L. Rev. 941 Environmental Regulation, Cost-Benefit Analysis, and the Discounting of Human Lives

.

n317. The differences in the patterns of per capita energy consumption between developed and developing countries are stark. See International Energy Agency, Climate Change Policy Initiatives 28 tbl.3 (1992). Over time, this share of the responsibility might decrease as developing countries industrialize.

n318. Perhaps, however, there is a concern that direct foreign aid would not be spent wisely by the recipient, or could create undesirable incentives. If these problems were sufficiently serious, long-term environmental investments could be the most desirable way of providing foreign assistance.

n319. See Louis Kaplow, The Optimal Supply of Public Goods and the Distortionary Cost of Taxation, 49 Nat'l Tax J. 513, 516-19 (1996); Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 Harv. L. Rev. 713, 744-45 (1996). For discussion of the distributional consequences of environmental policy, see Richard L. Revesz, Foundations of Environmental Law and Policy 102-03 (1997).

n320. See Farber & Hemmersbaugh, supra note 19, at 300.

n321. The substitutability of these future benefits is discussed below in the context of the principle of sustainable development. See infra Part II.E.

n322. See infra text accompanying notes 343-344.

n323. See supra text accompanying notes 254-256.

n324. See, e.g., Gary D. Meyers & Simone C. Muller, The Ethical Implications, Political Ramifications and Practical Limitations of Adopting Sustainable Development as National and International Policy, 4 Buff. Envtl. L.J. 1, 10 (1996) ("The core idea of sustainability, then, is the concept that current decisions should not impair the prospects for maintaining or improving future living standards."); Edith Brown Weiss, Intergenerational Equity: A Legal Framework for Global Environmental Change, in Environmental Change and International Law: New Challenges and Dimensions 385, 385 (Edith Brown Weiss ed., 1991) ("Sustainable development rests on a commitment to equity with future generations.").

For a strong critique of the concept of sustainable development, see Wilfred Beckerman, Through Green-Colored Glasses: Environmentalism Reconsidered 143-60 (1996).

n325. See Dubourg & Pearce, supra note 284, at 27 ("Sustainability has become a common policy objective of many government institutions, international agencies, and non-governmental organisations."); supra text accompanying notes 234-237.

n326. Some commentators link the attractiveness of sustainable development with criticisms of discounting approaches: "There appears to be a part of our concern about the future that is not captured by discounted utilitarianism. Perhaps as much as anything it is this that is driving an interest in formalising the concept of sustainability." Beltratti et al., supra note 266, at 149.

n327. See David Hodas, The Climate Change Convention and Evolving Legal Models of Sustainable Development, 13 Pace Envtl. L. Rev. 75, 77 (1995); Averil Rothrock, Oregon's Goal Five: Is Ecologically Sustainable Development Reflected?, 31 Willamette L. Rev. 449, 451 (1995); Mary Pat Williams Silveira, International Legal Instruments and Sustainable Development: Principles, Requirements, and Restructuring, 31 Willamette L. Rev. 239, 243 (1995); Christopher D. Stone, Deciphering "Sustainable Development", 69 Chi.-Kent L. Rev. 977, 978 (1994). For general discussion of the principle of sustainable development, see 1 Sands, supra note 234, at 198-208.

One commentator has suggested that over 70 definitions of the term exist. See Susan L. Smith, Ecologically Sustainable Development: Integrating Economics, Ecology, and Law, 31 Willamette L. Rev. 261, 276 (1995); see also John Peezey, World Bank Environment Paper Number 2: Sustainable Development Concepts: An Economic Analysis, app. A (1992) (presenting an extensive list of definitions).

n328. World Commission on Environment and Development, Our Common Future (1987).

n329. Id. at 43.

n330. See Weiss, supra note 324, at 401-05; Solow, supra note 260, at 162.

n331. The following two paragraphs are adapted from Revesz, supra note 319, at 307-08.

n332. See Weiss, supra note 324, at 401-05; Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity 40-45 (1988).

n333. See Solow, supra note 260, at 162-63.

n334. See id. at 167-68.

n335. See id. at 168.

n336. Compare Weiss, supra note 324, at 404 ("The principle of conservation of quality requires that we leave the quality of the natural and cultural environments in no worse condition than we received it."), with Solow, supra note 260, at 167 ("If sustainability means anything more than a vague emotional commitment, it must require that something be conserved for the very long run.").

n337. Compare Weiss, supra note 324, at 404 ("We may exhaust more reserves of a natural resource and cause modest levels of pollution, but pass on a higher level of income, capital, and knowledge sufficient to enable future generations to develop substitutes for the depleted resource and methods for abating or removing pollutants."), with Solow, supra note 260, at 168 ("Most routine natural resources are desirable for what they do, not for what they are. It is their capacity to provide usable goods and services that we value. Once that principle is accepted, we are in the everyday world of substitutions and trade-offs.").

n338. Compare Weiss, supra note 324, at 403 (we "must proceed extremely cautiously" with respect to the possible destruction of a "unique natural resource"), with Solow, supra note 260, at 168 ("It makes perfectly good sense to insist that certain unique and irreplaceable assets should be preserved for their own sake").

n339. See Solow, supra note 260, at 163 ("So far ... the proper adjustments needed to measure the stocks and flows of our natural resources and environmental assets are not being made in the published national accounts.").

n340. See Michael Jacobs, The Green Economy: Environment, Sustainable Development and the Politics of the Future 84 (1991) ("The final objection which might be made to our definition of sustainability is that it ignores population growth."); Michael Redclift, Sustainable Development: Exploring the Contradictions 29 (1987) ("The concept of 'sustainability' makes little sense ... unless we also consider the impact of rapid population growth on the physical resource base."); Nafis Sadik, Population, Environment, and Sustainable Development, in In the Aftermath of the Earth Summit 21, 23 (Andreas Gettkant ed., 1993) ("The universal acceptance of the strong links between sustainable development and the preservation of the environment does not extend to the links between these two and the population policy."). But see President's Council on Sustainable Development, Population and Consumption Task Force Report 13-32 (1997) (discussing how population growth is linked to sustainability).

The link to population does not play a role in the discussions by Weiss, supra note 324, at 401-05, and Solow, supra note 260.

n341. For an exploration of the ethical consequences of this link, see Parfit, supra note 21, at 351-441; Broome, supra note 86, at 161-62.

n342. See Jacobs, supra note 340, at 84 ("It could be argued that what sustainability demands is not simply a constant level of environmental capacity but a constant per capita or per person level."); Richard Baldwin, Does Sustainability Require Growth?, in The Economics of Sustainable Development, supra note 266, at 51, 52 ("The simple fact is that current population growth rates, if they were maintained, would lead to an unsustainable world population.").

n343. See Gregory D. Fullem, The Precautionary Principle: Environmental Protection in the Face of Scientific Uncertainty, 31 Willamette L. Rev. 495, 500-01 (1995); Alexandre Kiss, The Rights and Interests of Future Generations and the Precautionary Principle, in The Precautionary Principle and International Law: The Challenge of Implementation 19, 27 (David Freestone & Ellen Hey eds., 1996); Bernard A. Weintraub, Science, International Environmental Regulation, and the Precautionary Principle: Setting Standards and Defining Terms, 1 N.Y.U. Envtl. L.J. 173, 177-78 (1992). For a discussion of the status of the precautionary principle in international environmental law, see 1 Sands, supra note 234, at 208-13.

n344. See supra text accompanying notes 252-253.

n345. These issues are explored briefly in Revesz, supra note 319, at 330-31.

n346. In this context, the principle of sustainable development has the same features as the maximin principle.

n347. See supra text accompanying notes 314-316.

n348. See supra text accompanying notes 281-286.

n349. Other objections to growth discounting are discussed at supra text accompanying notes 308-311.

n350. See supra Part II.E.

n351. See supra text accompanying notes 319-320.

n352. See supra text accompanying notes 316-317.

n353. See supra text accompanying note 317.