The Ecological Constitution

Reframing Environmental Law

Lynda Collins

• Publisher: Taylor & Francis
• Year: 2021
• eBook ISBN: 9781000418316
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

The Ecological Constitution integrates the insights of environmental constitutionalism and ecological law in a concise, engaging and accessible manner.

This book sets out the necessary components of any constitution that could be considered "ecological" in nature. In particular, it argues that an ecological constitution is one that codifies the following key principles, at a minimum: the principle of sustainability; intergenerational equity and the public trust doctrine; environmental human rights; rights of nature; the precautionary principle and non-regression; and rights and obligations relating to a healthy climate. In the context of the global environmental crisis that characterises the current Anthropocene era, these principles are important tools for changing consciousness and driving pragmatic policy reforms around the world. Re-imagining constitutions along these lines could play a vital role in the collective project of building a sustainable future for humans, animals, ecosystems and the biosphere we all share.

This book will be of great interest to students and scholars of environmental law, ecological law, environmental constitutionalism, sustainability and rights of nature.

1 Introduction
constitutionalism in the age of ecological law

The application of constitutional thinking to our current ecological crisis raises several compelling questions: what would an ecological constitution look like? Put another way, how can states constitutionally ensure their ongoing survival on planet Earth? More provocatively, how relevant is a constitution that fails to make the attempt? This book makes a simple argument: domestic constitutions around the world should seek to protect the ecological foundation on which all societies stand. Thus far, our collective systems of environmental law and governance have failed to divert us from the path to catastrophe.¹ An ecological constitution could re-orient nation-states towards more viable development pathways; it would provide a lodestar for environmental law and could infuse all domestic laws with an ecological consciousness.

Although ecological sustainability requires international cooperation, and there is much work to be done to improve international environmental law (notably through the development of a global ecological constitution that complies with planetary boundaries),² this volume will focus on domestic constitutions as one tool for achieving planetary sustainability through the accretion of coordinated local action. The book proceeds in eight chapters. Chapter 1 introduces the concept of the ecological constitution, situating it at the confluence of ecological law and environmental constitutionalism. Chapter 2 advances an argument for ecological sustainability as a constitutional imperative and describes the growing body of existing constitutional provisions that already recognise this crucial overarching concept. Chapter 3 considers human rights in the ecological constitution, with a particular focus on the right to a healthy environment and Indigenous environmental rights.

Chapter 4 explores the constitutionalisation of intergenerational equity and the public trust doctrine, arguing that ecological constitutionalism requires a long-term perspective that enfranchises future generations of humans and other living beings. Chapter 5 introduces the precautionary principle and the associated principles of in dubio pro natura and non-regression, which have already been recognised in constitutional environmental law in some nations. Chapter 6 explores the most transformative (and rapidly expanding) area of ecological constitutionalism: rights of nature, or the idea that plants, animals, ecosystems and the Earth itself enjoy juridical personality and fundamental rights. Chapter 7 considers the emerging trend of “climate constitutionalism”,³ and Chapter 8 presents a brief conclusion, linking ecological constitutionalism with governance. As a whole, the volume maps out an “ecological transformation”⁴ of domestic constitutions in order to align the highest forms of domestic law with the non-negotiable laws of nature. Such alignment is urgently needed in the Anthropocene era.

Welcome to the Anthropocene⁵

Much has been written about the unprecedented socio-ecological crisis that is currently unfolding around the globe; the grim evidence of our collective jeopardy will not be repeated here in any detail.⁶ It suffices to observe that the present “Anthropocene” era is characterised by profound anthropogenic disruptions in the ecosphere.⁷ Put simply, humans have now eroded natural systems on a global scale and to an extent that threatens the present and future well-being of people, plants, animals and ecosystems. We have crossed “planetary boundaries” that delineate the “safe operating space for humanity”.⁸ However, the news is not all bad; scientific, technical, economic and policy solutions abound.⁹ Collectively, we have the resources and expertise to transition to more sustainable modes of living.

The crucial task now is to reimagine environmental law (and legal systems as a whole) in ways that will produce the necessary transformations. As Kotzé eloquently observes:

The new epistemological space of the Anthropocene … rejects an objectified, removed and simplified external nature that people are unable to understand or to care for, but able to exploit without limits. It invites instead a more enlightened view of human-nature relations that requires a deliberate effort to shift the parochial human-dominant exploitative focus of our regulatory institutions to a more inclusive ecological one.¹⁰

In other words, we need a new regulatory paradigm to remedy the failures of existing environmental laws and set a course for a sustainable future.

Re-visioning environmental law

Despite their many significant victories,¹¹ our existing environmental law regimes have thus far failed to prevent or reverse the eco-social crises of the Anthropocene. Indeed, environmental law has proven wholly inadequate when assessed against the crucial parameter of sustainability (i.e. the capacity of societies to survive and thrive over the coming decades and centuries).¹²

There are many reasons for this failure, including the problem of “agency capture”, the underfunding or even outright rejection of environmental science, corporate hegemony and public apathy or overwhelm in the face of daunting environmental threats.¹³ Moreover, the regulatory agencies tasked with developing and enforcing environmental law tend to be highly complex, isolated from each other and from ecological realities, inaccessible to the non-expert public and vulnerable to political and economic pressures that have no respect for fundamental ecological imperatives.¹⁴ Meanwhile, courts have habitually deferred to governments’ environmental decisions, even where such decisions are palpably unsustainable.¹⁵

Underlying the multiple factors contributing to the chronic underperformance of environmental law is a more elemental “failure to recognise the laws of nature and the fact that the Earth is finite”.¹⁶ Existing environmental laws are premised on a worldview that erroneously sees humans as separate from the natural “environment”¹⁷ (the other), which is itself treated as though it had an infinite carrying capacity. Thus, the ecological inadequacy of environmental law is written into its DNA. Moreover, environmental law is embedded in unsustainable, “growth-insistent” economic systems that undermine its potential at every turn.¹⁸ As a result, environmental law around the world is largely “anthropocentric, fragmented and … politically weak as it competes with other, more powerful areas of law such as individualized property and corporate rights”.¹⁹

Indeed, as Wood has shown, much environmental legislation is actually aimed at facilitating the exploitation of commodified natural resources, rather than preserving the stability and resilience of natural systems.²⁰ To summarise, “our system of laws does not protect the Earth from destruction because that is not its ultimate purpose, and, for this reason, a paradigm shift is needed”.²¹ One response to this urgent need to re-vision environmental law in more effective ways has been the invocation of constitutional rights and remedies.

The rise of environmental rights

In the decades since the 1972 Stockholm Declaration famously recognised the human right to a healthy environment, the majority of the world’s states have chosen to include some form of environmental right and/or obligation in their constitutions.²² United Nations Special Rapporteur on Human Rights and the Environment, David Boyd, reports that “more than 80 percent of States Members of the United Nations (156 out of 193) legally recognise the right to a safe, clean, healthy and sustainable environment”.²³ At present, the domestic constitutions of at least 110 states explicitly protect the right to a healt...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Acknowledgements
• 1 Introduction: constitutionalism in the age of ecological law
• 2 The constitutional imperative of ecological sustainability
• 3 Human rights in the ecological constitution
• 4 Intergenerational equity and the public trust doctrine
• 5 Rights of nature in the ecological constitution
• 6 Precaution and non-regression in the ecological constitution
• 7 Ecological constitutionalism in a changing climate
• 8 Conclusion
• Index