Ecological Law and the Bold ReThink
A central objective of the Bold ReThink is to reorient American law toward promoting good government and the well-being of the residents of the United States. Many fields of American law can and should be restructured to better support and promote public goods, the commons, public health and equal justice for both current and future generations, while continuing to provide properly-structured property rights and to recognize legitimate private economic interests.
SEHN has explored these issues in some depth in the specific context of environmental law. In its “Law for the Ecological Age” project, SEHN has proposed how environmental law can be transformed so that it will promote the public welfare rather than permit, as it does now, mounting environmental degradation to undermine that welfare. In these articles, SEHN considers the relationship of law to the economy, the commons, the public trust, private versus public ownership of environmental resources, cost-benefit analysis and the precautionary principle, federal and state common law, and the interplay between private property, regulation and Constitutional takings law. SEHN’s project has explored how laws embed in their technical structure particular value systems, goals and assumptions that have an enormous impact on whether a law will in practice achieve its stated, ostensible objectives (such as protecting the environment).
Ultimately, the Bold ReThink’s goal of restructuring laws to better promote the public welfare will necessarily involve all of this, from embedding in each law a bold vision of its purpose to defining the balance of values it implements to the technical design of its decision-making structure to ensure it will actually promote its animating vision. SEHN offers these articles from its Law for the Ecological Age project in service of that project.
1. Guth, J., Law for the Ecological Age, Vermont Journal of Environmental Law, vol. 9, Issue 3, pp. 431-512 (Spring 2008). Available here.
This article presents a vision of environmental law for the “Ecological Age,” our current era when our footprint on the earth is outgrowing the biosphere and is undermining the public welfare. In our era, the public welfare now depends on maintaining a sustainable healthy environment rather than tolerating increasing ecological destruction in pursuit of economic growth. The article examines the history of environmental law and shows that it has not been fixed but has evolved from pre-industrial times through the industrial revolution, shaped and reshaped by the evolving realities, values and needs of those times. It concludes that environmental law can and must continue to evolve in our own time to reflect and respond to today’s realities and needs.
The article proposes an environmental law containing a core decision-making structure that is designed promote a sustainable environment in the public interest in the Ecological Age. It situates this proposal within considerations of the relationship of law to the economy, our current heavy reliance on cost-benefit analysis, the precautionary principle, the commons, the public trust, private versus public ownership of environmental resources, federal and state common law, private property and Constitutional takings law, as well as technical legal structures such as allocation of the burden of proof.
2. Guth, J., A Law to Protect The Earth: The Tort of Ecological Degradation, published in Science & Environmental Health Network Networker [vol. XX (2009)]. Available here.
This is a short essay focusing on one aspect of the article Law for the Ecological Age, its proposal for a new common law tort designed for the Ecological Age, the Tort of Ecological Degradation. The essay recognizes that the common law remains an essential component of American law and urges that it too be updated as an element of law for the Ecological Age. The intent of this new common law tort is to articulate the responsibility of everyone, all residents of the United States, toward the ecological systems we all depend on for so much.
3. Guth, J., Cumulative Impacts: Death-Knell for Cost-Benefit Analysis in Environmental Decisions, Barry Law Review, Vol.11, pp. 23-57, (July 2009 publication of Winter 2008 issue). Available here.
This article explores a particular deficiency of cost-benefit analysis in environmental decision-making. Many such deficiencies are well recognized: by not considering who gets the benefits and who bears the costs, cost-benefit analysis permits and even promotes environmental injustice; by discounting the future, it permits current generations to impoverish future generations; and by not valuing non-monetizable costs (e.g., loss of sustainable ecological systems), it systematically favors easily-monetized benefits (e.g., jobs and economy).
But the issue explored in this article is that of “cumulative impacts.” For the most part, each of our environmental laws focusses on a particular medium (air, water, land) and requires cost-benefit evaluations on narrow specific actions or environmental impacts one at a time, each usually on the basis of the costs and benefits of each impact or action taken alone. This legal structure makes no attempt to account for the cumulative impact of the human footprint on the environment or protect the environment from that cumulative impact. Rather, it by design evaluates each incremental impact individually, in isolation, as though there were no connection between the myriad impacts and no limit whatsoever to the potential size of our footprint. And so, it continues to justify individual impacts one by one, while permitting that cumulative footprint to grow …. forever.
This article proposes that environmental law be restructured to respond to the reality that the cumulative impact of the human footprint is now threatening the ecological well-being of the earth and the human beings who depend on it. It proposes that environmental law define ecological sustainability as the goal of the law and limit the cumulative impact of our total footprint to a level that the earth can sustainably accommodate. The article looks in some detail at why past and current environmental laws have such a difficult time dealing with cumulative impacts, and also at certain places in the law today where these considerations and responsive legal structures are beginning to emerge.
Several summaries of this article and commentary:
Meyers, N. and Guth, J., Cumulative Impacts in a Finite World, Science & Environmental Health Network, The Networker, vol. 14, no. 4 (Sept. 2009). Available here.
Montague, P., Cumulative Impacts: Death-Knell for Cost Benefit Analysis, Rachel's Democracy & Health News #999 (February 19, 2009). Available here.
4. Guth, J., Resolving the Paradoxes of Discounting in Environmental Decisions, Journal of Transnational Law and Contemporary Problems, vol. 18, Issue 1, pp. 95-114 (Winter 2009). Available here.
This article explores in the depth the practice of discounting as an element of cost-benefit analysis in environmental decision-making. “Discounting” is a mathematical tool for evaluating future costs and benefits at a lower value than today’s, usually by some percentage (typically 2% to 7%) per year. Economists recognize numerous theoretical “paradoxes” and disturbing outcomes that result from its broad application, particularly at large scales and to distant futures. It can, for example, be calculated that we should not act now to prevent climate change, with its most severe impacts not due until the distant future. And yet use of discounting is widely supported by economists and virtually universally employed in U.S. environmental decision-making. This commonly results in a failure to take steps today, even modest steps, to prevent harm in the future: the costs of such future harms, when they are discounted, are calculated to simply not be worth avoiding by incurring expenses today. And thus, we continue to impoverish future generations.
This article identifies the “paradoxes” of discounting as resulting from an inherent, but incorrect, assumption lying unstated at its core: that environmental damage can grow forever, without any limit. The reality, of course, is that the earth itself is finite and the amount of degradation the biosphere can withstand is finite as well.
The resolution of the paradoxes of discounting, then, is this: while each small part of the ecologically functioning biosphere may seem dispensable for some finite gain, the entire biosphere, though finite and composed only of these small parts, is nevertheless indispensable. Even if one increment of environmental damage can be justified on a discounted cost-benefit basis, one simply cannot extend that assumption to the entire earth. Even if discounting might have been defensible when our footprint was small in relation to the biosphere, once we can see that our footprint can and does threaten the finite biosphere, the assumptions underlying discounting are no longer true, and we cannot use it in our decision-making.
5. Guth, J., Transforming American Law to Promote Preservation of the Earth, Science & Environmental Health Network Networker vol. 11(2) (March 2006), first published in Rachel’s Democracy and Health News # 846 (March 16, 2006) and on the blog OntheCommons.org. Available here.
This short essay presents an outline of arguments intended to transform American law, beginning with the common law, so that it will promote preservation of the earth rather than accept environmental destruction as a byproduct of economic growth. These arguments call on the law to bridge the gap between biologists, who see us outgrowing our habitat, and mainstream economists, who foresee a future of unlimited economic growth and concomitant ecological degradation.
6. Guth, J., Common Law Judges Must Act on Global Warming, Science & Environmental Health Networker vol. XX (2007), first published on October 29, 2007 to launch the discussion blog of the Climate Legacy Initiative Forum, a collaborative project of Vermont Law School and the University of Iowa. Available here.
This short essay starts with the familiar story of how the failure of the common law to address environmental degradation led the federal government to step in with the federal environmental laws. But this has resulted in a large gap between those federal laws and the lagging common law of the environment. It is this gap that makes the regulation imposed by the federal laws susceptible to the takings clause of the U.S. Constitution and the anti-government bitterness of property owners. The remedy is for the common law to catch up with our current circumstances and address environmental degradation in parallel with the efforts of the federal government, as it was called upon to do by several common law cases on global warming.
7. Guth, J., Two Rules for Decisions: Trust in Economic Growth vs. Precaution, Science & Environmental Health Network, The Networker, [vol. XX (2007)], first published in Rachel’s Democracy and Health News #919 (August 9, 2007). Available here.
This short essay compares the factual and value-based assumptions underlying and implicit in our current environmental law structure with those of the precautionary principle. It makes the case for why we should shift now, in our current factual circumstances, to using the precautionary principle in environmental decisions.
8. Guth J., How Dolphins Got The Benefit Of The Doubt And Why It Matters, Science & Environmental Health Network, The Networker, [vol. XX (2007),] first published in Rachel’s Democracy and Health News #905 (May 3, 2007). Available here.
This short essay demonstrates the central importance of the seemingly technical issue of how a law allocates the burden of proof in a legal decision-making structure (e.g., by requiring government to prove certain facts before it can regulate an industry’s environmental impacts). The allocation of the burden of proof establishes a law’s presumed and preferred status quo that will be protected by the law (i.e., if required facts can’t be proved, a court won’t disrupt the status quo). It often determines the outcome of cases – particularly those where the facts of the case are substantially uncertain. Most of our environmental laws in this way protect industry rather than the environment. But in the federal case reviewed, the law gave dolphins the benefit of the doubt; so they, rather than the fishing industry, were protected by the law.
9. Guth, J., Federal Voiding of State and Local Protections for Human Health and the Environment, Science & Environmental Health Network Networker [vol. XX (2006)] and published in Rachel’s Democracy and Health News #861 (June 29, 2006); reprinted in Prop65 Clearinghouse Reports (October 8, 2006). Available here.
This short essay discusses the extensive power of the federal government to pre-empt state laws under the Constitution. This can potentially apply even where the federal government adopts a law under which it chooses not to act in a certain field (e.g., food safety), thereby rendering state efforts to protect public health voided by intentional federal non-action. This shows that while the federal government did, for example, take steps to protect the environment with the environmental laws, it also has the power to weaken and even void progressive state laws to protect public health and the environment.