You know the story: wherever we look – forests, oceans, rivers, the atmosphere – we find trouble. But it doesn’t have to be this way. Stay with me here.
At present, our children’s future is being stolen. Life in the U.S. and worldwide is threatened by multi-year drought, wildfires, floods, storms, and heat waves that are growing hotter and lasting longer. Less obviously, many species are disappearing: birds, insects, amphibians and fish. Between 1970 and 2012, 58 percent of mammals, birds, and fish disappeared from planet Earth. The future for humans is in doubt. Fifteen years ago, the largest-ever study of global ecosystems concluded that, “Human activity is putting such strain on the natural functions of Earth that the ability of the planet's ecosystems to sustain future generations can no longer be taken for granted."
But I say again, it does not have to be this way. The reason we got ourselves into this pickle is that, about 150 years ago, in response to harms caused by industrialization, we adopted laws that failed to take account of the accumulated harm from millions of small activities. Forty years ago, in his 1980 book, Overshoot, William Catton, Jr., warned that millions of small activities were adding up to serious trouble. Catton wrote, "Infinitesimal actions, if they are numerous and cumulative, can become enormously consequential." Now we know Catton was right: millions of small harms are adding up to a ruined planet. It’s time we scrapped those 150-year-old approaches and adopted new ones that can deal with our modern situation.
Judges and legislators have always known that economic activity can cause harm – to workers, to neighbors, and to nature itself. How much harm is acceptable? They developed a legal test: they assumed that economic activity was good (despite the damage it would cause) unless the harm was “unreasonable.” And the standard for measuring “reasonable” was a cost-benefit analysis. If an activity would produce more goods than bads, it was deemed “reasonable.” That approach has no way to ask, “What about the devastating combined effect of all these ‘reasonable’ decisions?”
Fifteen years ago, biologist and lawyer Joe Guth put his mind to this problem and devised new ways of making decisions, including new model laws.
In this issue of The Networker, Joe describes the work he has done to modernize the law, with links to his original articles. This is really important stuff (which I have summarized elsewhere).
Peter Montague
SEHN Board Member & Fellow
Friends,
Over the past 25 years, the scientists and lawyers with the Science and Environmental Health Network (SEHN) have worked to bring about policies that would give communities and future generations a shot at a healthy and just future. We kept running into structural roadblocks. Why would environmental agencies ignore the science and further corporate interests rather than protect public health? We were stymied by the massive intransigence to adopt basic public health precepts like prevention and precaution. What we kept seeing were these systemic roadblocks to public health were actually designed into the system by corporate interests. Those corporations were following the playbook of Lewis Powell in his now infamous memo asserting the supremacy of the free market. That playbook mapped the way for corporations to hold government agencies captive through things like regulatory capture, deregulation and ever shrinking budgets.
As a response to these systemic roadblocks, SEHN partnering with True North Research, created a project called the Bold ReThink to address those fatal flaws. We were acutely aware that our children’s future was being eroded by the failure to act on the key crises of our day—climate change, the loss of biodiversity, racism, the rise of corporate power and the undermining of democracy. We recognize the systemic connections between many of those crises and are mobilizing to disrupt the forces that are at the root of those problems. But we are also seeking to be a wellspring of political imagination for the public good. Where can we intervene in the system to bring a moral clarity and advance policies that give future generations the world they deserve? What new institutions can we create? How do we rejigger the relationship between the economy and government? Joe Guth’s analysis is a place to start.
Carolyn Raffensperger
SEHN Executive Director
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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.
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SEHN's Sandra Steingraber is featured in Orion Magazine's Summer 2021 edition with a stunning essay on resilience. Read more |
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