Finding Eden in a Cost Benefit State

Abstract

This Article explores the role of the law in the evolution of environmental values. The Article compares and contrasts the ‘intrinsic value’ and the ‘welfarist’ approaches, the two leading methodologies for valuing nature in environmental law and policy. Proponents of intrinsic value argue that nature is morally significant and holds intrinsic value as an end in itself. In contrast, welfarists view nature not as intrinsically valuable but simply as a means to a human end. After evaluating the merits and demerits of each approach, the Article concludes that their flaws caution against using either as the sole rationale underlying environmental policies. Instead, I advocate for value pluralism in environmental law and policy. I develop a pragmatic theory of environmental ethics that identifies human experience as the source of environmental values. Based on this theory, the Article argues that legal frameworks play an important role in the evolution of environmental values. Through the structure of human relationships, social institutions, and physical environments, the law influences the experiences which make up an individual’s worldview and ethical thinking. Therefore, to “get our morals right,” we must embrace environmental pluralism and experimentation. Using legal theory and qualitative analysis, the Article identifies communal management of resources as the only viable governance approach for promoting meaningful environmental pluralism and experimentation. Based on this understanding, the Article advocates for communitarian reform in American law and policy.