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Regulating from Nowhere: Environmental Law and the Search for Objectivity

Douglas A. Kysar
Regulating from Nowhere: Environmental Law and the Search for Objectivity
Yale University Press, 2010

In Regulating from Nowhere, Joseph M. Field ’55 Professor of Law Douglas Kysar offers a novel theoretical defense of traditional approaches to environmental law and policy. He first criticizes the notion that government responsibility to safeguard life can be adequately addressed from an assumed viewpoint of objectivity, as environmental law reformers have contended. The danger, he argues, is that the attempt to specify environmental policies through empirical assessment and formalized choice models—an attempt found most influentially in economic cost-benefit analysis—obscures the relation of agency and responsibility that the political community bears to its decisions.

In contrast, the traditional environmental principle of precaution encourages moral self-awareness by reminding a political community, as it stands poised on the verge of a choice with potentially serious or irreversible environmental consequences, that its actions matter, that they belong uniquely to the community and will help to underwrite its standing in the community of communities that includes other nations, other generations, and other forms of life. As Kysar writes in the book’s preface, “…environmental law must form part of the social glue that binds a political community together in pursuit of long-term and uncertain goals.
To serve that function, in turn, laws must have continuity with the concepts, values, and discourses expressed by real people. By literally denying the sacredness of life—and indeed the distinctiveness of anything—dominant ways of [reforming] environmental law fail these tests.”

Read a review of Regulating from Nowhere.

Regulating From Nowhere