FRACK YOU - Innocent until proven guilty

There a couple of themes from previous posts I'd like to pull together with this post, namely proactive law, the precautionary principle. I just read another article in Orion about fracking, When Cowboys Cry, by Sandra Steingraber, in which she talks about the continuing efforts of oil and gas extraction companies, like Halliburton, Chevron, and Exxon to frack in places like plains of Montana, the south of France, the vales of England, and the forests of Poland. More disturbing, however, is the part when she writes,

That was the week that stories about fracking broke in the international press, and the European environmentalists were scrambling to figure out what laws in the European Union might apply to this new technology. Like the sons and daughters of Montana's cowboys, the sons and daughters of the Allied Forces were having a hard time finding legal traction.

The British journal The Ecologist reached a similar conclusion in an investigative report about the European plans of Halliburton, Chevron, and Exxon and others. Although fracking in the United States is linked to toxic pollution and social conflict, notes The Ecologist, the technology is being rapidly exported. Fracking "exceeds the government regulatory process." It is "set to continue." It is, perhaps, "too powerful to oppose."

My former lab mate Paul, who graduated just last week, and I would talk many times about socio-environmental issues. He always has insightful things to say, and he said one thing that put a different perspective on things I've written about previously (here, here), including trust and faith in large organisations such as government and corporations, I believe on the day of the one year anniversary of the BP-Macondo well blowout and oil spill. He said, with regard large companies and corporations, "The companies are innocent until proven guilty." This statement puts a twist on a commonly held legal dictum, particularly because companies are not just "potential" criminals - they have been implicated and proven guilty time and time again. Each time, they have paid a small fine, and have moved on to commit the next crime. These companies are serial criminals, manic criminals. The statement also lends credence to how the precautionary principle operates in our society today - it is not that a law is implemented if a bad socio-environmental outcome is possible; rather a law is not implemented if it maybe possible to hurt the profits of companies. Society and environment be damned.

It is clear that regardless of the future applicability of retrospective law, those with power have the ability to subvert the law. Indeed, it doesn't matter what the sentiment of the law is, loopholes in law are treated as not an overlook in the law, not a space in which the sentiment of the law can pervade, but rather a space within which detrimental activities we thought would be regulated against can operate freely and without conscience. It is as if the outcome is not criminal or regulated against, but rather the mode of crime. This is contradictory to how the law operates in other (related) arenas. When someone commits first degree murder, it doesn't matter how the murder was committed, but what is important that the crime occurred. There is no legal loophole that says, "Oh, you used a stone to commit the crime rather than a gun. You're okay. You're free." But with ecological degradation, it is not the first degree crime that is illegal, rather it is just the manners in which the crime is commited that are deemed to be acceptable or not. There is then a legal discrepancy, a cultural schizophrenia, that is obvious.

What might be an approach to prevent this from happening, given the legal system we have? I heard a provocative Speaking of Faith episode from a few years ago, Reflections on the Death Penalty in America, in which a guest said that we must look into laws that maintain the dignity of humans. This can be easily extended to the environment. Rather than have a legalistic framework that is full of loopholes, why not have a legal framework that is inherently holistic and inherently proactive. Given the arguments made for and against even well-worded laws, why not have debates on the heart of the problems?

On the deficiencies of the law

I continue to seek to motivate individual action. Yesterday, I came across the notion of proactive law, which is a growing school of thought, particularly in the European Union. Proactive law is "a future-oriented approach where the goal is to promote what is desirable and ex ante maximise opportunities while minimising problems and risks." This philosophy of law has, it seems, primarily been applied to creating a better business environment for people, such that "an optimal mix of regulatory means...best promote(s) societal objectives..." But it may not be terribly difficult to think about proactive law in the context of environmental law - given that we know there are environmental problems created by the way society functions, we may be able to pass enforceable legislation such that environmental harm is minimised through future societal actions. (There are of course issues with developing a dialogue with nature itself, unless people try to represent the views of nature.) Most environmental laws have been retrospective, setting legal boundaries of action because of past environmental harm. However, these laws do potentially grant authority to regulate future behaviour of people and businesses, just like the Clean Air Act (first adopted in 1970) was judged to be applicable to regulate greenhouse gas emissions a couple of years ago.

There seems to be an inherent contradiction between future-oriented law and the way humans have been behaving so far, because humans will likely continue to behave in the same way in the future. But with our behaviour, we have created over the past few hundred years a society whose understanding of its actions cannot be fully comprehended right now, and may never be. For example, what does it mean for our human relationships that we now have new forms communication that inherently limit time with other people? Such a question is hard to wrap our minds around, and we will not know the full consequences of such a change in momentum until many years have gone by. So how might we be able to create laws that bind us to a desired future outcome? Furthermore, the interesting thing about law is that it is made in the context of its time, given our sensibility of the issues facing us - the US Constitution was drafted in the late 18th century, and many of us know that there are significant issues surrounding the interpretation and validity of the Second Amendment today, which was adopted in 1791.

I write about this, because as I mentioned previously, the sentiments behind the law come out of the weaving of our collective moralities - in the end, the law may lose the force that a few of us might want it to have. But it is clear that personal actions now, in the present, can guarantee that at least our individual exoneration from the behaviour that may degrade the environment or trample on social justice now and in the future. We may never understand the outcomes of our actions given the complex web of interconnectedness today, but choosing not to participate in such behaviour guarantees that at least for us, such proactive law is superfluous and unnecessary.