognize the legitimacy of competing economic and environmental considerations. Thus, rather than simply speaking past one another, disagreement for many advocates seems to be more practical. This usually plays out in contrasting beliefs over the proper manner in which to weigh and compare economic and environmental values, not a dispute concerning the values' existence or their political validity. If this account is accurate, and the divide is less theological than commonly assumed, then space may well exist for some common, pragmatic agreement.
In practice, though, these divisions are widened by a number of social dynamics that frustrate effective public deliberation in the environmental policymaking arena. In particular, we examine the influences of (1) group polarization within environmental policymaking communities, (2) entrepreneurial efforts by interest groups to exploit cognitive heuristics and biases among the public, (3) disputes over proper sources of authority for scientific information, and, finally, (4) the possibility of empirical debates subsuming, and consequently obscuring, more fundamental disputes over cultural or social values. These four barriers act together as an effective "policy cutting gate," shunting advocates into one pen or the other and leaving little space in between for effective advocacy of pragmatic, middle approaches to policy problems.
As a result, we conclude that eco-pragmatists should concentrate their efforts not at the high-profile level of policy formation but, rather, at the level of policy implementation, where relevant actors are less severely influenced by the social dynamics of the cutting gate. Put differently, the target audience for appeals to eco-pragmatic decisionmaking may well be neither Earth First!, nor the Competitive Enterprise Institute, nor even the general public. Rather, the most fertile terrain for balanced, pragmatic governance likely lies below the advocacy radar screen at the level of administrative implementation of environmental policy.
Wednesday, April 2, 2008
Below is an abstract of a fascinating paper published in the Minnesota Law Review looking at some of the issues of eco-pragmatism and at the tribal nature of environmental advocacy. I recommend it to you.