Communitarian Discourse as a Catalyst for Emergent Environmental Law

Nancy K. Kubasek, M. Neil Browne, and Michael D. Meuti

Nancy Kubasek is a Professor of Legal Studies and International Business at Bowling Green State University. M. Neil Browne is a Distinguished Teaching Professor of Economics at Bowling Green State University. Michael Meuti is a J.D. candidate at Stanford Law School.

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Introduction

Environmental law, like any body of law, emerges from a complex interplay of cultural vision, accepted assumptions, factual claims, and negotiations among interest groups. When an environmental protection measure is proposed, these factors all play their roles through the use and interpretation of a single medium—language. Consequently, the words we use and don't use in the discourse through which we articulate our respective positions play a fundamental role in the success or failure of a particular proposal. We hear and react to what we believe certain words connote.

In many areas of environmental law, e.g., wetlands protection, management of endangered species,and liability for cleaning hazardous waste sites, legislative debate is at a standstill. Proposals are made; predictable counterarguments are heard within a few hours. The ability of legislators on either side of the proposal to forestall the inclinations of their opponents is guaranteed in many areas of environmental law by the financial and public relations strength of each set of opponents.

As a consequence, environmental law is often notorious for the many troublesome environmental problems that never get addressed. Typically, legislative deliberations are quickly stalemated. What is most common is a flurry of acrimonious debate followed by a refunding of the existing law for one more year. Then in succeeding legislative sessions the same scenario is replicated.

Why, when many diverse political groups want an improved environment, do our legislative processes apparently fail us? Certainly the power of language to shape and to restrict our thoughts is at least a partial explanation, and, more likely, holds substantial explanatory power. To advocate a change in existing law using nondominant rhetorical strategies is akin to bringing a wedding gift wrapped in paper towels to the expectant bride and groom. The gift is inside, but the message that has been sent may not fulfill the objective intended. Similarly when environmental law proposals do not sound right, their logic may be ignored because of the discordant words that have been chosen to reify the meaning of the proposals.

While it places too much burden on the power of specific words to believe that ossified conflicts about public policy toward the environment will just disappear were we to articulate proposals in a certain fashion, new words are promising if they can cause reassessment of old arguments. Communitarian thinking and the discourse forms it takes provide these lubricating new words.¹

The purpose of this Dialogue is to consider the effect of language on particular environmental law proposals and to argue for the potential of communitarian ideas and words as a catalyst for environmental reform. Suggested improvements in environmental law emerge in images articulated by words. The themes of communitarianism provide language that can revivify environmental proposals that otherwise seem moribund.

Market Logic, Economists, and the Environment

To see the potential benefit of communitarian discourse in discussions of environmental law, this section sketches a portrait of economists and their impact on the fate of environmentalist policy proposals. Because of their limitless faith in the market as a vehicle for allocation and distribution, mainstream (neoclassical) economists have emerged as the primary spokespersons for market logic. They tend to oppose governmental measures that would in any way alter the existing system of property relationships. They recognize externalities, such as the third-party effects of smoking, as a potential source of distortion in the price system, but see their occurrence as such a rarity that its coverage in introductory textbooks is easy to miss.²

Economists' faith in the market relies on several important assumptions about how market operations occur. First, there is the assumption of consumer sovereignty. This assumption serves as an umbrella under which several other assumptions fall. For example, for consumers to control market processes, they must have complete information about products and services for sale, must have preferences that are impervious to external attempts to manipulate them, and must have numerous alternatives from which to choose.

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A second fundamental assumption of market logic is that the initial distribution of wealth and income is fair. Under the market system, wealth and income are to be distributed according to the value (determined not by people, but rather by "the market") of each person's chosen level of output. If you want more wealth, just choose to produce more. Because the market is (assumed to be) nondiscriminating and impersonal, a "race" governed by market processes cannot produce unfair results, so long as the starting point is even. However, if certain parties are endowed at birth with spectacularly larger piles of assets (and they certainly are!), then these more fortunate parties will likely dominate the others. The domination takes the form, inter alia, of a decidedly nonegalitarian determination of how community resources will be deployed.

A final fundamental assumption of mainstream economists is that markets are perfectly competitive or nearly so. In other words, many small firms compete in a market in which there are no barriers to entry or exit. As long as these assumptions are met, the market produces optimal results. Consequently, governmental regulation is not only unnecessary, but also harmful in that it prevents consumers from enjoying the various benefits that arise from market processes.

However, these benefits cannot occur when one or more of the assumptions is violated. In such an instance, the market fails, and power shifts away from consumers and toward producers. Examples of market failures include moral hazard, externalities, asymmetrical information, market power, public goods, and unjust asset distribution. (An intriguing shared attribute of each of these potential problems would not surprise a communitarian. Each is relational, formed, and regulated by the interplay of social forces rather than by isolated decisions of solitary individuals.) When any of these conditions exist, agents of collective action, such as the government, can potentially work to allocate or distribute resources. However, because mainstream economists remain ideologically committed to a minimalist conception of government as nothing other than a rulemaker and a referee, they are by default opposed to the idea of government having a role to play in resource allocation and distribution.

This limited perspective of the proper functions of government stands in sharp contrast to the kind of democratic political thinking upon which environmentalism depends. Political and economic thinking differ in several ways. First of all, while the focus of conversation in political thought is the community, the individual is the centerpiece of market thinking. This focus is reflected in market thought's emphasis on self-interest as compared to political thought's emphasis on the public interest. Further, the two forms of thought disagree about the extent to which self-interest conflicts with the public interest. Such "commons" problems are typical in political thought, yet in market thought, they are the exception.

Other differences between the two ways of thinking include political thought's recognition of the influence that external forces can have on the decisionmaking processes of economic actors. Market thought's intense focus on the individual, however, leads to a parallax view, through which economists can see choices being made only by autonomous individuals and based strictly on preexisting preferences. Furthermore, while the market showcases competition and shuns cooperative arrangements, the polis integrates competition and cooperation.

In summary, numerous conflicts between market thinking and democratic political thinking exist. Generally, Americans flock toward the side of market thought because it seems more "rational" than politics, a game that is thought to be frequently influenced by behind-the-scenes deals and other forms of corruption that sully the entire process. Market thinking has become so popular that even some environmentalists now call for market solutions to environmental problems.

However, these environmentalists remain the minority. Their comrades generally note the tendency of the market to fail to provide solutions to important environmental problems. Thus, most environmentalists advocate greater tax expenditures to accomplish goals that the market has failed to accomplish on its own. Because such proposals clash with the countervailing pro-free market norms in the United States, they are often brought to the floor of Congress, or even to congressional committees, dead on arrival. We now examine three specific illustrations of this problem.

Illustrative Environmental Law Gridlock

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

For over 100 years now, businesses have been operating factories in the United States. Unfortunately, it was not until fairly recently that their practices for disposing of wastes became subject to public oversight. Consequently, businesses generally disposed of their wastes, even those known to be hazardous, the cheapest way they could without regard for the long-term implications of their doing so. In 1980, Congress passed CERCLA to address the environmental damage being done by abandoned or inactive waste disposal sites.³

CERCLA designated monies, known as the Superfund, to be used to clean up hazardous waste sites. However, before using Superfund money, the U.S. Environmental Protection Agency (EPA) attempts to determine the potentially responsible parties (PRPs)—those responsible for creating the environmental hazard caused by improper waste disposal. If the PRPs are found, the government holds them liable for their portion of the cleanup bill. If EPA cannot locate or discern the PRPs, it uses money from the Superfund to pay for the cleanup. Although this approach to assessing liabilities may seem simple, it is not nearly so easily done.

Perhaps the most controversial aspect of CERCLA is that the courts have interpreted it to apply retroactively to hazardous waste sites created prior to the passage of CERCLA and laws setting standards for the disposal of hazardous materials.⁴ Thus, EPA can sue business owners to recover cleanup costs even if the businesses were acting legally when they actually disposed of their waste materials. Over the past several years, numerous proposed amendments to CERCLA sought to remove this retroactive liability.⁵

The arguments surrounding this issue can help us understand the conflict between those who prefer political decisionmaking and those who prefer market decisionmaking. Market advocates tend to support the aforementioned proposals because retroactive liability violates the [32 ELR 10123] principles of private exchange upon which the market is based. They ignore or fail to see that these very principles produced the environmental problem that retroactive liability seeks to alleviate.

The arguments surrounding this legislation feature competing definitions of fairness. The aforementioned market advocates argue that it is unfair to hold someone liable for actions that were legal when they were committed, and that by freeing firms from such expensive litigation, they will be able to concentrate on more pressing issues such as improving efficiency and developing better products. Those who argue in favor of retaining retroactive liability hold that it is unfair to allow some firms to escape retroactive liability after numerous other firms were forced to pay retroactive damages. Additionally, they contend that it is fairer to require the entities that benefitted from disposing of the wastes cheaply to pay the costs of the cleanup than to require the taxpayers, most of whom experienced no analogous benefits, to bear the costs.

Mainstream economists find repugnant the use of forms of valuation other than market value to describe the cleanup costs. When someone speaks of the "full costs" of the behavior of firms who disposed of wastes, that person is referring to political, rather than market, determinations of cost. From the perspective of the economist, all the relevant costs were paid when the market transaction between buyer and seller took place, and, thus, talk of "costs" determined by legislatures, regulatory agencies, or courts are nonsense.

Protection of Wetlands

Wetlands are much more than cesspools where mosquitoes breed and frogs swim—they provide homes to thousands of other plant and animal species, as well as large quantities of clean water for human consumption. In these ways, wetlands play a major role in maintaining the earth's health. Nonetheless, human activity has destroyed over one-half of the wetlands once in existence, and each year more wetlands are lost to commercial, industrial, and residential interests.

To halt the disappearance of wetlands, Congress has enacted several pieces of legislation, including § 404 of the Clean Water Act (CWA),⁶ the Swampbuster Provision of the Food Security Act of 1985,⁷ and the Marine Protection, Research, and Sanctuaries Act.⁸ These laws all aim at preserving wetlands in the United States, with the most controversial of these laws' provisions being CWA § 404's requirement that landowners secure permits from the U.S. Army Corps of Engineers before developing such areas.

Similar to other attempts to protect our environment, wetlands protection often collides with the property rights of individual landowners. Activists argue fervidly on both sides of the issue. Environmentalists assert that the many important functions of wetlands make them more closely resemble public goods than individual plots of land to be used for the benefit of individuals. Consequently, these lands must be protected socially by legislation. Other environmentalists argue that nature has an intrinsic worth that extends beyond its usefulness to humans, and, therefore, we have no right to destroy it.

Property rights advocates, however, argue that the restrictions placed on their ability to use their property in any manner they see fit are regulatory "takings," and, thus, the landowners are entitled to compensation under the Fifth Amendment. Their logic is exactly what one would expect a property owner to provide were the community to take private property gained from previous market exchanges.

The conflicting voices of market and environmental partisans can be heard in a recent debate over proposed legal changes that would make it easier for landowners to develop wetlands they own. As expected, market advocates applaud such changes as a return to property owners of the right to control their property. The increased development, they argue, will spur economic growth. Environmental activists, however, object to the issuing of "quickie permits" because doing so leaves the public out of most decisions involving wetlands permits. Because wetlands function as a public good, public oversight is a must since permitting individuals to rationally serve their own interests will likely work to the detriment of the public good.

Protection of Endangered Species

For the past several centuries, human development has encroached upon areas where there had previously been only nature and wildlife. As many of the displaced plants and animals began to die, the issue arose: what was to become of those animals whose homes were being destroyed? Congress answered by passing the Endangered Species Act (ESA) in 1973.⁹ The legislation stated that the preservation of animal species is of "esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."¹⁰

The ESA includes provisions for determining whether a species should be considered at-risk and includes two possible such designations—"endangered" and "threatened." The Act also forbids the consideration of economic factors when determining whether a species should become a part of either the endangered or the threatened species list. Once a species becomes listed, the Act prohibits anyone from possessing or harming a member of that plant or animal species. Additionally, the ESA requires the Secretary of the Interior to develop a recovery plan for each listed terrestrial species and the Secretary of Commerce to do the same for listed aquatic species.

Since the ESA expired in 1993, numerous reform and reauthorization bills have been proposed.¹¹ A comparison of the different approaches contained within these bills demonstrates the differences between advocates of market thought, who wish to return more power to property owners, and proponents of political thought, who desire to strengthen the Act. The latter group often argues that biodiversity is a public good, and, thus, it must be protected politically. Were we to leave protection of biodiversity up to individuals interacting through the channels of the market, [32 ELR 10124] individual rationality would be incongruent with social rationality, and the market would underallocate resources to preserving species.

ESA advocates emphasize the ways that the benefits of preserving endangered species flow not only to the person on whose property they reside, but instead to our entire society. They note that many of our medicines, including such common drugs as aspirin, come from plants and animals. Additionally, scientists are able to glean a great deal of knowledge from plants and animals. Because the species of plants and animals on the earth today are still alive, we know that they have survived vast changes to their habitats and climates, and, thus, we know that they are highly adaptable. To let them die without first studying them would be, to use the words of Rep. John Dingell (D-Mich.), "akin to burning [a] library without ever having read its books."¹²

Parties opposed to the strengthening of the ESA argue that the Act puts the rights of animals above the rights of human beings. Such parties are centrally concerned with the right of humans to own and control property, and, thus, they resist any legislation that places limits on what landowners may do with their land. Like the property rights advocates in the debate over wetlands protection, they argue that the land of individual property owners is being "taken" in order to serve a collective benefit. Rather than focusing on the duties of individual community members to contribute to the community's best interests, they argue that the community should reimburse these individual property owners.

These illustrations of legislative deadlock in emergent environmental law are symptomatic of a larger problem. When one becomes accustomed to the arguments of those whom you have learned are hostile to your vision of a better world, it is natural to listen only half-heartedly as traditional opponents make their suggestions for a better environment. Communitarian thought is both less familiar than the two entrenched positions with respect to environmental law and, more importantly, possesses elements that might command at least an initial hearing from strict market advocates and also environmentalists.

Communitarian Rhetoric and Environmental Law¹³

No one can escape the pervasiveness of market rhetoric in our culture. From television talk shows to legislatures, policy proposals for issues as diverse as prisons, campaign finance reform, education, and divorce are put forth replete with phrases such as "meeting demand," "the bottom line," and "cost-benefit analysis." The alleged efficiency of markets is so credible in our culture that market language and the personal responsibility leitmotif that underlies reliance on markets for allocative decisions becomes a sine qua non for successful policy proposals. In the language of economist and writer Robert Kuttner, everything now seems to be for sale.¹⁴

Consequently, arguments for the social protection of anything, including the environment, are generally dismissed from their inception. Market rhetoric recognizes no meaning to "the social" beyond the aggregation of personal tastes. Hence, if individuals indicate by their purchases that they embrace sport utility vehicles (SUVs), then market loyalists, and the neoclassical economists from whom they borrow their intellectual formulations, have seen all they need to see to argue that the community needs SUVs. The existence of second order preferences, metapreferences, or any concept capturing our ability to think not just about what we want but also about what we as a community should want is absent from dominant market thought.

In the contemporary context where both political parties compete for loyalty to market principles, environmentalist proposals often "just don't make sense" because they run counter to the dominant practices and thought patterns of a market-driven society. Ideas such as the shared ownership and responsibility for resources, the pervasiveness of human interdependence, and the overriding significance of long-run implications of consumption decisions serve as the bedrock for environmental protection, but they are rhetorical anomalies for those embedded in market thought and customs. Those attracted to market rhetoric simply have no desire to hear or heed those who try to advance environmental protection because the method of articulation is so odious to them.

Communitarianism provides a potential middle ground for environmentalists and those who are comfortable with market arguments. In this middle ground, the two groups can engage in meaningful dialogue about specific environmental reforms. At first, such a claim appears impossible—how can we pursue two seemingly contrary values, economic growth and environmental protection? The key is balance, as emphasized by the communitarian philosophy's call for intermediary points between social forces and the individual, between community and autonomy, and between individual rights and social responsibilities.

One way to appreciate the potential of communitarianism as a catalyst for environmental protection is to examine its foes. Perhaps the realm in which communitarianism is most vehemently criticized is libertarianism and its disciplinary comrade, neoclassical economics. Neoclassicism dominates the economics profession and supports itself with the logic of the market. According to this pattern of thought, everything is to be commodified and monetized. As a consequence, neoclassical thought engenders a social myopia that throws a monkey wrench into both the communitarian vision and environmental protection.

Because communitarianism emphasizes nonmarket entities such as social bonds and the moral voice of the community, it runs against the grain of America's strong cultural predilection for individualism. Thus, it also clashes with amajor intellectual force in the United States: the free market. While economists remain devoted to rationalizing the existence of markets everywhere and to "proving" that market relations produce optimal outcomes, communitarians commit themselves to questioning such claims.

Often communitarians critique the notion that neoclassical economics offers an optimal explanation of social welfare by questioning its foundational assumptions. While neoclassical thought assumes that people are "rational profit/utility maximizers," communitarianism recognizes [32 ELR 10125] that fortunately people often do not act in ways consistent with such an assumption. Sometimes people choose to do things that are in the best interest of institutions or people to whom they have no formal relationships. Other times, they act "irrationally" by basing their decisions on incomplete information or on heuristic devices that prevent them from understanding available information.

Communitarians also point out the inadequacy of neoclassical economists' understanding of preferences. Neoclassicists contend that preferences are extant prior to any form of social relations, and, thus, they are not to be questioned. This misunderstanding of preferences precludes meaningful discussion of why people prefer what they prefer and what the potential implications of their preferences are. Consider, for example, Pokemon products. Do children emerge from the womb with preexisting desires for these trading cards and toys, or do powerful corporate interests teach them that they need more and more of them?

A closely related problem is the contextuality of preferences. As Prof. Cass Sunstein notes in Free Markets and Social Justice, people often make very different choices when they are acting as consumers than they would when acting as citizens.¹⁵ Communitarians recognize that numerous forces, including social norms and roles, affect individual choice. More importantly, they recognize the possibility that introducing or reinforcing certain norms can play an important role in promoting the well-being of both individuals and communities.

A final communitarian critique of market thought hones in on the issue of commensurability. Market advocates assume that the value of all things can be measured with the same metric-dollars. Communitarians, however, point out that we have never seen such a universal medium of exchange, and that some things just should not be for sale. Consider, for example, an offer to purchase your mother for $ 200,000. Such an offer is repugnant to us, as is the idea of setting up markets for justice, friends, or votes, because the moral voice of the community teaches us that these things should not be for sale.

Despite these critiques, communitarians are not hostile to markets. Instead, they recognize that if the good of the community is to be best served, both markets and politics are essential. Market advocates resist the extension of political judgments because they hold that morality is best kept a matter of private concern. Thus, they emphasize personal choice, and argue that the market is the only proper system of decisionmaking in a democracy because the market, like democracy, allows individuals to choose. Such arguments, however, overlook the inherent tension in the relative scope of choice of markets and democracy—markets stress individual choice, while democracy relies on collective decisionmaking. Thus, a search for the common good is at the heart of democracy, and to find that good, a community must not rely strictly on markets, but instead must search for the optimal blend of market and collective decisionmaking.

Communitarians respond to issues with an analytical framework that neither defers to nor rejects market calculations of benefits and costs. Instead, communitarianism broadens the scope of any analysis to include impacts on those interests that extend beyond the perimeter of ordinary supply and demand calculations of market logic with its focus on the inclinations of prospective sellers and buyers. Communitarians regularly ask: What are the impacts on a broader community? And, furthermore, how do these additional effects influence prospective legal action?

For example, with respect to protecting wetlands, communitarians would first examine the impact of both the preservation and destruction of wetlands on a broad range of affected communities, such as developers, farmers, landowners, bird-watchers, and future generations. Impacts of the former would include items such as potential lost economic profits from land, whereas an illustration of the latter might include the loss of species that had used the wetlands for breeding. After looking at all of these potential impacts on various communities, and the point here is that the impacts are both standard market measures such as lost profits as well as impacts less susceptible to precise assessment, communitarians would try to develop legislation that would ameliorate the competing interests.

Another example would be the communitarian approach to the protection of endangered species. Communitarians would examine the benefits to groups such as landowners, developers, farmers, and future generations and identify the benefits of our current system of protecting endangered species and the negative consequences of this system. Then they would consider how the market might best be used to try to improve this system. For example, they might examine whether allowing selected endangered species to be privately propagated for hunting might not be a good way to modify the ESA to ensure the preservation of at least some species. By including these latter considerations in the analysis, they are signaling that interests do not lose their legitimacy just because the valuation of the interests is established using the language of market exchanges.

Conclusion

America's strong cultural devotion to individualism and to its ideological cousin, market thought, have a strong effect on the kinds of arguments that sound persuasive when one argues for legislative changes. As a consequence, parties who argue for nonmarket solutions to collective problems are often branded outsiders and dismissed. Environmentalists must recognize this pattern if they wish to make meaningful changes to American environmental law.

From the dominant market perspective, the solution to any problem, be it toxic wastes, wetlands protection, or endangered species, is to allow market transactions to determine the optimal level of resources to be allocated to such a problem. In other words, individual choice is king. This perspective lacks respect for the community as an organic entity; instead, it views the community as nothing more than a group of individuals. For this reason, talk of group responsibility and solidarity seem inherently wrong in that such notions detract from individual responsibility.

Such marketrhetoric effectively blocks many proposals for meaningful environmental protection. However, there does exist in communitarianism a green space upon which environmentalists and market advocates can meet and communicate. By recognizing the importance of both communal and individual responsibility, communitarianism can provide common ground for these two often-antagonistic parties.

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Of course, communitarian rhetoric is not a panacea that will end environmental disputes. Contrasting value judgments, as well as associated diverse financial and aesthetic interests, guarantee that environmental law will always be hotly contested terrain. But communitarian discourse, with its appreciation for multiple forms of rationality, its appreciation of the importance of both self-interest and caring in human identity, and its respect for the virtue of personal responsibility, deserves attention as a potential mediating agent in the discussion between market advocates and environmentalists. Communitarianism offers the potential to provide a common language through which contending parties can talk to and hear one another en route to developing environmental reforms that will satisfy both the desires of individuals and, more importantly, the needs of the community.

1. Communitarianism is a way of thinking that merges themes of personal responsibility and social responsibility as dual vital components in civic development.

2. Externalities are effects from a market exchange that fall on someone other than the buyer or seller. Common examples are pollution or the community benefits from education.

3. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

4. This issue was first raised in Browne v. Georgeoff, 562 F. Supp. 1300 (N.D. Ohio 1983).

5. See, e.g., H.R. 2500, 104th Cong. (1995); S. 1285, 104th Cong. § 701(b) (1995); and H.R. 300, 105th Cong. (1997).

6. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

7. 16 U.S.C. §§ 3801, 3821-3823.

8. 33 U.S.C. §§ 1401-1445.

9. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

10. Id. § 1531(a)(3), ELR STAT. ESA § 2(a)(3).

11. See Nancy K. Kubasek et al., 24 ENVTL. L. 329, 339-51 (1994) (reviewing four bills proposed in the 103d Congress: H.R. 2043, 103d Cong. (1993); H.R. 1490, 103d Cong. (1993); H.R. 1992, 103d Cong. (1993); and H.R. 2207, 103d Cong. (1993)).

12. Rep. John Dingell, Foreword to DANIEL J. ROHLF, THE ENDANGERED SPECIES ACT: A GUIDE TO ITS PROTECTIONS AND IMPLEMENTATION I (1989).

13. By "rhetoric" we in no way intend the term to mean empty speech, as in the frequently heard phrase, "mere rhetoric." On the contrary, we mean the methods of effective persuasion used by a virtuous person, to paraphrase Quintillion.

14. ROBERT KUTTNER, EVERYTHING FOR SALE: THE VIRTUES AND LIMITS OF MARKETS (1997).

15. CASS SUNSTEIN, FREE MARKETS AND SOCIAL JUSTICE (1997).