Environmental law’s impossibility is the precondition of its possibility

Evidence

Because the problem of tradeoffs is posed in a language that constrains and prefi gures our potential responses to it, the problem is never broached with the sense of solemnity, humility, and possibility that it deserves. As will be argued, it is precisely the need to decide under conditions of undecidability that gives environmental law much of its normative traction. Acknowledging that environmental law is, in that sense, impossible— that its goals will never be achieved and that our values will never be optimally balanced— is the very precondition for making environmental law possible. Accordingly, to improve our chance of agreeing on foundational norms of environmental protection, we must put the economic approach to environmental protection back in its place. We must never let its lesson obscure more ancient wisdoms, such as those embodied in the precautionary principle, which have been wrongly understood as competitors to costbenefi t analysis, rather than as simpler and more essential reminders of collective responsibility. — Douglas A. Kysar, Regulating from Nowhere, 596

Categorization

• DEEPTHINKING: The undecidability-as-normative-traction inversion is a rare, load-bearing theoretical move — that acknowledging goals can never be achieved is not resignation but the ground of action — worth sitting with.
• XREF: Connects to the polyad’s listening/observation-as-method and Eco-Justice threads: deciding under undecidability parallels methodological humility emphasized across all four Hamline courses. — connects to: Environmental changes cannot cause us to abandon projects; we freely constitute the impossibility. — Jean-Paul Sartre, Being and Nothingness: An Essay on…, 1198; Ecological injury’s spatial and temporal scales are ill-suited to how law is made. — Richard J. Lazarus, The Making of Environmental Law, 43; Nature’s lack of a fixed baseline complicates legal sorting of human from natural change. — Richard J. Lazarus, The Making of Environmental Law, 62

Broader Connections

• Environmental changes cannot cause us to abandon projects; we freely constitute the impossibility. #qualifies (0.85) — Jean-Paul Sartre, Being and Nothingness, 1198