Norms, Institutions, and the Environment
I. Introduction
In one sense, environmental law is a relatively new field. Its modern roots in North America lie in the late 1960s and early 1970s, when governments in Canada and the United States enacted stronger environmental legislation and created departments or agencies to deal exclusively with environmental issues. However, both common law rules and legislative action focusing on environmental harm have roots stretching back into the 1800s and beyond (Coyle & Morrow, Philosophical Foundations). It is surprising, then, how little environmental law has progressed in many ways and how much remains to be done.
Environmental law has had success in the past decades in addressing some concerns. Many 'acute environmental stresses,' such as some gross, salient forms of air and water pollution, have been reduced over time.1 Pressing issues remain, however, and new ones seem to arise or be discovered on a regular basis as scientific knowledge progresses. Countries vary in their success at dealing with such issues. For example, Canada as a whole has fared poorly in recent comparisons with other oecd countries in terms of addressing many types of pollution and over-consumption of energy and resources.2 Yet other countries rank highly on most, if not all, indicators, evidencing relative, though not necessarily absolute, success (Boyd, Unnatural Law). [End Page 105]
Why does environmental law appear to have succeeded in some countries, and on some issues, but to have failed in many others?3 How can we successfully address the myriad environmental concerns that face us now and in the coming years? These questions have spawned a range of answers. At one end of the spectrum sit those who espouse an instrumental, cost–benefit, or welfarist approach to environmental law and policy – basing policy on an assessment of the costs and benefits of particular actions.4 This approach raises a host of concerns around, for example, the valuation, commensurability, and intergenerational discounting of different costs and benefits. However, its proponents argue that it is an important element in decision making, as, in its broadest form, it explicitly accounts for the potential impacts of action and inaction.5 Part of the failure of environmental law on this account is that it has inadequately attended to the relative costs and benefits of various policy choices, and the result has been largely ineffective, inefficient policies.6
On the other end of the spectrum are those who believe that environmental decisions must be based on moral values and cannot be determined through instrumental or consequentialist analysis. On this view, environmental law has failed, and will continue to fail, to address environmental concerns because both individuals and society as a whole fail to recognize, let alone address, the fundamental moral implications of both policy and personal choices affecting the environment. For example, one stream of analysis is based on a 'land ethic impulse,' which is a 'biocentric communitarian ecological ethic that values stability, integrity and beauty of the land community, including humans.'7
Between these ends lies a range of approaches attempting to strike a balance or find a way of reconciling competing views. Cass Sunstein, for [End Page 106] example, advocates a form of cost–benefit analysis tied to deliberative democracy as the basis for balanced, fair, and inclusive decision making.8 Daniel Farber, similarly, argues for cost–benefit analysis, but with an 'environmental base-line' that would favour environmental protection in any decisions.9
Recent books by David Boyd and by Sean Coyle and Karen Morrow enter this debate about how to improve environmental law and policy. Both are toward the 'moral' end of the spectrum, although Boyd incorporates some economic or instrumental analysis. Boyd raises these issues in the Canadian context. Coyle and Morrow, on the other hand, take a historical perspective on philosophical thinking about property and the environment and apply it to the uk context. Both argue that the current economic and social paradigm is unsustainable and that there...
