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8 Eur. J.L. & Econ. 5 (1999)

handle is hein.journals/eurjlwec8 and id is 1 raw text is: European Journal of Law and Economics, 8:5-27 (1999) W © 1999 Kluwer Academic Publishers. Manufactured in The Netherlands. Public Choice at the Intersection of Environmental Law and Economics BRUCE YANDLE Alumni Distinguished Professor of Economics, Clemson University, Clemson, SC 29634 Abstract Management of environmental assets begins with a commons and ends with various legal institutions that assign property rights and control. Each step in the evolution of these legal institutions involves collective decision making. Public Choice analysis helps to explain the decision making process and institutional characteristics that emerge. A survey of Public Choice literature that addresses environ- mental issues illustrates how Public Choice sheds light on outcomes for the U.S. experience. In the absence of Public Choice theory, law and economics scholars would be hard pressed to explain why costly forms of environmental regulation seem preferred to apparently more efficient institutions and why the body politic seemingly accepts a high-cost, low-output outcome. Keywords: Public Choice, environmental regulation, property rights, political economy, law and economics JEL Classification: 1. Introduction On the frontispiece of Rachel Carson's 1962 epoch-making book, Silent Spring, we find the following quotation from Albert Schweitzer: Man has lost the capacity to forestall and foresee. He will end by destroying the earth. Exactly one hundred years earlier, John Stuart Mill (1900, 7) saw things differently. In an early comment on air pollution, Mill surmised that if from any revolution in nature the atmo- sphere became to scanty for the consumption... air might acquire a very high marketable value. Schwietzer saw catastrophe in the offing. Mill predicted that market solutions would address environmental scarcity. What are we to make of these apparently contradictory forecasts? Schweitzer's gloomy vision of a vast tragedy of the commons does not seem to recognize man's institution-building abilities. As a physician philosopher musician, he apparently did not understand how property rights and markets enable man to foresee and forestall. Mill seemed to understand these things. Alternately, and what might be a more reasonable assessment, Schweitzer understood these things full well, but based his forecast on what he had observed in a remote region of Africa where he spent his life as a barefoot doctor. In contrast, Mill's market expectations were

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