Work and Waste‪.‬

Among the frustrations of teaching Environmental Law is the nagging sense that, perhaps here more than in other areas, the primary questions to be addressed are not legal, or, at least, that current legal strategies suppose that those primary questions have been answered in a particular way. (1) The difficulty arises because, as P.S. Elder (1991:838) has observed, "[l]aw is largely a goal-implementing, not a goal-deriving set of techniques." Thus, we cannot know what the legal means should be until we have identified, through, say, scientific, ethical or economic understandings, the ends they are to implement. In this essay, taking my lead from elder's perhaps truistic observation that "[o]ur economic system is obviously at the heart of the environmental crisis," (1991:844) (2) I wish to explore some aspects of our economic understanding that strike me as crucial. My thesis is that, unless we are able to come to grips with an important contradiction in that understanding, many of our environmental initiatives will be abortive. (3) The problem I shall address is central; it has been noticed to the point of having become a cliche. It is nowhere more poignantly expressed than in the celebrated Depression-era case of Versailles Borough v. McKeesport Coal & Coke Co., in which the plaintiff sought an injunction to stop pollution emanating from the "gob pile" associated with the defendant's mining operations. The court acknowledged that there was pollution, but "[f]our hundred and thirteen men were employed at this mine .... These men and their families--about two thousand people in all, are economically dependent upon this mine for subsistence." Musmanno J. explained: