Environmental law and the paradox of ecological citizenship: the case for environmental libertarianism.

Abstract

This article presents an argument for the application of libertarian principles to environmental law. An environmental libertarian strategy is based on abstract, generally applicable rules and the right of individuals to be free from the interference of others--which, when reconciled with the concept of ecological citizenship, includes the right to ecosystem conditions unchanged by the actions of fellow human beings. Two trends illustrate the ineffectiveness of modern environmental law: the acceleration of ecosystem decline, and the growth of arbitrariness in environmental regulation. The conflation of libertarian premises and ecological protection is contrary to conventional wisdom, but their reconciliation would limit the use of discretionary power in environmental governance and thus make it possible to stem the incremental alteration of ecosystems by human action. The article concludes that libertarian theory calls for ecosystem protection; and that ecosystem protection can be accomplished most effectively when pursued in a manner consistent with libertarian principles.

On presente dans cet article une plaidoirie en faveur de l'application des principes libertaires au droit environnemental. Une strategie environnementale libertaire se fonde sur des regles abstraites qui s'appliquent habituellement et sur le droit des personnes a etre libres de l'ingerence des autres--ce qui, lorsqu'on fait le rapprochement avec le concept de citoyennete ecologique, comprend le droit a des ecosystemes dont l'etat n'est pas modifie par les activites de ses semblables. Deux tendances illustrent l'inefficacite des lois environnementales modernes: l'acceleration du declin des ecosystemes et l'accroissement de l'arbitraire en matiere de reglementation environnementale. L'association de principes libertaires et de protection ecologique est contraire aux idees recues, mais leur rapprochement limiterait l'utilisation du pouvoir discretionnaire en matiere de gouvernance environnementale et permettrait d'enrayer la degradation progressive des ecosystemes attribuable aux activites des humains. L'auteur de cet article conclut que la theorie libertaire exige la protection des ecosystemes; et que la maniere la plus efficace de realiser la protection des ecosystemes consiste a y appliquer les principes libertaires.

Key Words

Environmental law, ecological citizenship, libertarianism, ecosystems, rule of law

Introduction

In this article, I argue that environmentalists and libertarians should be allies rather than opponents. This proposition flies in the face of conventional wisdom, which suggests that these two perspectives are incompatible. Libertarians generally disapprove of state intervention other than for the limited purposes of maintaining peace and enabling the operation of markets, whereas environmentalists often maintain that unfettered markets are to blame for ecological deterioration, and place primary importance upon ecosystem health. In this article, I suggest that these two perspectives have much to offer each other and can be reconciled in a manner that achieves the aims of both. Indeed, the link is far stronger than mere tolerance. In the pages that follow, I set out the basic elements of the argument that libertarian theory calls for ecosystem protection; and that ecosystem protection can be accomplished most effectively when undertaken in a manner that is consistent with libertarian principles. The fulcrum of this argument is the concept of ecological citizenship.

Context: Defects in Modern Environmental Law

Two nightmares and the role of discretionary judgment calls

Two nightmares are proceeding in lock step. The first is the acceleration of ecosystem decline, threatening to produce environmental disaster. The second is the growth of arbitrariness in environmental law and policy, threatening to produce technocratic tyranny.

These two crises are directly related. The first is the justification for the second, and the second is one of the causes of the first. Each particular instance of environmental decline caused by human activity creates a call for intervention; and each particularized intervention contributes to a system of debilitating indeterminacy that is incapable of stemming the tide of ecosystem degradation.

This relationship reflects the paradox of modern environmental law: the more individual freedoms are curbed by a statist technocracy in the name of environmental protection, the more likely ecological deterioration becomes. The prevailing wisdom about environmental governance is that it is necessary to restrict individual freedoms for the benefit of common environmental interests. Environmental quality is thought to be a public good threatened by action taken in pursuit of individual self-interest (see e.g. Hardin 1969). Therefore, strong environmental protection is thought to require an interventionist state bureaucracy. Under the present rubric, the solution to environmental degradation is fewer individual liberties, more discretion in the hands of central planners and decision-makers, and less adherence to the rule of law. Unfortunately, prevailing strategies not only subject citizens to the dangers and uncertainties of political and bureaucratic abuse but ensure that ecological decline will occur. They fail to provide the protections of a precedent-based system of justice in which legislatures make general rules, administrators carry them out, and courts apply them to particular cases; and paradoxically, these strategies also fail to stem the tide of ecological deterioration.

Growth in discretion-based legal administration is not limited to environmental law, but has become one of the characteristics of modern welfare states. Traditionally, legislatures supervised the actions of the executive branch by prescribing rules and principles in legislation and granting authority to government agencies to carry them out. Today, the supervision provided by elected representatives has significantly declined. Modern statutes grant wide discretion to officials to conceive and create regulation and public policy, with minimal direction and little oversight.

What was once generally justified only in time of war or other

emergencies has become increasingly common: the enactment of

legislation with very little opportunity for parliamentary debate

and with both the principles and the detail left initially for the

executive to work out and also subject to change at the executive's

whim (Mullan 2001: 135).

The result is unpredictable, highly discretionary legal administration, as described in the following passage by Bill Scheuerman over 10 years ago:

In every capitalist welfare state law takes an increasingly

amorphous and indeterminate form as legal standards like "in the

public interest" or "in good faith" incompatible with classical

liberal conceptions of the legal norm proliferate. Everywhere a

troublesome conflation of traditional parliamentary rulemaking with

situation-specific administrative decrees results; everywhere

bureaucratic and judicial discretion grows. If a minimal demand of

the rule-of-law ideal was always that state action should take a

predictable form, contemporary democracies do poorly living up to

this standard (Scheuerman 1994: 195).

Nowhere is this trend more evident today than in environmental law. In environmental law the commitment to principles of predictability, abstraction, and separation of powers has been consistently abandoned. Without a system of generally applicable environmental rules, environmental governance becomes largely a matter of discretionary judgment calls (see e.g. Boyd 2003: 231). (1) Discretionary decision-making means that any particular decision can be justified by social, economic, political, cultural, or aesthetic concerns of the moment, even if they have deleterious long-term effects on ecosystem function. Environmental decisions thus become political decisions (Plater 2002). Outcomes are justified as a result of balancing ecological, social, economic, and aesthetic considerations. Effects accumulate to produce ecosystem degradation (see e.g. North American Commission for Environmental Cooperation 2002). Thus, modern environmental law condones activities that promote or facilitate human endeavours even if they cumulatively cause ecosystem decline.

The legal relationship between people and nature: The concept of ecological citizenship