The Fatal Flaw of Environmental Law

You know the story: wherever we look – forestsoceans, rivers, the atmosphere – we find trouble. But it doesn’t have to be this way. Stay with me here.

At present, our children’s future is being stolen. Life in the U.S. and worldwide is threatened by multi-year drought, wildfiresfloodsstorms, and heat waves that are growing hotter and lasting longer. Less obviously, many species are disappearing: birdsinsectsamphibians and fish. Between 1970 and 2012, 58 percent of mammals, birds, and fish disappeared from planet Earth. The future for humans is in doubt. Fifteen years ago, the largest-ever study of global ecosystems concluded that, “Human activity is putting such strain on the natural functions of Earth that the ability of the planet's ecosystems to sustain future generations can no longer be taken for granted."

But I say again, it does not have to be this way. The reason we got ourselves into this pickle is that, about 150 years ago, in response to harms caused by industrialization, we adopted laws that failed to take account of the accumulated harm from millions of small activities. Forty years ago, in his 1980 book, Overshoot, William Catton, Jr., warned that millions of small activities were adding up to serious trouble. Catton wrote, "Infinitesimal actions, if they are numerous and cumulative, can become enormously consequential." Now we know Catton was right: millions of small harms are adding up to a ruined planet. It’s time we scrapped those 150-year-old approaches and adopted new ones that can deal with our modern situation.

Judges and legislators have always known that economic activity can cause harm – to workers, to neighbors, and to nature itself. How much harm is acceptable? They developed a legal test: they assumed that economic activity was good (despite the damage it would cause) unless the harm was “unreasonable.” And the standard for measuring “reasonable” was a cost-benefit analysis. If an activity would produce more goods than bads, it was deemed “reasonable.” That approach has no way to ask, “What about the devastating combined effect of all these ‘reasonable’ decisions?”

Fifteen years ago, biologist and lawyer Joe Guth put his mind to this problem and devised new ways of making decisions, including new model laws.

In this issue of The Networker, Joe describes the work he has done to modernize the law, with links to his original articles. This is really important stuff (which I have summarized elsewhere).

Peter Montague

SEHN Board Member & Fellow