Losing the Forest for the Trees: Environmental Reductionism in the Law

[tweetmeme http://www.URL.com]  Klaus Bosselmann of the New Zealand Centre for Environmental Law (University of Auckland), has published a new and interesting paper titled „Losing the Forest for the Trees: Environmental Reductionism in the Law.“  In this paper, he addresses the situation that environmental laws and policies have saved some “trees”, but the “forest” is being lost as critical global issues including climate change, biodiversity loss, and our ecological footprint continue to worsen. Existing laws and policies mitigate the ecological damage inflicted by industrial economies and western lifestyles. The article essentially makes the case for a sustainability approach to law that aims for transformation rather than environmental mitigation. Relevant trends in international law and domestic law reflective of a sustainability approach are discussed, and the article describes some contours of “law for sustainability” or “sustainability law”.

The introduction to this excellent paper reads:

The year 1969, when the US National Environmental Policy Act came into force, is often referred to as a landmark in modern environmental law. Around that year, most industrialized countries had general environmental laws either enacted or planned. How effective have those forty years of environmental protection been? Not very effective, perhaps but not entirely ineffective either.

A good number of trees have been saved, literally and metaphorically. Europe, North America and other Western regions have steadily increased their natural reserves and protected areas. Forestry is better managed (hence more trees), rivers and lakes are less polluted. The air in urban environments is cleaner. Energy efficiency has substantially improved. Renewable energy is on the rise; and eco-friendly products are in high demand. By any means, this is a notable list of achievements.

Yet, there is a huge and ever-widening gap between the promise of environmental protection and ecological realities. Singular successes are vastly outdone by system failures: the world‘s climate is heading for a tipping-point, icecaps are melting, the stabilizing functions of oceans and rainforests are weakening, fish stocks are disappearing and biodiversity is diminishing. Humanity‘s ecological-footprint keeps getting bigger without any signs of the reverse. The forests are being lost, literally and metaphorically. The integrity of the planet‘s ecological systems—at local, regional and global levels—is now at risk.

Measuring environmental policies and laws by their own intentions and purpose descriptions, they have not achieved much at all. Rather they mitigate the ecological damage inflicted by industrial economies and Western-type lifestyles. For any prospect of real success, the examination of values and principles underpinning the law seems much more relevant than the findings of conventional legal research into the effectiveness of laws. Unless these underpinnings are addressed, no amount of environmental laws will bridge the gap between promise and fulfillment.

This article explores some of the deeper characteristics of legislative failure. Its thesis is that this failure can be overcome by incrementally incorporating sustainability into the interpretation of existing and the design of new laws. However, whether lege lata or lege ferenda, no law can ever replace or alter the moralities and perceptions that it is guided by. The close nexus between ethics and law is crucial for sustainability to be taken seriously.

In essence, environmental law is hampered by a reductionist approach to its subject, i.e., the environment or more precisely, the human-nature relationship. This relationship is misconceived because of the domination of certain philosophical and cultural traditions in European history. As a consequence, modern legislation to protect the natural environment has developed in a compartmentalized, fragmented, economistic, and anthropocentric manner. For environmental legislation to become effective, broader coverage and better enforcement are not enough. The inherent design flaw in these laws is the absence of a fundamental rule prohibiting harm to the integrity of ecosystems. Such a rule requires the acceptance of sustainability as an overarching ethical and legal principle.

To advance the argument, Section 2 of this article will briefly reflect on the specific subject of environmental law and show the conceptual difference between this area and other areas of law. Section 3 will explore the flawed design of modern environmental law in terms of certain ethical deficiencies and historical legacies. These flaws are often hidden as they do not normally feature in public discourses. Their origins have a long history, as indicated, and are rarely detected in the normal process of political and legal decision-making. Ethical and philosophical reflections have yet to inform the legal process. As the sustainability debate is largely ethical in nature, it needs to inform all levels of public discourse, from educational and academic pursuits to the public arena and eventually to politics, law and governance. What this will involve will be discussed in the second part of this article (Sections 4–6). Section 4 identifies some psychological barriers and institutional deficiencies that need to be addressed first. Only then can a dialogue about sustainability be meaningful. How such a dialogue may inform the legal debate and shape the future interpretation and design of law will be the subject of Section 5. This section will also contain instructive examples in domestic and international law.

My overall argument is that the discourse on ecological sustainability, while not providing an easy fix-it-all recipe, can lead us to appreciate our past mistakes and understand how we may be able to overcome them. The promise for the future is nothing less than improving our chances for survival.

Read the full paper in PDF format by clicking here.

Citation: Bosselmann, K. Losing the Forest for the Trees: Environmental Reductionism in the Law. Sustainability 2010, 2, 2424-2448

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