Academic

Sunstein on Irreversible Environmental Harm

By Lawrence Solum

Cass R. Sunstein (University of Chicago - Law School) has posted Two Conceptions of Irreversible Environmental Harm on SSRN.  Here is the abstract:

The concept of "irreversibility" plays a large role in the theory and practice of environmental protection. Indeed, the concept is explicit in some statements of the Precautionary Principle. But the idea of irreversibility remains poorly defined. Because time is linear, any loss is, in a sense, irreversible. On one approach, drawn from environmental economics, irreversibility might be understood as a reference to the value associated with taking precautionary steps that maintain flexibility for an uncertain future ("option value"). On another approach, drawn from environmental ethics, irreversibility might be understood to refer to the qualitatively distinctive nature of certain environmental harms¿a point that raises a claim about incommensurability. The two conceptions fit different problems. For example, the idea of option value best fits the problem of climate change; the idea of qualitatively distinctive harms best fits the problem of extinction of endangered species. These ideas can be applied to a wide assortment of environmental problems.

And a bit more from the paper:

When courts of appeals spoke in terms of a presumption in favor of injunctive relief, they might be understood as adopting a version of the Irreversible Harm Precautionary Principle?assuming that environmental harm is irreversible in the relevant sense, and requiring a strong showing by those who seek to proceed in the face of that harm. This interpretation helps to explain the simplest exception to the lower courts? presumption: cases in which ?irreparable harm to the environment would result if such relief were granted.?74 If, for example, an injunction against the use of a logging road would prevent the removal of diseased trees and hence allow the spread of infect infection through national forests, no injunction would issue.75

Here, then, is a clear recognition of the existence of environment-environment tradeoffs, in a way that requires a qualification of any Irreversible Harm Precautionary Principle. And when the Supreme Court rejected the presumption, it did so in favor of traditional equitable balancing, in a way that recognized that serious harms, and perhaps irreversible harms, are on all sides. But even in doing so, the Court endorsed a kin of Irreversible Harm Precautionary Principle through its (too-simple) suggestion that environmental injury ?is often permanent or at least of long duration? and its statement that harms to the environment can seldom be adequately remedied by money damages. Indeed, the latter statement seems to be an implicit recognition of the incommensurability problem.

An important thesis, that seems right.  Highly recommended.

Full post as published by Legal Theory Blog on May 21, 2008 (boomark / email).