By: Thomas Alan Linzey, Esq., Executive Director
Community Environmental Legal Defense Fund
Several years ago, I stood and watched a groundbreaking ceremony - led by then-Virginia Governor (now U.S. Senator) George Allen - in which bulldozers began gutting pristine Ellett Valley in the State's southwestern corner, all to build a private testing roadway (with tax monies, of course) for the General Motors Corporation.
| Under our framework of law, nature has as many rights as the refrigerator sitting in the kitchen - none at all. |
I wasn't standing with the tuxedo-clad luminaries on hand for the ceremony; but on the back of a pickup truck - with a bullhorn in my hand - having been recently arrested as part of a demonstration that disrupted the Governor's speech. Being unceremoniously hustled into the back of a patrol car forced me to begin to ponder how a young lawyer - me - who had embarked on a career to protect nature by enforcing this nation's much-hyped environmental laws - now found himself on one side of the law, with the ones designing the assault sipping champagne on the other.
More importantly, I began to question how laws ostensibly designed to protect nature were being used merely to regulate the process by which a few were destroying it. But the whirling didn't stop there. Those thoughts eventually led to an even bigger, more troubling inquiry - whether the problem was merely how the environmental laws were being enforced, or whether the problem was much more complicated - that the laws were purposefully designed from the beginning to serve as a shield of sorts - placing a stamp of legal approval on the destruction of nature, while placing those doing the destroying on the right side of the law.
Such thinking was enough to turn a young lawyer's world upside down. Since then, I've watched as environmental groups and environmental lawyers have soaked up hundreds of millions of dollars creating and enforcing new environmental regulations. I've listened as armies of bulldozers, battalions of engineers, and a slew of development corporations have eaten mountains alive, annihilated entire ecosystems, poisoned land, water, and air, and scarred the countryside. I've watched diverse groups of people who care about nature join hands in their communities, raise money, hire experts and lawyers, lose their battles, and, for the most part - crumble and disappear.
Above all, I've spent quite a bit of time trying to figure out how we've ended up in this dismal place; thinking about what environmental law could be, and perhaps more importantly, what it should be.
From a vista that took almost a decade to scale, it now appears - to me, at least - downright logical that we've ended up where we have.
We've ended up in this place because under our current system of law, mountains, lakes, rivers, forests, raccoons, whales, wolves, and even whole ecosystems, have no rights, no legal protections stemming from the mere fact that they exist.
Under our system of law, that makes nature simply property - to be bought, sold, traded, and destroyed. Under our framework of law, nature has as many rights as the refrigerator sitting in the kitchen - none at all.
So, when we work to protect nature, instead of being regarded as vindicating and protecting rights - actions deemed to be some of the most exalted work of people on this planet - the law instead punishes our actions as an unlawful interference with property.
When people strive to stop the timbering of groves of trees that were old before Christ was born, sheriffs - public officials - rub pepper spray into their eyes. When people seek to close exhaust pipes spewing toxins into the oceans, the United States Coast Guard arrests them for trespass. When people do the simple act of sitting down in large numbers to stop the building of roads, the operation of chemical plants, or the polluting of toxic waste incinerators, the State Police cuff their hands behind their backs, lead them away to State jails, and use our prosecutors - and our courts - to punish them.
What became clear to me, as I looked out of that police car several years ago, was that before we had ever walked into the courtroom - filing lawsuits in attempts to stop that particular project by suing to enforce existing environmental laws - we had already lost. We had already lost because we were attempting to use the law as something it was never intended to be.
Environmental laws - or any laws, for that matter - developed within a legal and cultural framework in which nature lacks any rights that must be enforced and vindicated, could never possibly be used - no matter how good the lawyers or the law firms - to interfere with the well-settled "right" of the corporate few to destroy nature as their property.
On one side, you have laws passed to protect the natural environment for the benefit of people - clean air for people to breathe, clean water for people to drink. On the other, you have a thousand years of well-settled law that establishes the almost unfettered "right" to use property, that doesn't even recognize a difference between property and nature. No wonder why we always lose. It's not even a close call.
Laws codifying that system, in which nature and the functioning of ecosystems is always subordinated to the whim of the few who own most of the planet, could never be enforced, of course, without the willingness of the majority to allow it.
In other words, the most effective way for the few to protect their ability to destroy nature is to transform what some view as a moral wrong into a public good. Tying liberty, freedom, comfort, and mobility to the endless production of more stuff - and the constant use of nature as raw materials for that machine - delivers that transformation. The fear of losing those freedoms as a result of stopping the few from destroying nature is merely the gasoline that makes the chainsaws run.
After all, if the endless destruction of nature didn't appear downright reasonable - as a "trade-off" of sorts, with the contours of the trade defined by the minority - the governing few would be unable to use our public officials and public institutions to enforce their laws.
By continuing to reinforce that cultural framework minute by minute, hour after hour, day after day, and week after week, a world has been created in which the law - instead of enabling and supporting ecosystems, species, and communities - is wielded instead by the corporate few as hammers to help smash them.
Indeed, not only is the law used that way, we've been so culturally googled that we can't even imagine what the world would look like if the law protected nature instead of those destroying it.
They say that fish discover water last. This is the culture in which we swim. Knowing that, it would seem that we've built an environmental "movement" that isn't a movement at all. It consists mainly of dashing across the landscape, attempting to stop a project here, or a project there, all the while failing to confront - let alone admit - the reality that the law, our government, and the culture aren't even on our side.
That's why, in most battles to stop individual projects or work on "single" issues, we've lost before we've even begun. We attempt to enforce environmental laws that we didn't write, that were developed within a culture we don't control, and that even when enforced to the letter - are designed simply to regulate how quickly a corporate few will destroy this planet of ours.
While we've been busy chasing our tails trying to get the minority to inflict a little less harm, they've been perfecting their higher aspirations - controlling our governments, our education, our thinking, our hopes, and our dreams.
What all of this means, of course, is that we don't stand a chance of protecting and defending nature until we remove the ability of the few to wield law, government, and culture against both us and against nature.
That's a pretty tall order.
It may even require us to disobey a thousand years of law created precisely to accomplish the opposite.
The good news is that we have the wisdom, courage, and ingenuity of some past people's movements to draw from - movements that set their sights on driving fundamental, monumental shifts into the law and the culture.
The bad news is that we don't have much time.
Over the past two hundred years in this nation, a handful of people's movements have been about moving beyond the defense and gutting the authority of the few to wield the law and the culture against us. Those movements were about figuring out that the real problem wasn't the specific evil they sought to confront - but that the recognition of a "governing and a governed class was incompatible with the first principles of freedom."
The Abolitionists, after all, didn't seek to create a Slavery Protection Agency to make the conditions of slaves more tolerable. They understood that slavery was a system that enabled a few to govern through both the wielding of law that legally classified slaves as property; and through a slavery culture that bolstered the belief that blacks were sub-humans undeserving of human rights.
The Abolitionists weren't afraid to confront a legal structure that classified some people as property. They weren't afraid to confront a slave system that enhanced the rights of slave-owners in the South.
Likewise, our American revolutionaries didn't demand a socially responsible king but understood, decades before Lexington, that if people themselves were the source of all governing authority, government by a House of Lords and English trading companies was illegitimate and had to be removed.
The revolutionaries weren't afraid to confront the common wisdom of the time - that government by the people, for the people, and of the people, was simply inane. The American Revolutionaries, the Abolitionists, the dirt farmers that became the Populists in the late 1800's, understood that revealing and challenging the dominance of the few was not an abstract wish, but the only remaining option for confronting the evils of their day - precisely because the allowable remedies under their contemporary system of law fell short of vindicating - or even recognizing - their rights.
Environmentalists, however, have never admitted - let alone integrated - that worldview into our work. Our focus has always been on the activities themselves - clearcutting, incineration, land application of sewage sludge, factory hog farms, chemical emissions - rather than on how to stop the few from endlessly wielding the law against us and nature. That's led to endless discussions over parts per million, best management practices, and segmenting ourselves by each "single" issue.
We've never understood that we simply cannot protect the environment unless we confront the ability of the few to define nature as property, and the seemingly endless ability of the few to deceive us into thinking that their destruction of nature is necessary for our freedom and well-being.
Because of that, we inevitably - and logically - end up merely begging and pleading corporations and our own public officials to inflict a little less harm on our communities and nature.
We've missed the boat, which is precisely why, after decades of work and investment of billions of hours of time and dollars, every statistic that measures the health and welfare of human and natural communities is worse now than ever.
I think it's time we got off our knees and begin the difficult work of envisioning what a real environmental movement would look like.
For starters, it would assume that ecosystems and communities of living creatures have inherent and inalienable rights to exist and prosper. It would borrow a page from Aldo Leopold when he wrote that "a thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise." Such a recognition of rights would require that our system of law protect, enforce, and defend natural systems and communities.
For the first time, the law would be used to protect the true majority - both our human and natural communities - rather than the few who currently wield the law solely for the benefit of a minority.
What would it mean for the rights of rivers, mountains, forests, and ecosystems to be recognized under our system of law?
First, the ways in which we build, produce energy, manufacture, travel, manage waste, and grow food would be forced to transform so that those activities no longer interfere with the functioning of ecosystems.
The reams of literature currently gathering dust in libraries - developed over decades by people envisioning new ways for people, cities, and the nation to generate renewable energy, practice sustainable agriculture, and design livable communities - would move from dream-state to absolute necessity. Currently labeled "alternative" technologies would become the default - not because they are cheaper or more "efficient" - but because current processes and technologies simply cannot be used without inflicting damage on ecosystems and natural communities.
Second, it would shift our work from merely vindicating people's economic and aesthetic interests in their environment to defending nature itself. Precisely because our current system of law treats nature as mere property - incapable of suffering any legally recognizable injury - when we seek to protect nature, people are forced to argue how destruction of nature injures them. Legal damages are calculated not by the injuries suffered by the ecosystem, but by how much financial injury the owner of a particular parcel of nature has incurred.
Thus, the ability to sue is often denied to those people - and groups - who can't show that their own property or economic interests have been damaged.
| If we do not make this shift now, we will continue to lose the irreplaceable, and with each loss, a piece of our humanity - not to mention our chances for survival - will tumble along behind it. |
Recognizing natural rights would enable environmental groups and community activists to directly represent the interests of an ecosystem or natural community. Shoehorning a property interest for a particular person or community would become an irrelevant inquiry, replaced instead by automatic legal standing for the natural system or community, and an inquiry focused solely on whether the action interferes with the existence and vitality of it. Legal damages would then be awarded to restore the system or community to its uninjured state. Such recognition and enforcement would inevitably strengthen the hand of communities seeking to stop certain projects. Instead of the corporate few picking off fragmented communities to site unwanted projects, the minority would finally be forced to face-off against the true majority - the rights of natural systems linked with the rights of our communities. And that's just private enforcement of natural rights. Implementing this system of law means that our public officials would be bound by those same rules - even mandated to use public monies and public institutions to enforce those rights.
Of course, creating that structure of law will remain merely a pipedream if we don't begin to work to change a culture which constantly reminds us that without endless production of more stuff - supported by the endless exploitation of natural systems - we will end up cold, hungry, and in the dark. Not to mention that we couldn't make enough money to pay for protecting the environment.
It is that recurring whisper of fear in our ears - reinforced by commercial after commercial, advertisement after advertisement, political speech after political speech - that makes the treatment of nature as disposable seem eminently reasonable.
In the end, if we're serious about defending this planet of ours and its intricate web of diversity and life, we must set our sights on nothing less than eliminating the ability of the few to govern the many. That means turning our attention away from attempting to regulate harmful activities themselves, and focusing instead on limiting the power held by corporate actors.
It means making real the promises of the American revolution - that people are the source of all governing authority in this country. It means making law in our communities that excludes the corporate few. It means beginning to govern in the best interests of ourselves, our children, and all other living creatures that depend on this planet of ours.
Driving such a system of law into place is long overdue. It would mean that we could finally begin the real work - of cleaning up this mess that the few have caused, and working to restore the intricate weave of nature.
Of course, such work will not begin with lawyers, scientists, or academics. Nor will it start in the courts, our state legislatures, or Congress - institutions responsible for perfecting two centuries' worth of law relegating nature to the status of mere property. So, if not in those traditional environmental arenas, where will this work begin?
It will begin in the place where it makes the most sense to make any beginning - our communities and the local governments that represent them. To the utter surprise of many, it will begin with people just beginning their activist lives - from a variety of backgrounds - who have silently witnessed the dying flames of their communities, and who will join hands with living creatures and natural systems who cannot speak, to build a movement the likes of which has never before been seen on this planet.
It is, of course, not an abstract choice to do this - but an absolute and grave necessity. If we do not make this shift now, we will continue to lose the irreplaceable, and with each loss, a piece of our humanity - not to mention our chances for survival - will tumble along behind it.
Many will find that the recognition that we cannot protect nature without eliminating the authority of the few to govern, far from depressing, but actually liberating. As Sam Smith, author of Why Bother!, has explained, "In a perverse way, our predicament makes life simpler. We have clearly lost what we have lost. We can give up our futile efforts to preserve the illusion and turn our energies instead to the construction of a new time. . . We rebel not as a last act of desperation but as a first act of creation."
Let us begin.
Don't miss Tom Linzey at the Bioneers Conference 2005: "Power Play: Innovative Anti-Corporate, Pro-Democracy Strategies".
The above article can also be viewed on the Bioneers web site: http://www.bioneers.org/whoweare/linzey_7_25_5.php