Strengthening Constitutional Self-Government


Environmentalism, Constitutionalism, and the Public Good

On Principle, v4n4

October 1996

by Charles T. Rubin

Advocates and critics agree that the Republican effort to reform environmental regulation during the 104th Congress failed. The reasons adduced will vary with the partisan sympathies of the analyst. Environmentalists will tell you that the American people defeated attempts by lovers of development and haters of nature to “roll back” the accomplishments of some three decades of environmental concern. This effort was all the more dangerous, they say, because after those same three decades we face as many, or more, serious threats to the well being of nature as before. Reformers can claim the many special interests that have grown up around environmental regulation defeated them. Those special interests wrongly painted them as hostile to environmental improvement, when in fact they sought a better route to much the same ends.

Paradoxes in this debate are worthy of note. Why do environmentalists vociferously defend a legal structure that, by their own standards, is inadequate? Why do reformers believe that goals special interests defined and defended are worth achieving, even with new means?

The answer to these questions rests in the extraordinary symbolic power of “the environment.” This all too common word, which within the lifetimes of many of us has risen from technical obscurity to the forefront of expressing our concern for nature, confines our thinking in vital yet little noticed ways. The symbolism of “the environment,” as a delicately balanced, global or even transglobal whole in which everything is connected to everything else, makes environmentalists rise to the defense of a status quo they are otherwise the first to criticize. Forget that this outlook on nature has little or no scientific support. It is the basis for the radical changes in politics, society and economics that many environmentalists believe will be necessary for “right living on planet Earth.”

This is the flag to which those who would seek to reform environmental law and regulation must pledge allegiance. Failure to conform, be the scruple based on science, religion, economics, or sheer common sense, puts one beyond the pale of civilized discourse. Little wonder then, that reformers stand up straight with hands on hearts when the flag of “the environment” passes by. Whatever their strictly private reservations may or may not be, their putative citizenship in the environmental republic (a republic, it should be said, of Spartan character) severely constrains their ability to criticize it. The notion that “the environment” is a complex and delicately interconnected whole is, like any other world-view, a set of blinders which focuses attention on some things, and makes others invisible. Introducing new elements into this horizon will be, at best, an uphill battle.

For example, Congressional reformers wanted to decentralize environmental regulation, and to pay more attention to its economic costs. Changes like this could be quite sensible–if you don’t start with classic assumptions of thinking about “the environment.” Decentralization, for example, makes no sense if “everything is connected to everything else.” Then, only the highly centralized, planning oriented decision making systems that serious environmentalists favor could oversee all the complex ramifications human actions have within nature–though such aspirations vastly overstate human competence. Paying more attention to economic costs likewise is unreasonable if within “the environment” (which is, after all, everything), “nature knows best.” Thus, the human purposes reflected in economic judgements are, by the very fact of being human, suspect–though such an outlook reads humanity out of “the environment” in a curious fashio

So long as the world view of “the environment” dominates, legislative reform will be difficult. But in an excellent new book, The Demise of Environmentalism in American Law (AEI Press), Michael Greve outlines an alternate possibility. Environmentalists, he suggests, aimed at a wholesale transformation of American law. If the world is “infinitely complex and interdependent” then “traditional, common-law notions of rights” and “legal relations and instruments that are modeled on private transactions seem hopelessly dysfunctional–and illegitimate and must therefore be discarded.” Property rights make no sense in a world where everything is connected to everything else, likewise traditional notions of legal standing, which required that harm be done to a particular individual in order for there to be a justiciable case. The elimination of such legal doctrines “converge on a boundless definition of government’s police power,” such
that “environmental regulation has no principled stopping point.”

By a careful and detailed analysis of key decisions, Greve argues forcefully and intelligently that the Supreme Court has rejected this environmentalist view of the law. The legal failure, along with failures such as the ever increasing costs of environmental remediation and its disappointing results, may mean that “a historian of twentieth-century social movements may conclude that environmentalism’s demise circa 1992 was a foregone conclusion.” On the other hand, there are “darker possibilities.” Shorn of their environmental justifications, environmental laws remaining on the books may become “a vast game of rank redistribution” like farm subsidy programs that continue to support “family farms” long after their demise.

Greve does not dwell systematically on the question of the relationship between the Court’s rejection of the environmental paradigm and the legislative intention behind the laws in question. At many points, however, he expresses satisfaction when the Court did not allow itself to be bound by legislative intent that he (for good reasons) regards as foolish or ill informed. Thus, his book is likely to provide more solace to those concerned about combating environmental activism than to those worried about judicial activism. While he notes that the courts lack “raw political power” and cannot, except under unusual circumstances “bring about fundamental social or institutional reform,” he sees them playing “an anticipatory, agenda-setting role” in the death of environmentalism. The Courts, he seems to argue, are forced to take such a role by unworkable Congressional environmental laws and mandates.

Greve’s attempt to legitimize an activist role for the Court in this area may be colored by his serious doubts about interest group politics, which “promises to each far more than it can deliver.” Hence his view of “politics as second best” to private orderings of our affairs. Is this libertarian response sufficient to the scope of the problem? We may be grateful that the courts have maintained a place for property rights, good sense and limitations on judicial standing against the onslaught of environmental everythingism. It gives us an alternative starting point for thinking about how to deal with problems that we come to see in our relationship with the natural world. However, as useful a corrective as this outlook may be to decades of environmentally justified centralization of or increase in government power, it cannot be the last word unless Greve believes that our relationship to nature raises no genuine question of public goods.

“All values are somebodies’ values,” he notes, thus making it easy for him to suggest that values are merely concealed ways of presenting interests. If he is using the term “values” here precisely, that is, as a term that embodies already a relativistic understanding of any notion of an ethical or moral good, then his suspicions are surely justified. Still, if he means to reject the political significance of any translegal or transconventional claims upon politics, his position is more problematic. Then he would be left like the environmentalists he criticizes, except that he would have no principled stopping point for private orderings. It may or may not be that the Constitution itself provides him such a stopping point. While obviously a devotee of Constitutional protection of property, he does not seem to find the Constitution’s political framework for that protection adequate.

An increasing number of critics of contemporary environmentalism apparently believe that they cannot attack its values successfully in public debate, and therefore they must evade them. The centerpiece of this tactic is a claim, widely popularized by Robert Nelson, that environmentalism is a kind of religion. The most thoughtful instances of this argument go something like this: Sometimes environmentalism is overtly pantheistic. Even where this extreme has not been reached, the attachment to nature is held with an irrational fervor that is tantamount to religious belief. Finally, various doctrines of environmentalism, such as the distrust of human beings and the concern about an apocalyptic future, sound like “secularized” versions of religious doctrines (e.g., fallen humanity and the end of days).

Our regime tolerates such religious opinions, but it does not support them with public funds. If National Parks are “green cathedrals,” for example, there need to be efforts at disestablishment. As members of religious sects, environmentalists should realize that their beliefs are too important to be compromised by the corrupting influence of public funds. Once removed from the public agenda, there will be no more need publicly to dispute the premises of the environmental world view, any more than there is a need for Jews and Christians to engage in public polemics about their religious truth claims.

A “religion” based on “secularized” versions of religious doctrines may seem odd. Yet the line of argument contains just enough truth to be clever and attractive. Its most obvious application is in land use and resource issues, where church-like property rights can be readily specified. Still, it is harder to see what its implications would be for clean air efforts, global warming, ozone depletion. It is true that crusading religions once turned what we now regard as private goods into public goods. Some environmental goods previously understood to be public could be privatized, but that possibility hardly applies to all of them. Environmentalism raises legitimate questions of the public good, such that we will continue to need public debate about the premises and data upon which our diagnoses of environmental problems are based, and public decisions about what is to be done.

Again, then, we see that it is hard to avoid direct confrontation with the moral claims put forward by the environmental outlook. Eventually we must address the thing head on, exposing and criticizing its mistaken premises. A solid example, written in a style accessible to the intelligent lay reader but philosophically sophisticated, is French philosopher Luc Ferry’s The New Ecological Order (University of Chicago Press).

Ferry presents a devastating critique of the “deep ecology” movement, the brand of environmental thinking that has become the “gold standard” in academic discussions of environmental issues. Deep ecology is based on “ecoegalitarianism,” the notion that human beings have no privileged place in the natural order. While not all of its proponents are overtly misanthropic, at the very least deep ecologists believe that they can present a thoroughgoing critique of Western thought and civilization, for its basic error in having posited the primacy of human purposes.

Starting with tales of some extraordinary “animal trials” in the Middle Ages, where pests were hauled into Court, provided with human counsel, and not infrequently won their case against the human plaintiffs, Ferry shows that what is good in deep ecology is not new, and what is new is not good. For Ferry believes that we do err when, in Cartesian fashion, we treat animate nature as mere stuff for our own ends. Yet that mistake, he argues, does not justify thinking that human beings are not distinct in important ways from other beings. He finds the locus of that difference in human freedom, our ability not to be bound by instinct or other natural necessity.

Ferry’s Rousseauian/Kantian understanding of this freedom may not satisfy all his readers. But his critique of the premises of deep ecology still has much to say for it. For example, he shows without cant or mere name calling that essential premises of today’s deep ecology were already clearly embodied in Nazi legislation that prevented cruelty to animals and protected nature. “In both cases we are dealing with the same romantic and sentimental representation of the relationship between nature and culture.” The idea that nature untouched by man is somehow the wellspring of all truth about the world produces, Ferry suggests, some terrible ironies. He cites, for example, the careful provisions in the Nazi law that regulated the rest periods, feeding times, and ventilation necessary to ship animals by train. Meanwhile Jews, whose age-old method of ritual animal slaughter was prohibited by the same law, were to travel under murderous conditions that were prohibited for

Is Ferry merely wasting his time in attempting to point up the deep conceptual problems with today’s ideas about an “ecological order?” Surely his book is unlikely to convince a fanatically committed environmentalist. However, that fact does not justify leaving control of environmental excess to the courts, or to the private choices of individuals. For there are relatively few such fanatics in the world. The real audience for such works is those who have been going along with environmentalism, not out of deep commitment or careful study, but just because it seems the right thing to do. There is nothing inherently wrong about their concern with the well being of nature. Yet like any other cause it can be followed for better or worse reasons, with more or less well grounded expectations about its result. If those with good reasons to oppose the way of caring for nature that is represented in contemporary environmentalism are not prepared to make their case in politic
al disputes, and do not attempt to expose in public debate the ideas of the good that inform that error, then the field will be left to worse reasons and utopian expectations.

That would be a shame, for it would be one more nail in the coffin of the American experiment in self-government. Some may think that the failure of that experiment is sufficiently obvious to justify government by judiciary, or the shrinking of the public sphere into the absolutely smallest possible diameter. But these may be self fulfilling prophesies. For to refuse to believe that we can reasonably debate the ideas about a good life that are embodied in environmentalism or any other collection of norms is to create a citizen body incapable of so doing. In fact, it seems unlikely that such a spiritually or ethically impoverished mass could either manage their own affairs wisely, or be sufficiently disciplined to accept willingly the rule of the wise. In the language of Federalist #1, there is still something to be said for “reflection and choice” over against the alternatives of “accident and force.”

Charles T. Rubin teaches political science at Duquesne University.

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