"Sustainability is illegal."

I find law fascinating, and I would love to write about it more.  But for this blog post, I would rather you spend your time listening to Thomas Linzey, Esq., co-founder and executive director of the Community Environmental Defense Legal Fund, which intends and works on "Building sustainable communities by assisting people to assert their right to local self-government and the rights of nature."  In the audio clip below taken from the fantastic radio show Making Contact, Linzey talks about ways to morph the current regulatory and property rights framework of environmental law to one that affords nature rights and better protects the rights of citizens in the face of ever-growing corporatization and pollution.  As it stands however, according to Linzey, "Sustainability is illegal.  The hammer comes down on you when you attempt to actually to prohibit something in the interest of building sustainability in [a] community."

On rights, conveniences and obligations

I want to continue my thoughts from my last post on obligation. I particularly want to focus on the obligations that we must assume given our rights and conveniences in this world.

I am no expert of history, and no expert of international affairs. I know little of the governance structures that exist in many parts of the world. Yet it is is undeniable, to me at least, that as time has moved on in our societies, the rights granted to people by their governments have on the whole increased. (Libertarians may not think so.) Women have the right to vote in most parts of the world now, and much of the world has adopted some form of democracy. The list of human rights has increased over time, it seems, and for good reason. I find it difficult to comprehend and swallow the many violations against the sanctity of the world propagated through war and similar crimes. Increasingly, rights have the character such that they are applicable to all people living in a jurisdiction, and that is an absolutely wonderful thing. These are rights that confer upon all of us the access and ability to partake governance, which affects our daily lives. (Many of us do not exercise these rights, but that is a different story.) At the same time, we have had a proliferation of "convenience" in our lives. We have made it a priority for ourselves to make convenience more convenient, to give more and more people more and more access to more and more things. We have become so accustomed to convenience that we think it a human right to have access to these conveniences. In fact, many people have said that access to the the internet has become a fundamental human right. 

The right to open a business that violently extracts natural resources exists for all of us, and although there are laws such as NEPA that do require us to "consider" the environmental impacts, the environment has been continuously degraded over time. In fact, as long as there is a "just" compensation to the affected people for pollution and environmental harm, such activities can go on. Our legal system is set up such that we have obligations to people, but no obligations to the water they drink, or to the land they stand on, or to the air they breathe. As long as the impacts of our actions can be monetised to a value that other people accept, those impacts can be made to occur. Given extremely toxic amounts of pollution, people may reach a settlement and leave to find a new home. But what about the old home? What about the river in which was dumped PCBs? Our right to compensation has come at the expense of the environment. Many of our rights and conveniences have come with increasing detriment to the environment.

As we have moved through time, we have continued to provide others with proxies to provide us the basic necessities of life - our rights and increasingly our conveniences. As the number of these proxies has increased, we have lost our connections with the elements that provide for us and sustain us. These proxies have been provided to the government and companies, and we feel that their only job is to serve us and to secure our rights and conveniences. Yet I do not believe that the list of our obligations, as citizens, has grown in proportion with the list of our rights and our conveniences. The right to vote has not come with the obligation to vote, at least in the US. No one can deny that the convenience of a new laptop is benign on the environment, regardless of whether or not we feel it is a human right to have access to the internet, and still we have no obligation to make sure it isn't harming people before we buy it, or after we are done using it. As I wrote a couple of days ago, our increased mental and emotional capacities place on us the burden of obligation. We must expand the scope of our obligations with every increasing right, with every increasing convenience. Rights exists only because there is land beneath our feet, water to drink and air to breath. Conveniences only exist because nature provides us the materials for them. Obligations will allow us to fully realise the impacts of these rights and conveniences.

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.

On the law and being retrospective

This post ties back to my post from yesterday about risk. I found out today that the US EPA is going to now try to write regulations for new toxic chemicals, such as perchlorate, that have now been found in water supplies around the nation. (I never really knew how toxic rocket propellants were until I learned about them in my propulsion classes, and a few classes on explosions, explosives, propellants and pyrotechnics. I guess we are all naive to varying degrees.) Much has been made of the "precautionary principle," which basically states that if we don't know what the effects of doing something will be, we shouldn't do it. It is likely that there are always negative impacts of our actions, especially when scaled to millions or billions of people. With climate change, it has been argued that since we don't know what positive radiative forcing feedbacks may kick in with increasing greenhouse gas emissions, we should avoid pumping more greenhouse gases into the atmosphere. The precautionary principle makes sense to me, but it does not to many other people. (Similar arguments can be made for food and healthcare initiatives of the recent past.)


We live in a world where "freedom" of action is valued, especially if that "freedom" leads to job creation and profit for people. What this inevitably leads to is the acceptance of actions whose impacts are ill-defined and unknown. Once we grant this "freedom," it is hard to take that "freedom" back, or to regulate it, or temper it. (I can imagine how hard it must be to be a parent.) The "freedom" grows in magnitude like a chain reaction, rooting itself in our sensibilities and communities. Such rooting makes it difficult to move away the behaviour, just as it is difficult to break a bad habit. But we always realise that there are negative impacts to these "free" actions, and so we may therefore seek to regulate them, to temper them, through law. Such laws are by their nature retrospective, and not proactive. The goals of the regulators are then themselves tempered by the will of industry, and indeed we end up with weaker, retrospective law. Almost all of the environmental laws I can think of, including major pieces of legislation such as the Clean Air Act, Clean Water Act, and the National Environmental Policy Act, were all put in place retrospectively. I wonder what it would be like if we had proactive law more widely practiced. (Definitely read this document - various legal facets are very well articulated, and not in incomprehensible legalese.)


I think there are issues with such forward-looking approaches that may be far-reaching. I truly question whether it is biologically possible for human mentality to have evolved to fully comprehend the long-term impacts of our actions. Not long a time, on an evolutionary scale, has passed since we were hunter-gatherers. Our ability to think and envision may in fact be limited to such short time scales that we are in fact still mentally hunter-gatherers - shooting from the hip and making decisions that are "good" in the short term, but are inherently against the tide of nature in the long term.