As mentioned in my last post, I attended a panel at the AALS this morning celebrating the 40th anniversary of the creation of the Environmental Law Section. Today's panel was retrospective; tomorrow will be a prospective panel.
Today's panel reminded me why I've mostly stopped going to environmental law conferences (and founded, with a few like-minded scholars, the Society for Environmental Law and Economics). The first speaker on this morning's panel was one of the "founding fathers" of environmental law. His talk focused on several themes, one of which was "economics is not a science," although he didn't explain why it was an important theme of the first 40+ years of federal environmental law. In any case, my response would be, so what?
For one thing, even if it's true that economics is not a science (which I doubt), it would have to be equally true of all the other social sciences. Second, what difference could such an assertion make to anything that happens in the real world of environmental policy? If environmental law scholars suppose that we can get rid of economic analysis from environmental policy simply by claiming that economics is not a science, they are delusional. More to the point, it is a misguided goal. The results of completely removing economic analysis from environmental policy would be disastrous. One normative implication would be that society should spend the entire national income to prevent the very first unit of environmental degradation, which is a ridiculous goal supported by no one - not even misguided law professors who profess an irrational hatred of economics.
It's long past time that my fellow environmental law scholars realized that: (1) economic theory is not our enemy - it is not at odds with sensible environmental protection measures (including higher levels of protection than current policies provide); to the contrary, (2) the basic theory of welfare-economics strongly supports internalization of inefficient negative externalities, including units of pollution that generate net social costs; and (3) whatever their utopian environmental designs, arguments about environmental policy that ignore economics are never likely to make headway in the real world.
If environmental lawyers and other advocates seriously want to improve environmental policy, they need to engage in, not denigrate, economic arguments.