Symposium Themes

The perspective of humans as an integral part of the Earth community and imbued with appreciation for the wonders of Earth’s natural process continued as a primary theme of the symposium.  Speakers provided both legal theory and practical strategies for bringing about a better alignment between the realities (actual laws and functioning) of the natural world and those of human legal systems. 

The Rights of Nature and Restorative Justice
Quoting Thomas Berry, Cullinan reminded those present that “the universe is a communion of subjects, not a collection of objects.”  When relationship is the focus, the law corrects not by punishing, but by restoring relationship.  We recognize that humans have inalienable rights that transcend the laws of regimes that would treat humans as objects or slaves.  In a similar way, he said, nature has inalienable rights ~ to exist, to have a place to exist, and to fulfill its role in the unfolding story of the universe ~ whether or not human laws recognize these rights. 

Because our very lives are interdependent and interrelated with the lives of natural beings, we actually put ourselves at risk when we ignore these inalienable rights. The failure of current law to embody the reality that we are bound by the laws of nature is a direct cause of the current ecological crisis.  That is, the law itself is a major part of the problem.  So making this shift is not just a nice idea; it is necessary for human well-being and perhaps for human survival.

We must make a shift of Copernican magnitude, and the task is urgent.  Copernicus encountered resistance for announcing that Earth revolves around Sun (and not the other way around).  The fact that the authorities of his day persisted in their previous beliefs did not change the natural facts. 

To those who dismiss these ideas as pie-in-the-sky, he said, the real world is in the forest.  You can feel the air as you breathe the oxygen created by natural process from time immemorial.  The down-to-earth approach is to reconnect and reorient our governance to its primary purpose of mutually beneficial relationship with the natural world. 

Winona LaDuke

Indigenous tenets – the Creator’s law
Winona La Duke, Anishinaabe (Ojibwe) rural development economist and past Green Party candidate for Vice President, discussed some of the indigenous tenets of sustainability.  For thousands of years prior to the European arrival, one-third of the continent spoke the Algonquin language that includes Anishinaabe. 

The Anishinaabe tradition emphasizes the duty to follow the great law, the Creator’s law.  In her tradition’s creation story, humans were the last to emerge and so had to learn how to live from the other animals and plants, known to the people as elder brothers and sisters. “Belonging” relationships between humans and the land are foundational. The land is sacred, and humans belong to the land.  An Ojibwe tenet is that most beings are alive, and all have spirit.  Humans are related to one another and to all the plants and other animals as well as to the rivers and forests and lakes.  Arguing on behalf of a forest is a different intonation than timber resources or board feet. 

Giving and receiving from nature is the basic wealth system, one that is cyclical rather than linear.  Reciprocity is normative.  Best articulated in Algonquin language of the Iroquois confederacy, in every deliberation the people consider the impact on the seventh generation from now, the ones that have not yet arrived. They also have the right to be considered in all deliberations ~ whether they have wings or fins or hooves or feet.   It is not about managing nature; it is about managing humans.  Humans must be reminded that, just because you can do something does not mean that you should do it.  (See the following regarding the precautionary principle: http://www.sehn.org/precaution.html and http://www.besafenet.com/ppc/ )

While many of these indigenous tenets have been dismissed within the Western world view, some aspects still resonate within western intellectual history, as outlined by Cullinan as well as Barbara Wall, philosophy professor from Villanova University, and Andrew Kimbrell, attorney and director of the Center for Food Safety.

From theory to strategy – Massachusetts v. EPA and beyond
In a September 2007 talk at Gaia Foundation in London, Kimbrell observed that “the most remarkable aspect of this case was what lurked behind the actual legal holdings:  an implicit understanding of nature that comports with ecological reality and the relevance of this ecological world view vis-à-vis the rule of law.”  At the Symposium, he elaborated on the strategy, frustrations, and successes that he and other plaintiffs’ lawyers experienced in bringing this historic case.  Still, at the end of the day, the delay and precariousness of the decision process underscore the gross inadequacy of current legal structures to protect life from “the most pressing environmental challenge of our times.”  For, as he said, it took seven years to get an order that the regulatory agency with the responsibility to regulate air quality should regulate air emissions. 

Kimbrell did not focus on theory to the detriment of strategy.  “First we stop the bleeding, second we change consciousness,” he said.  He asserted that the public trust doctrine could be used to limit exploitation at the point that an ecological system or species would lose its natural character.  In a related vein, Winona LaDuke and others propose a constitutional amendment adapting the Seventh Generation ethic to future human generations. One version could read, “The right of citizens of the United States to use and enjoy air, water, sunlight and other renewable resources determined by the Congress to be common property shall not be impaired, nor shall such use impair their availability for the use of future generations." See: http://www.semcosh.org/7th.htm

Kimbrell stressed that, despite the success of Massachusetts v. EPA, the threshold requirement of standing for ecologically injured plaintiffs needs further development.  Further, to address the lack of “agency” when the injury is to other-than-humans, he suggested a guardian ad litem modeled on family law that would protect native species and habitats.  And more citizen supervision options, such as those established in the Clean Water Act, can activate the citizen responsibility essential in a democracy. 

Human rights and human injuries
Donald Goldberg, attorney and cofounder of the Center for International Environmental Law and now director of the Climate Law and Policy Initiative, described what could be considered a human “right to be cold.”  The Inuit Circumpolar Conference filed a human rights petition before the Inter-American Commission.  According to Goldberg, knowing at the outset that this body had no enforcement power did not preclude success for the Inuit, as they culturally value persuasion over force. The Inuit intent, after two years of deliberations in their traditional venues, was to put a human face on global warming.  The “people of the ice” are being displaced from their homes and traditional ways and are among the first human global warming refugees.  The Inuit petition drew world attention to the fact that 5% of the world’s population is producing 25% of the world’s carbon emissions (the United States) and thereby is disproportionately responsible.  Photographs of the Alaskan village of Shishmaref sinking into the sea and references to the official US estimates of over $100 million in relocation costs circulated widely. 

As expected, the Commission denied the petition.  Nevertheless, in apparent anticipation of similar human rights petitions, the Commission scheduled a thematic hearing to address technical problems of proving causation and allocating responsibility.  Utilizing a different strategy, the tiny Alaskan village of Kivalina, who faces a similar fate, has recently filed suit in the U.S. District Court, Northern District of California.  This claim names energy companies as defendants and seeks money damages on a public nuisance claim as well as a conspiracy claim.  Undoubtedly additional strategies will be developed for redress of injuries to human populations from global warming. 

 Joseph Guth

Ecological injury and the core structure of law 
Joseph Guth, attorney and legal director for the Science and Environmental Health Network, examined the core structure of the American common law of property, broadly described.  The purpose of law in the United States is to serve the public welfare.  Historical developments, carefully analyzed, reveal that the common law judiciary has developed and transformed the law according to evolving views of what best serves the public welfare. Property laws ~ which are antecedent to the economy and not derivative from it ~ must also be designed to serve the public welfare according to current circumstances, according to Mr. Guth. 

Before the industrial revolution, an offending landowner was strictly liable to an injured property owner.  This rule of law served the public welfare by protecting established economic interests from disruption. Later, as the society became convinced that the public benefited from increased industrial activity despite the damage it caused, courts began to expect damaged landowners to bear many new burdens for the public good of a growing industrial base. This constituted a dramatic transformation in our laws of property.

The resulting modern legal doctrine employs elements such as standing, burden of proof, standard of proof, and elements of proof that include a cost-benefit analysis, to form a core structure that provides industrial actors with the benefit of the doubt.  This core structure of the law is intentionally designed to encourage and permit endless growth in economic activity that has a net benefit to society.  Thus, the law contemplates no limit as to how large the economy may become, for bigger is presumed to be better.  But more importantly, the law also intentionally permits all environmental destruction that results from economic activity that can be calculated to provide a net benefit to society despite the destruction.  This structure intentionally permits endless growth in what one might call "cost-benefit-justified environmental destruction."  The law contains no means of constraining damage to the Earth to ecologically sustainable levels, no independent means that are rooted in the biological reality in which we live. 

Guth argues that we have now come upon the ecological limits of the Earth, so that the law cannot continue to allow economic activity to cause ecological damage on the theory that it provides a net benefit for society.  We need a new conception of how best to serve the public welfare. At and beyond the threshold of “ecologically sustainable limits,” the goal of the legal system must be to constrain damage to ecologically sustainable levels, for we cannot live long beyond those limits.  Accordingly, the law must require potentially damaging property owners to refrain from acting until they can first prove that the proposed conduct is not likely to degrade the environment.  Under such a rule of law, the definition of a reasonable act would not turn on a cost-benefit analysis.  Instead, the question would be, “Does the proposed act contribute to ecological degradation?”  The burden of proof should be on the potentially damaging property owner.  It may be that in developing such a new rule of law, judges might create affirmative defenses, such as the lack of feasible alternatives, a vigorous program to fund alternatives, and proving that the proposed act has higher public value than other activities that contribute to ecological degradation of the same ecosystem.  But judges can transform the law to suit our current circumstances, just as they did when they sought to promote the Industrial Revolution over a century ago.

Bringing it all together
Over 25 years ago, law professor Christopher Stone shocked and amused his students by suggesting that trees should have standing in a court of law.   That suggestion assumes that human law is in charge of trees.  Cormac Cullinan placed the real question for our time as this:  Do humans have standing to deny trees rights?  Pondering this question can help us complete the Copernican revolution:  not only is Earth not the center of the Universe, neither are humans the center.  For, as Winona LaDuke reminds us, “We are part of a circle that is full of life and is not necessarily all human.” It is time, in the words of Andrew Kimbrell, for a Declaration of Interdependence and for laws that help restore a mutually beneficial relationship between humans and the Earth community as a whole.

The Center for Earth Jurisprudence will continue to promote development and communication of legal doctrines and strategies for the legal community and general public that foster the health and well-being of the comprehensive Earth community.  This is an integral part of the Center’s mission to further the re-envisioning of law and governance from an Earth-centered perspective.

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