Qualitative, Quantitative, And Integrative Conservation (Symposium: New Directions in Environmental Law‪)‬

INTRODUCTION Conservation is being overtaken by the same quantitative thinking that dominates risk regulation today. "Risk regulation," traditionally conceived, "addresses the risk of harm that technology creates for individuals and the environment." (1) In this light, environmental statutes like the Clean Air Act ("CAA"), Clean Water Act ("CWA"), and Toxic Substances Control Act ("TSCA") are the legal extensions of probabilism and the "rational" pursuit of public health and safety--with conservation statutes like the Endangered Species Act ("ESA") following right behind them. (2) They each invest power in an adrninistrative agency by authorizing it to prohibit behaviors of a certain kind which it finds too risky given the probabilities of harmful consequences. (3) Before they can act, however, the agencies normally must make certain required findings or determinations, based on evidence and usually according to disparate criteria fixed (of implied) by the governing statute(s), subject to judicial review. (4) Not surprisingly, these laws have become--with help from administrative law--enmeshed in the parametric controversies of epidemiological inference, (5) cost/benefit analysis, (6) and time discounting, (7) to say nothing of the metaphysics of statistical lives (8) and a slew of other ethical dilemmas that come along for the ride when we try to quantify risk.