Please welcome guest author Professor David Driesen. Professor Driesen is a University Professor at the Syracuse University College of Law, where he researches and has taught environmental law, law and economics, and constitutional law. He engages in public service to defend environmental law’s constitutionality, supporting efforts to address global climate disruption, and reconceptualizing environmental law. He has written numerous amicus briefs in Supreme Court cases and has represented then-Senators Barak Obama, Hilary Clinton, Joseph Biden, and others in Clean Air Act litigation in the D.C. Circuit. He is a member scholar with the Center for Progressive Reform, and blogs often on its website on climate disruption issues. He has worked as a consultant for American rivers and other environmental groups on Clean Water Act issues and has testified before Congress on issues arising form the implementation of the 1990 Clean Air Act Amendments. As one of the panelists for the upcoming symposium, we invited Professor Driesen to give us a preview of his thoughts on a ‘New American Environmentalism.’
Environmental experts tend to assume that the political paralysis that has largely strangled development of sensible national environmental policy in the US stems from some failure of environmentalism, and that’s its solution lies with a new environmentalism. Although I have no quarrel with re-imagining environmentalism, this assumption is quite questionable.
The policy paralysis that grips us does not apply only to environmental policy, and has broad roots in a substantial movement aiming at dismantling many government programs. It enjoys intellectual support from the law and economics movement, which has urged the use of the micro-economic framework economists use to model economic transactions as a guide to a variety of policies, including (but not limited to) environmental policy. This intellectual framework has spurred skepticism about the value of environmental law and an over-reliance on cost-benefit analysis, which the Reagan administration adopted as a deregulatory tool as a guide to policy. This framework undergirds deregulation, but also enjoys some support from technocrats who are not ideologically opposed to effective government.
Thus, a new environmentalism may not succeed without an intellectual framework capable of motivating a favorable change in the ideological climate that goes beyond environmental policy-making and thinking. I have attempted to provide such a framework in The Economic Dynamics of Law (Cambridge University Press 2013). This book offers a dynamic theory of law and economics focused on change over time, aimed at avoiding significant systemic risks (like financial crises and climate disruption), and implemented through a systematic analysis of law’s economic incentives and how people actually respond to them. This theory offers a new vision of law as fundamentally a macro-level enterprise establishing normative commitments and a framework for numerous private transactions, rather than as an analogue to a market transaction. It explains how neoclassical law and economics sparked decades of deregulation that made effective climate policy impossible and culminated in the 2008 financial collapse. It then shows how economic dynamic theory helps scholars and policymakers make wise choices about how to avoid future catastrophes while keeping open a robust set of economic opportunities, with individual chapters addressing the law and economics of climate disruption, financial regulation, contract, property, intellectual property, antitrust, and national security.
In short, I see the central intellectual task before us as providing a coherent intellectual framework to help support acceptance of a reasonably robust role for government in preventing systemic risk. The challenge involves using this framework to inform a broad-based campaign to create support for reasonably effective governance, not only with respect to environmental law but also with respect to financial regulation, inequality and much else. I hope my book provides a basis for such a campaign.