The End Environmental Externalities Manifesto: A Rights-Based Foundation for Environmental Law

Abstract

Both of us had the privilege of serving in government with Dick Stewart when he was the Assistant Attorney General for the Environment and Natural Resources Division of the U.S. Department of Justice, and we served at his client, the Environmental Protection Agency. Before that, we both knew and respected Dick’s work as an academic and environmental policy thought leader. We regard him as a mentor, an inspiration, and a model for our own careers. He is also a good friend.

In this Article, we attempt to extend Dick’s path-breaking work with Bruce Ackerman, who is also a mentor to both of us, on market based solutions to environmental problems.1 And like all of those who look at law through the prism of the incentives that it creates, we are further indebted to our teacher, Dean (now Judge) Guido Calabresi. We had the challenge—and opportunity—to try to implement some of their ideas about the role of economic incentives in regulation when we served at EPA in the late 1980s and early 1990s, most notably when we participated in the drafting and early implementation of the Acid Rain Trading Program under the 1990 amendments to the Clean Air Act. This Article reflects some of what we learned from that experience and what we regard as its implications for the future of environmental law.

Developing cost-effective ways to reduce obvious pollution, as Dick Stewart and other intellectual leaders of his generation did, made great sense for the first fifty years of America’s modern efforts to protect the environment. Their approach delivered the low- hanging fruit, and environmental conditions across America are much better today as a result. We believe, however, that the challenge for the next generation is to extend their work by addressing the remaining environmental externalities that are neither obvious nor easy to address. To do so, we need to reframe environmental law and policy on an intellectual foundation of environmental rights rather than economic efficiency.