Accounts of environmental law that rely on concepts of environmental harm and environmental protection oversimplify the tremendous variety of uses of environmental resources and the often complex relationships among those uses. Such approaches are analytically unclear and, more importantly, insert hidden normativity into putatively descriptive claims. Instead of thinking about environmental law in terms of preventing environmental harm, environmental problems can be understood more specifically and more meaningfully as disputes over conflicting uses of environmental resources. This Article proposes a use-conflict framework as a means of acquiring a deeper understanding of environmental problems and lawmaking without favoring any particular normative approach. The framework does not itself propose a resolution of any environmental problems but rather describes environmental problems and environmental lawmaking conceptually in a manner that exposes normative claims and attempts to establish some common ground across diverse normative perspectives.
Todd S. Aagaard,
Environmental Harms, Use Conflicts, and Neutral Baselines in Environmental Law,
60 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol60/iss7/1