The Liberal Limits of Environmental Law

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LAW 328 Green Legal Theory

Notes

The field of environmental law embodies a deep contradiction-it is a product of the state, yet the state is the primary agent of development.

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GLT does so by expanding the conception of law to address the "constitutive" or "regulatory" effects of those "system dynamics" that set the larger economic, political, and cultural conditions for social/environmental relations

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silver economic lining in the disaster, noting that the massive cleanup effort from the spill might even offset the negative economic impacts of a two-month drilling moratorium and actually boost U.S. economic growth.

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to challenge oil is to challenge what oil fuels-a growing economy that demands cheap and reliable primary resource inputs.

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Environmental law was born not to resolve this conundrum but to bolster one side of it by providing a bulwark against ecological erosion.

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bureaucratic scale of the modern "administrative state is geared almost entirely to the legalization of natural resource damage

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GLT seeks to open up the broader and more powerful "constitutive" processes of institutional and cultural "regulation"

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the "problematic" of environmental law. This term generally refers to the "configuration of theoretical concepts presupposed in a text of discourse" thus defining "the 'field' of questions which can be posed and the forms the answers must take."

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the state has long been, and continues to be, the biggest developer around.

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Seeing Like a State

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"something close to an administrative tyranny now presides over Nature."

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we must transcend the liberal paradigm that bounds environmental law

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The foundational concept of liberalism is that of the autonomous (rational, self-determining) individual.

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tension exists between the pursuit of liberalism in its economic form (driven by the pursuit of individual self-interest) and in its state democratic form (motivated to maintain the equality of each citizen). Liberal democracy can, therefore, be separated into its economic and political aspects.

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These material processes also have culturally constitutive effects insofar as ordinary individuals in capitalist economies have invested their savings (their capital) in pension funds and investment portfolios with the insistent expectation that their investment will grow, increase their wealth, and carry them through their lives.

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a significant re-distribution of wealth (and not just of income) would be a pre-requisite for the state that hopes to escape its dependence on continuous economic growth

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in the absence of radical economic equity, all modern democracies must pursue growth as the basis upon which its political aspirations for social welfare can be met.

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democratic state "legitimacy" is dependent on maintaining a high level of economic growth. A capitalist economy without growth leads not only to an economic but a political downturn. Consequently, the promotion of economic growth, as Gus Speth noted, "may be the most widely shared and robust cause in the world today."

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Clearly, an economy cannot continue to expand indefinitely in a bounded environment without profound repercussions.

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"respond to subjective perceptions of crisis rather than to the contradictions and discontinuities that precipitate such threats to legitimacy."

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"satisfy public anxiety while maintaining a commitment to traditional liberal economic development."

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competition among capitalists can be redirected so as to achieve pollution-prevention eco-efficiencies

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environmental organizations and aboriginal groups were described as "adversaries" while industry associations, energy companies, and the National Energy Board- which is supposed to serve as an independent government agency evaluating new proposals-are listed as "allies."

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GLT opens up to environmental legal scholars the analysis of constitutive social systems and dynamics that exist as law even though they exist above or behind the "legal law" as it has been narrowly conceived, and beyond the legal preoccupation with the rule of rules.

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We cannot grasp the law as an object of study if the conceptual tools we bring to the inquiry are nothing but the self-replication of legal practice itself

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The theorist here is thus not some irrelevant interloper, some high-minded abstractionist but maybe the most practical one in the place. After all, the task is still the same-to get out of the room by discovering its trap. So it must be with environmental law and GLT. But first, as they say, we must change the conversation.

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