Working Both (Positivist) Ends Toward a New (Pragmatist) Middle in Environmental Law

Abstract

This review of Daniel Farber's recent book Eco-pragmatism, in which he argues on behalf of taking more pragmatic approaches to the development of environmental policy, provides both the background necessary for appreciating Farber's union of ecosystem dynamics science and environmental pragmatism philosophy, and the basis for extending the new "eco-pragmatism" approach into natural resources conservation settings. Eco-pragmatism implies the intersection of two components-the eco, being the rich and developing field of ecosystem science and management, and the pragmatism, being the classical American pragmatist philosophy represented today in environmental settings through the emergence of environmental pragmatism philosophy. Unfortunately, Eco-pragmatism provides little background on either of these sources of eco-pragmatist approaches to environmental law. The review demonstrates that the science of ecology and the philosophy of environmental pragmatism do indeed make a fitting pair, and that Farber has provided the service of combining them in an approach that is adapted to modern environmental law and policy. The eco-pragmatist approach is different from either of the existing models for environmental decision making in they each relies on positivist foundations that portray environmental decisions as matters purely of economic efficiency (one extreme) or environmental preservation (the opposite extreme), whereas pragmatism looks to experience rather than dogma as its source of theoretical foundation. As Farber describes it, eco-pragmatism uses dynamical regulatory frameworks to blend economic efficiency and environmental protection in an approach that uses environmental goals to maintain a baseline of protection and economic analysis to place a check on overprotection. Unfortunately, Farber demonstrates the force of the eco-pragmatist approach only in the narrow setting of pollution and its public health consequences. The review demonstrates that eco-pragmatism also has value in the natural resource conservation setting, where emerging themes of biodiversity, ecosystem services, and adaptive management correspond to Farber's framework for environmental baseline, economic backstop, and dynamical regulation. Eco-pragmatism thus offers some deliverance from the seemingly endless warfare between the positivist ends that has burdened environmental policy in all its applications.