Douglas A. Kysar — Regulating from Nowhere: Environmental Law and the Search for Objectivity

85 published claims from this book.

• 1970s environmental law aimed to reorder markets, not optimize within them
• A best-technology statute was rewritten into a cost-benefit ratio standard.
• A Montana court awarded cleanup costs beyond property value to restore pollution
• A sub-rosa cost-benefit analysis decided only nuclear plants warranted maximum storm protection
• Action cannot be driven solely by consequences because consequence knowledge depends on action itself.
• Agencies should first ask whether cost-benefit analysis fits the statute at all
• An EPA rule flagged tribal benefit rather than tribal harm as its injustice concern
• Autonomy’s deontological shell is already compromised by parental, cultural, and environmental influence
• Being an ethical agent requires supplying non-externally-dictated reasons for acting.
• Choosing a valuation metric smuggles in a contested baseline entitlement
• Citizens often lack formed preferences absent forums for collective deliberation
• Collective acts gain legitimacy only by persuasive presentation to citizens as democratic choices.
• Collective values arise through institutions, not from atomized preference sums
• Complex adaptive systems make the pretense of locating an optimal regulatory outcome deeply unwise.
• Congress’s 1972 reasons for rejecting benefit-cost correlation remain insurmountable.
• Cost-benefit analysis causes the very distortions it claims to prevent
• Cost-benefit analysis erases the moral remainders that technology standards preserve
• Cost-benefit analysis narrows the questions environmental law can ask
• Cost-benefit analysis normalizes the status quo and caps law at incremental tinkering
• Cost-benefit analysis treats dynamic policy processes as static snapshots
• Cost-benefit analysis’s appearance of rationality masks its insensitivity to systemic, long-term context
• Cost-benefit logic could portray human extinction as welfare maximizing
• Cost-benefit proponents are covert collectivists despite claiming state neutrality.
• Cost-benefit’s guarantee of better outcomes rests on an assumed costless information premise.
• Democratic government exists partly to override citizens’ own consumer impatience
• Disaggregated life valuations would embed racial discrimination while denying it
• Discipline founders once called discounting ethically indefensible and a polite expression for rapacity.
• Discounting sacrifices some future people for the benefit of others
• Discounting treats unborn generations’ lives as already in decline before they begin
• Each generation’s savings for the future remain vulnerable to later raid
• Enlightenment thinking sought the indubitable and lost sight of the undeniable
• Environmental crisis roots are epistemological, ethical, and political, a crisis of ideas
• Environmental entitlements are meant to be law-created, not preference-derived
• Environmental law’s impossibility is the precondition of its possibility
• EPA and courts narrowed environmental statutes because late-1970s crises eroded popular commitment
• Equity worries cannot be delegated to tax-and-transfer because no global redistribution institutions exist
• Ethical obligation arises from the other’s unknowability, not its measured capacities
• Ethics precedes ontology, making our subjectivity hostage to the other from the start
• Even ideal Pareto optimality smuggles in contested normative baselines rather than objectivity.
• Even opposing government-responsibility stances presuppose the state is a distinct moral agent
• Existence cannot be exchanged, so welfare economics cannot price irredeemable loss
• Existing environmental statutes already reject welfarist cost-benefit reasoning by design
• Failing to monetize human life skews flood projects toward property and development promotion
• Formalized risk regulation would still fail to register regret over tragic choices
• Formalized systems like cost-benefit analysis must inherently be incomplete.
• Foundational legal goals cannot be priced because they ground the market itself
• Future generations reciprocate stewardship with respect or harm us by renarrating
• Genetic engineering will make suffering-based moral standing a matter of design choice, not ontology
• Hidden value judgments hide behind claims of technical objectivity
• Kantian prohibitions count as agentrelative because agents reason to accept them
• Landmark environmental statutes aspired to constitutional-level transformation, not ordinary lawmaking
• Law’s defining trait is its capacity for foundational reordering, which cost-benefit analysis suppresses
• Liberalism presumes abundant resources that make hard intergenerational choices avoidable
• Meanwhile mobile capital can undermine national production standards including environmental ones
• Membership dilemmas persist even in border-sealing preference-maximizing states.
• Membership questions structure all other political judgments and resist analytical resolution.
• Moral philosophy belongs to culture and thus coevolves with, rather than opposes, cognition.
• Neoclassical growth theory licensed the claim that the American way of life is optimal
• Novel material forms can differ radically from their macroscale counterparts
• Observed storm data contained outliers contradicting the assumed normal distribution
• Perfect impartiality dissolves the self-attribution that makes action meaningful
• Policy choices determine which future individuals come into existence at all.
• Political membership exclusions historically rest on naturalistic claims of inferiority.
• Precautionary ozone policy succeeded precisely by distrusting risk-assessment tools
• Pricing option value masks the ethical nature of grave collective choices
• Pricing statistical lives obscures harms that are real only at the collective scale
• Problems at justice frontiers need humility and self-awareness, not rationalist rigor
• Projects of present preferences onto future generations fail because future contexts will differ radically.
• Responsibility arises only in undecidable space that calculable programs try to close
• Roosevelt framed conservation as duty to unborn generations outweighing present gain
• Statistical objectivity in environmental policy rests on unwarranted assumptions about the physical world
• Technical sophistication of policy has discouraged public engagement with values in assessment
• Technology standards are ecologically rational heuristics for non-optimizable settings.
• The norm of instrumental optimality can only derive its pull from non-optimizing considerations.
• The positive-normative split is a vehicle for exporting disciplinary values
• The seven-generations decision rule rests on Iroquois constitutional thought
• The stringent Pareto criterion is practically pointless once real-world frictions are counted.
• The view from nowhere that guards against tyranny erases the community doing the judging
• Tradeoffs, though inevitable, need not be accepted unregretted or beyond reform
• Utilitarian optimization erodes the sense of agency needed for ethical commitment
• Utilitarianism can only treat people consistently by denying their sense of being ethical agents.
• Welfare economics advances normative views through unremarked assumptions and exclusions, not debate.
• Welfare economics must deny its own incompleteness to sustain its optimization logic.
• Welfare maximization self-undermines by denying the collective community’s existence and judgment it depends on
• White survey respondents sold racial neutrality for a thirty-minute queue saving