In Defense of Absolutes: Combating the Politics of Power in Environmental Law

Abstract

The tragedy of the commons has become the central and defining parable of environmental law. Once the environmental problem is defined in the terms of welfare economics, it is only natural to view the solution also in those terms - i.e., as cost-benefit analysis. But market failure is only part of the problem. Environmental degradation also results from a kind of political failure. The endemic power imbalance between the diffuse, non-economic individual interests favoring environmental protection and the concentrated, economic, corporate interests opposing it distorts agency decision making. Accordingly, what is needed is a standard for agency decision making that accounts for and counteracts this power disparity. Cost-benefit analysis fails to do this, as it explicitly avoids distributional issues and actually exacerbates the problem of power imbalance because it is indeterminate and therefore endlessly manipulable. I suggest we look for guidance to theories of constitutional rights, which are fundamentally grounded in concerns about power imbalance and its distorting effects on government decision making. Theories of rights routinely reject the utilitarian notion that decisions should be made by balancing costs and benefits to society as a whole, instead replacing the utilitarian balance with blunt prophylactic rules that counteract power imbalance by placing a thumb on the scale in favor of the weaker party. By analogy, in crafting statutory standards for agency decision making in environmental law, we should also reject cost-benefit analysis in favor of a trumping approach. The Endangered Species Act provides an example in which Congress has taken just such an approach. Its absolute standards operate as trumps: not by actually delivering absolute results, but by putting a thumb on the scale - giving the diffuse and powerless interests that favor species protection a credible threat of injunction and thus power in the political negotiating process through which such issues are ultimately resolved.