Professor Shi-Ling Hsu of the Florida State University College of Law has posted the essay A Conservative Approach to Environmental Law: Be Data Driven. His thesis is that conservatives can be politically successful in environmental law reforms only if their critiques of the status quo and prescriptions for improvement are ruthlessly “data driven.” Professor Hsu diagnoses a serious infection of post-modernism in the national debate over environmental issues in general and climate change in particular. That is to say, he observes that the Left and the Right tend to ignore the “facts” and instead argue from “emotion.” Now, one might say that argument from emotion is not new and certainly not limited to environmental issues, but I believe that Professor Hsu’s critique does ring true to some extent and is to my mind a variation of the Bjorn Lomborg thesis, i.e., even assuming a significant warming, the most reasonable and cost-effective response would not require a war against fossil fuels but rather improvements in infrastructure, etc. (Or, to quote Lomborg: “It drives me out of my skull when people say that Hurricane Katrina showed we need to cut greenhouse emissions. No, it showed you need to build better levees.”).
Yet Professor Hsu’s recommendation to conservatives is not ultimately very satisfying because it presumes that conservatives’ disputes with the Left over environmental regulation depend largely on the “how,” i.e., the best means to achieve an agreed upon end. But often conservatives and liberals disagree on the end. For example, a conservative could critique the Endangered Species Act on the grounds not just that it is ineffective at species preservation, but also that it is ultimately wrongheaded in treating the preservation of all species, regardless of their anthropocentric value, as equally important. Similarly, a liberal could critique the National Environmental Policy Act on the grounds not just that it is inadequate to assess the impacts of a proposed federal project, but also that it does not preclude an agency from proceeding with an environmentally damaging project.
Perhaps, though, it’s not too surprising that Professor Hsu should be focused on means rather than ends, given his prominent advocacy of a carbon tax.