Greening the law
Illustration by: ANDREW WHEATLEY
Across the world, there are more environmental regulations in force today than at any point in legal history. From oceans to mountains, micro-organisms to the largest of creatures, almost all are – in one way or another – under the jurisdiction of a regulatory framework. Yet, the planet’s environment is in a worse state than ever. Rather than a network of countries united in well-regulated environmental stewardship, we have a global Wild West of poorly formed and inadequately enforced environmental laws.
So what’s gone wrong? And, with human-induced biodiversity-loss marching on, and some estimates putting irreversible shifts in our climate at only 86 months away, what hope do legal structures offer in finding solutions to such problems?
To understand current environmental regulation, we need first to examine how it emerged. Perhaps ironically, it was the US which led the way in incorporating the environment into law and, in so doing, created a model followed the world over.
In the early 1960s, one of the first cases in the history of US environmental law reached the courts. In an area only 50 miles from Manhattan, Consolidated Edison – the company responsible for delivering energy to New York City – sought to construct a reservoir and pumping station atop Storm King Mountain. The intention was that, at night, energy produced by the company’s other power stations be used to pump water from the Hudson River into the proposed reservoir. During the day, that water would be released to drive generators and so satisfy peaks in demand.
A coalition of local people calling themselves the Scenic Hudson Preservation Group opposed the plans, citing the detrimental effect the construction would have on one of New York State’s most important landscapes. Scenic Hudson, which rapidly grew into a highly vocal campaign group, did finally force the company to drop their plans for construction, but not before legal wranglings which dragged on from 1963 to 1981.
The case’s significance was not, however, its success in preventing the construction. Rather, it was a decision made early on in the campaign, on 29 December 1965. The Federal Power Commission, the government agency which initially approved Consolidated Edison’s plans, had done so on a purely technical basis, without examining either environmental or aesthetic concerns. Scenic Hudson’s attorney queried the validity of this decision, suggesting that such factors were key to the Commission’s public interest remit. The court sided with Scenic Hudson, stating that, as a result, ‘the Commission has failed to compile a record which is sufficient to support its decision’. Through this case, a precedent was set in which environmental concerns would need to be addressed in future large-scale developments. If they were not, the public could organize and challenge such developments.
A growing awareness of the importance of environmental preservation throughout the 1960s, and key events such as April 1970’s Earth Day – a green teach-in fronted by Democrat Senator Gaylord Nelson – led to a significant bolstering of the US public’s arsenal of environmental laws. January 1970 saw the National Environmental Policy Act (NEPA), which requires federal agencies to consider the environmental impacts of proposed large-scale projects, signed into law. A number of key pieces of environmental legislation were later brought in to cover air, water, endangered species and hazardous waste. These laws weren’t just to be followed by public bodies. In 1972, a ruling by Wisconsin Supreme Court demonstrated that the state could legitimately restrict the modification of private land if it considered that such modification would likely cause damage that contravened the wider public’s right to a clean environment.
‘Our laws are like band aids treating the symptoms and not the root causes of environmental degradation’
However, even though environmental laws and regulations were growing in number, seeds were already sown for future pitfalls. NEPA, regarded as the jewel in the crown of America’s green statutes, was soon rendered ineffective by a decision that it should be regarded as purely procedural. Put simply, this meant that environmental impacts of state projects would have to be considered, but there was no requirement to mitigate those impacts.
Though some, such as legal professor Christopher Stone [see box opposite] challenged it, the structure of environmental law meant that only that which was specifically outlined in the statute books would be declared illegal. With no definitive recognition of the idea that the destruction of the environment was inherently negative (the Constitution having been prepared long before environmental concerns were on the agenda), the law contained little scope for broadening its environmental remit.
Lawyers for the earth
In spite of its limitations, with green legislation on statute books across the world, the law has emerged as an important way by which those concerned about environmental degradation can challenge the actions of both governments and businesses to effect change. Either allied with mainstream campaigning groups, or run as practices in their own right, organizations have sprung up which look out for bad practice, taking court action when they can.
The non-profit Canadian group, Ecojustice, is one such. Formerly the Sierra Legal Defence Fund, Ecojustice has 4 offices, a team of 12 staff lawyers, and around 30,000 supporters.
It’s certainly a frustrating business. Even though governments are themselves responsible for the formulation of environmental law, it can often seem as though they regard this as the end of their responsibilities. Even when big business openly breaks the rules, as Ecojustice’s Executive Director Devon Page explains, government officials turn a blind eye. ‘That’s turned us into an environmental watchdog. One of the things we’ve been doing more and more in recent times is enforcing the law in lieu of the government.’
Recently, 500 migratory ducks died in tailings ponds – giant pools several kilometres long into which the toxic waste from tar sands oil extraction in Alberta, Canada is dumped. Ecojustice was forced to take on an enforcement role. Syncrude Canada, the company responsible for the tailings ponds, had failed to put the required preventative measures in place to discourage migratory birds from landing. So Ecojustice launched a private prosecution under the Migratory Birds Convention Act. Though they dropped the case soon after launching it, the private prosecution was a success, in Page’s eyes, as it prompted action from the state: ‘The federal and provincial governments stepped up and themselves laid the charges, which they should have done in the first instance.’
Because of the limitations of environmental law provision, organizations like Ecojustice are often required to think laterally. ‘We’ve sought to interpret laws that might not be characterized as environmental laws, as laws that can be used to protect the environment,’ Page explains. This can mean anything from defending the rights of activists demonstrating against potentially harmful developments, to making complaints against the advertising of environmentally damaging products, as they did in 2008 when Nestlé claimed that its bottled water was ‘the most environmentally responsible consumer product in the world’.
As a small organization subsisting on donations, Ecojustice must choose its fights carefully. Legal precedents are an important part of this decision-making, as Page explains. ‘In Canada, we operate under common law, so the principle is that precedents are binding. If you win a victory now, that victory stands a good chance of being preserved into the future. The outcomes of those cases can then be used by other groups.’ The organization also seeks to influence the law-making process directly, working with the authorities in the writing of legislation, in an attempt to counter the powerful lobbying from big business that occurs.
‘In theory, environmental law is important,’ argues David Boyd, author of Unnatural Law, a trenchant critique of Canadian environmental law. ‘If it actually achieved the goals it sets out to fulfil – that is: protecting the air, land, and water that we’re biologically dependent on as animals – we’d all be better off. And of course the planet would be better off too.’ But, as we’ve seen, so often it doesn’t achieve those goals. Weak laws, poorly enforced, and further attenuated by intensive corporate lobbying, have little effect, but the problem runs deeper. ‘Our laws are like band aids treating the symptoms and not the root causes of environmental degradation,’ suggests Boyd.
At the forefront of thinking on environmental law is an idea which might just change that. Across the world, individuals and pressure groups are developing frameworks in which non-humans, whether individual creatures, species, or even landscapes, are afforded rights akin to those of humans. For many working in this area, like Mari Margil, Associate Director of the US-based Community Environmental Legal Defense Fund (CELDF), moving towards a rights-based agenda was the obvious next step for the legal representation of the environment.
‘Our work is very much based on past people’s movements, like the abolitionists and the suffragettes. Slaves and women were once property under law, and those campaigns made them into rights-bearing people. I think we’re in a similar situation with nature and the environment. Nature is currently under structures of law that consider it property. So, many of our federal environmental laws function under commerce clauses. We know there are major environmental laws in the US, yet our environment is in a worse shape than before they were adopted. They’ve slowed the rate of decline, but given where we are right now, with ecosystems on the brink of collapse, we need something fundamentally different.’
In 2006, events in the borough of Tamaqua – 10 square miles of eastern Pennsylvania and home to 7,000 people – changed everything. A campaign against corporations spraying sewage sludge from intensive livestock farming onto cropland was successful, and they were banned from doing so. But the new laws went further. Drafted with the help of CELDF, they stated for the first time that ecosystems would have enforceable rights against corporations, and went on to note that residents of Tamaqua could take on lawsuits that defended those rights. Within weeks, Rush Township, also in Pennsylvania, followed suit.
Then, in September 2008, under recently elected president Rafael Correa, Ecuadorians approved their new constitution. Also drafted with input from CELDF, this was the first constitution on earth which explicitly enshrined rights for nature in its wording. The chapter’s first article sets out the requirements clearly: ‘Nature or Pachamama [“Mother Earth” in indigenous Andean mythology], where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.’ Environmentalists were delighted by what seemed to be evidence of a new green outlook for the country. Sadly, so far, senior government officials, including the President himself, remain wedded to destructive development. The first test of the new constitution is already in progress: a lawsuit from the Confederation of Indigenous Nationalities of Ecuador is attempting to use it to halt large-scale metal mining in the country.
Though excited by such developments, for London-based barrister Polly Higgins, a solution with a global reach is still needed. Over two years, she has developed a framework for a Universal Declaration of Planetary Rights. The concept of planetary rights is particularly important to Higgins. ‘The “rights of nature” concept is slightly smaller, it’s quite “us and them”. I was interested in the idea of how we encompass it all. We are but one species here, and if we still have an “us and them” relationship we haven’t broken the barrier. We need to see ourselves as part of a whole interconnected ecosystem.’
In November 2008 Higgins was invited to present her ideas to the United Nations, and in June 2009 she brought them to the annual forum of the Swedish international think-tank, the Tällberg Foundation. In both cases, the idea was well received. Higgins sees the outlook as positive. ‘Tällberg did me out of a job,’ she jokes. ‘All the relevant institutions, all the relevant people, were there. And they’re on board with this. The intention is to take it to the UN General Assembly.’
Looking to the future
It is clear that our current legal frameworks for environmental protection are failing us. However, things are changing. Innovative methods are getting green issues before courts across the world [see box below]. Watertight environmental laws are essential to regulate the actions of large organizations. But with powerful lobbying from big business, as global citizens we will have to work hard to encourage the law-makers to push regulation in the direction it needs to go.
Branching out: should trees have standing?
Had the ideas of Christopher Stone – Professor of Law at the University of Southern California – hit the mainstream, environmental law might today be in very different shape. Beginning as a chance remark, intended to regain the attention of his students in the closing minutes of a lecture, his words became the foundation of an important legal query. What, he put to his students in 1971, if trees, and by extension other natural entities, were given legal standing?
‘Standing’ is the term which signifies permission for litigation to be pursued on your behalf. There are two key tests. First, you must be a legal ‘person’, in the way that humans, but also ships, municipalities, corporations and numerous other non-human entities are. Second, you must demonstrate that you have been sufficiently harmed or affected by the actions of whoever you are suing that you are entitled to bring a case. Because natural entities automatically fail the first test they are deemed not to have standing and cases would be dismissed.
Stone’s suggestion would have resulted in a complete change of direction for environmental litigation. Rather than legal challenges being mounted when specific environmental legislation is broken, Stone’s proposal would have allowed any example of environmental damage to be brought before the courts. Having formed the idea, Stone then searched for active cases in which he could test his proposal.
In Sierra Club v. Hickel, which ran from 1970 to 1972, the environmental pressure group was attempting to prevent the Disney corporation from building a leisure park in Mineral King valley, a protected region of California. The case was rejected, not necessarily because the courts found the Forestry Service right in having issued Disney a permit, but because they declared the Sierra Club did not have standing to pursue the case as they could not demonstrate that the construction would directly affect them adversely. ‘Perhaps the injury to the Sierra Club was tenuous,’ Stone later wrote, reflecting on the case, ‘but the injury to Mineral King – to the park itself – wasn’t.’
On those grounds, the case was appealed, and went as far as the Supreme Court. In spite of generating a great deal of interest and approval from influential legal figures, the argument that the park itself should have standing was never approved by the courts.
Challenges from unexpected angles
It’s not just organizations with a green remit which use the courts to challenge poor environmental decisions. Belying the notion that the US political system is wholly uninterested in environmental protection, city and state governments made great efforts, particularly during George W Bush’s presidency, to force regulation of greenhouse gases on to the statute books.
In September 2006, the state of California used public nuisance laws to sue the US branches of six of the country’s largest car-makers – GM, Toyota, Ford, Honda, DaimlerChrysler and Nissan – for their vehicles’ emissions of greenhouse gases, and the subsequent effect climate change has on the state. In 2004, another public nuisance case in which the attorneys general of California and numerous other states and cities were represented, was filed against five electric power companies. It alleged that these companies are the largest emitters of greenhouse gases in the US, and called on them to reduce their emissions.
Both cases were dismissed, as it was argued that under the ‘political question doctrine’ – a controversial feature unique to US law which allows courts to sidestep decisions which might be better resolved through electoral politics – the Constitution forbade them from considering the claims. The State of California disagreed: ‘[w]e believe that both courts misapplied the political question doctrine and should not have dismissed the cases. Federal courts not only have the ability to provide a forum for the states’ grievances, they have a duty to do so, particularly while Congress and the President fail to act.’ The case against the power companies is now being appealed. The case against the car manufacturers was dropped on 24 June 2009 as, under the Obama Administration, the case’s demands were brought into law.
In England, environmentalists have found other ways of getting their arguments before the courts. Six campaigners who climbed the chimney at Kent’s Kingsnorth coal power station, and began writing ‘Gordon Bin It’ down its side in reference to the need for Prime Minister Gordon Brown to change the Government’s energy policy, were acquitted of criminal damage in September 2008. The six claimed ‘lawful excuse’, justifying their actions by the likely effects of human-induced climate change. They called on influential witnesses, including NASA climate scientist Professor James Hansen and chair of The Ecologist magazine Zac Goldsmith. In 2000, a similar defence was used successfully by anti-GM activists who destroyed crops. Such acquittals based on lawful excuse looked likely to set a significant precedent in direct action cases.
Except it wasn’t to be. In December 2008 it was revealed that the attorney general was considering referring to the court of appeal any future cases that used the defence of lawful excuse to justify direct action. It appeared to be an attempt to undermine its use in such circumstances. Although this never happened, when activists who stopped a train delivering coal to North Yorkshire’s Drax power station were recently taken to court, the judge refused to allow the defence of ‘necessity’ – which permits breaking the law due to the overwhelming urgency of a situation – supported by climate change-related evidence. No matter that climate change was, as defendant Louise Hemmerman stated, ‘the sole reason for doing what we did’. ‘The court must determine whether the defence is available and in this case it is not,’ the judge stated in a pre-trial ruling. ‘The defendants were in no immediate danger and nor was anyone else.’ To allow such evidence, the judge said, would be to allow the activists ‘to hijack the trial process as surely as they hijacked the coal train.’