Fowler Law Associate Dean Donald Kochan Publishes Article on Economics-Based Environmentalism
May 28, 2015
Chapman University Dale E. Fowler School of Law Associate Dean Donald Kochan’s article “
Economics-Based Environmentalism in the Fourth Generation of Environmental Law
” was published in Volume 21 of the University of Missouri School of Law’s
Journal of Environmental & Sustainability Law
this month. The article was written for the 2015 symposium “Environmental Law 4.0: Adaptive and Resilient,” and explores issues of economic analysis that might arise as we approach the fourth generation of environmental law.
Continue reading below for an excerpt from the article abstract.
Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, prescriptive rules that lack the adaptability and tailored effect of economics-based rules. Economics-based environmentalism explains that environmental protection can be accomplished if the government sets rules that allow private markets to price resources, establishes enforceable rights in those resources, and allows individuals to freely trade such rights. To the extent that the state is unwilling to surrender substantial control to private actors and the market, economics-based environmentalism calls for the injection of these economic standards into the development of state-based regulatory law, hoping that those state laws will try to harness the economic ideas.
One proposal in the article calls for embedding in law a more stringent requirement that agencies prove the existence of market failure and the exhaustion of economic alternatives to governmental regulation before being allowed to proceed with any top-down, interventionist governmental regulation. The last portion of the article focuses on theories from law and economics, including those related to the self-perpetuating behavior of bureaucracies, public choice models of legislation and regulation, and capture theory as barriers to any effective reform in the emerging fourth generation of environmental law – whether it be those reforms proposed by others or even those suggested earlier in the article.
Donald Kochan
is the Associate Dean for Research and Faculty Development and professor of law at Chapman University Dale E. Fowler School of Law. Dean Kochan has published more than 30 scholarly articles and essays in well-respected law journals. His work has been cited in more than 250 published law review articles, and his articles have been downloaded more than 9,500 times from SSRN and BePress. In addition to his scholarly publications, Dean Kochan has published opinion editorials in leading newspapers across the country, recently including the
Wall Street Journal
and the
L.A. Times.
He has presented his work at national legal conferences and at law schools domestic and foreign, has testified before the U.S. Senate Committee on Agriculture, Nutrition and Forestry, and has appeared on national radio and cable news broadcasts.
