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A CRITIQUE of ENVIRONMENTAL LAW Adjunct Professor Rob Fowler

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A CRITIQUE of ENVIRONMENTAL LAW Adjunct Professor Rob Fowler WILD LAW WORKSHOP, ADELAIDE, 30 TH NOVEMBER 2012 A CRITIQUE OF ENVIRONMENTAL LAW Adjunct Professor Rob Fowler, Law School, University of SA INTRODUCTION We now have over 40 years experience with the development and implementation of “modern” environmental law – both domestic and international A general conclusion : despite significant improvements in environmental quality over this period, for which environmental law may take some credit, there are overwhelming indications of a pending ecological collapse Predictions of the Club of Rome ( The Limits to Growth , 1972) re collapse of the global system under a BAU scenario by mid-21 st century have been essentially confirmed by recent CSIRO research : see Turner, G., A Comparison of the Limits to Growth with Thirty Years of Reality (CSIRO, 2008) Introduction This conclusion raises the following questions: Where, and why, has environmental law failed ? Could Wild Law, if widely embraced, help avert such a global collapse? Is law the only, or best, means by which to avert such a collapse ? GLOBAL INDICATORS OF A PENDING ECOLOGICAL COLLAPSE GEO-5 REPORT, UNEP, 2012 Droughts and consequential food & human security issues; Increased average global temperatures & related health impacts (e.g., increased malaria) Increased frequency & severity of climatic events (cyclones, floods fires) Accelerating changes in sea temperature and sea-level rise (also acidification) Substantial biodiversity loss and ongoing extinction of species, with impacts on provision of ecosystem services Collapse of some fisheries Global Indicators (cont.) GEO- 5 Report offers a significant conclusion: “Because of the complexities of the Earth System, responses need to focus on the root causes, the underlying drivers of environmental changes, rather than only the pressures or symptoms.” Global indicators (cont.) What does this conclusion mean for environmental law? Has environmental law until now focussed on pressures and symptoms? How could law more generally address the root causes, or drivers, of environmental degradation? And what are these root causes? THE AUSTRALIAN SOE REPORT 2011 – NEW CHALLENGES Much of Australia's environment and heritage is in good shape, or improving. Other parts are in poor condition or deteriorating…Our changing climate, and growing population and economy are now confronting us with new challenges. Our environment is a national issue requiring national leadership and action at all levels. Can we agree on the drivers of environmental degradation, both globally and within Australia? THE DRIVERS OF GLOBAL ENVIRONMENTAL DEGRADATION Population growth Economic growth paradigm Excessive resource consumption Poverty Human values that fail to recognise the importance of nature Any others? Corruption? Armed conflict? What is not on the list of drivers? Climate change? Loss of biodiversity? Food security? Are these symptoms, or consequences, not drivers ? A critique of environmental law Subject-matter is essentially focussed on pressures and symptoms: Environmental protection Land-use Planning Environmental impact assessment processes Protection of biodiversity/endangered species Natural resources management Climate change A critique of environmental law (cont.) Underlying objectives of environmental legislation are essentially anthropogenic and centred around a flawed concept of sustainable development that promotes balancing of economic, social and environmental matters (in practice, usually favouring the economic dimension) A critique of environmental law (cont.) Implementation and enforcement often fails to meet expectations: Criminal enforcement lacks efficacy Civil enforcement and judicial review of decisions hampered by significant economic deterrents (costs, damages, etc.) Environmental laws often undermined by other laws giving primacy to economic development Existing laws of long standing face pressure for removal or softening from economic interests, thus giving rise to recent scholarly discussion of the principle of non-regression THE POTENTIAL CONTRIBUTION OF WILD LAW TO AVERTING ECOLOGICAL COLLAPSE Stone, “If Trees had Standing” Sax, Defending the Environment – public trust Thomas Berry: Human law to reflect, and be bound by, the laws of nature Legal recognition for the rights of all beings Cormac Cullinan, “If Nature had Rights” Peter Burdon; the fundamental question: “How can law, as an evolving social institution, shift to reflect the modern understanding that human beings are interconnected and dependent upon a comprehensive Earth Community?” Role of wild law (cont.) Substantive element: a new paradigm that eschews sustainable development in favour of recognition of, and respect for, nature Could be reflected in objectives clauses of legislation, but then needs to infuse all aspects of policy and regulatory measures thereunder But does such an approach address explicitly, or sufficiently, the underlying drivers of environmental degradation? Role of wild law (cont.) Procedural element: A rights-based approach, that assumes the capacity to enforce rights for nature Requires significant reform of adjudication systems and, in many countries, re-establishment of the rule of law in the face of corruption or despotism But note also emerging criticisms of rights-based approaches: Are these based on an adversary model of environmental management that can only partially resolve conflicts and address environmental problems? See also recent criticism of even universal human rights: Richard Ford, Universal Rights Down to Earth, Amnesty International, 2011) – argues may actually hinder humanitarian causes and even worsen conditions for citizens in practice Strategies to address the drivers of environmental degradation Considerable body of literature on this topic, for example: General: Lester Brown, World on the Edge: How to Prevent Environmental and Economic Collapse (Earth Island Institute, 2011) available at http://www.earth- policy.org/images/uploads/book_files/wotebook.pdf Economic growth: Richard Heinberg, The End of Growth, Post Carbon Institute, 2011 (e-book available at http://www.postcarbon.org/book/975026-the-end-of- growth-updated-ebook Population growth: Ian Lowe, Bigger or Better? Australia’s Population Debate ( Uni of Queensland Press, 2011) Poverty alleviation: Hernando De Soto, The Mystery of Capital (Basic Books, 2000) Strategies to address the drivers of environmental degradation Need to also consider emerging literature on other aspects: resource consumption patterns Values, behavioural change and environmental psychology Striking feature of much of this literature is the lack of attention to the role of law as a means of addressing the relevant drivers is law essentially irrelevant or of peripheral importance in triggering the changes required? If not, what types of new legal measures are required? The role of (environmental) law in addressing the key drivers of environmental degradation Four key aspects for further consideration: Have we reached the “limits to growth” in environmental law? Or is wild law, or some other reform of environmental law, the required next stage of its evolution? Are new directions in environmental law, such as wild law, meant to supplement, or to replace or reconfigure existing environmental laws? Is it now necessary to look at other areas of law to deliver outcomes related to the key drivers? If so, what areas might be considered? Have we reached the limits of law per se in addressing environmental degradation? Are there alternative, preferable means to law for achieving the desired transition to a sustainable future? Conclusions Wild law is a commendable attempt to address the limitations and deficiencies of contemporary environmental law But wild law must be much more fully articulated in order to present a compelling case for its pursuit as a comprehensive means of addressing global environmental degradation There is also a serious need to examine the legal implications of ‘futurist’ analyses and strategies for survival - so as to identify where, if at all, law may play an influential role in delivering such strategies At present, legal scholarship and political assessment is seriously lacking in relation to this last-mentioned matter Both futurists and lawyers/policy-makers need to communicate with each other in relation to this matter. .
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