Thursday, December 1, 2016

ELC Essay #1: What We Talk About When We Talk About Zero-Sum Environmentalism

By Jessica Owley

This past summer, a small but hardy group of law professors gathered to discuss the concept of zero-sum environmentalism. In particular, we had set for our agenda to get “beyond” zero-sum environmentalism. The suggestion was that there is a dominant approach to environmental law issues that frames them as zero-sum and that this framing can be damaging to environmental progress. What we grappled with, though, is whether environmental problems really are (at least at times) zero-sum. Is the description of an environmental issue as zero-sum ever accurate? Are laws treating issues as zero-sum when they shouldn’t be doing so? Or maybe ignoring a zero-sum framework that is at play? Perhaps there are no zero-sum environmental dynamics in the real world and instead “zero-sum” is just the language we (or some of us) use to describe environmental tradeoffs. Zero-sum as used in the context of environmental policy implies stark winners and losers. If the environment wins, the economy must lose. To protect the owls, we destroy the lives of the loggers. To prevent global climate change, Americans must completely change life as we know it.

Our discussions revealed (unsurprisingly) that we all came to this question with different examples, assumptions, and solutions. Some people rejected the idea that zero-sum problems ever actually exist and suggested that reliance on the framework and use of the term can be damaging to environmental governance. Not just because it is an overly constrained view of how tradeoffs actually work, but because the language of zero-sum necessarily creates a combative stance that can impede collaboration and creative thinking. Others suggested that for some environmental concerns, the zero-sum framework was actually underused. That is, we might reach better results if we confront the actual tradeoffs. What work does it do to label environmental problems a zero-sum game? In this case, climate change and biodiversity protection served as key examples. Maybe we do need to emphasize that you can’t have your cake and eat it too. Building that hospital will indeed lead to the extinction of a species. Putting the conundrum in stark terms might help highlight the need for embracing the principle of in dubio pro natura (when in doubt act in favor of nature). Most of us agreed, however, that when we see the zero-sum rhetoric or when we use it ourselves, we aren’t really talking the language of economists. We are taking their term and simplifying it (taking a complex topic from another discipline and simplifying it for our use is something we legal academics are good at). But more than that, we realized that we aren’t actually the ones using this term. In fact, it is not heavily used in the legal academy. It is used in the media, though, and by politicians.



This chart shows an increase use of the phrase “zero-sum” in books first appearing around 1940 and increasingly used since then with a tapering off beginning in 2000. However, overall there is not a high frequency of use of the phrase. Zero-sum Environmentalism did not appear often enough to be plotted with google’s ngram function. What would be more interesting is to chart this phrase in speeches, academic publications, and news articles, but well … I don’t know how to do that.

In this way, maybe the mission of going beyond zero-sum environmentalism is to reject the use of the term. To emphasize that it is not really occurring. Or maybe it is to show the strength of the attitude of zero-sum. If we think that a zero-sum approach is flawed as overly simplistic, then highlighting where actors/policymakers are treating complex environmental problems as zero-sum issues can reveal flaws in policymaking. Daylighting the zero-sum framework can expose overly simplified approaches to environmental protection efforts, allowing one to target those arenas as needing richer analysis.

Once I began looking for it, I saw zero-sum issues throughout my work. For example, I have often complained about the nature of property law arrangements (specifically conservation easements) to break instead of bend. That is, when something starts to go wrong making it challenging or impossible to comply with a conservation easement, the legal solution from a property law standpoint is to terminate the agreement instead of amending it. Thus, under property law we either have the conservation easement in place or we don’t. You can think about this as arising in other disputes over property as well. Despite the tales of King Solomon, property law doesn’t actually split the baby or often divide up property. Instead, it uses an all-or-nothing approach where one person is declared a winner and another the loser. Someone gets mom’s house; we don’t really draw a line down the middle and force the squabbling sisters to share it (although I think there are probably multiple movies with that story line … if not I call dibs).

For example, suggesting that the all-or-nothing approach does not need to be the solution for conservation lands, Nancy McLaughlin has successful argued (and convinced many conservationists and courts) that we should go beyond property law and import charitable trust principles into conservation easement law to enable changes to conservation easements that are more likely to foster greater land protection. Even judges are willing to deviate from the zero-sum approach as we see with Judge McCarthy in the Barry Bonds baseball case who decided to split the value of the ball rather than award it to one of parties claiming to have caught it—as would have been the more traditional property law approach. As these examples show, deviations from the zero-sum approach may be increasing in acceptance even in the strict context of property law.

Maybe the problem is that we need to rethink and find alternatives to the zero-sum approach but indeed realize that we never should have considered the problems as zero sum from the beginning. Perhaps labeling things like land conservation as a zero-sum game was wrong from the start as overly simplistic idea of all the components that go into the equation (problems are decidedly more complicated that Solomon’s baby-splitting approach suggests). In land conservation, for example, we do not simply decide that land is set aside for pure conservation in a reserve-like setting or it is actively exploited to generate wealth. Instead the potential arrangements and uses of the land are numerous. Indeed, we can often both protect environmental features and promote economic returns for the landowners. Zero-sum analysis in the economic sense are usually modeled as a two-player game. Our land conservation example, however, shows us that it is too simplistic to look at environmental problems that way. It isn’t simply “Environment” as player one and “People” as player two. There are a myriad of players and arrangements that can be benefited and harmed by choices in land conservation arrangements.

The label of zero-sum should probably be setting off alarm bells for us. Indeed, we might want to keep close tabs (set up a google alert!) for use of the phrase in environmental contexts. Each time we see policymakers using the terms, it should be a signal to us. Tracking “zero-sum environmentalism” might help highlight a flaw in the system as showing us where discussions are being overly simplified.

Whether we reject the zero-sum framing or embrace it, we all agree that the deeper investigation into how policymakers and academics approach environmental concerns can improve outcomes. Over the course of the next several weeks, we will be sharing with you our initial thoughts on our quest to go “Beyond Zero-Sum Environmentalism” and hope you will help make this a dialogue and exploration of ways to improve our agreed-upon goal of improved environmental protection and governance.

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