(1) Environmental Law, Policies, and Protection

Recent decades have seen questions of environmental protection become a significant issue for government, and part of mainstream public debate.

Most jurisdictions now have government departments and independent agencies dedicated to environmental protection, as well as public interest groups committed to raising the profile of environmental issues. Whilst the need for environmental protection is virtually uncontroversial, however, the reasons for protecting the environment are rarely spelt out; in turn, and as foreshadowed in the Preface to this Part, the meaning of environmental protection, and the best way of achieving environmental protection, retains potential for real conflict.

Value conflict is at the heart of environmental politics. Decisions that affect the environment are typically multi-faceted: when reasoning about the non-human world, individuals and groups often find themselves pulled in contradictory directions, appealing to values that they find difficult to reconcile ...

The environmental movement itself can be understood as being born out of value conflict,

a conflict with interests in society that did not recognize or give sufficient attention to environmental values.

 Greens have challenged the values associated with the idea of progress based on ever-increasing levels of economic growth on the grounds that it represents a failure to consider the full range of values that we associate with the environment.

But it is important to remember that the environmental movement itself is pluralistic in nature. So, for example, we find distinctions drawn between preservationists and conservationists, between ecologists and environmentalists, and between ecosocialists, social ecologists, ecofeminists, animal liberationists, bioregionalists, deep ecologists and advocates of environmental justice, to name but a few distinct positions. Different factions within the broad environmental movement draw on different conceptions of environmental values.

The way in which different environmental and non-environmental values are prioritized at times places their proponents in conflict with one another. The classic example is the conflict that can emerge between conservationists and preservationists, ‘often with that special degree of hostility reserved for former allies’. (1)

Conservationists are typically concerned with ensuring sustainable yields of environmental resources for on-going human consumption; the preservationist ethic, in contrast, argues for the protection of areas from direct human interference, often on the grounds that aspects of the non-human world have intrinsic value. Again, the ‘special degree of hostility’ has famously been witnessed between social and deep ecologists. Murray Bookchin, the founder of social ecology, frequently rails against the ‘mysticism’

that he sees as prevalent within deep ecological thought.(2)

As Kate Soper recognises: ‘The ecology movement, when viewed as a whole, draws its force from a range of arguments whose ethical underpinnings are really quite divergent and difficult to reconcile.’(3)

If we take one of the most celebrated sites of environmental conflict - the world’s rainforests - we can begin to appreciate the plurality of values associated with the non-human world. At an instrumental level, the rainforests have direct use for us in a number of ways.

We value their role in climatic processes, acting as a carbon dioxide sink to secure basic ecological conditions for human existence and flourishing, and as a resource for timber, pharmaceutical and other products.

Prudential appeals are frequently made to the scientific value of such unique ecosystems and the possible advancements in medical and scientific knowledge that could be gained from the study of the rich biodiversity. Using the language of justice, conflicting arguments have emerged about the rights of indigenous peoples to remain in the environment that has always provided the background for their form of life, and the rights of individual nations to self-determination in exploiting resources within their national territory.

Appeals to justice have also focused on the rights of future generations, pulling judgments’ about the value of the rainforest in a different direction. Ethical considerations have been extended to the diversity of non-human entities that constitute the ecosystems of the rainforest. Not only is the very existence of such ‘wild’ places often constitutive of individuals’ own sense of identity and understanding of the relation between human and non-human worlds, but their existence can be judged as significant in their own right.

A sophisticated body of environmental law has grown up as a response to the perceived demands of environmental protection. The proper role of environmental law is, however, much contested. Whilst it is far from unique in this respect, we should be aware that environmental law and policy develops in a context of competing, but often silenced, value judgments.

Environmental law cannot be read in isolation; it is important to read environmental law critically, and in its context. We will therefore consider a number of frequent, but not always consistent, ways of viewing ‘the environment’ and environmental ‘problems’. First, we present the dominant, scientific approach to assessing risk, since the views of expert biologists, chemists and geneticists about the probability of a particular risk, its prevalence and likely causal effects commonly provide the framework within which environmental problems are understood and debated, particularly by regulators and lawyers. In general this perspective results in a broadly instrumental approach that justifies a measure by reference to scientific observations of environmental harm, and some direct or assumed human interest in that harm.

The natural sciences have a special role in identifying and explaining measures of environmental protection, and our definition of an environmental problem is often based on ‘a distinctively scientific perception of the world’.(4)

Because of the primacy of this approach we provide a (necessarily truncated) account of how science came to dominate, and define, the debate, particularly when compared to more instinctive, value-laden interpretations. In this context we also elaborate the increasingly important role of the precautionary principle, which is subject to many interpretations, but has the potential to bring skepticism towards a rigid approach to scientific evidence into the legal process, whilst at the same time implying some degree of acceptance of the inevitability of scientific uncertainty.

Economics also frequently provides the justificatory basis of environmental protection, with some arguing that environmental problems are simply economic problems, the result of a failure to put the correct economic value on environmental ‘goods’. Even without going this far, the tools of the economist increasingly dominate discussion of how, and how intensely, to protect the environment. We will go therefore find common ground between the scientific (‘hard’ science) and economic (‘soft’ science) foundations of environmental law and policy, and the bureaucratic techniques of risk assessment and cost benefit analysis that grow out of them. Very simplistically, these are approaches that see the environment as fundamentally capable of management, if only we can harness the appropriate expertise.

In contrast, the ethical basis for environmental measures is rarely explicit. Competing ethical approaches are considered. (5). Even if these ethical approaches are rarely openly engaged with, however, there is a growing recognition, that environmental decisions are not purely technical, but are fundamentally normative in nature, based on important political, moral, cultural, even religious values.

This demands of environmental decision makers that they enter the political arena and engage in debate about ‘what should be done’. There is a tension at the heart of environmental law and policy, between demands for expertise, and demands for popular engagement. Agricultural biotechnology provides a case study of this tension in as I will describe later on.

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