The dominant approach to environmental policy endorsed by conservative and libertarian policy thinkers, so-called “free market environmentalism” (FME), is grounded in the recognition and protection of property rights in environmental resources. Despite this normative commitment to property rights, most self-described FME advocates adopt a utilitarian, welfare-maximization approach to climate change policy, arguing that the costs of mitigation measures could outweigh the costs of climate change itself. Yet even if anthropogenic climate change is decidedly less than catastrophic, human-induced climate change is likely to contribute to environmental changes that violate traditional conceptions of property rights. Viewed globally, the actions of some countries—primarily industrialized nations—are likely to increase environmental harms suffered by other countries—less developed nations that have not (as of yet) made any significant contribution to climate change. It may well be that aggregate human welfare would be maximized in a warmer, wealthier world, or that the gains from climate change will offset environmental losses. Yet such claims, even if demonstrated, would not address the normative concern that the consequences of anthropogenic global warming would infringe upon the rights of people in less-developed nations. As a consequence, this paper calls for a rethinking of FME approaches to climate change policy.

We address the question of whether there is a prioritarian moral theory that both (1) avoids giving absolute priority to the worst off (as leximin does) but (2) does not allow arbitrarily small benefits to enough extremely affluent people to take priority over a significant benefit to a worst off person in abject poverty. We argue that this is possible only if one rejects some seemingly plausible conditions.

The Endangered Species Act of 1973 (ESA) is America's strongest environmental law. Its citizen-suit provision—permitting “any person” whomsoever to sue on behalf of a threatened or endangered species—awards implicit intrinsic value, de facto standing, and operational legal rights (sensu Christopher D. Stone) to listed species. Accordingly, some cases had gone forward in the federal courts in the name of various listed species between 1979 (Palila v. Hawaii Dept. of Land & Natural Resources) and 2004 (Cetacean Community v. Bush), when the Ninth Circuit Court of Appeals ruled that animals could not sue in their own name. Because the Supreme Court has interpreted its habitat destruction as the “taking” of a listed species, some have argued that enforcement of the ESA's critical-habitat-protection provision is a “regulatory taking” of private property without just compensation, contrary to the Fifth Amendment of the Constitution. The courts have not agreed. The ESA citizen-suit provision appears to waive federal-court standing requirements devolved from Article III of the U.S. Constitution, creating much confusion and mutually contradictory rulings. A series of cases (culminating with Bennett v. Spear) reconciles the ESA's citizen-suit provision with the particularized and concrete “injury-in-fact” standing requirements devolved from Article III.

Utilitarians and their critics commonly assume that maximizing utilitarianism necessarily aggregates over cardinal comparable personal utility rankings that are homogeneous in quality independently of their sources or objects, whether utility is conceived in terms of pleasure or preference satisfaction. Although familiar versions of utilitarianism, crude or sophisticated, do make such rich homogeneous utility information part of the very meaning of the doctrine, utilitarian philosophy loses credibility as a result. A more credible version of maximizing utilitarianism along John Stuart Mill's lines relies instead on plural kinds of ordinal non-comparable personal utilities that are heterogeneous in quality. One kind of utility is qualitatively superior to another if and only if the higher kind is more valuable than the lower kind irrespective of quantity. Given that the kind of utility associated with the moral sentiment of justice is qualitatively superior to any competing kinds, Mill's pluralistic ordinal utilitarianism gives absolute priority to a social code of equal rights and duties over competing considerations. Some key practical implications of this extraordinary utilitarianism are discussed with reference to various examples of the sort discussed in the literature.

Aggregation-friendly moral theories such as classical utilitarianism are forced to invest a great deal of ingenuity in damping out and modulating the effects of welfare aggregation. In Mill's treatment, the problem famously appears as the puzzle of how the Principle of Liberty is meant to be compatible with the Principle of Utility, and there have been a great many attempted interpretations of his solution, all, in my view, unsatisfactory. I will first reconstruct Mill's generally unnoticed account of the psychological implementation of higher pleasures; this will allow me to explain what the distinction between higher and lower pleasures was, and how Mill was introduced lexical preference orderings into his theory. Then I will show how the underlying psychological theory permits Mill to argue for the lexical priority of liberty over the goods which liberty allows us to obtain. Finally, I will turn to the Millian considerations omitted from the argument I will have reconstructed. By way of explaining why they are so difficult to accommodate, I will consider why Mill might have abandoned his projected sciences of character. I will take my leave by asking what Mill's failure to turn his implementation analysis of the higher pleasures into an argument expressing the importance of individuality and originality means for us.

The Endangered Species Act (ESA) can impose significant limitations on what landowners may do with their property, especially as it pertains to development. These restrictions imposed by the ESA are part of a larger controversy about the reach of the “Takings Clause” of the Fifth Amendment, which says that private property shall not be taken for public use without just compensation. The question this paper addresses is whether these restrictions require compensation. The paper develops a position on the general question of compensation for regulatory takings and applies it to the ESA. The main argument concludes that compensation should be paid. It is based on the proposition that the goods provided by regulatory takings are typically public goods, and on a principle of fairness, which holds that compensation should be paid when those who benefit from a regulatory taking pay virtually nothing and those who pay receive hardly any benefit. It is argued that this principle is implicit in many of the Court's rulings on regulatory takings.

We reject Moorean holism about value—the view that the value of the whole does not equal the sum of the values of its parts. We propose an alternative aggregative holism according to which the value of a state of affairs is the sum of the values of its constituent states. But these constituents must be evaluated in situ.

We also argue that, in addition to value tout court, there are benefits that can go to individuals—where the value of a state of affairs need not equal the sum of the benefits it supplies. To deny this claim is to deny, among other things, the possibility of even raising distributional concerns, or that of stating egoism in a coherent fashion. And denying these possibilities is implausible. But once benefits are in the picture, there is, pace certain forms of consequentialism, pressure to acknowledge that we can have extra reason to pursue them beyond considerations of the effect of such pursuit on the general good.

We conclude by applying these thoughts to, first, the claim that Pareto-optimality is necessary for maximal value (we argue that this thesis is false); and, second, Parfit's ‘repugnant conclusion’ (we use this conclusion to bolster our claim that value need not be the sum of benefits: if value were always the sum of benefits, the repugnant conclusion would follow; the repugnant conclusion is false; therefore value is not always the sum of benefits).

Over the past three decades, the Precautionary Principle (PP) has become popular in discussions of public policy, especially in relation to health and environmental policy. Though there are a number of different versions of the principle, the genesis of the idea is that it is better to be safe than sorry. In terms of public policy, proponents of the PP argue that being safe means that, if there is a possibility of harm from a new activity or novel technology, even if the scientific evidence concerning the harm is absent or uncertain, precautionary actions should be taken. In one version or another, the PP has been incorporated into a number of laws and treaties. Yet arguments for the PP are unconvincing, the PP itself is vague and when enacted in law, results in arbitrary regulations that pose a threat to human welfare. As a result, the PP should be rejected as a basis for public policy.