Regulating from Nowhere


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Environmental Law and the Search for Objectivity

Douglas A. Kysar

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Drawing insight from a diverse array of sources — including moral philosophy, political theory, cognitive psychology, ecology, and science and technology studies — Douglas Kysar offers a new theoretical basis for understanding environmental law and policy. He exposes a critical flaw in the dominant policy paradigm of risk assessment and cost-benefit analysis, which asks policymakers to, in essence, “regulate from nowhere.” As Kysar shows, such an objectivist stance fails to adequately motivate ethical engagement with the most pressing and challenging aspects of environmental law and policy, which concern how we relate to future generations, foreign nations, and other forms of life. Indeed, world governments struggle to address climate change and other pressing environmental issues in large part because dominant methods of policy analysis obscure the central reasons for acting to ensure environmental sustainability. To compensate for these shortcomings, Kysar first offers a novel defense of the precautionary principle and other commonly misunderstood features of environmental law and policy. He then concludes by advocating a movement toward environmental constitutionalism in which the ability of life to flourish is always regarded as a luxury we can afford.

Douglas Kysar is Professor of Law at Yale Law School.

Regulating from Nowhere is a bold, intriguing, innovative, and beautifully written work. It is extremely well thought out and makes an exceedingly important and original contribution to the field. No other work takes on the problems and issues surrounding environmental regulation with such a deep and sophisticated knowledge and understanding of the ideas of philosophy and political theory.”—Amy Sinden, Associate Professor, Temple University Beasley School of Law

“This book makes an important, creative, and highly original contribution to the ongoing debate between advocates of a utilitarian environmental law based on cost-benefit analysis and those who support the normative judgments at the heart of the environmental statutes passed in the 1970s. In Regulating from Nowhere, Kysar adeptly and vigorously reestablishes a place for moral judgment in crafting environmental policy.”—David M. Driesen, University Professor, College of Law, Syracuse University

"This study, deeply and thoroughly informed by philosophical, legal, and political analysis,  presents the practical and moral wisdom we need to assess the history and to project the future of environmental law."—Mark Sagoff, University of Maryland

"Kysar's book should be indispensable reading for anyone interested in evaluating the use of cost-benefit analysis in the environmental context. His skepticism flows not from a political predisposition but from a highly nuanced argument that will change the course of the debate."—Richard Revesz, author of Retaking Rationality: How Cost Benefit Analysis Can Better Protect the Environment and Our Health

"Regulating From Nowhere is a beautifully written book that would pay dividends even to the casual reader looking for a sharp treatment of the state of environmental regulation in America."--Concurring Opinions

"Doug Kysar is one of the brightest scholars in environmental law today and in this book he has taken on the tiger."-- Oliver Houck, Environmental Forum

"Regulating from Nowhere: Environmental Law and the Search for Objectivity is a beautifully written, relentlessly logical, and richly emotional (in all the praiseworthy senses of that word) book that lays bare flaws of [cost-benefit analysis] that should give thoughtful advocates pause."-- Journal of Occupational and Environmental Medicine

"An important contribution to the continuing debate over CBA and environmental policy."--Texas Law Review

“Regulating from Nowhere is a superb book.”—Jeremy J. Schmidt, Environmental Values

“At a time when nations seem unmotivated to address climate change and other looming catastrophes, Douglas Kysar reminds us why the questions posed by environmental law are some of the most urgent and ethically challenging in all of human governance.  Using novel theoretical insights on cost-benefit analysis, the precautionary principle, sustainable development, and environmental constitutionalism, Regulating from Nowhere offers a bold and much-needed step forward.”—James Gustave Speth, author of The Bridge at the Edge of the World: Capitalism, the Environment, and Crossing from Crisis to Sustainability and Red Sky at Morning:  America and the Crisis of the Global Environment

ISBN: 9780300120011
Publication Date: June 22, 2010
336 pages, 6 1/8 x 9 1/4
10 b/w illus.