Читать книгу The Psychology of Environmental Law - Arden Rowell - Страница 9

At first glance, environmental law may seem a strange space in which to seek insights from psychology. Psychology, after all, aims to illuminate the interior of the human mind, while environmental law is fundamentally concerned with the exterior surroundings—the environment—in which people live. Yet those surroundings are constantly affected by human behavior, and as we will explain in this book, psychology can often help in explaining, describing, evaluating, and predicting behaviors with environmental impacts. This can prove helpful in predicting the real-world effects of environmental laws and in constructing environmental policies that are more effective at shaping human behavior toward desired ends. Indeed, in many cases, failing to address psychology can impoverish or even undermine the operation of environmental law.

Yet notably, as we write these words, the field of environmental law and psychology does not exist—though we believe it could and should. In the remainder of this introduction, we explain what we think psychology can offer environmental law—and why we think a psychological approach to environmental law is valuable enough that you should read this book.

Thus far, psychology has lagged behind other social science disciplines in finding purchase within environmental law. Economics, in particular, has long been a dominant force in environmental law, both in developing theories of individual and organizational behaviors and in affecting on-the-ground policy makers. It has been particularly influential through its focus on incentive structures and how they affect decision making in environmental law. Although less pervasive than economics, political science has also made important contributions, particularly in understanding how institutions and institutional actors function in their roles as policy makers and interpreters, and in illuminating how regulators choose particular instruments to pursue environmental goals. Sociology has contributed as well, especially in the area of environmental justice and in addressing how environmental regulation may affect different sectors of society in different ways.

So what does a psychology of environmental law contribute, and how does it differ from the perspectives offered by these other social science disciplines? First and foremost, psychology illuminates the internal, mental processes that shape people—who in turn may shape institutions and laws. Some mental processes are rational and thus amenable to classical economic modeling; others, such as many emotional and motivational processes, are not. Often, plural values exist simultaneously within the same human mind; such values may change, conflict, compete, and exist in some contexts but not others. Psychology seeks to be richly descriptive of all these mental processes—including those grounded in emotion, motivation, and social interaction—in a way that is based in empirical (often experimental) observation, rather than in a unified theory of human behavior (such as rational choice theory).

Second, because of its historical emphasis on experimental research, psychology offers a different set of insights on human behavior than other social science disciplines, such as sociology and economics, that have developed primarily in observational soil. Psychology emphasizes controlled experiments, often conducted in laboratories, because of their usefulness in generating clean, testable models in which causes versus effects are clear. Because the specific details of an experiment can be tightly controlled, this structure of empirical research is particularly well suited to measuring and evaluating mental processes—whether cognitive, emotional, or motivational—that may flow from multiple causes, values, or influences. Its downside is that it requires extrapolation from experimental settings to real-world contexts. Observational studies, by contrast, excel at describing how people are actually behaving—though they are not well structured for teasing out why they are behaving that way; for accounting for plural or context-dependent causes, values, or influences; or for predicting how changes in information, perception, or context might result in changes to behavior. (Of course, some psychologists do observational work, and other social scientists—especially behavioral economists, who have been so influenced by psychology—do experimental work.) Yet experimental research can be used to inform understanding of human behavior in ways that cannot be effectively reached through observational research alone.

To be clear, environmental law and policy may be valuably informed by both experimental and observational empirical research. But as we showcase in this book, the trove of experimental research that psychology has developed offers particular utility in a world pervaded by ever-increasing social and environmental change—though to date what psychology offers in this realm has been underused in comparison to research in other social science disciplines such as economics. As a result, we believe that the core dependence of psychology on experimental research should be seen as a feature and not a bug—and a feature that, particularly when combined with research from observational social science disciplines, can aid law and policy in painting a richer and more predictive account of human behavior and environmental change.

Finally—and we think valuably—psychology strives to be nonnormative. It is interested in understanding human mental processes and using that understanding to predict behavior. It is also interested in understanding and predicting how people will respond to a panoply of situational influences—including not just incentives, but also other people. But psychology is not interested in—or more specifically, is not capable of—deciding what people’s goals should be. There is no guiding light of, say, “efficiency” or “justice” integral to the discipline. Thus, a psychology of environmental law will take no position on what the goals of environmental law should be, either in the grand scheme or in particular cases. This is a drawback for those seeking approaches that identify normative ends—for those purposes, philosophy or economics may be more helpful. Yet for those who have already selected normative ends that they wish to serve—to maximize social welfare, create just distributions of environmental goods, or establish environmental quality that is sustainable into the future—psychology’s agnosticism is a decided advantage. It makes psychology “friendly,” for want of a better word: Those in environmental law can use it to help them effect whatever ends they think appropriate.

So this is what psychology can offer environmental law: a rich, experimentally informed account of why, when, and how people act in ways that affect the environment—which can then be used to more effectively pursue whichever policy ends are desired.

Here, a specific example of how a psychological approach can inform environmental law may be in order. Consider the operation of the Endangered Species Act (1973), one of the most comprehensive and important pieces of legislation in the field. As we discuss further in Chapter 7, the ESA describes a procedure by which a species—any species—can qualify as “endangered.” A species can be listed either via agency action or as the result of citizens petitioning to have it listed (by far the more common route). Once an animal or plant is on the list of endangered species, no public action can be taken that imperils any member of that species or its critical habitat, and private actions are seriously circumscribed. From a statutory perspective, then, the ESA is clear about its purpose, clear about its procedures, and clear about what can and cannot be done in light of it.

Notably, the ESA is facially neutral as to the types of endangered species protected—whether mammals, plants, spiders, or worms. In light of that, how should we expect the broad protections of the act to be allocated in practice? One prediction might be that all types of species would be more or less equally likely to be protected. If so, we would expect to see the number of species of various types that are protected be roughly proportional to the total number of that type of species in the world. An alternative prediction might be that types of species that are more endangered, for example by changing climates, would be more likely to be protected. In that case, for example, cold-blooded animals should tend to be more protected than warm-blooded animals, the latter of whom have more options for adapting to changing climactic conditions. Still another prediction might be that types of species that are particularly important to larger ecosystems, and that might therefore cause more wide-ranging damage through extinction, will tend to be more protected. In that case, we should expect to see species that are at the bottom of food chains, such as insects, being more protected than those at the top of food chains, such as reptiles or mammals.

All of these predictions, however, appear to be wrong. In fact, warm-blooded mammals are protected at far greater rates than any other type of species: 7 times the rate of reptiles, 23 times the rate of plants, 70 times the rate of insects, and 87,500 times the rate of spiders. Why?

At least part of the answer is human psychology. For an animal to be protected by the ESA, someone—whether an individual, organization, or agency—must both notice and care enough about the species in question to go through the effort of getting it on the list. And the processes that lead to attention and care are cognitive and emotional—they are psychological processes. Which species garner enough attention to trigger listing? Larger, more photogenic, and more vivid species. This advantages mammals and reptiles over plants and insects. Which are most likely to trigger caring sufficient to justify the effort of listing? Those that provide the greatest basis for emotional connection, such as animals that share features with human babies—again, think fuzzy mammals—and not those that trigger deep-seated phobias, such as arachnids. Which animals, then, are least likely to find their way onto the list of protected species, regardless of their potential value to ecosystems and degree of endangerment? Those that are easy to ignore and that trigger little to no emotional connection—like insects and plants. Note that, again, there is no reason to think that such species are more resilient against extinction risks. If anything, the opposite may be true. Some scientists warn, for instance, of a coming “insect apocalypse” and estimate that as much as 40% of insect species are in measurable decline (Sanchez-Bayo & Wyckhuys, 2019). Yet only 0.1% of insect species are protected by the ESA—versus 7% of mammal species.

This serves as an example of how human cognitive and emotional processes can affect how the law operates, and indeed, whether it is effective at serving the ends for which it was created. Note again that there is no evidence that legislators intended the Endangered Species Act to be a Cute, Noticeable Animal Protection Act—that is just how the act has come to function in practice. Importantly, this result is not inevitable, even if it is predictable: Once they are aware of how the ESA functions in light of human biases and other mental processes, legal decision makers have the option of responding. If some species are not being noticed but should be, the law can intervene to make them more noticeable, can specifically direct action targeting neglected and disliked species, and/or otherwise incentivize their inclusion on the endangered species list. Yet the direction such corrections might take, and the need for them in the first place, becomes apparent only once a psychological analysis of the ESA has been done.

With this example in mind, then, we can see that psychological analysis of environmental law offers descriptive, predictive, and prescriptive payoffs. Descriptively, psychology enriches environmental law’s understanding of why, when, and how people engage in behaviors that affect the environment, by illuminating human cognition, motivation, and emotion. Predictively, psychology can help environmental law more accurately anticipate the impact of laws on human choices and human behaviors. And prescriptively, psychology can help environmental law identify opportunities for more effectively achieving its policy goals, whatever they may be.

Now that we have (hopefully) mounted a compelling case that psychology has something valuable to offer environmental law, the remainder of this book presents the building blocks for creating a psychology of environmental law. Chapter 1 articulates what we see as distinctively environmental, distinctively psychological, and distinctively legal about such a field. Subsequent chapters expand and develop our claims that the particular characteristics of environmental injury generate identifiable psychological implications, and that laws, legal institutions, and legal decision makers can be more effective in achieving environmental goals when they apply psychological analysis to environmental law. We pursue these claims through two means. First, in chapters 2, 3, 4, and 5, we outline what we see as the key psychological building blocks for performing psychological analysis of environmental laws. Three of these chapters are dedicated to highlighting psychological research that is particularly relevant to environmental law, in that it informs people’s perceptions, processing, and responses to the diffuse (Chapter 2), complex (Chapter 3), and nonhuman (Chapter 4) character of environmental injury. These explorations, in combination with a more generalized overview of key research findings in law and psychology (Chapter 5), present readers with the tools they need to perform psychological analysis of environmental laws in specific applied areas.

The remainder of the book applies the research canvassed in these earlier chapters, presenting concrete examples and displaying some of the intellectual payoffs of applying a psychological approach to the environmental law of pollution control (Chapter 6), ecosystem management (Chapter 7), and climate change (Chapter 8). The book concludes with a final chapter containing suggestions for how the psychology of environmental law might develop from here, and ideas about future research that would further capture the benefits of psychological analysis for policy makers and other legal actors in environmental law.