Boldly Precautionary

Abstract

The opening words of the National Environmental Policy Act of 1969 seem to establish strikingly unequivocal goals: to “encourage productive and enjoyable harmony between man and his environment” and “to promote efforts which will prevent or eliminate damage to the environment.”1 Read plainly, the National Environmental Policy Act and other landmark environmental legislation of the 1960s and 1970s do not abide partial efforts or marginal tinkering.2 They instead set out an ambitious, if unattainable, environmental vision for America. Fast-forward to 2009, and the terrain has shifted dramatically. In an executive order appended to the National Environmental Policy Act preamble, President Barack Obama declared that, in order to achieve the nation’s environmental goals, federal agencies “shall prioritize actions based on a full accounting of both economic and social benefits and costs . . . extending or expanding projects that have net benefits, and reassessing or discontinuing under-performing projects.”3 Gone is the idealistically absolutist stance of 1969. Technocratic efficiency, in the form of cost-benefit analysis, is now the order of the day. Once dreamers, our political leaders have become bean counters. That shift, according to Yale Law School professor Douglas A. Kysar, lies at the heart of America’s failure to construct a meaningful environmental agenda.