13 March 2012 - Environmental law. Origins of our current approach

Some further notes on theories of law

Social contract

What about expanding the social contract so that it includes animals?

I first class we looked at the idea of Rawls theory of justice - and what the situation might be if people in the original postion behind the veil of ignorance did not know what species they were.

I that light – consider this - Animal Welfare Act 1999 - section 85
http://www.legislation.govt.nz/act/public/1999/0142/latest/DLM51206.html#DLM51206

Law and Economics

This theory suggests that good law is economically efficient. It has been a big influence on the RMA. The idea is that environmental law should only regulate activities where there is a market failure ie there are externalities to the activity that society is being asked to bear. In that case regulation would make the polluter pay.

Note also the Coase theorem, which suggests that if rights are clearly assigned to parties to being with, and you reduce transaction costs ie allow a free market to operate easily, then you very efficiently get to the appropriate environmental outcome.

http://en.wikipedia.org/wiki/Law_and_economics
Richard Posner
http://en.wikipedia.org/wiki/Richard_Posner
Ronald Coase
http://en.wikipedia.org/wiki/Coase_Theorem
Ecologics
http://www.elsevier.com/wps/find/journaldescription.cws_home/503305/description#description

Background to our current environmental law

The term “environment” in the sense of the biophysical environment is surprisingly recent.

Etymology of environment
http://www.etymonline.com/index.php?term=environment

See this useful timeline of events:
http://www.worldwatch.org/brain/features/timeline/timeline.htm

A key moment was the release of Limits to Growth - using the World3 computer model:

http://live.simgua.com/World
http://www.chelseagreen.com/authors/donella_meadows/

1972 Stockholm conference on the Human environment
http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503&l=en

At that conference was laid the groundwork for the developing / developed split that continues today into instruments such as the Kyoto protocol.

1987 Brundtland report - Our Common Future
http://worldinbalance.net/intagreements/1987-brundtland.php

1992 - Agenda 21
http://worldinbalance.net/intagreements/1992-rio-agenda21.php?iframe=true&width=100%&height=100%

Note that a key focus of Agenda 21 is the promotion of free trade as the means to boost economic growth in developing countries, so that they may undergo demographic transition and reduce birth rates and their impact on the environment. This transition is meant to happen utilising technologies of developed countries so that the types of pollution of the old industrial revolution do not occur.
A brilliant site to explore the idea of demographic transaction and the stunning speed of transition in some countries. It raises the question, is the idea of developed and developing countries not irrelevant?

Warning, this material is guaranteed to change how you think about the world:

http://www.gapminder.org/

http://www.ted.com/talks/hans_rosling_shows_the_best_stats_you_ve_ever_seen.html
20 minute talk by Hans Rosling.

1992 United Nations Framework Agreement on Climate Change.

http://unfccc.int/essential_background/convention/background/items/1353.php

Note how it preserves the developed/ developing principle

1992 United Nations Framework Agreement on Climate Change.
ARTICLE 2:
OBJECTIVE
“The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, … stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”

http://unfccc.int/essential_background/convention/background/items/1353.php

Text of Kyoto protocol
http://unfccc.int/essential_background/kyoto_protocol/items/1678.php


It is becoming apparent that the current legal scheme is failing to deal with some of the biggest threats to the environment.

See for example:

Anderson paper
http://rsta.royalsocietypublishing.org/content/369/1934/20.full

“There is now little to no chance of maintaining the rise in global mean surface temperature at below 2°C, despite repeated high-level statements to the contrary. Moreover, the impacts associated with 2°C have been revised upwards sufficiently so that 2°C now more appropriately represents the threshold between dangerous and extremely dangerous climate change. “

“Put bluntly, while the rhetoric of policy is to reduce emissions in line with avoiding dangerous climate change, most policy advice is to accept a high probability of extremely dangerous climate change rather than propose radical and immediate emission reductions.”

Ban Ki Moon
http://www.youtube.com/watch?v=6Un1UibQnME
The text is here:
http://www.un.org/News/Press/docs/2011/sgsm13372.doc.htm

The disconnect in cartoon form
https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhUpeOgT5_e-tKm7ZwnpT0TQmV1hHZ9OQpTNAAuF5nrDp_BYahs0UQlIcUItApEYN87Ilev22-o5Dq5jJpKitFn2gvQGWO00AVkH2Bz-s3HsGyeBoZalLWIMwVpqlS21f-9BfShYI2ezQoj/s1600-h/easterbunnyislandCOLOUR.jpg



Conclusion - can law be anything other than anthropocentric?

legal implications

- legally enforced massive change in focus
- enforced limits on personal energy use
- ongoing disaster management
- geoengineering - international mitigation projects

- where does existing law fit?
- what tools/traditions do we have? How do they help, hinder?

The challenges to national and international law

- better recognition of a global commons
- earlier recognition of emerging risks? eg http://www.nature.com/news/specials/planetaryboundaries/index.html#feature
- earlier action on risks - international precaution
- international equity? eg contraction and convergence
- climate refugees
- international enforcement?

At a domestic level?

- big challenges to governance. Go big, or go small? eg:http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=winston_nagan
eg: Passmore - will democracy be enough? What is it?
eg: Is China’s quasi-dictatorship better prepared for the 21st century than our mess of a democracy? http://www.grist.org/article/2011-01-21-is-chinas-quasi-dictatorship-better-prepared-for-the-21st-centur

The Anthropocene?
http://en.wikipedia.org/wiki/Anthropocene
Can life on earth survive without us? An obligation to fix?

Conclusion - can law be anything other than anthropocentric?

Faking nature? Analogy with a Rembrant and a nail - painting is deteriorating, and other areas will be restored.