1970s environmental law aimed to reorder markets, not optimize within them

Evidence

This chapter then draws from Bruce Ackerman’s expanded understanding of constitutional development to argue that much of the vision necessary to achieve an environmental constitutionalism was in fact already written into the framework of modern environmental law, before that vision was untimely forgotten. Features of 1970sera environmental law that are maligned from the perspective of welfare economics can in fact be understood as efforts to alter the underlying market substrate against which welfare economics seeks to optimize. Today those efforts appear to be “ineffi cient” or otherwise misguided largely because their aim has been misapprehended: When we evaluate efforts to achieve a constitutional reordering through a lens that presumes constitutional inalterability, we confuse fi rstand secondorder subjects. Remembering traditional environmental law as a fi rstorder subject— as a constitutional aspirant— sweeps away the basis for much of the confusion and divisiveness that today plagues the fi eld. — Douglas A. Kysar, Regulating from Nowhere, 598

Categorization

• QUESTION: Kysar’s first-order/second-order distinction between constitutional aspiration and inalterable settlement deserves chasing — is this a recapitulation of his earlier impossibility argument about environmental law, applied to constitutional theory?
• recurring: this claim recurs 2 times within its source
• XREF: connects to: EPA and courts narrowed environmental statutes because late-1970s crises eroded popular commitment — Douglas A. Kysar, Regulating from Nowhere: Environmental…, 642; Bipartisan competition and industry preference for uniformity drove 1970s federal environmental law. — Richard J. Lazarus, The Making of Environmental Law, 261; Environmental statutes regulate commerce without pursuing commercial aims. — Richard J. Lazarus, The Making of Environmental Law, 900 (+1 more)

Broader Connections

• EPA and courts narrowed environmental statutes because late-1970s crises eroded popular commitment #complicates (0.78) — Douglas A. Kysar, Regulating from Nowhere, 642
• Bipartisan competition and industry preference for uniformity drove 1970s federal environmental law. #complicates (0.75) — Richard J. Lazarus, The Making of Environmental Law, 261