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Global Environmental Constitutionalism: Getting There from Here

  • Douglas A. Kysar (a1)

Abstract

Dominant analytical approaches to environmental law exhibit a similar, problematic form: they treat that which should be outcome determining as, instead, outcome determined. This form is most evident and influential in the welfare economic technique of regulatory cost–benefit analysis, which treats all resources – including the monetary value of human lives – as potential means towards seemingly higher yielding ends. In contrast, an environmental constitutionalism, in which certain needs and interests of present and future generations, the global community, and other forms of life are given foundational legal importance, would help to restore conceptual coherence and normative priority to the subjects of environmental law.

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1 In the majority of the world’s constitutions the environment is given express constitutional significance through various formulations of a right to a healthy and sustainable environment or through a governmental obligation to protect the environment. Although exact accounting differs by commentator, according to Tim Hayward, ‘around fifty’ nations’ constitutions contain environmental rights, and ‘more than a hundred countries have constitutional environmental provisions of some kind’: Hayward, T., Constitutional Environmental Rights (Oxford University Press, 2005), at pp. 34.

2 See Thompson, B.H. Jr., ‘Environmental Policy and State Constitutions: The Potential Role of Substantive Guidance’ (1996) 27 Rutgers Law Journal, pp. 863925, at 897 (noting that ‘[c]ourts actively have sought out legal justifications for avoiding environmental policymaking even in those states with strong environmental policy provisions that appear on their face to impose mandates or obligations on the legislature or directly on the regulated community’).

3 For examples of this earlier scholarship, see, respectively, Stone, C.D., ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review, pp. 450–87; Sax, J.L., ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1970) 68 Michigan Law Review, pp. 471566; Brown Weiss, E., In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Transnational, 1989); Kutner, L., ‘The Control and Prevention of Transnational Pollution: A Case for World Habeas Ecologicus’ (1977) 9 Lawyer of the Americas, pp. 257–81

4 Cf. Westbrook, D.A., ‘Liberal Environmental Jurisprudence’ (1994) 27 UC Davis Law Review, pp. 619712, at 711 (‘To date, contemporary liberal ideology has tried to appropriate the essentially religious implications of the concept of nature as either personal preference, and hence of highly limited importance for politics, or as objective truth, certified by the new science, and hence profoundly alienated from individual experience’).

5 See Rose, C.M., ‘Environmental Law Grows Up (More or Less), and What Science Can Do to Help’ (2005) 9 Lewis & Clark Law Review, pp. 273–94 (advocating continued reliance on science as the fundamental basis of environmental law); Tarlock, A.D., ‘Environmental Law: Ethics or Science?’ (1996) 7 Duke Environmental Law & Policy Forum, pp. 193223 (concluding that environmental law must remain science based); Wapner, P., ‘Environmental Ethics and Global Governance: Engaging the International Liberal Tradition’ (1997) 3 Global Governance, pp. 213–31 (suggesting the reframing of international environmental concerns in the nationalist and individualist terms liberalism cognizes).

6 Thompson, B.H. Jr., ‘Constitutionalizing the Environment: The History and Future of Montana’s Environmental Provisions’ (2003) 64(1) Montana Law Review, pp. 5798, at 187.

7 Ibid., at 198; see also Tarlock, A.D., ‘Is There a There There in Environmental Law?’ (2004) 19 Journal of Land Use & Environmental Law, pp. 213–53, at 223 (noting that ‘there is no longstanding social consensus about the central question of modern environmentalism – the ‘correct’ human stewardship relationship to the natural world’) (footnote omitted).

8 The Constitution of the Kingdom of Bhutan, Art. 5(3), available at: http://www.constitution.bt/TsaThrim%20Eng%20(A5).pdf.

9 See Stein, R., ‘Water Law in a Democratic South Africa: A Country Case Study Examining the Introduction of a Public Rights System’ (2005) 83 Texas Law Review, pp. 2167–83.

10 The situation is comparably dim at the supranational level: ‘While there appears to be a growing trend favoring a human right to a clean and healthy environment – involving the balancing of social, economic, health, and environmental factors – international bodies, nations, and states have yet to articulate a sufficiently clear legal test or framework so as to ensure consistent, protective application and enforcement of such a right’: Hill, B.E., Wolfson, S. & Targ, N., ‘Human Rights and the Environment: A Synopsis and Some Predictions’ (2004) 16 Georgetown International Environmental Law Review, pp. 359402, at 361.

11 Locke, J., Two Treatises of Government (1690) (reprint, Laslett, P. (ed.), Cambridge University Press, 1988), p. 291 (stating that private ownership of land tends to the overall good so long as ‘there is enough, and as good left in common for others’). But see Waldron, J., ‘Enough and as Good Left for Others’ (1979) 29 The Philosophical Quarterly, pp. 319–28 (offering a powerful argument that Locke intended the ‘enough, and as good’ proviso to establish a sufficient, but not a necessary, condition for legitimate appropriation of resources).

12 See Daly, H.E., Beyond Growth: The Economics of Sustainable Development (Beacon Press, 1996), at p. 82.

13 To be sure, there are diverse and sophisticated versions of welfare economics that do not take the status quo baseline as normatively sacrosanct in this manner. Cf. Sen, A., Collective Choice and Social Welfare (Holden-Day, 1970), at p. 22 (famously arguing that a society or an economy can be considered optimal from a narrow efficiency perspective yet ‘still be perfectly disgusting’). The critique in the text focuses on applications of welfare economics in US environmental law and policy debates, which almost exclusively rely on welfare assessment baselines and valuation techniques measurement techniques that do privilege the status quo.

14 See Daly, n. 12 above, at p. 82.

15 See n. 11 above.

16 See Kysar, D.A., ‘Sustainable Development and Private Global Governance’ (2005) 83 Texas Law Review, pp. 2109–66, at 2123–5.

17 Ibid., at pp. 2136–45.

18 Cf. Sax, J.L., ‘The Unfinished Agenda of Environmental Law’ (2008) 14 Hastings West-Northwest Journal of Environmental Law & Policy, pp. 111 (‘It is a sobering thought that while virtually every other interest that we consider vital has been made the subject of enforceable legal rights, our heritage of biodiversity stands largely outside the framework of established jurisprudential theory’).

19 O’Neill, J., ‘Representing People, Representing Nature, Representing the World’ (2001) 19(4) Environment and Planning C: Government and Policy, pp. 483500, at 497 (‘Given the necessary absence of authorisation, accountability, and presence, claims to speak on behalf of non-humans and future generations relies on epistemic claims, coupled with care’).

20 Tarlock, n. 7 above, at p. 224.

21 Sunstein, C.R., Worst-Case Scenarios (Harvard University Press, 2007), at p. 65.

22 Cf. Slovic, P., ‘‘If I Look at the Mass I Will Never Act’: Psychic Numbing and Genocide’ (2007) 2(2) Judgment & Decision Making, pp. 7995 (describing psychological studies in which both positive affective sentiment and willingness to make donations to humanitarian causes were shown to decline when analytical thinking was primed through statistical information and through increasing the number of individuals benefitted).

23 Ackerman, B., ‘The Living Constitution (2006 Oliver Wendell Holmes Lectures)’ (2007) 120 Harvard Law Review, pp. 1737–812, at 1793.

24 Thompson, n. 2 above, at p. 898.

25 See Ackerman, B.A., Social Justice in the Liberal State (Yale University Press, 1980), at pp. 93–5.

26 See Kysar, n. 16 above, at p. 2128.

27 Cf. Habermas, J., Between Naturalism and Religion (Polity Press, 2008), at p. 273 (describing Rousseauean tradition in which ‘sovereignty branches internally into a communitarian understanding of the political freedom of the members of a national community and toward the outside into a collectivist understanding of the freedom of a nation that asserts its existence against other nations’).

28 Agamben, G., The Open: Man and Animal (Kevin Attell, 2004), at pp. 76–7.

29 Ibid.

30 Ibid.

31 See Brady, D. & Palmeri, C., ‘The Pet Economy’, Business Week, 6 Aug. 2007, available at: http://www.businessweek.com/magazine/content/07_32/b4045001.htm?chan=search.

32 See Vlahos, J., ‘Pill-Popping Pets’, New York Times Magazine, 13 July 2008, available at: http://www.nytimes.com/2008/07/13/magazine/13pets-t.html?pagewanted=all.

33 See generally Latour, B., We Have Never Been Modern (Catherine Porter, 1993).

34 Klaus, V., ‘What is at Risk is not the Climate but Freedom’, Financial Times, 14 June 2007, at p. 9.

This essay is excerpted and adapted from D. Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity (Yale University Press, 2010), copyright 2010 by Yale University Press. Reprinted in adapted form with permission.

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