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Halting the global meltdown: Can environmental law play a role?
Abstract
The case of Massachusetts vs. the Environmental Protection Agency which had the issue on global warming was won by the environmentalists which saw its urgency on global warming crisis being legitimized as well as the illegal withholding regulation of the Bush Administration. Meanwhile, the 'Natural Law' came in as a central concept to develop law in ancient Greece and is defined as a physical law of nature and a philosophical system of legal and moral principles. This Natural Laws must be rediscovered and re-envisioned so as to be effective where it involves spreading its law to the entire community and to amplify its law with the modern understanding of ecology. New normative law advances and adaptations include the public trust doctrine, the guardian ad litem concept, and the citizen suit standing.
It is now beyond doubt that humans are having an enormously detrimental impact on the natural world. In the face of the incredible environmental challenges we face, new and radical ideas have emerged about how we should regulate human behavior. This paper briefly focuses on the failure of current legal regimes to address climate change, and considers how climate governance would look under the Earth Jurisprudence approach: setting our laws within the context of fundamental principles of ecology and planetary boundaries. Consideration is given to how existing legal concepts could be used to achieve this vision. The paper concludes that a reframing of climate governance according to the Earth Jurisprudence approach is possible by changing the underlying principles and place of governance; expanding our conception of rights to cover natural systems; re-localizing governance; and lessening our reliance on markets, instead using the law to respect, rather than commodify, nature.
Legal philosophical discourse tends to be animated by some conception of self and the parameters of community. Reflecting a vast heritage of humanist philosophy and theology, western legal concepts reflect anthropocentric values. Theories of law and legal concepts promote human beings as separate to the environment and define frameworks for the exploitation of nature. Against this paradigm, environmental philosophers have sought to redefine human beings as integral members of a greater Earth community – nature is a community of subjects, not a collection of objects. This alternative conception of self carries important consequences for legal philosophy. This paper explores these consequences first by analysing the ecological conception of self and community articulated by ‘geologian’ Thomas Berry (1914-2009). Second, this paper uses Berry’s analysis to develop an ecological theory of jurisprudence. This theory connects human law with ecological integrity and holds that human law attains legal quality (in part) when enacted for the common good of the comprehensive Earth community. Throughout this analysis, the paper also highlights the limitations Berry’s philosophical and legal writing and seeks dialogue with leftist political theory. El discurso filosófico jurídico tiende a estimularse por una concepción del individuo y por parámetros de comunidad. Como reflejo de una vasta herencia de la filosofía humanista y la teología, los conceptos jurídicos occidentales reflejan valores antropocéntricos. Teorías del derecho y conceptos legales promueven seres humanos separados del medio ambiente y definen los marcos para la explotación de la naturaleza. Frente a este paradigma, los filósofos ambientales han tratado de redefinir los seres humanos como miembros de una comunidad de la Tierra más amplia – la naturaleza es una comunidad de sujetos, no una colección de objetos. Esta concepción alternativa del individuo conlleva importantes consecuencias para la filosofía del derecho. Este artículo explora estas consecuencias, primero mediante el análisis de la concepción ecológica del individuo y de la comunidad articulada por el geólogo Thomas Berry (1914-2009). En segundo lugar, este trabajo utiliza el análisis de Berry para desarrollar una teoría ecológica de la jurisprudencia. Esta teoría conecta el derecho humano con la integridad ecológica y sostiene que el derecho humano alcanza (en parte) la calidad jurídica cuando se promulga por el bien común de la comunidad global de la Tierra. A lo largo de este análisis, el informe también pone de relieve las limitaciones de la escritura filosófica y jurídica de Berry y busca el diálogo con la teoría política de izquierdas.
This Article will examine critically the Clean Water Act's triangular structure of federal, state and citizen enforcement. It will conclude that a triangulated federalist enforcement program can be successful only if citizens are unimpaired in their ability to fill the substantial gaps that exist in state and federal enforcement programs. Even in the most earnest federal and state enforcement programs, there are substantial institutional and political obstacles to adequate enforcement. Unfortunately, the present system does more to hinder citizen enforcement than to promote it. If this trend continues, and as states continue to compete with each other for business development by relaxing enforcement activity, the regulated community will realize that it cannot justify voluntary compliance with permit requirements. Under the 1990 Clean Air Act amendments the CWA's enforcement system soon will be applied to the control of urban air quality, toxic air pollutants, and acid deposition. Thus, not only will the cleanliness of our water depend on the efficacy of the CWA's triangulated federalist enforcement system, but so will the nation's hopes for clean air.
The article explores what we can learn about sustainable development, and the progress the United States has already made or not made, by looking at citizen suits under United States environmental law. The article focuses on four aspects of citizen suits: the manner in which they allow access to U.S. courts, the rules concerning standing to sue, the purposes of the laws that have provisions authorizing citizen enforcement, and the extent to which we would want such provisions in a world that has reached some form of sustainable development.Citizen suits are an important part of an environmentally sustainable legal system because they provide access to justice for persons injured by violations of environmental laws. The law of standing requires plaintiffs to allege injury to their uses of the environment as a result of the defendant's use or misuse of the environment. It thus suggests, in rough terms, competition between sustainable uses and unsustainable uses. The plaintiffs in the U.S. Supreme Court's decision in Tennessee Valley Authority v. Hill (1978) provide a useful example of that point.The environmental laws being enforced in citizen suits tend to be based on a damage control model of environmental protection, largely to reduce economic and social costs. In a sustainable society, by contrast, economic development could help drive both greater environmental protection and greater social well-being. Moreover, environmental protection in a sustainable society would be based on the full range of laws and policies that affect the environment, not just environmental regulation. Yet even these laws would need to include citizen suit provisions of some kind, because citizen involvement is necessary for sustainable development.
The prior appropriation system has served well in the Western US for 125 years, providing a legal regime that permits and encourages enormous economic growth of agriculture, industry and municipalities. This system, however, both in its inception and current application, fails to address or protect public interests in fisheries, recreation, environmental quality, and clean water. As a result, serious nonpoint water pollution problems are occurring throughout the West. Such pollution can be regulated either by the courts or the legislatures under the public trust doctrine, which antedates the prior appropriation system, and which protects fisheries and water quality. No one - including irrigators, industries or cities with appropriative rights - has a vested, constitutionally protected property right to degrade the quality of public waters. Some states are adopting police power regulations to control nonpoint pollution. Others are approaching the problem through the prior appropriation system itself, taking the position that beneficial use means use that does not harm the public through pollution. The public trust doctrine is not a panacea that will instantly solve all the conflicts that now surround the prior appropriation system. It should be considered, however, as a basis for setting standards as best practicable technology or best management practice.
Court rulings that animals lack legal standing is perhaps the most significant obstacle to legal recognition of wrongs committed against them. "Show" statutes such as the Animal Welfare Act and the Humane Methods of Slaughter Act are vague, limited in application, and violated with impunity. The plight of animals may well be worse because of those laws, which lull society into the erroneous belief that animals are treated well. There is no valid reason to deny standing to animals. Even corporations, which are not sentient, have legal standing. The inequity of these rules may be the impetus for court rulings which break from the norm and recognize animal standing. Fair and equitable application of the law of standing to all sentient beings is necessary to do justice.
As this Article demonstrates, most experts agree that the electromagnetic spectrum is a vital natural resource. Yet European and U.S. governments fail to treat it as such. The author looks at contributions made by two scholars, Ronald Coase's public trust doctrine and Garrett Hardin's tragedy of the commons, and examines their influence on the debate surrounding the electromagnetic spectrum's classification as a natural resource. The author then addresses sustainability concerns and argues that as is the case with all natural resources, a balance between overexploitation and underexploitation is needed in the management of the spectrum.
- Marks V Whitney
Marks v. Whitney 6 Cal. 3d 251, 259 (Cal. 1971).
declaring that recreational and ecological values, such as scenic views of a lake and its shore, the purity of the air, and the use of a lake for nesting and feeding by birds
See National Audubon Soc'y v. Alpine County, 33 Cal. 3d 419, 435
(1983) (declaring that recreational and ecological values, such as scenic
views of a lake and its shore, the purity of the air, and the use of a lake
for nesting and feeding by birds, are protected by the public trust).
Protection of Biodiversity Under the Public Trust Doctrine' 8 TUL
- Ralph Johnson
Ralph Johnson 'Protection of Biodiversity Under the Public Trust
Doctrine' 8 TUL. ENVTL. L.J. 21 (1994).
To a Candidate in Search of an Environmental Theme: Promote the Public Trust' 19 STAN
- Peter Manus
Peter Manus 'To a Candidate in Search of an Environmental Theme:
Promote the Public Trust' 19 STAN. ENVTL. L. J.315 (2000).
for a comparison with other nations' views on access to courts in environmental cases, see Matt Handley 'Why Crocodiles, Elephants, and American Citizens Should Prefer Foreign Courts: A Comparative Analysis of Standing to Sue' 21 REV
- William A Fletcher
On problems with standing doctrine generally, see, e.g., William A.
Fletcher, The Structure of Standing, 98 YALE L.J. 221, 224 (1988); for
a comparison with other nations' views on access to courts in
environmental cases, see Matt Handley 'Why Crocodiles, Elephants,
and American Citizens Should Prefer Foreign Courts: A Comparative
Analysis of Standing to Sue' 21 REV. LITIG. 97 (2002).
See generally Friends of the Earth
See generally Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.
167, 180-81 (2000).
Should Trees Have Standing? -Toward Legal Rights for Natural Objects' 45 S. CAL. L. REV. 450 (1972); see also Cass R. Sunstein 'Standing for Animals (with Notes on Animal Rights
- Christopher D See Generally
- Stone
See generally Christopher D. Stone 'Should Trees Have Standing?
-Toward Legal Rights for Natural Objects' 45 S. CAL. L. REV. 450
(1972); see also Cass R. Sunstein 'Standing for Animals (with Notes
on Animal Rights)' 47 UCLA L. REV. 1333 (2000);
Rights for Nonhuman Animals: A Guardianship Model for Dogs and Cats' 14 SAN DIEGO L
- Joyce S Tischler
Joyce S. Tischler
'Rights for Nonhuman Animals: A Guardianship Model for Dogs and
Cats' 14 SAN DIEGO L. REV. 484 (1977);
Abstract Social Interests" in the United States and Italy: Reexamining "Injury in Fact
- See Douglas
- L Parker
See Douglas L. Parker 'Standing to Litigate "Abstract Social Interests"
in the United States and Italy: Reexamining "Injury in Fact"' 33
COLUM. J. TRANSNAT'L L. 259, 289-92 (1995).
Dernbach 'Citizen Suits and Sustainability' 10 WIDENER L. REV
- C John
John C. Dernbach 'Citizen Suits and Sustainability' 10 WIDENER L.
REV. 503 (2004).
The Effectiveness of Citizen Suits in Preventing the Environment from Becoming A Casualty of War' 10 WIDENER L
- M Scott
- Palatucci
Scott M. Palatucci 'The Effectiveness of Citizen Suits in Preventing the
Environment from Becoming A Casualty of War' 10 WIDENER L. REV.
585 (2004).
The NAFA's Environmental Side Agreement: Is the Mandatory Arbitration Procedure Fact or Fiction? A Proposal to Allow for Citizen Suits in the Greening of Mexico' 3 SW
- Martha Siefert
Martha Siefert 'The NAFA's Environmental Side Agreement: Is the
Mandatory Arbitration Procedure Fact or Fiction? A Proposal to Allow
for Citizen Suits in the Greening of Mexico' 3 SW. J.L. & TRADE AM.
467 (1996).