Anthem EnviroExperts

Review by Sean Nolon, Vermont Law School

Joel Mintz’s work offers fascinating insights into changing approaches to environmental law enforcement in recent decades.

Enforcement at the EPA: High Stakes and Hard Choices, by Joel A Mintz, University of Texas Press, 323pp

This book presents a fascinating historical account of how EPA’s approach to enforcing environmental laws has changed over the last forty years. Fortunately, this book has many moments where the author brings a potentially dry topic alive through the use of quotes and personal accounts from agency insiders.  Professor Mintz has written an enjoyable and informative volume that follows in the tradition of great qualitative research such as Anne Fadiman’s The Spirit Catches You and You Fall Down.

This work is the product of many years of research and the author’s passion to make sense out of the tangled path that EPA has followed since being created by President Nixon in the 1970s. Professor Mintz reviewed EPA enforcement policy documents from 1970–2009 and interviewed over 190 present and former government officials. This behind-the-scenes presentation of how presidents from Carter to Bush II affect enforcement at the EPA is fascinating. Some of the highlights addressed are: EPA’s style of enforcement over the years; the effect of congressional oversight, including decentralized committees and budget authority on EPA’s ability to enforce; the relationship of political appointees to agency staff under different administrations; the decline of agency effectiveness in recent years; and an exploration of the threat and reality of agency “capture.”

By giving a thorough historical account of enforcement at EPA, readers will see more detail of the shadow under which many environmental negotiations take place. Readers with an interest in environmental regulation and those who enjoy the evolution of institutions and how they respond to changes in society will enjoy this volume.

Reviewed by Matthias van Maasakkers, MIT

Douglas Kysar exposes a critical flaw in the dominant environmental law and policy paradigm of risk assessment and cost-benefit analysis.

Regulating from Nowhere: Environmental Law and the Search for Objectivity, by Douglas Kysar, Yale University Press, 336pp

Cost-benefit analysis has become virtually inescapable in environmental decision-making. Yet, as Douglas Kysar points out in this nuanced yet profound critique of that method and the narrow assumptions of welfare maximization it is based upon, there are plausible alternative frameworks to inform decision-making in the environmental realm. This book moves beyond mounting ethical, theoretical and practical arguments to show the shortcomings of cost-benefit analysis, although it probably is the most detailed and sustained development of those arguments since Mark Sagoff’s The Economy of the Earth.

The book is most effective when describing the ways in which precaution is not only a viable alternative, it is also already embedded in many environmental laws and activities in the United States and elsewhere. In the appendix, a draft Environmental Possibilities Act is included, showing Kysar’s commitment and ability to translate precautionary philosophies into specific, if hypothetical, policies. The Yale Law School professor moves between practical examples and French philosophers like Derrida. He produces a sustained argument that cost-benefit analysis restricts informed decision-making as opposed to enabling it because of increasingly untenable restrictions on standing and the assumption of impermeability of national boundaries. Important questions regarding legal standing that are emerging in relation to new biological and genetic manipulation technologies are described in detail.

This book is important not so much because of its current and compelling critique of cost-benefit analysis, but mainly because of its impassioned and effective reframing of the precautionary principle as an active and effective idea in environmental decision-making. Kysar reclaims the centrality of morality in environmental law, without ignoring the need for practical engagement.