Edited by Ugo Mattei and John D. Haskell
Chapter 29: Political economy and environmental law: a cost-benefit analysis
When law is brought to bear on environmental degradation, it often takes a decidedly economic turn. To a certain extent this is unremarkable, as the main task of environmental law is to govern economic behaviour. Economic activity generates enormous benefits even as it imposes environmental costs that are often very high. As a result, when law addresses environmental degradation, it often leaves behind the language of transgression and retribution, crime and punishment, or breach and sanction. Instead, in the context of law and the environment, terms such as market, incentive structure, management and cost-benefit analysis predominate – so much so that it can be difficult to hear the voice of the law. For example, markets for emission permits often owe their existence to a legal rule imposing an upper limit on emissions, but beyond that, economics largely takes over. There are many reasons to be concerned about these developments. The close relationship between law and economics may make it more difficult for the ethical implications of environmental activity to be taken into account by law or in the broader society. The predominance of economic discourse about ecosystems leads to an impoverishment of our vocabularies and, as a result, our imaginations. Ultimately, environmental law may come to be colonised by economics, losing its autonomy and its ability to assert a distinctly legal means of reasoning and problem solving.
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