Adapting to Earth\u27s Anthropocene Epoch: The Evolution of Environmental Law

Is attaining “sustainable development” still realistic in the wake of the Great Recession of 2008 and the crescendo of environmental degradations and impacts induced by climate change? Are the current trends transforming the Earth, often at exponential rates, rendering today’s environmental treaties and statutes obsolete? Melting the cryosphere, embedding in Earth’s soils and waters many synthetic new chemicals unknown in nature, introducing radioactive elements world-wide, altering the carbon cycle, and terra-forming the coastlines through raising the levels of the seas, all have permanently propelled human society from the Holocene into the Anthropocene Epoch. These changes have prompted Nobel laureate Paul Crutzen to call today’s trends “the Great Acceleration,” in an essay with colleagues published in the Swedish Royal Academy of Sciences’ journal, AMBIO (vol. 36, no. 8, December 2007). The Great Acceleration is overwhelming traditional socio-economic systems. Dr. Crutzen’s asks: “To develop a universally accepted strategy to ensure the sustainability of Earth’s life support system against human-induced stresses is one of the greatest research and policy challenges ever to confront humanity. Can humanity meet this challenge?”It is time for environmental law to reform to meet the challenge. This paper probes how environmental law can help societies adapt to the new conditions of the Anthropocene. It examines how general principles of law can evolve so that all societies come to embrace the same fundamentals: strengthened observance of the well-accepted legal and moral principle of “cooperation,” and explicit recognition of “resilience,” as a moral and legal principle. These two principles can imbue techniques of environmental management with new robustness. From the perspective of Darwinian evolution, we can expect our disposition to cooperate to increase as our perception of the problems challenging our wellbeing also increases. This is the scientific finding of Samuel Bowles and Herbert Gintis, in their important study of human social evolution, A Cooperative Species – Human Reciprocity and its Evolution (Princeton University Press, 2011). From the perspective of ecology, we can learn what it takes to enhance our species’ reliance on resilience. Prospects for this are noted by B. Walker & D. Salt in Resilience Thinking and by (B. Walker, S.R. Carpenter & A. Kinzig in “Resilience, Adaptability & Transformability in Socio-Ecological Systems,” in Ecology & Society (9) (2), which may be accessed at www.ecologyandsociety.org/vol9/iss2/art5/ ). Environmental law as a field should embrace evolutionary knowledge, in order to fashion the legal tools by which humans can redefine realistically what constitutes sustainable societies, and how the law can to induce an orderly shift from “business as usual” to the new conditions of the Anthropocene. In 2005, the United Nations Development Programme described resilience as: “a tendency to maintain integrity when subject to disturbance” www.safecoast.org/editor/database/File/OECD%20Adapting%20to%20climate%20change.pdf). The irreducible human and ecological characteristics of integrity are what matter today. The visions of “sustainable development” in Agenda 21 have been overtaken by events. Past prescriptions for sustainable development are becoming obsolete. If nations are to maintain their cultural values and social norms, observe human rights, and restore environmental integrity in the coming decades, they will need to fashion new legal instruments and adapt existing ones. This paper examines how to do so. Fundamentally, societies will need to enhance “the rule of law,” securing honest and open governance. Rio Principle 10 is being nourished by the world-wide trends establishing environmental courts and tribunals, such as India is doing through its Green Tribunals Act, or in China, which has more than 50 environmental courts in 14 Provinces, or in The Philippines, which has environmental courts and has established the Writ of Kalikasan (Nature) to facilitate vindicating environmental rights. With stable governance, societies can enact legislation making risk assessment and sustainable recovery routine. Societies will need robust and resilient administrative systems to recover after environmental disturbances, and they cannot simply rely upon ad hoc disaster relief impulses. It will be essential for legal reforms to strengthen the environmental impact assessment (EIA) regimes of Rio Declaration Principle 17, and to implement Rio Principles 3 and 16 through establishment of insurance systems. Insurance law can enable both public and private interests to finance recovery after suffering damage, as by floods. Mutual, cooperative, insurance systems have a successful and proven history. Insurance is itself resilient, the cost of paying insurance premiums also induces precaution, and is a kind of shadow pricing of the risks and externalities addressed by the insurance. Moreover, fiscal reforms to avert excessive risk-taking by the world’s financial sectors will also be essential; there is no longer space or time for a “gap” between the “economy of nature” and the “economy of man.” Treaties that adopt Tobin tax regimes can ensure that the finance sector contributes to financing the adaptations to a new kind of sustainable society, in an environment which resets ecological integrity. Today international world order is itself at a crossroad, not merely environmental law. At this indelible inflection point in time, environmental law can be the regime that enables human civilization to adapt to the Anthropocene Epoch