[Written for and with collaboration from Earth Law Center]
The taxonomic classification for humans, Homo sapiens, can be translated roughly from Latin to mean “wise man.” As the wisest of hominids, we humans excel at analyzing and conceptualizing the world around us. While this remarkable ability to understand both ourselves and the interworkings of the world around us has led to our unprecedented success as a species, it has also led to a dangerous divide. Human beings are members of a select group of organisms with the mental capacity to ponder metaphysical concepts such as state of being, identity, and the nature of reality. While it’s difficult to measure the metaphysical capacities of other animals, many expect our close relatives, the great apes, as well as some marine mammals such as dolphins to possess at least a rudimentary version of this ability. Yet Homo sapiens has gone above and beyond to use its self-awareness for creation and proliferation.
Our ability to manipulate our surroundings is tied, perhaps fatally, to our ability to divest ourselves from it. We use terms such as “the environment” and “nature” to describe everything other than ourselves and our creations. We view this other as something to be used to our advantage, something to dominate and exploit. Only more recently has nature become a romanticized other—something exotic and beautiful we ought to protect. While this mental division between man and nature seems a terrible flaw in our evolution as a species, it can also be viewed as a direct and unavoidable externality of our intellect. To see ourselves is to prioritize ourselves. It’s not outlandish to proclaim that humans wouldn’t exist as we are today without our penchant for putting ourselves on a pedestal.
Luckily, it’s recently become apparent to a large fraction of the human species that we are, in fact, part of our environment. While this is something many indigenous peoples have arguably known for millennia, it’s a recent revelation to the industrial, “civilized” world. It’s tempting to argue a return to these indigenous roots is in order. Perhaps we must fall back to our nomadic foraging ways to plug ourselves back into the global biome and reduce our impact to that of a less “wise” species. And yet, the solutions to human problems have almost never come from our past but from continuing to move forward. While our current global crisis affects all life on Earth, it’s still a human problem. Problems human ingenuity creates require human ingenuity to fix.
The history of modern agricultural humans is punctuated with periods of progress and periods of relapse or stagnation. After the transition from a nomadic species to an agricultural one, human societies underwent a series of experiments in civilization structure and culture. Social evolution has not necessarily followed a steady path, but the reduction of violence and increase of personal freedom that has accompanied human population growth is unmistakable.
In parts of the world where personal freedom appears highest for the most people, we see societies scaffolded onto a framework of democracy based on rules to protect rights. These rules are known commonly as laws. Since its inception, the law has not just enabled, but forced social evolution through logical argument based on fact and observable truth. While the assumption that certain groups of people are subordinate by nature allowed legal slavery to continue in a civilized world, this flawed assumption eventually fell prey to legal argument, regardless of the attitudes of the general populace. Law is unequivocally our greatest tool for change.
Cormac Cullinan, environmental attorney and author of Wild Law, refers to laws as the “DNA of society.”[1] Much like our genes form the genetic blueprint of our bodies, our laws form the structural blueprint of society. Laws allow humanity to undergo massive structural shifts without violence and revolt. Yet, rarely does this type of social change happen spontaneously. Oppressed individuals must speak out for their situation to gain attention. Thus it’s no coincidence that some of the most marginalized groups tend to be the quietest. It is imperative that our legal framework allow the voiceless to gain allies against abuse.
In Christopher D. Stone’s Should Trees Have Standing?, a collection of essays that was likely the first to suggest nature may need legal rights, he argues that extending rights to certain parties has always been “unthinkable.”[2] Reaching back into human history, children and women were once considered a man’s property. Far more recently, African people were considered property of white men. In both cases, the party with rights could not imagine extending these rights to their property. It would be madness to allow a woman or child to object to being beaten, or a slave to own land. Yet in both cases, these assumptions dissolved under the weight of facts. Facts that indicated children, women, and slaves maintain the same capacity for human experience white men do.
Like so many times in the past, our current legal framework must be revised based on new evidence in order to enact necessary change. Our dealings with the world around us have become so unregulated and toxic that our own pollution threatens our existence as a species. In If Nature had Rights, Cullinan laments that “Climate change is an obvious and dram symptom of the failure of human government to regulate human behavior in a manner that takes account of the fact that human welfare is directly dependent on the health of our planet and cannot be achieved at its expense.”[3] Though the list of environmental offenses occurring before and/or contributing to climate change is extensive, notice has only been taken due to its direct threat to human existence. Our inability to tie most environmental damage directly to human suffering or loss may lead to one of the greatest catastrophic events for mankind the world has ever seen.
It’s in this way that arguing for environmental action on the behest of human suffering is limited. Currently, a team of lawyers is attempting to sue the United States federal government on behalf of children.[4] The lawsuit claims that the government’s inaction regarding climate change is actively spoiling the future quality of life and financial prospects for these children. While the claims made in the lawsuit are surely true, many speculate on the case’s ability to stay in court due to its unconventional approach and tenuous prediction of future events. It’s the second case of its kind to be tried; the first was dismissed in 2011. Even in the event of success, the federal government may end up settling the issue like so many offending persons and corporations: paying up. If the lawyers for these children are arguing on the basis of lost opportunities, be they financial or otherwise, our current system’s answer may be to throw money in their direction to make up for the loss, not necessarily to fix the problem.
We see this again and again with American corporations. Polluters just choose to pay for the damages, either in the form of government fines or payouts to victims. The cost of paying to pollute is too often cheaper than changing the system responsible for the pollution. A devastating example of this cost-benefit decision was the case of the Enbridge oil spill. In 2010, a ruptured pipeline spilled more than one million gallons of heavy crude oil into the Kalamazoo River in Michigan. Prior to the spill, Enbridge had failed to repair some 300 defects in the pipeline [5], likely assuming the risk of a rupture was worth taking over the expense of repairing the 41 year old piece of equipment. Though it’s clear in these cases higher penalties for polluting would encourage this behavior to change, it’s an unsustainable solution. Constantly needing to shift the legal requisite for payouts regarding pollution in response to factors like the total evaluation of externalities, as well as just inflation or the success of the offending corporation make this approach weak.
Instead, we must look to change the way we argue for environmental action. Rather than enumerating lost opportunities or putting a price tag on natural entities, we must believe there is a better mechanism to care for the ecosystem that supports us. This mechanism does not need to shatter the fabric of society, or take us back to our nomadic roots. It simply needs to modify the basic legal framework we already have to align with the reality of facts to grant rights to the “unimaginable.”
Stone also makes the important point in Trees that the law does not exist solely for those who can use it to argue on their own behalf. In fact, the law exists in part specifically to represent those who cannot speak. Stone points out that infants, animals, and corporations do not have voices, yet all have been given rights under the law. If we are to make any progress in fighting in the interest of the environment, we must first give the environment the right to have an objective interest. While people can argue endlessly over whether it’s financially more beneficial to preserve a river or pollute in the name of enterprise, the interest of the river will always remain the same.
Furthermore, the interest of a river to flow or a forest to remain diverse and unspoiled is directly tied to our own rights to exist on this planet. Cullinan does well to remind his audiences that human rights are not inherent. Rather, the Universal Declaration of Rights adopted by the United Nations after World War II was the first internationally-accepted document to set standards for basic human decency and existence. The most fundamental principle of this document is the right to life. All other human rights—thought, movement, religion—cannot exist without the means for staying alive and free from the most basic wants. Yet our current social and legal system encourages the destruction of the ecosystems that generate the resources that support us. As the courts allow industry to foul the water we drink and strip the top soil in which we grow our food, our ability to exist free of basic want on this planet diminishes. More and more the capacity to eek out a living is reserved only for those who have figured out how to capitalize on others. By giving rights only to humans and considering all we rely on as property, we ensure our own destruction.
Moving forward in our social evolution as a species calls for a paradigm shift. As environmental law firms struggle to gain traction for their causes, it becomes more and more apparent what we need are not just changed laws, but changed assumptions. The assumptions behind anthropocentric law have built humanity a house while completely neglecting the neighborhood. We stand now in front of a tremendous opportunity to compose the building blocks for a better society. The physical DNA of our species has given us the intelligence to organize and modify our world. The social DNA of our species must give us the ability to protect ourselves within this world, as a part of this world.
1. See talks by Cormac Cullinan from the World People’s Summit on Climate Change in Bolivia and the 2012 Festival of Dangerous Ideas.
2. See “Introduction: The Unthinkable” and “The Rightlessness of Natural Objects at Common Law” in Should Trees Have Standing?—Toward Legal Rights for Natural Objects.
3. Published in the January/February 2008 issue of Orion Magazine.
4. Landmark U.S. Federal Climate Lawsuit championed by nonprofit Our Children’s Trust.
5. “Report: Hundreds of defects in Enbridge oil pipeline.” Mlive.com. August 28th, 2010. http://www.mlive.com/news/kalamazoo/index.ssf/2010/08/report_hundreds_of_defects_in.html
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