Purdy article on rapprochement between environmental law and ethics featured in prestigious collection

April 22, 2014Duke Law News

An article by Professor Jedediah Purdy about the evolving relationship between environmental law and ethics was chosen to be one of three pieces of scholarship featured in the 2014 Environmental Law and Policy Annual Review (ELPAR). The yearly compendium showcases environmental scholarship deemed most innovative by an expert advisory committee, senior staff from the Environmental Law Institute, and law students from Vanderbilt University.

Purdy’s article, “Our Place in the World: A New Relationship for Environmental Ethics and Law” (62 Duke Law Journal 857-932 (2013)), along with the other two articles chosen by ELPAR, was the focus of a panel discussion during an April 4 conference on Capitol Hill.

The article addresses a divergence between environmental law and policymaking, and environmental ethics, a separation that has manifested and grown over the last 30 years, says Purdy, the Robinson O. Everett Professor of Law.

“The argument of the piece is that there’s a relationship between environmental ethics and the practicalities of environmental law that’s been obscured because environmental ethics has gone off in an impractical direction and environmental law has been in sort of a static place in terms of the values it has been pursuing,” he says.

This divide started to become apparent to Purdy when he was teaching an environmental law colloquium with Professor Jonathan Wiener in 2007, he says.

“I came to appreciate that a lot of effort was going into showing in very technically sophisticated ways, how hard it would be to do anything about climate change because of various collective action problems. What I wanted to do was say, ‘This can only be half of the story.’ Because what’s possible within any collective action situation is partly a function of what the people in that situation are trying to accomplish, what they value, and how much they value it.

“It’s also true that sometimes people will do things even if those things seem economically irrational or doomed to fail because they think those things are just intrinsically worth doing. And both of those dimensions seemed to be things we needed to look at to ask, ‘What might work? What might make something happen in the climate change area?’ Because it seemed pretty clear that, if you just assumed that we would keep approaching these problems in the same way we had been approaching them, there was good reason to believe that we wouldn’t do anything about them.”

Thinking about environmental law and policy in conjunction with larger philosophical questions about our relationship with the natural world is not unheard of, Purdy says. That kind of confluence helped shape the national conversation that led to the creation of the national parks system, as Purdy outlined in a 2009 article, “The Politics of Nature: Returning Democracy to Environmental Law,” (119 Yale Law Journal 1122-1209 (2010)).

In that article, Purdy described the Romantic and Progressive-era ideals that formed a pivot point for the public discussion about natural resources. Those ideals, expressed through such public figures as Sierra Club- founder John Muir and Teddy Roosevelt, brought about a new language and framework for the national understanding of conservation and the experience of nature generally.

Purdy points out that the discussion about climate change, if imbued with an ethical component, could cause a reassessment of national priorities or an acknowledgement that such a reassessment has already occurred.

“This might be one of those problems that, if we substantially address it, it will change us,” Purdy says. “We won’t emerge from grappling with it the same as we were when we started. This is true of a lot of past conflict. It’s true of the history of gender and the women’s movement, it’s true of civil rights, it’s true about public lands and the discovery of environmental values as core cultural values. All of those are ruptures with the cultural past that make us different people than we were before they happened, and they’re partly enshrined in law and implemented through law.

“Wanting to bring that dimension into the climate change debate and feeling like the absence of it was contributing to a sense of pessimism and futility, was part of the starting point for this article.”

The inclusion of his article in the prestigious ELPAR publication was an unexpected honor, Purdy says.

“I was flattered and a little surprised to hear the news because their criteria are generally more about problem-solving and immediate policy application and this is a much more philosophical piece.”

Other News