Saturday, January 3, 2015

A New Approach to Environmental Law

by Mary Christina Wood

The following is an an excerpt from Mary Christina Wood’s book Nature’s Trust: Environmental Law For a New Ecological Age.

nature's trust book coverThe last time we saw anything like this was never….I don’t know how to say it any clearer than that it is the largest threat to human life our state has experienced in anyone’s lifetime.” Connecticut Governor Dannel Malloy, remarks in response to Hurricane Sandy’s approach, October 28, 2012[1]

As climate vengeance strikes communities with greater frequency and horrifying intensity, citizens across the planet now bear witness to the lethal consequences of humanity’s industrialized path. Yet environmental law, society’s major instrument to impart ecological responsibility, does little to bring human actions into compliance with nature’s laws – the laws that really count. In fact, environmental regulation hastens this course of disaster.

Arising primarily from statutes passed in the 1970s, the field of environmental law stands as a failed legal experiment. The administrative state vests agencies with breathtaking power that came justified by one simple assumption: officials will deploy public resources and invoke their technical expertise on behalf of the public interest. Instead, too many environmental agencies today use their power to carry out profit agendas set by corporations and singular interests. As Part I of this book explained, environmental agencies have fallen captive to the industries they regulate. Consequently, they use the laws’ permit provisions to legalize the very damage the statutes were designed to prevent. Nearly across the board, environmental statutory processes do not prohibit harm: they permit it.

The problem lies not in the statutes themselves but in the frame governing environmental law. As a political frame, it continually bends agencies into serving those parties holding the most political power, which in today’s world often means corporations rather than the general public. In many US agencies, decisions flow from what the politics will allow, not what the statutes say. High-ranking political operatives use their discretion to favor the industries they continue to serve from inside the agency. Staff scientists and permit writers operating within highly charged political cultures suffer varying degrees of pressure to fall in line with the agency’s political agenda. These pressures remain obscured from the public, taking place in procedural fortresses made nearly impenetrable by their sheer complexity.

Society stands at a crucial moment in time. Actions taken now and in the next few years will determine how well humanity will survive on the planet.
In a three-branch system of government, courts and legislatures should provide meaningful checks and balances to rein in the executive branch and its agencies. But Congress, more susceptible to corporate influence than ever before, deadlocks over environmental policy. Its minimal involvement typically consists of appropriations riders passed to legalize industry behavior that would otherwise violate statutory mandates. Courts, while positioned to force agency compliance with statutory mandates, play a weak role because of a deference doctrine, which accords agency technical decisions a presumption of validity. Absent effective oversight by the other two branches of government, a dangerous amount of power accumulates in the executive branch, both on the federal and state levels. While legal structures vary considerably among different nations, the untrammeled power of agencies, wherever located, can create an administrative tyranny over nature and a menace to environmental democracy .

Society stands at a crucial moment in time. Actions taken now and in the next few years will determine how well humanity will survive on the planet. Warnings of tipping points, irreversible losses and unpredictable cataclysmic planetary change now pour from the scientific community in growing torrents of alarm.[2] Increasingly, the science makes clear that this moment can be revolutionary, or it can be suicidal. Guiding humanity to a safe ecological path before crossing irrevocable thresholds becomes the most urgent call on Earth.

Humanity cannot hope for a livable planet if government agencies continue to license industries to pollute and destroy the remaining natural resources. Environmental law becomes profoundly relevant to the daily life and future wellbeing of every citizen alive today. In words that now reverberate truth in nearly every nation, Ansel Adams once said: “It is horrifying that we have to fight our own government to save the environment.”[3] Citizens living in all parts of the world stand on common ground as never before, in both their challenge and mission.

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