The Struggle for Self in Environmental Law: The Conversation Between Economists and Environmentalists

Abstract

Those who draft, analyze, and evaluate environmental law do so on the basis of foundational assumptions that are as influential as they are hidden from explicit review. No one approaches environmental law without the baggage of a congeries of value preferences, ontological assumptions, and social aspirations.(1) Instead, we think about environmental law from a personal perspective informed by our experiences and dreams,(2) and especially by our descriptive assumptions, the priors that function below the surface to push and pull our arguments in particular directions. Foremost among those guiding assumptions is a sense of self.(3) Do we see others and ourselves through the individualistic lens of personal responsibility,(4) wherein the individual charts and maintains a personal course through life? Or do we see the self as something emerging from a wealth of social interactions, abidingly interdependent, ineluctably bound to others?(5) How is the concept of the self integrated into environmental law? The initial component of the article describes alternative visions of the self to provide a framework for the argument. The second step in the argument is the establishment of the link between the prevailing concept of the self and the extent to which market arguments are given credence in establishing and enforcing environmental law. The subsequent analysis of the frequently unfriendly discourse between economists and environmentalists(6) is designed to illustrate the impact of specific ontological assumptions about who we are on our assessment of environmental law. The concluding section urges those who wish to effect change in environmental law to do so with a more robust understanding of the self than is typically deployed in debates about particular environmental statutes. I. THE SELF AND ENVIRONMENTAL LAW When we speak about who we are or believe ourselves to be, we adumbrate both the limits and possibilities for our development. Specifically, who we think we are shapes our attitude toward the environment and the alternative social mechanisms for interacting with it.(7) For instance, when we tell ourselves that life is a jungle, we compel ourselves to rely on our own strengths to counter a hostile environment.(8) Especially important for American conceptions of the self is the Robinson Crusoe story,(9) a tale of self-reliant mastery of the environment. Self-reliance is the necessary change agent for those who see the self as independent.(10) In turn, the social perspective that respects and applauds that self-reliance is known as individualism.(11) This perspective is one that encourages personal domination of a hostile life space;(12) individualism in the United States(13) directs both the promise and constraints of our legal development.(14) The atomistic,(15) or isolated self, views social and community interests, such as environmental protection, as extrinsic to its nature and identity as a moral agent.(16) Michael Sandel calls this radically independent self irreducibly decontextualized.(17) His point is that the independent self is situation dependent; choice arises from inside the character and cognitive structures of the individual person. The environment from this perspective is an omnipresent instrument available for use to activate personal ends. II. THE SELF, INDIVIDUALISM, AND MARKET ARGUMENTS Individualism in any of its guises is characterized by the elevation of the individual's interests over the interests of the collective. Individualistic thinkers downplay their ties to others, the very links that are emphasized by those seeking more aggressive environmental regulation. A community from this perspective is just an aggregation of egos.(18) From inside the individualism perspective referring to a community as an organic endeavor is a major mistake that threatens to weaken the potential muscle of personal agency. …