Environmental Law's Liberal Roots

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LAW 328 Green Legal Theory

Notes

what we call "environmental" law in the Westem liberal democracies is not in reality "environmental" at all. It is law which conforms largely to an underlying deep structure of liberal political ideology

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what we like to think of as ["environmental" law i in practice merely a marginalq\iallfier to what is really "develppment" law

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Although there may not be a single grand design in the problem, . ror in the solutions, I will suggest that there may be a grand design in the systemic ~'causes .which lie at' its heart,. which is to say at the heart of the mode of social l~orgariisation which wein Western liberal democracies have chosen.

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As an ordering principle for social and political life, liberlwsm focuses on th indivl.'dual citizen

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Aggregate welfare is merely the arithmetic sum of inpividual welfares

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The rights guaranteed ~are overwhelmingly individual rights aimed at securing the individual's ability to participate in the quest for personal fulfilment and thus to make his or her personal ;·contribution to the collective good

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Liberal economics finds its form in capitalism. The role of the economy -is to :'produce those goods and services which individuals,exercising choice as free agents, :.:decide what they want in pursuit of their self-interest

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Economic growth is an important element-the focus is on production rather than distribution

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The organising principle of liberalism; then, is individualisni. I Individuals become, ' in their roles as political and economic actors, abstract "bundles of rights"

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There has been a shift away from utopian capitalism, which emphasises allocative efficiency and wealth maximisation, and towards libertarian capitalism, which emphasises the rights and freedoms implicit in liberalism

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Liberal legal relations are characterized by formal rationality and calculabililj indiVidual :freedom, private property rights,' freedom of contrabt relations, and legal universalism. 31 It is through these filters that environmental v~ues will be perceivei if andwhen they reach the legal-political sphere.

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publiq relationships /between individuals and the state are protected, private relations betw~n individuals }are not-th.e public I private split

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the economic relations which dominate our social realio/ :the product' of instrumental rationality unconstrained by religious transcendence i(respect for God's natural world entrusted to us) or the immanence of pagan animism

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,these are rights-there is no language of responsibili~, accountability,' stewardship, except so far as we impinge on the property rights of others

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although the state will reach down to regulate privat~ economic relatio once \again it stops. at fonnal rules and will not, require! substantive justi" Universalism permits (requires) the state to treat individual ecenomic actors in " game! of commodity exchange as formal equals, just as it does for political rights.

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force private actors to play :Ute development game in the interests of liberal economics (capitalism) i,rrespective of ~dividual outcomes (equity).

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an outcome of this sanctified system of private economic or~ering is the elevati of property to an almost sacred status-it threatens to beco~e the game itself

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When they were a public resource there was no right to exploit them, rather that came kith the creation of, priyate legal interest. Similarly at this point they take on ani economic value-th! vallie of a future stream of economic returns from their exploimtion as hydro-electri po~er. Until then, as a public resource, they hcU:Ilittle or no ralue as they did not repJ.Ysent any legal or economic wort

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It is tempting to dismiss that as merely a' market failure within an otherwise efficient nberal system, and indeed one that lends itself to a market solution which is 'Consistent with the system.' But we must look deeper than that, at the reasons why liberalism treats environmental degradation as an externality

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Law reifies, and in doing so it defines the way in which we treat with 'each other and with nature. Legal reality translates into social reality. Thus, as we will see, development law legitimises development, but environmental law, because it is rooted in development law and not in environment, does not legitimise enviromnent

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because individual interests and private property reign supreme, and do so largely because of their being enshrined by law in social eonsciousness, we do not value and,treat those public things (commons) as metiCUlously as we do, say, our neighbour's private land or car

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By juxtaposing environment with its binary opposite, development, we pre­ Hetermine the outcome by defining one (environmen~n terms of, and in contradiction the other (development)

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Thus in the popular mainstream environmental :catch-phrase ….sustainable development", "sustainable" is merely a qualifier for :i'development

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It is not positive environmental law but mildly negative development law

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environmental values threaten a re-distribution of wealth that would be nothing short of revolutionary .

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