Environmental entitlements are meant to be law-created, not preference-derived

Evidence

In a constitutional scheme of government, however, the cart lies at the other end of the horse: Civil liberties are protected by law, and their value, assuming one insists on quantifi cation, is implied by the level of burden that individuals are made to accept in order to maintain them. At least on their face, environmental, health, and safety laws also frequently display this structure: Employees are entitled to a safe workplace, endangered species to necessary habitat, citizens to clean air and water, and so on. These entitlements are meant to be inviolable; that is, they are meant to be protected by law, so that their value is a creation of law, rather than a determinant. Just as a constitutional scheme of rights is intended to protect certain interests of individuals from incursion by majoritarian politics, democratically enacted environmental laws seek to protect certain interests from shortsighted destruction by land development, pollution, and other potentially harmful activities. In both cases, we seek to enshrine the collective values and aims of our better selves, knowing that our lesser selves periodically will be tempted to waver, shirk, or cheat— that we might, for instance, fi nd ourselves willing to accept the racial stigmatization of others just to save time in a security line. — Douglas A. Kysar, Regulating from Nowhere, 309

Categorization

• XREF: The outcomedetermining-vs-outcomedetermined distinction is the heart of the reader’s polyad bridge: law as values-constitutive not values-reflecting. Directly fodder for the Legal Systems course. — connects to: Existence cannot be exchanged, so welfare economics cannot price irredeemable loss — Douglas A. Kysar, Regulating from Nowhere: Environmental…, 515; Both sides treat environmental regulation as an absolute-rights matter, precluding economic compromise — Richard J. Lazarus, The Making of Environmental Law, 150; Voluntary environmental planning fails because buyers won’t pay for public goods — Adam Rome, The Bulldozer in the Countryside:…, 1066
• DEFINE: Clarifies the key distinction between law as creating entitlements’ value versus law as reflecting preexisting preferences.