Rachel's Democracy & Health News #995, January 22, 2009
FOUR IDEAS TO CHANGE THE GAME: TRANSFORMING ENVIRONMENTAL LAW
[Rachel's introduction: Proposed solutions to both economic and environmental problems fail to challenge the core ideas that caused the problems in the first place. We may still have time to redirect the Titanic (at least the environmental ship, if not the economic ship) but it will require a radical rethinking of four core beliefs...]
By Carolyn Raffensperger
The ongoing economic collapse reveals the consequences of our blind devotion to pro-growth, free-market economic principles. The hidden assumptions are that growth is the savior of our economy, that the market will take care of whatever problems emerge, and that regulation and government are bad. These same assumptions are leading to rapidly emerging environmental catastrophes, from the collapse of the oceans to global warming.
Our environmental laws and policies are grounded in the same pro- growth, free-market economic principles and will suffer the same magnitude of problems that the economy has suffered unless we make some fundamental changes. Environmental law now clearly situates everything from fisheries to national forests to climate within the domain of property law -- the law of pro-growth, free-market economics.
So proposed solutions to both economic and environmental problems are piecemeal and ad hoc because they don't challenge the core ideas that caused the problems in the first place. In the case of the economy, we hear calls for more regulation, better pricing, bigger bailouts. And environmentalists call for more regulation, better pricing of pollution, and accurate valuation of natural assets.
But why? What's the rationale for any of the proposed solutions? Can we really buy our way out of either crisis? Is it really just a few bad actors, especially the environmental ones, that haven't played by the rules of the free-market economy? Will more free-market solutions benefit the environment? The short answer is, no. Free market solutions may sometimes be helpful, but they are certainly not the only answer. Blind faith in the market prevents us from seeing many other ways that we might address environmental problems.
We may still have time to redirect the Titanic (at least the environmental ship, if not the economic ship) but it will require a radical rethinking of four core beliefs, namely (1) whether there is more to environmental law than the free market; (2) whether government has a role, and if so, what it might be; (3) how we make decisions about the future; and (4) how we evaluate the cumulative effects of our actions.
Let us examine each of these beliefs in turn and propose environmental policies that might result from some new thinking.
I. The most obvious place to start is to rethink the outmoded system that places environmental laws in the same legal domain as private property, which is subject to whims of the free market, like buying a summer cabin in the Adirondacks. We buy and sell individual permits to pollute the air or water and ignore the cumulative impacts of all the permits taken together. We refuse to pass laws that might hurt an industry and we rarely require a polluter to pay for their damage. We assume that what is good for the market is good for the environment. So environmental matters are measured by economics. No environmental rule is allowed to interfere with the economy. Environmental lawyers routinely use the language of economics -- discounting, cost benefit analysis, cap and trade.
But there are lawyers who use an entirely different language: human rights lawyers. Human rights prohibitions against torture, slavery, and child labor have no economic measure and we don't put them up for sale on the free market. We don't care what value slavery might provide the economy. It is wrong. What if we replaced our blind devotion to the free market and measured environmental decisions by their impact on the rights of future generations? What if we said that polluting the air of any child was a violation of their fundamental right to life? What if we put it in the same category as torture or child labor?
Rights instead of Free Market Economics
Environmentalists such as our organization, the Science and Environmental Health Network and human rights lawyers at places like the Harvard Law School, Vermont Law School and the University of Iowa Law School are joining together to chart a rights based approach to environmental law. There are several areas that we are developing within the law of rights. The first is expanding core inalienable rights to include the right to a clean and healthy environment. Several nations and several U.S. states have constitutional provisions that grant all citizens a right to a clean and healthy environment. Most of these provisions, at least in the U.S. (less so in some other countries) are located in managerial sections of the constitutions, not in the rights sections, which list the rights that come with being a human being. An inalienable right is a right that cannot be sold or transferred to someone else.
Even the grandest declaration of all, the U.N. 1948 Declaration of Human Rights does not include the right to a clean and healthy environment. As states amend their constitutions they should include the right to a clean and healthy environment in the inalienable rights section for the simple reason that all other rights flow from being alive. Life is predicated on water, air, earth, and other aspects of the environment. If the right to a clean environment is something we can buy and sell than no other right has meaning. If you are not alive, your right to free speech is meaningless.
Then we must extend to future generations this inalienable right to a healthy environment. Any generation that fails to protect its children is a suicidal civilization. We are all connected in time to the future. Our decisions now affect both our own future as well as those who are to come. A powerful way to assert the rights of future generations is to appoint or designate an ombudsmen or legal guardian for them. See Tim Montague, Rachel's News #986.) A city council or mayor or the federal Department of Justice and the President can designate an ombudsmen to review regulations and assess their impact on future generations.
Another advance we must make in rights law is expanding the rights of communities to ecological integrity. A community right of fraternity was first identified in the French Revolution cry "Liberty, Equality, Fraternity." The rights of communities find expression in the 2007 U.N. Declaration of the Rights of Indigenous Peoples. One clause in the Declaration says, "...indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples..." Essentially these collective rights are rights of relationship. These go beyond the standard U.S. rights of liberty and equality that inhere to the individual alone. Collective rights and rights of relationships allow us to construct a rationale for government to protect public health and community relationships to land and creatures that share that land with them. For instance, global warming threatens Inuit relationships to the land and the animals they depend on for survival. It becomes imperative for government to protect the Inuit's rights of fraternity with their land. It is not just a right that says the land belongs to a community but that they belong with the land.
One model for these fraternity rights is the Community Environmental Legal Defense Fund (CELDF) work creating a framework for the rights of nature and the corresponding duties of the human community. A critical feature of CELDF's law is that it strips corporation's of their fictitious personhood thereby denying corporations the rights granted to legal persons. Why should corporations have rights and ecosystems not have them? A great example of Linzey's legal approach is the (Pennsylvania) Tamaqua Township Sewage Sludge Ordinance of 2006. The ordinance does two things: it refuses to recognize corporations' rights to apply sewage sludge to land, and it recognizes natural communities and ecosystems as "legal persons" for the purposes of enforcing rights. The community is designated the trustee for nature and ecosystems and is required to fulfill all legal mandates of trusteeship.
II. Government as Trustee of the Commons, of Nature
Both CELDF's model of the rights of nature and our work on future generations assert a new role for government. Under the old law and economics regime, government's primary role was balancing economics with the environment. At worst it was making sure that environmental regulations didn't impede the economy. But a more visionary, even heroic role for government comes out of something called the Public Trust Doctrine, an ancient idea that government must manage the public shoreline and tidal waters for the benefit of the public. This public trust role means that government is the trustee of the commonwealth and the common health for present and future generations.
No more balancing or shrinking or getting out of the way of the corporate onslaught. Instead, the new government job description is stewarding, caretaking, increasing, and restoring our shared wealth and public health. Imagine government at every level scaled to the commons under its care. Seeds, parks, libraries, bridges, wildlife, air and water would all be turned over to future generations in better shape than we got them.
The Commons
A key function of government is to serve as the trustee of the commons, but what exactly are the "commons"? They are our shared wealth, especially the gifts of nature like air, water, wildlife, silence, crop seeds, and the genome (among other things). According to the Tomales Bay Institute Report on The State of the Commons,[1] the commons "embraces all the creations of nature and society that we inherit jointly and freely, and hold in trust for future generations."[2] It encompasses common assets,[3] common property,[4] and common wealth.[5] Government care is most important for those commons essential for survival -- air, water, biodiversity (pollinators and plants, wolves and whales). It is these that must be tended in such a way that they provide the means to meet individuals' and communities' right to a clean environment, and are handed down unimpaired to future generations in fulfillment of their rights to a habitable planet.
The trustee responsibilities of government help determine what kind of budget governments should have. What are the commons under their jurisdiction? What must be done to monitor, regulate, and enforce rules, as well as restore and augment the commons? Budgets should be tailored to the tasks necessary for government to fulfill its obligations to current and future generations to leave a habitable planet.
The Tomales Bay Institute proposes that governments audit the commons and provide a report as part of the budget since the commons represents the shared wealth of the people. Imagine the guardian of future generations doing the audit and providing recommendations for strengthening our legacy to future generations.
Protecting the commons for current and future generations requires some new principles of law. Consider these:
1. A life-sustaining, community-nourishing, and dignity-enhancing ecological commons is a fundamental human right of present and future generations.
2. It is the duty of each generation to pass the commons on to future generations unimpaired by any degradation or depletion that compromises the ability of future generations to secure their rights and needs.
3. The services and infrastructure of the Earth necessary for humans and other living beings to be fully biological and communal creatures shall reside within the domain of the commons.
4. All commoners (the public or a defined community) have rights of access to, and use of, the ecological commons without discrimination unrelated to need. Such rights shall not be alienated or diminished except for the purpose of protecting the commons for future generations.
5. Publicly owned commons belong not to the state but to the commoners (the public or a defined community), both present and future, who are entitled to the benefits of their commons.
6. It is the responsibility of government to serve as trustee of the commons assigned to it by law for present and future generations. In fulfillment of this responsibility, governments may create new institutions and mechanisms as well as authorize responsible parties to manage the commons or resources therein. All actions taken by government or its designees must be transparent and accountable to commoners.
7. The precautionary principle is a critical tool for protecting the commons for present and future generations.
8. Eminent domain (the "taking" of private property for a public use and subject to payment of just compensation) is the principal legal process for moving private property into the commons.
9. The market, commerce, and private property owners shall not externalize damage or costs onto the commons. If the commons are damaged, the polluter, not the commoners, pays.
10. Future generations shall not inherit a financial debt without a corresponding commons asset.
III. The Precautionary Principle
As mentioned above, the precautionary principle is a key rule of law and policy that enables government to protect the commons for current and future generations. It is a future-oriented decision rule that couples science with ethics. How can we prevent harm and increase wellbeing to nature, the commons and future generations? The precautionary principle lays out a strategy for preventing harm by setting goals, seeking good alternatives to problem technologies, reversing the burden of proof, getting everybody to the table to look for solutions and heeding early warnings.
IV. Cumulative Impacts
The warnings that we are receiving about climate change, the loss of species, and a planet blanketed with toxic chemicals point to the fact that our actions are cumulative. Poverty and bad nutrition set a different stage for exposures to toxic chemicals than wealth and good food. Similarly, we've granted permits to each polluting facility one by one. As my colleague Joe Guth says, "the Earth is dying from a thousand cuts." So are our children's lungs and brains. Any one of the cuts is unfortunate, but together our cumulative impacts are disastrous. We can revamp the law to address cumulative impacts in a systematic way. New torts, new ways of allocating responsibility, new regulations, will go a long way to saying enough is enough. Imagine permits only given to industries that improve public health and the environment.
What is Next?
The upshot of applying these ideas would be a radically different way of behaving in the world. We can insert these changes in law and policy at every level of government from the township or city to the United Nations. We can build these ideas into every branch of government, the courts, the executive branch and the legislature. We can invent new institutions to carry out these visionary and sacred responsibilities of government. New institutions could be anything from the Office of Legal Guardian mandated by executive order to the Alternatives Assessors Division of an environmental protection agency. What about a Commons Auditor in every county?
And imagine this: the next Supreme Court nominee is before Congress. Senator Arlen Specter asks her whether she will uphold the right of future generations to inherit a beautiful and habitable planet.
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Carolyn Raffensperger is executive director of the Science & Environmental Health Network (SEHN).
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[1] The State of The Commons: A Report to Owners from Tomales Bay Institute (2003) (coauthored by Peter Barnes, Jonathan Rowe, and David Bollier).
[2] Same as note 1, pg. 3.
[3] "Common assets are those parts of the commons that have a value in the market. Radio airwaves are common asset, as are timber and minerals on public lands. So, increasingly, are air and water." Same as note 1, pg. 3.
[4] "Common property refers to a class of human-made rights that lies somewhere between private property and state property. Examples include conservation easements held by land trusts, Alaskans' right to dividends from the Alaska Permanent Fund, and everyone's right to waterfront access." Same as note 1, pg. 3.
[5] "Common wealth refers to the monetary and non-monetary value of the commons in supporting life and well-being. Like stockholders' equity in a corporation, it may increase or decrease from year to year depending on how well the commons is managed." Same as note 1, pg. 3.