Читать книгу The Psychology of Environmental Law - Arden Rowell - Страница 16

Environmental law seeks to achieve its ends by shaping human behavior—but what those ends are, or should be, remains controversial. Different value judgments about what the environment should be and how humans should relate to it result in varying—sometimes competing, sometimes overlapping—goals. Should environmental law seek to maximize social welfare, and if so, whose welfare counts, and how should that welfare be measured? Should humans seek to craft environments that serve humans, or should we adopt a nonanthropocentric goal, for example by trying to preserve, restore, and build healthy, self-renewing ecosystems for their own sakes, separate from their usefulness to humans? Does it matter if environmental risks and harms are spread unequally across the human population and the planet? How should the goals of environmental quality—however that is defined—be balanced against goals of economic growth or financial prosperity? How important is it for environmental quality to be sustainable over time?

These are hard questions, and often environmental laws reflect a series of compromises and attempts to build consensus that only partially respond to the puzzle of how humans should live on the earth. Psychology has nothing to say about which end or ends are the “best” for a society to choose. Psychology can, however, illuminate how, when, and why people behave in the ways they do; pay attention to the things they do; and, to some extent, respond to the environment in the ways they do. All of these functions are helpful regardless of which normative commitment(s) are held as the appropriate end(s) of environmental law. Psychological analysis can thus increase the effectiveness of any of the common normative ends of environmental law and policy.

In addition to furthering a variety of potential normative goals, environmental law also employs multiple means for shaping people’s behavior toward preferred policy ends. Common tools in environmental law include command-and-control regulatory regimes, ex post liability regimes, economic incentives, and disclosure regimes (Richards & van Zeben, 2020). The choice between these tools—often called “instrument choice”—is a robust subfield within environmental law.

Psychological research has contributed to this domain directly by suggesting new forms of behavioral regulation, such as “nudges,” choice architecture, and other forms of libertarian paternalism (Rowell, 2020a). As readers may know, choice architecture relies upon the purposeful structuring of decision-making contexts to shape people’s behavior toward selected ends. Developed by Nobel Prize–winning economist Richard Thaler and law professor Cass Sunstein (Thaler & Sunstein, 2003) and popularized in their book Nudge (Thaler & Sunstein, 2008), choice architecture relies explicitly upon behavioral research to identify the ways in which context may affect decisions. Default rules and framing are particularly common techniques used to encourage people’s behavior toward selected policy ends (Rowell, 2020a). Where the appropriate ends of environmental law are understood to be maximizing social welfare, the so-called “behavioral market failures” that nudges seek to address (Thaler & Sunstein, 2008; Sunstein, 2014) look like particularly important targets for regulation.

Behavioral mechanisms like nudges can be effective tools for achieving particular policy ends, and it is important to recognize the contributions that psychology has made to developing those tools (Rachlinski, 2011). That said, it would be a mistake to think that psychology is only or even primarily helpful to environmental law through the vehicle of choice architecture or nudges. Accurately understanding and predicting how people perceive, process, and engage with the environment is critical to crafting legal schemes that accomplish their desired ends—regardless of the tools and instruments used to further those ends.