Beginning in the late 1960s, environmental law emerged to address mounting public concern over a rapidly degrading natural environment. In the United States, notable legislation such as the Clean Water Act (CWA), Clean Air Act, and Endangered Species Act was enacted to protect our water, air, and land from unchecked human development. Yet today, 50 years later, threats to our natural environment remain out of control due to the systemic shortcomings of environmental law. Kinvin Wroth, Environmental to Ecological Law: The Future Lies Ahead: Introduction, 43 Vt. L. Rev. 415, 415–16 (2019).
Currently, we face worsening ecological crises that jeopardize the continued existence of life on Earth. In fact, we may have already passed critical thresholds for several natural processes essential to a functioning Earth system. Will Steffen et al., Planetary Boundaries: Guiding Human Development on a Changing Planet, 347 Science, Feb. 13, 2015, at 736 (illustrating biodiversity, climate, and nitrogen and phosphorus flows in high-risk zones of uncertainty). Biodiversity is declining at a dangerously accelerated rate; uncontrolled releases of nitrogen and phosphorus into the environment continue to pollute our biosphere, waterways, and oceans past manageable thresholds; and the climate is rapidly changing due to carbon overloading in the atmosphere. Id. Without these natural processes, the ability of our planet to continue to provide a livable environment is in question. The continuing—and increasing—degradation of the natural environment over the last several decades has led experts, practitioners, and advocates to ask: Is environmental law working?
The resounding answer to this question from the Ethics Specialist Group of the World Commission on Environmental Law of the International Union for Conservation of Nature (IUCN) was “no.” The Working Group met during the 2016 IUCN World Conservation Congress to discuss the limits of environmental law and propose the need for a new paradigm—one that could reverse our apparent trajectory towards ecological ruin. At the workshop’s conclusion, the participants created the Oslo Manifesto, the founding document for ecological law and governance calling for sweeping, transformative change to our legal system. Ecological L. & Governance Ass’n, Oslo Manifesto for Ecological Law & Governance (June 21, 2016) (Oslo Manifesto).
Ecological law is an emerging approach to law that recognizes the interconnectedness of humans and nature. Oslo Manifesto § 6. Its goal is a “mutually enhancing human-Earth relationship” that allows for natural systems to function and thrive in perpetuity. Thomas Berry, The Great Work: Our Way into the Future 161 (1999). In this context, humans are viewed as but one component in the global system. At the center of that system, then, is nature, which is understood to have intrinsic value. Id. In this way, ecological limits take primacy over purely human needs, ensuring ecological integrity for both present and future generations.
By contrast, environmental law’s goal to protect the environment and reduce pollution is balanced against economic costs, practicability, and technological feasibility. To illustrate, consider a provision of the CWA. In assessing the best conventional pollutant control technology, the CWA provides that factors “shall include consideration of the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived . . . .” 33 U.S.C. § 1314(b)(4)(B). Ecological law excludes economic, technological, or other considerations and deems ecological integrity paramount. Thus, compared to environmental law, ecological law is fundamentally different:
[Environmental law] allows human activities and aspirations to determine whether or not the integrity of ecological systems should be protected. [Ecological law] requires human activities and aspirations to be determined by the need to protect the integrity of ecological systems. Ecological integrity becomes a precondition for human aspirations and a fundamental principle of law. In other words, ecological law reverses the principle of human dominance over nature, which the current iteration of environmental law tends to reinforce, to a principle of human responsibility for nature.
Oslo Manifesto § 6. In sum, environmental law is anthropocentric (human-centered) and growth-insistent while ecological law is ecocentric (nature-centered) and limits-insistent, but still human-inclusive. These central conflicting narratives present an enormous challenge for a successful transition from contemporary environmental law to ecological law.
To meet this challenge, the Ecological Law and Governance Association (ELGA) was established in October 2017. Kathryn Gwiazdon, We Cannot Fail: The Promise and Principles of Ecological Law and Governance, 11 Minding Nature, no. 2, 2018, at 36. ELGA is an international organization comprised of academics, professionals, and organizations across multiple disciplines committed to identifying and tackling the causes of global environmental degradation and catalyzing the shift to a new, ecologically focused legal and governance system. Id. at 37. Members of ELGA argue a transformative approach is urgent and necessary to address continuing and increasing threats to the natural environment. Id. at 39.
The transition to ecological law and governance is extreme and all-encompassing. Shifting to ecological law would transform not just environmental law, but the entire system—legal, social, political, and economic. It involves changing humans’ worldview and ethical code to think differently about our role in nature. Moreover, ecological law is necessarily global in scope, requiring nation states to take ownership over their impacts outside of their boundaries and recognize collective accountability. Beyond mere reform, adopting ecological law principles requires a wholly different approach to the entire legal system:
To overcome the flaws of environmental law, mere reform is not enough. We do not need more laws, but different laws from which no area of the legal system is exempted. The ecological approach to law is based on ecocentrism, holism, and intra-/intergenerational and interspecies justice. From this perspective, or worldview, the law will recogni[z]e ecological interdependencies and no longer favor humans over nature and individual rights over collective responsibilities. Essentially, ecological law internalizes the natural living conditions of human existence and makes them the basis of all law, including constitutions, human rights, property rights, corporate rights and state sovereignty.
Oslo Manifesto § 5.
Such a dramatic paradigm shift naturally presents obstacles. Our current system is dominated by a strong commitment to infinite economic growth that ignores finite ecological limits. Geoffrey Garver, Ecological Law: A Transformational Approach for Legal Systems, VLS Hot Topics 2020 (June 25, 2020). Decision-making processes and laws tend to prioritize economic gain and technological advances over ecosystem health. Id. Increasingly, human societies place a value amount on nature and the services it provides (e.g., ecosystem services), failing to recognize nature’s intrinsic value and viewing it more as a commodity. Id. Firm beliefs in capitalization and protecting corporations disconnects economic growth from local impact and allows continued global environmental degradation. Id. Further, nation states are largely fixed in upholding state sovereignty and thus resist trends toward international, collective rights essential to ensuring a healthy, resilient environment. Id. These challenges, among others, to ecological law are deeply set in our system and ways of thinking and, thus, a shift to a new ecological framework would require just as deep a commitment to change. Oslo Manifesto § 7.
At this stage, ecological law is largely conceptual. However, the most concrete illustration to date is the rights of nature movement, under which a growing number of governments and courts are recognizing nature as having its own legal rights. United Nations, Rights of Nature Law, Policy and Education (2020). Through court rulings or legislation, rivers in Bolivia, Colombia, Ecuador, India, and New Zealand have been given their own rights to stand in court and to be represented in defense. Lidia Cano Pecharroman, Rights of Nature: River That Can Stand in Court, 7 Resources, art. 13 (2018). For example, the Te Awa Tepua Act in 2017 gave the Whanganui River in New Zealand, a river long cherished by the Maori tribes, its own legal identity with the same rights, duties, and liabilities as a legal person. Id. at 7. Under that act, trustees are identified to legally represent the Whanganui River in court and bring claims on matters affecting the river, giving trustees’ interests greater weight than that of the public generally. Id. Nature’s rights have yet to be applied in practice, so the effect on environmental protection largely remains unclear. Id. at 9. Nonetheless, these novel declarations of nature’s rights provide encouraging early examples of a shift in thinking toward an Earth-centered worldview consistent with ecological law.
As a lawyer, I find the radical transformative change to our legal system posed by ecological law fairly daunting. But as an ecologist, I am inspired by the promise ecological law presents. After all, drastic times call for drastic measures—and these are indeed drastic times. The ecological state of our planet is rapidly deteriorating. One million species, more than 12% of life on Earth, face extinction. Intergovernmental Sci.-Pol’y Platform on Biodiversity & Ecosystem Servs., Summary for Policymakers of the Global Assessment Report on Biodiversity and Ecosystem Services 12 (S. Diaz et al. eds., 2019). By 2030, scientists predict the planet to warm beyond 1.5 degrees Celsius, a level of warming that would cause extreme and devastating changes to the world’s ecosystems. Intergovernmental Panel on Climate Change, Summary for Policymakers, in Global Warming of 1.5°C: An IPCC Special Report 8 (V. Masson-Delmotte et al. eds., 2018). Moreover, we face an unprecedented global public health pandemic that is crippling our economic, social, and political structures. Perhaps ecological law and governance are the drastic measures we desperately need.