This book sets forth concrete proposals and ideas to guide the next generation of environmental law. The first generation of environmental law aimed to fully protect public health and the environment. It did so mostly through very detailed statutes and accompanying standards. This generation of law succeeded in meeting some of its goals and sparked significant progress toward meeting the rest. But it spawned an extraordinarily complex system that proved more difficult to implement than its creators had anticipated. Moreover, most of these statutes required that agencies prove harm before regulating, and many natural resource management statutes gave agencies broad discretion to balance competing values. Uncertainty and the broad discretion accorded agencies limited these statutes' success in achieving their stated goals.

We are nearing the end of a second generation of environmental law. This second generation carried out regulatory reforms ostensibly guided by a desire for economic efficiency. These reforms included greater reliance on cost-benefit analysis (CBA) to choose the goals of environmental law and market-based mechanisms as methods for achieving those goals. Although this approach enjoyed some successes, the CBA part of the agenda proved disastrous. By taking an insufficiently precautionary approach, the United States failed to act in a timely manner on global warming, which proved a much greater menace than economists and opponents of action had anticipated. CBA, while ostensibly aimed at rationalizing environmental law, usually simply provided a cover that allowed regulated polluters and ideologues favoring their interests to paralyze regulation.