William H. Rodgers, Jr., The Myth of the Win-Win: Misdiagnosis in the Business of Reassembling Nature, 42 Ariz. L. Rev. 297 (2000), https://digitalcommons.law.uw.edu/faculty-articles/251
Arizona Law Review
deference, environmental restoration
This Article starts with a closer than customary look at the most serious obstacle to the ambitious campaign of environmental restoration that is the focus of this Symposium. That obstacle is the human brain.
The Article contends that human cognitive processes are marvelous designers of serviceable self-deceptions. In the war on nature that we witnessed in the twentieth century the most functional of these is the firm belief in a non-zero sum world. This is the conviction that gains from economic development could be enjoyed without sacrifice of the natural world.
This is a convenient, powerful, and serviceable myth although it happens to be faulty at its foundations. The happy assumptions of win-win are contradicted wherever we look. This conference is focusing on the multi-faceted movement to restore—that is, to fix, repair, set right—that which went wrong. The environmental restoration movement thus rests on denial and repudiation of the win-win myth that allowed our predecessors to claim progress without a price.
Predictably, though, the zero-sum mentality that allowed us to tear out the fabric of nature while retaining its shell is still in vogue. There is an overwhelming desire to retain the benefits of development while we repair the damage. The appealing beacon of the win-win remains tantalizingly attractive to the present generation.
Self-deception, by definition, is misdiagnosis. And misdiagnosis, by definition, is not where we should start in our campaigns to restore nature. The principal institutions we rely upon to resist misdiagnosis are law and science.
This Article evaluates the performance of law and science in the field now loosely called environmental restoration. My examples are drawn mostly from the Columbia River, which is in the throes of an intense campaign to save populations of the great salmon. Neither law nor science has done well in these environmental restoration circles. Law's problem, this Article contends, is that it is dependent on other entities for the development of facts. Courts have responded by inventing a "deference" doctrine that allows them to withdraw from the fray at the first hint of conflicting scientific opinion.
The problem of science, the Article argues, is that it is confined to attempts to answer questions put forth by somebody else—frequently the wrong questions. Scientists have responded to law's encroachments the same way courts have responded to the encroachments of science: adopting a policy of complete deference. No question is too absurd to attempt to answer if it has been asked by a responsible political entity.
It is a tall task to prescribe a fix for courts that defer too readily to science and for science that defers too readily to law. But the recommendation here is for courts to recommit themselves to the task of aggressive judging and for scientists to recommit themselves to pursuing the right questions.