Being Reasonable: How do rationalist assumptions affect the treatment of the environment in decision-making processes? Caer Smyth 2020 Submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy (Law) School of Law and Politics, Cardiff University Table of Contents Table of Contents i Table of Figures iii Table of Abbreviations iv Summary v Acknowledgements vi Part I Groundwork 1 Introduction 1 2 Theoretical Context 7 1 Introduction 7 2 Rationalist Philosophy 8 3 Public Participation 16 4 Environmental Justice 22 5 Rationalist dualisms and their critics 28 6 Conclusion 36 3 Legal Context 38 1 Introduction 38 2 Planning law in England and Wales 39 3 Public participation 46 4 The M4CAN scheme and public local inquiry 55 5 Conclusion 65 4 Methodology 67 1 The Site 67 2 The Methodological approach 69 3 The Methods 77 4 Challenges in research 83 5 Conclusion 89 Part II Analysis 5 Compartmentalisation 91 1 Rationalist decision-making requires processes of compartmentalisation 91 2 Processes of compartmentalisation at the inquiry 92 3 Processes of compartmentalisation negatively impact the environment 106 4 Processes of compartmentalisation adversely impacted treatment of the environment at the inquiry 109 5 Environmental objectors’ response to processes of compartmentalisation 116 6 Abstraction 120 1 Rationalism in decision-making requires processes of abstraction 120 i 2 How did processes of abstraction work at the inquiry? 123 3 Processes of abstraction have a negative impact on the environment 136 4 Processes of abstraction adversely impacted treatment of the environment at the inquiry 140 5 The response to processes of abstraction at the inquiry 150 7 Human Nature Dualism 157 1 Human-nature dualism is an underlying assumption in rationalist philosophy 157 2 How does human-nature dualism appear at the inquiry? 160 3 Human-nature dualism negatively impacts the environment 163 4 How did human-nature dualism negatively impact the environment at the inquiry? 166 5 How was human-nature dualism contested at the inquiry? 176 8 Exploring Research Implications 183 1 Introduction 183 2 How is the environment valued in legal processes? 184 3 How is the environment valued in Welsh sustainable development legislation? 190 4 Impediments to change in Welsh sustainable development and planning law 196 5 Impediments to change in the public local inquiry 202 6 Prospects for change: participation, the planning system and advocacy 209 7 Conclusion 217 9 Conclusion 219 10 Bibliography 223 Appendices 240 ii Table of Figures Figure 1: Timeline of key M4CAN events, 1989-2019 56 Figure 2: The M4CAN Inquiry room 68 Figure 3: Fieldnote Extract 1, 26 September 2017 80 Figure 4: Fieldnote Extract 2, 26 September 2017 80 Figure 5: Fieldnote Extract 3, 26 September 2017: Analysis 83 Figure 6: Wildflowers field on site visit, 19 July 2017 99 Figure 7: Tree-pylon at Barecroft Common, 13 August 2018 128 Figure 8: Reen, Gwent Levels, 19 July 2017 151 Figure 9: ‘We won, Wow!’ sign at resident group’s celebration, 13 July 2019 215 iii Table of Abbreviations ABP Association of British Ports ALA Acquisition of Land Act 1981 AM Assembly Member BCR Benefit Cost Ratio CALM Campaign Against the Levels Motorway CEM Corridor Enhancement Measures CPRW Campaign for the Protection of Rural Wales DoT Department of Transport EIA Environmental Impact Assessment FM First Minister GWT Gwent Wildlife Trust HA Highways Act 1980 HMT Her Majesty’s Treasury JOYS The Judge over your Shoulder M4CAN M4 Corridor around Newport NAW National Assembly for Wales NGO Non-governmental organisation NIMBY Not In My Backyard NRW Natural Resources Wales NSIP Nationally Significant Infrastructure Project PINS Planning Inspectorate RSPB Royal Society for the Protection of Birds SSSI Site of Special Scientific Interest SSW Secretary of State for Wales SONAR State of Nature Report TAN Technical Advice Note UKELA UK Environmental Law Association WFGA Well-being of Future Generations Act 2015 WG Welsh Government iv Summary Public local inquiries are a common mechanism for public participation in the UK planning system. They frequently address environmental concerns, and as such are a route through which the public participate in environmental decision-making. Public participation in environmental decision-making is a key principle in environmental law; one might then assume that forums for participatory decision-making such as public local inquiries are well-equipped to hear environmental arguments. What if this is not the case? What if embedded assumptions that shape the way we argue are reproduced in these decision-making processes? This thesis explores how rationalist assumptions might affect participatory decision-making processes and in particular limit people’s ability to advocate for the environment in these processes. It employs socio-legal empirical research methods to investigate these issues. Data was collected through ethnographic fieldnotes and interviewing. The research fieldwork site is a public local inquiry in Wales, the inquiry into the M4 Corridor around Newport, or M4CAN inquiry. The scheme under consideration at the inquiry was a major infrastructure project with a high economic cost and significant environmental implications. Drawing on socio-legal ethnographic data, this thesis proposes that human-nature dualism in rationalist philosophy, its favouring of compartmentalised argument and its prioritising of abstracted argument adversely impacted the treatment of the environment at the M4CAN inquiry. The thesis further proposes that rationalist assumptions and their impact in legal decision-making processes make it harder to account for the intrinsic value of the environment, and that recognising the intrinsic value of the environment is essential to ensuring that legal decision-making processes have due regard to the environment. It proposes that meaningful public participation in environmental decision-making can serve as a mechanism through which intrinsic environmental value is better recognised. v Acknowledgements This research explores the interconnected nature of the environment, that no one part of an ecosystem exists separated from its community of fellow species. Trite though it may be, this thesis stands as testament to this. While my name sits alone on the front page, the submission of this thesis has depended on the kindness and support of my community. Firstly, thank you to the research participants, especially those who were interviewed. Thank you for your time and thoughtful engagement with my questions. Thank you to the inquiry participants; in particular thinking of the inquiry inspector, who was unfailingly friendly to me and encouraged my research. Thank you to my supervisors Ben Pontin and Karen Morrow. Thank you for enthusiasm when I was feeling worn down, and thank you for your patience and confidence in my work. Thanks also to my Masters’ supervisors Anna Grear and Elen Stokes, for your advice and support over the last four years. Thank you to the ESRC Wales Doctoral Training Partnership for funding this research. I am hugely grateful to Cardiff School of Law and Politics for the support I received from the very start. I feel privileged to be part of this academic community; particular thanks to Annette Morris, PGR Director for most of my PhD, and to the patient PGR administrative team. Thank you to my colleagues in the Environmental Justice Research Unit. Thank you to my fellow PGR students. Special thanks to my exceptional officemates, Lizzy, Claire, Emma, Sara and Steph. Lizzy and Claire, what can I say but tanks very much. Thank you to Cardiff School of Social Sciences for giving me the qualitative methods tools that I needed. Particular thanks to Kate Moles, who has done her best to keep my ethnographic research to the high standards of ethnography at Cardiff. Thanks to the wider environmental and socio-legal community, who inspire me with their warmth and with their scholarship; particular thanks to Tory Jenkins at Swansea University. Lastly, thanks to my friends and family for your support over the last four years; I promise to be more sociable now and cook more meals. Thanks Kate (K), thanks Jasmine, and thanks Alex. Agus buíochas agus grá ó bhun mo chroí le haghaidh Mum agus Dad. vi 1 Introduction What levels of climate change and sea-level rise are acceptable? Which Pacific islands are condemned to disappear? How many other species besides our own will we allow to survive? At what point will the acidification of the oceans and the spilling of toxic substances be declared intolerable? If scientists can cast light on these questions, the answers are political decisions. In the time of the Anthropocene, the entire functioning of the Earth becomes a matter of human political choices.1 We are living through a time of upheaval and profound environmental change. We are told repeatedly that the basic health of the Earth is compromised, and that substantial social change is needed in order to avert the worst of the impacts. Underscored in the above quote, while modern science has provided evidence of this profound change, it is the role of legal and political systems to come up with a response. Yet, despite these sobering reports, legal systems do not seem to treat environmental issues with the urgency they deserve. Why is this the case? What underlying assumptions prevalent in modern society and evident in our legal decision-making processes might account for this oftentimes inadequate response? I was drawn to this problem,