In his new book, Yale Law Professor Douglas Kysar challenges the United States' current approach to regulating the environment, suggesting a new model that deemphasizes cost-benefit analysis.
During an ACS event focused on the book, Regulating from Nowhere: Environmental Law and the Search for Objectivity, panelists took a step back from the usual debates about particular environmental issues and engaged in a philosophical discussion about whether our current models for setting environmental policy can actually reflect our ideals.
"Much of environmental health and safety law is being confused and distorted by applying that wrong lens and so its aims are being misunderstood," Kysar said during the panel discussion, explaining that the current welfare economics approach "condemns laws without really understanding what it is they're intended to do."
He explained that the cost-benefit analyses policy-makers use to set, for example, acceptable levels of pollutants start with flawed assumptions. One such assumption is that U.S. policies will never affect other nations' policies, obscuring the likelihood that a major shift in U.S. policy would cause other countries to follow suit.
"I think that today we are at the threshold of an era where we absolutely have to think of planetary governance to an extent," said Sheila Jasanoff, a professor of science and technology studies at the Harvard Kennedy School.
Jasanoff suggested that we are currently entering a "constitutional moment," in which we will reconsider our constitutional principles in light of our understanding that regulating our environment and our health is a global issue.
"I think that the question for law that rises and rises is sort of played out in different harmonies throughout Doug's book is what role does American constitutional law have in charting the course toward this new era in which we have to think of supranational governance," Jasanoff said.
Watch the full discussion below.