Sustainability 2013, 5, 316-337; doi:10.3390/su5010316
The Rule of Ecological Law: The Legal Complement to
McGill University, Montreal, QC, H3A 2T5, Canada; E-Mail: email@example.com;
Received: 13 November 2012; in revised form: 7 January 2013 / Accepted: 14 January 2013 /
Published: 22 January 2013
Abstract: The rule of ecological law is a fitting complement to degrowth.
Planetary boundaries of safe operating space for humanity, along with complementary
measures and principles, provide scientific and ethical foundations of the rule of ecological
law, which should have several reinforcing features. First, it should recognize humans are
part of Earth’s life systems. Second, ecological limits must have primacy over social and
economic regimes. Third, the rule of ecological law must permeate all areas of law.
Fourth, it should focus on radically reducing material and energy throughput. Fifth, it must
be global, but distributed, using the principle of subsidiarity. Sixth, it must ensure fair
sharing of resources among present and future generations of humans and other life.
Seventh, it must be binding and supranational, with supremacy over sub-global legal
regimes as necessary. Eighth, it requires a greatly expanded program of research and
monitoring. Ninth, it requires precaution about crossing global ecological boundaries.
Tenth, it must be adaptive. Although the transition from a growth-insistent economy
headed toward ecological collapse to an economy based on the rule of ecological law is
elusive, the European Union may be a useful structural model.
Keywords: ecological law; planetary boundaries; principle of sustainability; wild law;
right relationship; precautionary principle; supranationality; subsidiarity
Apollo empowered Cassandra to know the future in order to seduce her, but when she rejected his
love, he cursed her by making it so nobody would believe her. Those revealing “inconvenient
truths”  about the growing global ecological crisis often face Cassandra’s dilemma .
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Scientists are constantly buttressing their consensus  that uncompromising ecological boundaries
constrain the human economy. Beyond these limits, the climate changes, nutrients overwhelm
ecosystems, or biodiversity is lost to such an extreme that the ecological context for the human
enterprise irreversibly and catastrophically moves into a new, more perilous state . According to
many studies, human society is already crossing these boundaries [4–6]. Yet, these narratives are
routinely ignored, resisted or drowned out in public and political discourse, such that legal and other
normative regimes that would confront these dangerous trends either fail to emerge or are rejected.
Consequently, the global community’s de facto governance structure  lacks legal and policy regimes
that would allow hard ecological truths to carry determinative weight.
The rule of ecological law, operating as a legal complement to ecological or degrowth economics,
provides a basis for establishing such regimes. Environmental economics [8,9] attempts to correct
environmental market failures by internalizing environmental costs into the prices of goods and
services. However, it is incapable of respecting aggregate ecological boundaries within the
human-Earth system. The mostly tractionless field  of ecological economics  responds to this
deficiency by recognizing that the functioning of the global ecosystem casts an overarching constraint
on the human economy. In law, an analogous deficiency is apparent . Environmental laws typically
enshrine in the legal system the reductionist, piecemeal approach of environmental economics, rarely
fully adopting a systems perspective. As a result, the envelope of contemporary environmental law is
deficient as a means to enclose and regulate the human enterprise within systems-based ecological
constraints . Just as ecological economics emerged to address limitations of environmental
economics, the rule of ecological law is needed to transcend limitations of contemporary
The degrowth movement provides a specific context for the emergence of the rule of ecological
law. Degrowth (or “sustainable degrowth”) involves “a downscaling of production and consumption
that increases human well-being and enhances ecological conditions and equity on the planet” .
Degrowth has roots both in ecological economics and in the socio-cultural objections to wealth
accumulation and bigness reflected in Schumacher's Small is Beautiful and earlier critiques of
“gigantism” . The current degrowth movement gathered steam after the French magazine Silence
published special issues on décroissance in February and March 2002. The provocative word intended
to shake loose the human imagination from the entrenched idea that the economy must grow for
humanity to survive [15,16] has evolved into a collaborative discussion and research agenda for
developing “a framework for transformation to a lower and sustainable level of production and
consumption” . The redistributive and transitional reforms associated with degrowth start with
recognition of global ecological limits and emphasize community involvement, decommodification
and decommercialization. Areas of specific focus in the degrowth movement include local economic
autonomy, equitable sharing of work and resources, low-impact technologies, a narrow view of private
property, food sovereignty and floors and ceilings on income, as well as on monetary reform, trade
reform, constraints on advertising and restrictions on harmful technologies [17,18].
Systems-based ecological boundaries that promote the flourishing of life systems provide the base
of a structure of ecological law (in the legal sense) that must be respected and enforced to fend off
catastrophe and enhance the capacity for life. The looming prospect of transgressing critical ecological
points of no return requires the global community to fashion a systems-based legal and institutional
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structure that is built on the foundation of ecological law under an expanded notion of the rule of law.
The degrowth movement is well suited to supporting the development of the rule of ecological law.
2. The Foundations of the Rule of Ecological Law
The rule of ecological law combines the notion of ecological law with the notion of the rule of law.
Use of the term “ecological law” is rare [19,20]. A starting point for understanding how it is intended
here is Thomas Berry's ecologically imbued notion of law: “To achieve a viable human-Earth situation,
a new jurisprudence must envisage its primary task as that of articulating the conditions for the integral
functioning of the Earth process, with special reference to a mutually enhancing
human-Earth relationship (…) [T]he land, the water, the air, and the complex of life systems (…)
would constitute the integral expression of the Great Commons of the planet Earth to be shared in
proportion to need among all members of the Earth community” (, p. 61). From Thomas Berry’s
perspective, “[e]cology is not a part of law; law is an extension of ecology” (, p. 61).
David Boyd’s notion of “sustainability law” , Klaus Bosselmann’s similar “principle of
sustainability” , and Cormac Cullinan’s “wild law”  all broadly capture Berry’s ecological
conception of law. Boyd characterizes sustainability law as “a system of laws and policies that
facilitate processes, products, and patterns of behaviour which are good for the planet” (, p. 365).
For Boyd, “sustainability law would focus on transforming the relationship between humans and
the natural environment from one based on minimizing harm to one based on maximizing
harmony” (, pp. 364–365). It “would be firmly rooted in science and the laws of nature, beginning
with a clear understanding of the laws of thermodynamics and explicit recognition of the biophysical
limits of the planet Earth” (, pp. 364–365).
Bosselmann insists that respecting and maintaining the Earth’s ecological integrity are at the core of
sustainability [23,25]. Emphasizing ecological integrity is consistent with its treatment as a
fundamental ethical principle . With this grounding, “sustainability has the historical, conceptual
and ethical quality typical for a fundamental principle of law,” (, p. 4) on the same order as
foundational principles like equality, justice and freedom. The principle of sustainability implies a
“duty to protect and restore the integrity of the Earth’s ecological systems” (, p. 53).
In Bosselmann’s view, the Earth Charter, with its emphasis on the interdependence of all life forms,
the value of all living things regardless of their value to humans, and the dignity and
potential of human beings, is the most profound current expression of the principle of
sustainability (, pp. 73–75).
As conceived by Cullinan, “wild law” is built on the premise that legal structures should reflect the
functioning of the systems that they purport to govern. Thus, wild law fundamentally takes a biocentric
or Earth-centered approach, in contrast to human-centered environmental law that, at best, tries to
deduce an accurate price for natural systems within an economics driven by human preferences.
Cullinan explicitly aims to build on the work of Berry, asserting that “[r]eforming national legislation
and entering into new international agreements will be insufficient unless these are done on the basis
of a new understanding that the essential purpose of human governance systems should be to support
people to play a mutually enhancing role within the community of life on Earth” (, p. 29)
(emphasis in original).
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Boyd’s sustainability law, Bosselmann’s principle of sustainability and Cullinan’s wild law all
recognize the essential primacy of ecological integrity. The term “ecological law” emphasizes this
primacy by making clear that global ecological limits constrain the economic and social spheres
that are usually associated, along with environmental concerns, with “sustainability”—often in a
confusing way. Unlike many notions of sustainability, especially in the context of the Rio
Principles  as reconfirmed at the Rio+20 conference on sustainable development , the rule of
ecological law calls into question the current insistence on perpetual economic growth.
The “rule of law” as used here conveys dual notions. First, legal institutions and norms, from the
global to the local level, should provide a coherent, reliable, fair and just framework for managing
human affairs. Second, the scientific laws that govern how the Earth works necessarily constrain the
legal architecture for ecological law. The United Nations Security Council captures the essence of the
first of these notions in its description of the rule of law as requiring “measures to ensure adherence to
the principles of supremacy of law, equality before the law, accountability to the law, fairness in the
application of the law, separation of powers, participation in decision-making, legal certainty,
avoidance of arbitrariness and procedural and legal transparency” . The second notion derives
from the emphasis on the rule of ecological law, which clarifies that the norms and laws of concern are
founded not only in legal principles but also in planetary boundaries and other expressions of the
uncompromising ecological limits of the life support capacity of the Earth. In this vein,
“the ‘rule of law’ means that global regulatory limits required to meet ecological limits and ensure fair
sharing of the earth’s bounty must be respected” (, p. 135).
Although ecological law is firmly grounded in the science of how the Earth works and of complex
systems thresholds in the global ecosystem, science alone cannot determine its elements. The laws of
thermodynamics and the science of ecology, both central to the scientific understandings on which
ecological economics and ecological law are built, cannot simply be plugged in to make the
human-Earth relationship right. Both a thriving tropical forest and a lifeless toxic waste dump have
their own ecology, and both obey the laws of thermodynamics. The same holds true for an Earth with
or without human survival. But, neither the degrowth movement nor ecological law is indifferent to
those circumstances, or to the human place in them. Rather, both ecological law and degrowth derive
from a fundamental normative choice to manage the human enterprise so as to sustain circumstances to
which ecology, thermodynamics and the other sciences will apply in ways that allow the human-Earth
relationship to thrive.
An international team of researchers has proposed planetary boundaries  that, along with related
ecological indicators, help describe those circumstances, providing a key part of the basis for the
normative decisions inherent in ecological law. Planetary boundaries are normative, interrelated global
ecological systems limits of “safe operating space” for humanity, beyond which humans face an
unacceptable “risk of deleterious or even catastrophic environmental change at continental to global
scales” (, p. 2). The nine proposed interacting boundaries are based on climate change, ocean
acidification, stratospheric ozone depletion, atmospheric aerosol loading, land use, freshwater use,
chemical pollution, biodiversity loss and nutrient cycles. Although the proposed boundaries
generally refer to limits or systems thresholds associated with stocks, as with the amount of
carbon dioxide in the atmosphere, they are amenable to translation into limits on flows, such as limits
on the rate at which greenhouse gases are emitted into the atmosphere. The boundaries
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are “non-negotiable,” (, p. 4) such that “[t]he thresholds in key Earth System processes exist
irrespective of peoples’ preferences, values or compromises based on political and socioeconomic
feasibility, such as expectations of technological breakthroughs and fluctuations in economic
growth” (, p. 7). Planetary boundaries researchers posit that planetary boundaries indicate the need
for “novel and adaptive governance approaches at global, regional and local scales” (, p. 28).
The essential primacy of the boundaries underscores this call for innovation and adaptiveness.
Social, political or cultural concerns, grounded in ethics and justice that transcend the notions of
safety and survival inherent in the planetary boundaries concept, provide additional grounds for
making normative decisions consistent with the rule of ecological law. The notion of “right
relationship” reflects these other concerns . Right relationship derives from Aldo Leopold’s land
ethic: “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic
community” (, pp. 224–225) . It serves as a “guidance system for functioning in harmony with
scientific reality and enduring ethical traditions” (, p. 4). Right relationship reflects ecological limits
but also “include[s] the fair sharing of the earth’s life support capacities with all of life’s
commonwealth” (, p. 17). An economy built on right relationship aims to “provid[e] rich and
fulfilling lives for both individuals and communities, but without pushing toward extreme wealth and
advantages that destroy social and ecological well-being” (, p. 26. Thus, right relationship seeks a
positive, life-enhancing human-Earth relationship, not merely a safe and survivable one. As well, it
forges a link between the biophysical constraints that underlie the planetary boundaries framework and
the human and ecological solidarity and sense of community that (along with a strong notion of
ecological limits) are integral to degrowth.
3. The Shortcomings of Contemporary Environmental Law
The planetary boundaries proposal, supplemented by complementary measures and ongoing
refinements, is powerful because of its potential to provide a comprehensive framework for adaptive
legal and policy mechanisms based on a scientific, ecological approach from the global to the local
level. The power of this framework resides in its commitment to a systems-based approach that
depends on the best possible understanding of human-Earth dynamics and feedbacks while
acknowledging the irreducible scientific uncertainty that makes it impossible to predict the often
non-linear and chaotic behaviour of Earth's life systems. The viability of some proposed boundaries,
such as those related to nutrient loading and biodiversity, has been questioned because they are
difficult to conceptualize or model at the global level, as opposed to regionally or locally .
However, others, in particular the boundary for climate change, are clearly of global significance, and
the boundary categories taken together reflect a comprehensive set of interacting systems features of
the global ecosystem that frame the ecological contours of the human prospect. Contemporary
environmental law lacks this holistic foundation.
A key flaw of contemporary environmental law is its reductionist tendency to focus on
environmental problems as discrete and isolated, which impedes the full integration of a systems-based
ecological approach into the entire legal infrastructure . Most environmental laws and regulations
adopted in the United States and elsewhere since the 1970s miss the forest of aggregate systems
impacts for the trees of smokestacks and sewage pipes [13,33]. They have reduced some of the most
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obvious environmental pollutants in light of known harmful effects (albeit too often allowing pollution
despite serious uncertainty as to risks), but they have not evolved to address effectively the cumulative
impacts and scale effects tied to the growing material and energy throughput that has accompanied
economic growth .
A second flaw is the tendency in environmental law, as with environmental economics, to favour
monetization as the way to normalize social preferences and to regulate the relationship between
environmental problems and the development pressures that create them. Environmental law relies too
heavily on assessments of monetized costs and benefits and an enduring allegiance to a reactive,
non-precautionary approach that gives primacy to economic constraints instead of ecological
ones [13,22]. Compared to contemporary environmental law, ecological law would place ecological
constraints on property and cordon off the sphere of market exchanges based on abstract monetary
units to a considerably greater extent .
A holistic approach has not been entirely absent from contemporary environmental law. As the
environmental awakening emerged in the 1960s and 1970s, holistic thinkers helped bring an ecological
perspective into the law . Kenneth Boulding offered the powerful notion of Earth as a finite
spaceship; Aldo Leopold’s land ethic was revived; and Joseph Sax’s public trust theory of
environmental protection had wide influence on environmental policy . However, the “deep
ecology” , public trust and Leopoldian elements of the environmental awakening gave way to the
economically driven ideology of the 1980s, and the economic glaze over environmental law has only
hardened since [25,33].
The system-based mechanisms in contemporary environmental law are generally weak, limited or
subservient to economic and political interests. For example, environmental impact assessment laws
requiring analysis of the effects of economic activity on ecosystems are, by and large, procedural
only , promoting awareness, but rarely if ever binding, concrete action to protect
ecosystems [39,40]. Three more specific examples illustrate additional shortcomings: Total Maximum
Daily Loads (TMDLs) under the United States’ Clean Water Act [41–50]; critical loads and levels for
air pollutants under the 1979 Convention on Long-range Transboundary Air Pollution
(LRTAP) ; and the successful, but exceptional, regime to control ozone-depleting substances under
the Montreal Protocol.
The Clean Water Act requires States to establish water quality standards for ambient water quality,
taking into consideration different uses and, to an extent, the ecological impacts of pollutants on
aquatic ecosystems . States must identify waters in which any applicable water quality standard is
not being met, and then calculate the total maximum daily loads of problem pollutants to those waters
from point, non-point and natural sources . TMDLs provide a non-binding basis for tightening
point-source permits and exploring ways to control non-point-sources like urban or agricultural runoff,
which the Clean Water Act regulates weakly—even though they are often the greatest source of
Because TMDLs establish the aggregate loadings needed to maintain water quality at levels
established in part according to ecological criteria , they are a possible proxy for an ecological
system boundary. They have a fairly direct relationship to the planetary boundaries for chemical
pollution and nutrient fluxes . Nonetheless, State and federal regulators essentially ignored the
mandate to establish TMDLs for almost twenty years, until spurred by litigation to do so in
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the 1990s . Now that the TMDL program has slowly come to life, its functional limitations are
becoming apparent. Most critically, States are not required to implement TMDLs or to apply them in a
binding manner to non-point sources . In 2003, the Bush Administration withdrew a Clinton
Administration TMDL rule that required States to develop detailed implementation plans and
schedules for actions to reduce point and non-point pollutant loadings of impaired waters .
Not surprisingly, many water bodies in the United States still fail to meet water quality standards, often
because of non-point-source pollution .
The European critical loads and levels approach was developed under the United Nations Economic
Commission for the LRTAP. Critical levels are “concentrations of pollutants in the atmosphere above
which direct adverse effects on receptors, such as human beings, plants, ecosystems or materials, may
occur according to present knowledge” (, p. III-1). Critical load is a “quantitative estimate of an
exposure to one or more pollutants below which significant harmful effects on specified sensitive
elements of the environment do not occur according to present knowledge” (, p. V-1).
Systems modeling and mapping are used to estimate the emissions reductions and allocations that are
needed to keep levels of individual pollutants, or pollutants in combination, below systems thresholds
reflected in critical loads and levels .
Because technological and economic factors dominate, exceedances of critical loads and levels are
still widespread in Europe, even if decreasing [61,62]. The initial levels of emissions reductions
required under the LRTAP were based solely on technical and economic considerations, without
taking into account the connection between exceedances and loads . In the next set of protocols,
environmental considerations carried more weight, but attaining critical loads for all ecosystems in
Europe was considered infeasible because of technical and economic considerations .
Gradual attainment of critical loads and levels remains only a long-term objective; complete
elimination of exceedances is not necessarily anticipated, and in some cases is considered
The equivalent program in the United States is the cap-and-trade mechanism under 1990
amendments to the United States Clean Air Act . A gradually diminishing cap on emissions of
sulphur dioxide from all electric utilities and other sources was established, an initial set of emissions
quotas was allocated to the sources, and a market was created to allow sources to buy and sell the right
to emit sulphur dioxide within the overall cap. Although Congress recognized the ecosystem harm that
acid rain caused both nationally and internationally , the acid rain program does not link pollutant
reductions to a clear ecological objective for the affected ecosystems, even if some protection of those
ecosystems was anticipated. The program’s parameters derive primarily from political and economic
considerations [67,68], and even greater reductions in sulphur dioxide emissions may have been
achieved by continuing command-and-control provisions that the cap-and-trade program effectively
repealed, albeit at greater cost to the regulated industry . Although the Acid Rain program is
widely depicted as a success, it has reduced sulphur dioxide emissions less than its European
counterpart, and serious ecosystem damage from acid rain persists [70–72].
The most prominent example of mostly successful ecosystem-based regulation is the international
regime for controlling substances that deplete stratospheric ozone. The Montreal Protocol was adopted
in 1987, two years after the ozone hole over Antarctica was discovered . The agreement sets forth
a mandatory schedule of reductions for the production and consumption of ozone-depleting substances,
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along with a process for ongoing monitoring and adjustments. The signatory parties have tightened
restrictions six times, both by decreasing the allowable production and consumption of
ozone-depleting substances and by bringing additional substances under the Protocol, with exceptions
for “essential uses” and attenuated control schedules for developing countries [74–78].
The Montreal Protocol has dramatically reduced the production and consumption of
ozone-depleting substances [79,80]. A 2007 report indicated that, if compliance with the Protocol
continued, the levels of ozone in the stratosphere would return to their pre-1980 levels, when no hole
in the ozone layer existed, by 2050 at mid-latitudes and a decade or two later at the poles . Because
of this apparent progress, protection of stratospheric ozone is mostly [82–84] considered to be “a good
example where concerted human effort and wise decision making seem to have enabled us to stay
within a planetary boundary” (, p. 15). However, the planetary boundaries are interrelated, and some
fear that global warming could impede recovery of the ozone layer .
Although scientific consensus on the impacts of ozone-depleting substances was quite strong, it was
not absolute, and the Montreal Protocol is therefore a relatively successful application of the
precautionary principle to avoid catastrophic systemic effects on human health and the global
environment . The Protocol’s relative success has also been attributed to the elaboration of
separate tracks for developed and developing countries , and to funding capacity building and
technology transfer in developing countries . For several reasons, however, the success of the
Montreal Protocol has not been repeated with other global problems like climate change—for which
the international community recognized in the 2009 Copenhagen Accord and the 2010 Cancun
Agreements, but has utterly failed to take steps to implement, a human-caused temperature rise of two
degrees Celsius as a scientifically derived, system-based limit. Compared to other problems, the
science on the impacts of ozone-depleting substances was relatively uncontroversial, the public was
largely in favour of action, the number of producers of ozone-depleting substances was small, and
substitutes were readily apparent and feasible [34,83]. Thus, the Montreal Protocol did not
significantly challenge the primacy of economic and technological constraints over ecological ones.
4. Applying Lessons from Existing Mechanisms in Formulating Ecological Law
The TMDL programme, the critical loads and levels approach under the LRTAP, and the Montreal
Protocol are among the most promising of existing environmental mechanisms in that they pay at least
some attention to systems limits. The Montreal Protocol has been successful in ways that other
system-based mechanisms have not. Although at least some of those other mechanisms have identified
thresholds on the tolerance of receptor systems to the effects of pollutants, they have not yielded
effective controls on the industrial and other processes that cause those effects because of the primacy
of technological and economic factors.
The context and necessity for weighing the aggregate impact of economic activities against
unyielding global ecological limits under the rule of ecological law is becoming increasingly clear.
A 2008 study on nitrogen-based pollutants under the LRTAP noted that abatement of emissions should
ultimately address global problems like climate change and biodiversity loss . In other words, the
backdrop for a review of international, national or regional pollution control policy regimes is the
planetary boundaries (or like indicators), and particularly the ones that planetary boundaries
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researchers warn we have already crossed: nitrogen fluxes, phosphorus loading, climate change
and biodiversity [4,87].
The example of the Montreal Protocol demonstrates the possibility of collectively tackling a global,
systemic environmental problem, with a differentiated system of responsibility for countries at
different stages of economic development and well-being, and an adherence to the precautionary
principle. This record of performance provides lessons for a more generalized approach, particularly in
regard to precaution, fairness and supranationality. The rule of ecological law offers a framework for
allowing these lessons to take root with respect to a full spectrum of planetary boundaries.
5. Ten Core Features of the Rule of Ecological Law
Systems-based legal mechanisms that contain human use of the ecosphere within ecological limits
and fulfill a vision of a more ecological, just and peaceful world will need a place to live.
The architecture for the rule of ecological law must include an institutional structure consisting of
“a set of principles, rules, norms and procedures” along with physical and organizational
infrastructure . The institutional challenge is enormous, because the architecture must encompass
an integrated system from the global to the local level, addressing complex dynamics of temporal and
spatial scale (including interrelationships that cut across those scales) and also shifting the current
primacy given to creation of monetary wealth to considerations of the ecological limitations of
the economy. The existing global complex of environmental institutions, from the global to the local
level, has hardly prevented global ecological threats from worsening, and they seem unlikely to do so
without radical reform.
Tseming Yang and Robert Percival describe the features of an emerging field of “global”
environmental law that transcends traditional understandings of international, domestic and local
law . They describe global environmental law as
the set of legal principles developed by national, international, and transnational
environmental regulatory systems to protect the environment and manage natural
resources (…) It includes: (1) public international environmental law, commonly used to
refer to the set of treaties and customary international legal principles governing the
relations between nations; (2) national environmental law, which describes the
principles used by national governments to regulate the behaviour of private
individuals, organizations, and subnational governmental entities within their borders; and
(3) transnational law, which describes the set of legal principles used to regulate the
crossborder relationships between private individuals and organizations (, pp. 616–617).
Prominent in this notion of global environmental law are the precautionary principle and the “polluter
pays” principle, along with widespread use of environmental impact assessments and permit systems
for polluters, all of which support the central substantive goals of protecting human health and the
integrity of ecosystems .
The global complex of hard and soft legal mechanisms that Yang and Percival describe reflects a
kind of schizophrenia in the law regarding the most pressing global ecological challenges:
an increasingly interlinked network of approaches for dealing with some aspects of environmental
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stress on one hand, and an unrelenting failure to deal with the most momentous, aggregate ecological
problems on the other. The principal problem is that global environmental law is essentially the
handmaiden of growth-driven economic globalization. Yang and Percival present global environmental
law as a counterpart to sustained economic growth, which they appear to endorse
without contemplating whether such growth is tenable in light of the growing global ecological
crisis (, p. 616). In noting “a growing convergence around a few principal approaches to
environmental regulation,” (, p. 616), they fail to ask whether those approaches are capable of
reining in the enormous drive to unleash financial capital “to mobilize global resources as fodder for
industrial metabolism,” (, p. 220), with adequate attention to how the aggregate scale of the
economy measures up against global ecological limits.
A legal regime that accords with ecological economics, degrowth and global ecological boundaries
will undoubtedly impose on human activities limitations that do not exist under the current legal
regimes in most if not all of the developed world. A system in which ecological restraints envelope the
economy requires the collectivity of economic actors to limit their choices so that, taken together, they
respect those ecological limits. Yet, in market economies, the freedom to spend on activities and
maximize personal wealth, often regardless of their ecological costs, is paramount . The reward
that a well compensated person expects is not just money, but more specifically what that money can
purchase: often, one or more large homes, jet-fuelled vacations in far-off places, and a host of other
material and energy intensive luxuries. This legally protected consumption, rooted in strong notions of
property rights and personal freedom, exacts ecological costs that are collectively shared and often
incremental, diffuse and delayed and consequently mostly external to the economic and legal
infrastructure. Analyses of the trade flows of material and energy resources indicate that their
consumption in high-income countries contributes significantly to biodiversity losses and other
ecological harms that are most severe in low- and middle-income countries [91,92]. The current legal
and institutional infrastructure does little to address such ecological stresses. Moreover, within this
infrastructure, intellectual property rights may well impede the flow of information that could lead to
or expedite solutions to ecological problems .
The rule of ecological law must overcome the limitations of contemporary environmental law,
including its reflection in Yang and Percival’s global environmental law. To do so, it should include at
least the ten following mutually reinforcing features.
First, and most fundamentally, the rule of ecological law recognizes that humans are part of Earth’s
life systems, not separate from it. Berry put it this way: “We might begin by recognizing that the life
community, the community of all living species, including the human, is the greater reality and the
greater value. The primary concern of the human community must be the preservation and
enhancement of this comprehensive community, even for the sake of its own survival” (, p. 4).
Indeed, as discussed above, the rule of ecological law should go beyond survival and promote the
flourishing of the commonwealth of life . The rule of ecological law calls for a revival of the
notions of deep ecology and Leopoldian ethics that ceded to a more instrumentalist view of non-human
life and life systems at the birth of contemporary environmental law. A leading expression of the
oneness of Earth's commonwealth of life is the Earth Charter, which states:
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To move forward we must recognize that in the midst of a magnificent diversity of cultures
and life forms we are one human family and one Earth community with a common destiny.
We must join together to bring forth a sustainable global society founded on respect for
nature, universal human rights, economic justice, and a culture of peace. Towards this end,
it is imperative that we, the peoples of Earth, declare our responsibility to one another, to
the greater community of life, and to future generations.
Second, legal regimes must be constrained by ecological considerations necessary to avoid
catastrophic outcomes and promote the enhancement of life, with the socio-economic spheres fully
contained within these ecological constraints. This core notion of ecological economics applies equally
to the rule of ecological law. The planetary boundaries framework and similar normative concepts,
like ecological footprint, are based on this recognition of the primacy of ecological limits.
In suggesting the need for “novel and adaptive governance approaches at global, regional and local
levels” (, p. 28), based on the boundaries framework, planetary boundaries researchers are in
essence calling for the development of a comprehensive system of ecological law. The planetary
boundaries framework also makes clear that this approach must be systems-based, which means that
ecological law must track the interactive dynamics among the boundaries and the
feedbacks, thresholds, non-linearity and other characteristics of the global social-ecological system.
This systems-based approach must pay attention to both stocks (for example, the total amount of
greenhouse gases in the atmosphere) and flows (for example, the rates at which greenhouse gases are
added to a extracted from the atmosphere) that are related to maintenance of Earth's life support
capacity. Further, to respect ecological constraints, ecological restoration must be applied where
ecological limits have already been exceeded.
Third, the rule of ecological law must permeate legal regimes and other disciplines like economics
in a systemic, integrated way, and not be seen as a specialty area of the law that applies to isolated
problems. This feature, which follows implicitly from the second feature, has profound implications.
It means that constitutional law, contracts law, torts law, property law, trade law, law related to
corporations and finance and all other areas of the law must be adjusted so as to recognize the primacy
of ecological limits. National constitutions that recognize the rights of nature, such as those of Ecuador
and Bolivia, may be a step toward the sweeping reform of the law that this feature implies.
However, the longer that those fairly recent constitutional provisions remain in place without being
interpreted so as to trigger an integration of the primacy of ecological limits into the law, the less likely
they will ever do so. The transition toward fuller integration of an ecological economics perspective
into the law and other disciplines will sharpen the focus on the many wrenching questions and
tradeoffs that will have to be addressed in shaping social, political and cultural institutions and
practices so that they maintain human society within safe operating space. For example, what are the
prospects for proposals for feeding a world likely to include around nine billion people by 2050 with
fewer environmental impacts , given the heavy dependence of modern agricultural on artificial
fertilizers and fossil fuels?
Fourth, because the human enterprise has already transgressed global ecological limits, the legal
regime should support a radical re-focusing of the economy on reduction of its throughput of material
and energy. This feature captures most directly one of the central ideas of the degrowth movement:
Sustainability 2013, 5 327
its recognition that the market cannot be expected to constrain material and energy throughput in the
economy on its own. Rather, a broad cultural values shift, reflected in the law, is needed toward an
economy that “takes no more than it needs and uses or more than it must [and] provide[s] only as much
wealth as is needed for dignified, secure living” (, p. 36). As well, because government standards or
policies have been necessary historically to protect the environment from market forces, they—or
other reliable and enduring means to ensure widespread changes in practice—must help drive the
uptake of technology that improves resource productivity, such as zero-emissions or carbon neutral
technologies. Aggregrate metrics of social metabolism, such as material and energy flow accounting,
measures of human appropriation of net primary production and ecological footprinting, should play
an increasing role in tracking and reducing material and energy throughput. Correlating these metrics
with pressures on planetary boundaries can help identify the economic sectors and activities for which
laws and policies are most needed to promote reductions in material and energy throughput.
Explicit care is needed to avoid the rebound effect, by which more efficient use of material and energy
leads to overall increases in their use . Additional legal and policy mechanisms are needed for
directing the use of any economic gains associated with efficiency to even further reduction of the
throughput of material and energy in the economy, so as to maintain sufficient resource stocks and
waste processing capacity to avoid running down the Earth’s ecological base. Where efficiency gains
are insufficient to decrease aggregate use of materials and energy or production of waste, the
remaining reduction in the impacts that are pushing the economy past ecological boundaries must
come from widespread cultural shifts that simply eliminate production and consumption.
Fifth, the rule of ecological law must be global, but distributed fairly using principles of
proportionality and subsidiarity, with protection of the global commons and public goods paramount,
and with constraints on property rights and individual choice as needed to keep the economy within
ecological limits. A central challenge is to develop legal mechanisms for distributing global limits on
the global aggregates of material and energy resources that the economy consumes and the wastes it
produces down to the local level, while maintaining local autonomy and eco-cultural identity and
ensuring that localities or regions do not unfairly reap benefits that impose costs globally or across
political boundaries. If implemented on a global level and in a way that accounts for the multiscalar
and uncertainty-laden nature of global ecological change , the principles of subsidiarity and
proportionality that form part of the bedrock of the European Union treaties could provide strong
structural support for such distribution. Subsidiarity favours intervention at the level at which it will be
most effective for achieving policy objectives , and proportionality means that government at all
levels much have sufficient authority and capacity for achieving those objectives . This architecture
of distribution should also incorporate legal and policy mechanisms for enabling all humans and other
living beings to flourish, built on principles of intragenerational, intergenerational and
interspecies fairness .
Sixth, the rule of ecological law must ensure fair sharing of resources among present and future
generations of humans and other life forms. A central feature of the globally dominant economic and
legal paradigm is its protection of market freedoms and property rights with a view to maximizing
economic efficiency and maintaining perpetual economic growth, on the assumption that doing so will
both allow for environmental protection and provide the greatest welfare for the greatest number of
people [9,26]. The purported fairness objective is that all humans (but not other species) should have
Sustainability 2013, 5 328
an equal possibility to consume and seek wealth, but fairness is rarely assessed in relation to initial
endowments that result from inheritances, luck and actual outcomes . Under the rule of ecological
law, individual humans and artificial entities like corporations would be considered interrelational
beings in a shared ecological context, and not as free agents whose quest to maximize abstract
monetary wealth that can be converted into consumptive and waste-producing activities is given
priority. The notion of relationship within a shared commonwealth of life provides the basis for
fairness and distribution. Herman Daly provides a sound rule of fairness in proposing that “[w]e should
strive for sufficient per capita wealth—efficiently maintained and allocated, and equitably
distributed—for the maximum number of people that can be sustained over time under these
conditions” (, p. 220). The focus on sufficient as opposed to maximum wealth implies a limit on
inequality of wealth, and that it is possible to be too rich—with the limits established so as to allow for
the flourishing of non-human species and ecological restoration. Indeed, the excess wealth that has
driven the current situation of ecological overshoot exists primarily in developed countries, and the Rio
principle of common but differentiated responsibilities implies a need to adjust future entitlements to
draw from Earth's limited life support capacity by taking into account historical contributions to
ecological problems. A tall order for the rule of ecological law is the development of ways to account
for these historical patterns, as well as for trade patterns by which goods and services embody
ecological impacts that occur at great distances away, in assigning responsibilities for staying within global
ecological boundaries. For example, one intriguing proposal is to apportion net greenhouse gas
emissions reductions such that by the end of the phase-out period, half of total historic emissions will have
come from Kyoto Annex B (developed) countries, and half from non-Annex B (developing) countries .
Seventh, the rule of ecological law must be binding (de jure or de facto) and supranational, with
supremacy over sub-global legal regimes as necessary. Supranational authority is a necessary
complement to subsidiarity and proportionality, because planetary ecological boundaries require global
legal and policy mechanisms, and therefore must have supreme, binding authority in national and
sub-national systems. By allowing ecological impacts and their drivers to be considered collectively,
supranational authority provides a way to reconcile a preference for establishing policy at the local
level with the reality that localities are never immune from impacts that arise from away or able to
avoid causing impacts that reach other localities or are global in nature. The emergence of
supranational law in Europe in the environmental domain and others as European treaty law evolved
illustrates the logic of imposing supranational law for supranational problems, just as the establishment
in the United States of strong federal environmental laws in the 1970s responded to the inadequacy of
sub-national environmental regimes. Both examples illustrate as well the need for a well-functioning
judicial authority, or its equivalent, to enforce the binding nature of supranational rules. To be sure,
relying on supranational authority to regulate the relationship between localities horizontally with each
other and vertically with other levels of political order may face cogent resistance within the degrowth
movement. In general, the degrowth community tends to doubt the possibility of true democracy at
levels of political organization higher than the local, and therefore rejects world government in favour
of a “democracy of cultures [involving] minimal arbitration between sovereign polities with highly
divergent systems” . However, the dynamics and interregional interdependencies of
biogeochemical, geologic, hydrologic, climatic, atmospheric and other processes prevent any
sub-global region or locality from being isolated from the rest of the integrated global ecosystem, as a
Sustainability 2013, 5 329
study that detected fingerprinted dioxins from sources in Mexico, the United States and southern
Canada in mothers' milk and other receptors in Inuit communities in Nunavut illustrated starkly .
Even the minimum level of supranational rules needed to address transboundary and global
interrelationships effectively is likely quite significant.
Eighth, a greatly expanded program of research and monitoring for improved understanding and
continual adjustment of ecological boundaries and means for respecting them is needed to support the
rule of ecological law, globally, regionally and locally. The rule of ecological law will depend on a
deep scientific understanding of the global ecosystem, its subcomponents, and their relationship with
the human sphere, but with acknowledgment that this understanding cannot avoid the irreducible
uncertainty in how the global ecosystem behaves. The areas in which greatly expanded research is
needed fall into two categories. An adequate system of global governance will require first, more
research into the Earth’s life systems, their systems behaviour and thresholds, and the impacts of the
human enterprise on those systems; and second, ongoing research into the governance structures that
are most appropriate for the rule of ecological law. To complement this expanded program of research
and monitoring, a comprehensive reform of educational systems will be needed, both to deepen
understanding of the primacy of ecological limits in the human prospect and to prepare new
generations of scientists and decision makers of all kinds to collaborate on approaches that implement
the rule of ecological law.
Ninth, the rule of ecological law requires precaution about crossing planetary boundaries, with
margins of safety to ensure both that the boundaries are respected from the global to the local level,
and that Earth’s life systems have the capacity to thrive. The original set of proposed planetary
boundaries incorporate this precautionary approach in that the boundaries are set at the most
conservative end of ranges of uncertainty as to where the threshold falls between safe and catastrophic
conditions for each sub-component of the global ecosystem . For example, for climate change the
boundary is set at an atmospheric carbon dioxide concentration 350 ppm and net radiative forcing
of +1 watt per meter squared, with a zone of uncertainty of 350–550 ppm for atmospheric carbon
dioxide and of +1 to +1.5 watt per meter squared for net radiative forcing. Thus, catastrophe is part of
the definition of the boundaries, and they reflect normative choices of acceptable risk in the face of
uncertainty regarding when human impacts on ecosystems become globally catastrophic.
Arguments that potential economic catastrophes are at least as important as
catastrophes associated with crossing the planetary boundaries, in particular the climate change
boundary , typically ignore the possibility of alternative economic scenarios that might avoid
economic catastrophe, such as degrowth scenarios and other innovations in access to and distribution
of the means of well being. A precautionary approach under the rule of ecological law must avoid the
intermingling of incommensurable values and risks that such comparisons entail, and it must
acknowledge the primary degree of caution that is due to uncertainty regarding the risk of systemic
Last, ecological law must be adaptive, for two main reasons. First, in order to exercise caution about
crossing planetary and sub-global ecological boundaries, ecological constraints on the human
enterprise must be integrated into the global legal and policy structure despite uncertainties, which will
persist in some form or another. An adaptive approach allows mechanisms to be put in place to fend
off catastrophe and adjusted as research and experience fill gaps in knowledge about Earth systems and
Sustainability 2013, 5 330
about governance of the human-Earth relationship. The adaptiveness called for applies both to the
response to evolving scientific understandings and to the mechanisms and institutional arrangements in
which to apply them. Among other things, an adaptive approach much consistently update and refine
the establishment and fulfillment of common but differentiated responsibilities of developed and
developing countries. Second, adaptation is needed in recognition of the non-equilibrium nature of
ecosystems. A key development in the science of ecology in the last few decades has been the switch
from an equilibrium view of nature, in which ecosystems were assumed to have an ideal natural state,
to a non-equilibrium view, in which ecosystems are now seen as constantly evolving, often in
stochastic and non-linear ways .
6. Conclusions: The Emergence of the Rule of Ecological Law
The call for the rule of ecological law emerges from the tension between opposing narratives
of impossibility. On the one hand is the seeming impossibility of ending the current intransigent
commitment to infinite economic growth, the primacy of short-term economic interests and the
overriding belief in technological solutions to ecological challenges. Contemporary environmental law
is embedded firmly in this narrative. On the other hand are the systemic impossibilities and long-term
catastrophic socio-ecological consequences if the economy grows infinitely and economic and political
trade-offs continue to outweigh non-negotiable ecological limits. This narrative is at the heart of the
degrowth movement. The growing tension between these opposing narratives creates an opportunity
for transformation of humanity's normative paradigms, for further evolution and growing influence of
the degrowth movement and for a more comprehensive development of the preliminary framework set
out here. If the researchers who developed the uncompromising planetary boundaries framework and
other expressions of the global ecological limits that humanity is currently overshooting are right, the
first set of impossibilities must give way to the second—and the rule of ecological law should emerge
as a solution that will break Cassandra’s curse.
This article is based on reference  and is an extended adaptation of reference .
Conflict of Interest
The author declares no conflict of interest.
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