Back to Basics

Lynn Scarlett from the January 1997 issue

(Page 2 of 2)

Greve may be right that the common law's answer to complexity is counterintuitive. But other factors helped bring us to the current regulatory state of affairs. Greve fails to note that many modern environmentalists adhere to Progressive Era elitism and liberal egalitarianism. The elitism is expressed by a willingness to impose one set of values, articulated by an elect few, on everyone else without regard to any competing values that individual citizens might hold. The egalitarianism can be seen in a distrust of wealth creation and a suspicion of consumption beyond "basic needs." Linked with the focus on interconnectedness and complexity, these attitudes produce the legal and political outcomes that Greve describes.

Recognizing these additional components of environmental ideology is important because they help explain why, notwithstanding the trends in the courts cited by Greve, discussions of environmental reform among legislators do not look very much like a reorientation toward classical liberal precepts. On the one hand, takings compensation clearly is rooted in American common law traditions. On the other hand, the focus on cost-benefit analysis and risk assessment, while no doubt preferable to undisciplined goal setting, retains a strong philosopher-king flavor. This approach to reform sees regulatory pathologies as mainly a "people problem" for which the remedy lies in recruiting the right experts. Classical liberal thought, by contrast, emphasizes decision making structures and how well (or poorly) they align personal self-interest with moral action and public well-being. This approach may have begun to surface in some Supreme Court decisions, but it has received much less attention in environmental reform debates generally. And egalitarian precepts appear to be alive and well, especially in discussions about environmental justice and sustainable development.

These remarks, though, should not detract from the excellent exploration of environmental philosophy and its impact on American law that Greve provides. His thesis would be just a bit more compelling if he had not tried to tie so much importance to the single idea of "the interconnectedness of all things."