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

Just as state citizenship denotes a status within the state that carries rights and obligations, so "ecological citizenship" suggests an analogous status within ecosystems. At its core is the relationship between human beings and the ecosystem within which they live. The term implies that people are citizens of ecosystems--that human beings are part of, and belong to, the ecological world. However, to conceive of the relationship in this way within environmental law leads, I suggest, to a perverse result: the paradox of ecological citizenship. When legal principles incorporate the idea that humans are part of nature, the effect is to put short-term human interests ahead of ecological considerations. If humans are natural, then impacts upon ecosystems caused by humans can be regarded as natural. Those actions that serve human needs can be characterized as positive environmental developments even if they are detrimental to ecosystem characteristics. If humans are seen to be part of ecosystems, there is no objective, external environment to harm, but only a subjective state of better or worse. Conversely, then, in order to compel individual citizens to behave as though they are part of ecosystems, environmental law must treat them as though they are separate and apart from the natural world.

The idea that people are part of their environment is already well established in modern environmental law and policy. It is reflected in a variety of environmental processes such as environmental assessment, urban planning, and ecosystem management, and in prominent concepts such as sustainable development. The consequence of incorporating the principle that humans are part of nature into law and policy has been the validation of behaviour which does not conform to ecosystem limits. Rather than defining limits for humans by reference to ecosystem characteristics, a conception of nature has been produced that prioritizes human aspirations. Giving such prominence to human needs allows environmental decisions to be made on the basis of whether the effects of any particular activity or development will be "good" or "bad". Good and bad are terms of value--and therefore invite assessment that is value-laden. Such assessments often masquerade as having been based upon "ecological values", but ecology is the science of systems, not a value system. Ecosystems have characteristics that are independent from the values humans project upon them. In a system of balancing, ecosystem function can be characterized simply as one consideration that should be weighed against other competing priorities.

Many of the leading ideas in modern environmental law legitimize balancing ecological considerations against other interests. Sustainable development is one of the best examples. In 1987, the World Commission on Environment and Development cited sustainable development as the way to combat growing global environmental problems and the increasing gap between rich and poor countries. The Commission defined sustainable development as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs" (WCED 1987: 43).

Since then, sustainable development has become one of the leading principles in international environmental law. (2) Sustainable development has not established an environmental norm, a basis upon which to identify an environmental bottom line or a principled way to choose between conflicting interests. Because it blithely includes environmental, social, and economic concerns but does not prioritize them, it encourages and validates the role of political discretion to decide environmental questions. Sustainable development has been successfully established as a governing concept in environmental law precisely because it is vague (Elder 1991, VanderZwaag 1993) and allows environmental decisions to be made idiosyncratically rather than on the basis of general, abstract rules (Pederson 1994). Rather than leading to a new approach, sustainable development reinforces the discretionary, indeterminate nature of environmental law, thereby contributing to both trends: incremental environmental decline and arbitrary legal administration.

Human behaviour that is consistent with natural ecosystem function requires that lines be drawn in environmental law between human effects and the natural world. In order for people to behave as ecological citizens, human needs and wants must be taken out of the equation that defines environmental limits.

Environmental Libertarianism

An alternative to a highly discretionary, incremental, political approach to environmental governance is environmental libertarianism. (3) Under a libertarian framework, environmental law would be capable of actually protecting ecosystems because libertarianism does not endorse the use of discretionary power--and the discretionary nature of environmental law is what prevents it from improving upon the status quo. An environmental libertarian strategy is based on abstract, generally applicable rules and the right of the individual to be free of interference from others--which, when reconciled with the concept of ecological citizenship, should be defined to include the right to ecosystem conditions unchanged (4) by the actions of fellow human beings.

The libertarian version of the rule of law

Like the term "ecological citizenship", the "rule of law" is capable of a variety of meanings and interpretations. The libertarian or classical liberal meaning of the rule of law is a system of governance based upon generally applicable, abstract rules and limited state discretion, in which government entities are subject to the same law as the citizenry. "Stripped of all technicalities, [the rule of law] means that government in all its activities is bound by rules fixed and announced before-hand--rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge" (Hayek 1994: 80).

According to Hayek, in a rule of law system, laws "must be general, equal and certain" (Hayek 1955: 34). Tamanaha explains the meaning of these three requirements:

Generality requires that the law be set out in advance in abstract

terms not aimed at any particular individual. The law then applies,

without exception, to everyone whose conduct falls within the

prescribed conditions of application.... Equality requires that the

laws apply to everyone without making arbitrary distinctions among

people. When distinctions do exist (as in male but not female

conscription for armed services), Hayek insisted that to be

legitimate they must be approved by a majority of people inside as

well as outside the group targeted for preferential treatment.

Certainty requires that those who are subject to the law be able to

predict reliably what legal rules will be found to govern their

conduct and how those rules will be interpreted and applied.

Predictability is a necessary aspect of the foreknowledge that

enables freedom of action (Tamanaha 2004: 66).

A legal right is the ability to restrict the liberty of others with the help of the state (Welling 1996). How the state decides when one person is entitled to restrict the liberty of another is a matter of great consequence. If done one way, the state can be a source of liberty; if done another, it can be a source of arbitrary power and potential tyranny. An extended discussion of the details of how states make laws and decide cases is beyond the scope of this article. However, I will describe some fundamental features of legal decision-making that are directly relevant to the effectiveness of environmental protection, and to the protection of the civil liberties of citizens. In traditional common law systems, conflicts are decided by decision-makers (judges and juries) who are supposed to be disinterested and uninformed: they have nothing personally at stake in the case, and know nothing about it other than what they hear from witnesses in the courtroom. They are to decide the case by applying general rules to the facts. Those rules are to apply in the same way regardless of the status, wealth, or popularity of the parties. The rules come from one of two places (or a combination thereof): from a legislative authority, which has passed the rules prior to and without regard to the particular case now under consideration, thus achieving a separation between the function of rule-making from that of adjudicating; or from existing case law (the results from previous cases), thus achieving predictability and judicial limits through the operation of the principle that like cases should be decided alike. The successful operation of this system depends upon the use of abstract rules:

First year law students learn that 'doing law' is about moving from

concrete facts to abstract rules and back again. They learn that a

judicial decision is not just the declaration of a winner from a set

of facts, but that it also reflects a rule or principle that can be

found by abstracting the result. That rule or principle can then be

applied to new concrete situations. This back-and-forth between

concrete and abstract is the heart of the way common law systems

work.... When a precedent is said to be applicable to a set of

facts, it is so because the new case resembles, in some abstract

way, the old one: it is applicable not because both the old case and

the new one involved pregnant women slipping on icy sidewalks in

front of Target stores, but because both involved personal injury

arising from a danger on premises that the occupier failed to

rectify and warn against. Similarly, when a case is said to be

distinguishable, it is different from previous situations in some

abstract respect. If the slip and fall occurred outside Kmart

instead of Target, that is a factual difference, not an abstract

one: it does not affect the applicability of the abstract rule. But

if the sidewalk outside the store was public property rather than

private, a different kind of factor exists in the new case that did

not exist in the old (Pardy 1998: 431).

Moving between concrete and abstract is not limited to the process of finding and applying precedent, but extends also to the formulation and application of statutory law. Legislation, when written well, identifies rules of general application that are abstract to some extent. Courts or other tribunals then apply those rules to particular cases, and the process of application gives the statutory terms further and more precise definition in the context of each case. Both the statutory provisions and the precedent then apply to subsequent cases with abstractly similar facts, providing a means by which to predict what the outcome of each case ought to be.

These mechanisms protect liberty by limiting the power of state actors. When executed properly, they promote the generality, certainty, and equal applicability of laws. They restrict the exercise of discretion by decision-makers, and minimize the influence of political factors in the outcome of particular cases. Unfortunately, there is widespread resistance to the application of these principles within environmental law. Generally applicable rules are rare in the body of existing laws, and virtually unknown in these laws' application. Within the scientific, academic, and activist spheres, there is distrust towards the use of simple, abstract environmental rules and a precedent-based system of legal decisions. For example, Dan Tarlock states:

... an effective and long-lasting environmental law cannot be

constructed around a series of abstract substantive principles....

The candidate suite of principles such as advance environmental

impact assessment, polluter pays, precaution, and sustainable

development are useful starting points but they can only serve as

guideposts to structure a dynamic, but inevitably ad hoc, decision

making process (Tarlock 2004: 219).

Tarlock's notion is consistent with the state of modern environmental law, in which the predominant approach reflects the conviction that environmental governance:

... must be fact-specific; that different subjects (air, water,

pesticides, waste management, endangered species, and many others)

must have different regulatory regimes; that environmental

decision-makers must have broad discretion (land-use planning,

environmental assessment, ecosystem management, environmental

prosecutions) to weigh conflicting priorities (environmental,

economic, social) to craft appropriate results one situation at a

time; and that environmental outcomes are a proper subject for

consultation with the public and negotiation with industry. It is

thought to be impossible to create an environmental rule that is

both generally applicable in all environmental circumstances and

specific enough to define an environmental bottom line; and that,

even if it were possible to create one, such a rule would be

undesirable (Pardy 2005: 36).

This conviction prevents environmental governance from being conducted in a manner that is consistent with a libertarian vision of the rule of law. Without abstract rules, environmental law cannot be coherent and predictable; without coherence and predictability, it cannot prevent encroachment upon the natural features of ecosystems. In its present form, environmental law subjects citizens to the dangers and uncertainties of political and bureaucratic abuse, and to the deterioration of the ecosystems within which they live. The current state of environmental law brings the administration of justice into question.

Liberty and limits that protect it

Self-determination is the right to identify and pursue one's own interests, and the right to be free from interference from others. John Stuart Mill penned the classic passage that contends that the only justifiable reason to interfere with a person's liberty is to protect the liberty of others.

... the sole end for which mankind are warranted, individually or

collectively, in interfering with the liberty of action of any of

their number, is self-protection. That the only purpose for which

power can be rightfully exercised over any member of a civilized

community, against his will, is to prevent harm to others (Mill

1859: 67).

Libertarians are sometimes incorrectly associated with a belief that there should be no rules of any kind. A complete absence of coercive rules enforced by the state would produce anarchy, not liberty. Liberty requires rules to protect people from each other. "Free" markets require rules that allow the market to function, such as contract laws that allow voluntary bargains to be enforced. Thus, liberty does not mean the absence of rules. Instead, it means rules that protect one from interference from others.

Therefore, liberty requires mutual restrictions in the form of protection by the state--from the state, and from other people. Without such laws, some people would dictate to others--through violence or other means. The law of tort is based upon this proposition: you may do as you please, but you may not in the exercise of your liberties cause harm to others. Richard Epstein encapsulates the essence of this idea:

In its crudest and simplest form, the irreducible core of [the law

of tort] can be succinctly expressed: "keep off". This two-word rule

accurately describes the historical and intellectual thrust of much

of the common law: to prevent trespass to land, larceny, murder,

rape, and (by extension) infringement of patents--and indeed

interference with the exchange relationships between parties. It is

amazing how much, even in this age of heightened sensitivity to

sexual harassment, you can learn about interactions between

strangers by remembering to keep your hands to yourself.... This

rule allows people to use, and use productively, the things they own

without your being able to impose your will on them. And you will

have the same freedom relative to them (Epstein 1995: 91-92).

The pivotal question in the law of tort is what is meant by "harm". Not in all circumstances where the plaintiff feels an injury does the law recognize that one exists. A person who takes offence to someone else's actions but suffers no other consequence has no legal standing to complain (Epstein 2003:87). Nor does business loss qualify as harm unless it has been brought about in a wrongful way. For example, an entrepreneur who opens a new convenience store down the street from a 7-11 will be liable for damages to the 7-11 if she takes a baseball bat to its storefront windows or if she publishes defamatory statements about the 7-11's products in the local paper. But if she simply lowers prices and successfully competes against it, causing it to lose customers and perhaps even close down, she is liable for nothing.

Traditionally, ecological harm has not fit into the category of legally recognized personal injury. Unless a plaintiff can show environmental injury to his own person or property interests, no damage will be found to exist upon which to base an action even though the ecosystem in which he lives is being irreversibly transformed by the actions of others. It makes historical sense that ecosystem deterioration would not be a category of damage recognized in common law. The notion of environmental or ecological harm is no older than ecology itself. Since the concept of the ecosystem was not proposed until the 1930s and arguably did not seep into the collective psyche until later, one would not expect early legal actions to have attempted to prevent environmental harm in the absence of a more typical legal injury. Today, however, it is possible to state that environmental harm can have effects on natural systems upon which individuals rely. One route to the conclusion that individuals should have the right to undiminished ecosystem conditions is by extrapolation of the principle of mutually coerced liberty, as considered in the section below.

Ecological citizenship and the right not to be harmed

If one of the most basic rights and obligations of state citizenship is the right not to be harmed by others, and the corresponding obligation not to cause harm to others, then ecological citizenship can be conceived as ecosystem membership that entails environmental rights and obligations, including the right not to have others cause ecosystem harm, and the corresponding obligation not to cause such harm. Implicit within the concept of ecological citizenship is the notion that individual citizens should conform to the limits of the ecosystem within which they find themselves--not because it is morally right, but because it is the right of fellow citizens to be free from the ecological interference of others.

Ecosystem resilience is a limited characteristic, subject to depletion. If one individual uses up a portion of a system's capacity to tolerate disturbance, the loss is experienced by others living in the same ecosystem. Hence, an individual interferes with fellow ecosystem citizens when that person uses more than one "share" of ecological resilience (Pardy 1993). Ecosystem capacity, like the economy, can be seen as a pie. Unlike the constantly growing economic pie, however, ecosystem limits cannot be expanded. Imagine that the ecological pie is sliced into as many pieces as there are ecological citizens, and each slice is the same size. If any one person consumes more than her slice, the sizes of the rest of the pieces must shrink. In the context of ecological citizenship, harm includes demanding more than one's slice of pie, which has the effect of diminishing ecosystem services available to the rest of the citizens of that system. Under this formulation, the right of ecological citizens to be free from interference and harm from others would consist of the right to undiminished ecosystem services--their full slice of pie--since these services are indispensable to human survival, biologically, economically, and in other ways.

To conform to Hayek's requirements, environmental rules must be general, certain and equal. They must be sufficiently abstract to apply to all activities wherever they occur, rather than being aimed at any particular individual, industry, or enterprise as they presently tend to be; they must be stated in sufficiently concrete terms to allow citizens to understand what they are not allowed to do; and they must express the same limit for all (see e.g. Pardy 2005). Envisioning ecological citizenship in a manner consistent with libertarian conceptions of the rule of law requires broad, precise environmental limits that apportion environmental capacity equally amongst human members of an ecosystem.

Conclusion

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. In the absence of such change, two nightmares continue to progress--the acceleration of ecosystem decline, and the growth of bureaucratic discretion. An environmental libertarian approach is capable of achieving a form of ecological citizenship in which individuals have the right to protect ecosystems from being transformed by the actions of others, the obligation not to cause such transformation to the detriment of others, and the protections of pre-defined, predictable legal administration.

References

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Bruce Pardy is an associate professor in the Faculty of Law at Queen's University, where he teaches and writes about environmental law and torts, including such topics as ecosystem management, water law, sustainable development, the precautionary principle, and climate change. He has taught at Victoria University of Wellington, Seattle University School of Law, California Western School of Law, and the University of Western Ontario, practiced litigation at Borden Ladner Gervais LLP, and presently sits on Ontario's Environmental Review Tribunal. He can be reached at pardyb@queensu.ca

(1) Even pollution limits and other environmental standards that appear in statutes and regulations as absolute prohibitions can be highly variable in their application because their enforcement is discretionary. In much the same way that a posted speed limit of 100km/h does not mean that all cars travel the highway at less than 100km/h, reference to the legally allowable limits of contaminants in air, drinking water, and so on does not provide an indication of what air and water actually contain. But unlike posted highway speed, the application of environmental standards is so variable that often they do not even provide a dependable benchmark of the state of actual environmental contamination.

(2) For example, the 1992 Rio Declaration on Environment and Development articulated 27 principles directed at achieving sustainable development. Several environmental conventions and other international instruments refer to sustainability and sustainable development as guiding principles. See, e.g., Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, 30 I.L.M. 800 (1991); Convention on Biological Diversity, 5 June 1992, 31 I.L.M. 818 (1992) (entered into force 29 December 1993); United Nations Framework Convention on Climate Change, 29 May 1992, 31 I.L.M. 849 (1992) (entered into force 21 March 1994); Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, FCCC/CP/1997/L.7/Add.1.

(3) I use the term "libertarian" rather than "liberal" or "classical liberal" because, although these schools of thought have common roots and premises, in the modern era the label "liberal" has attracted connotations far removed from its original emphasis on individual liberty and limited government. Of course, there are different versions of liberalism and libertarianism, but the distinctions occur at a level of detail not pertinent for the purposes of this article.

(4) By "unchanged", I mean ecosystem conditions that are not thrown out of equilibrium by human impact; or ecosystem change that is natural rather than produced through human action. For a detailed development and explanation of this proposition, see Pardy (2005).