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Global Environmental Constitutionalism: Getting There from Here

Published online by Cambridge University Press:  13 March 2012

Douglas A. Kysar
Douglas A. Kysar*
Affiliation:
Yale Law School, New Haven, CT, United States. Email: [email protected].
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Abstract

Dominant analytical approaches to environmental law exhibit a similar, problematic form: they treat that which should be outcome determining as, instead, outcome determined. This form is most evident and influential in the welfare economic technique of regulatory cost–benefit analysis, which treats all resources – including the monetary value of human lives – as potential means towards seemingly higher yielding ends. In contrast, an environmental constitutionalism, in which certain needs and interests of present and future generations, the global community, and other forms of life are given foundational legal importance, would help to restore conceptual coherence and normative priority to the subjects of environmental law.

Keywords

Environmental ConstitutionalismPrecautionary PrincipleCost–benefit Analysis
Type
Invited Article
Information
Transnational Environmental Law , Volume 1 , Issue 1 , April 2012 , pp. 83 - 94
Copyright
Copyright © Cambridge University Press 2012

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References

1 In the majority of the world’s constitutions the environment is given express constitutional significance through various formulations of a right to a healthy and sustainable environment or through a governmental obligation to protect the environment. Although exact accounting differs by commentator, according to Tim Hayward, ‘around fifty’ nations’ constitutions contain environmental rights, and ‘more than a hundred countries have constitutional environmental provisions of some kind’: Hayward, T., Constitutional Environmental Rights (Oxford University Press, 2005), at pp. 3–4.Google Scholar

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3 For examples of this earlier scholarship, see, respectively, Stone, C.D., ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review, pp. 450–87Google Scholar; Sax, J.L., ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1970) 68 Michigan Law Review, pp. 471–566Google Scholar; Brown Weiss, E., In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Transnational, 1989)Google Scholar; Kutner, L., ‘The Control and Prevention of Transnational Pollution: A Case for World Habeas Ecologicus’ (1977) 9 Lawyer of the Americas, pp. 257–81Google Scholar

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5 See Rose, C.M., ‘Environmental Law Grows Up (More or Less), and What Science Can Do to Help’ (2005) 9 Lewis & Clark Law Review, pp. 273–94Google Scholar (advocating continued reliance on science as the fundamental basis of environmental law); Tarlock, A.D., ‘Environmental Law: Ethics or Science?’ (1996) 7 Duke Environmental Law & Policy Forum, pp. 193–223Google Scholar (concluding that environmental law must remain science based); Wapner, P., ‘Environmental Ethics and Global Governance: Engaging the International Liberal Tradition’ (1997) 3 Global Governance, pp. 213–31Google Scholar (suggesting the reframing of international environmental concerns in the nationalist and individualist terms liberalism cognizes).

6 Thompson, B.H. Jr., ‘Constitutionalizing the Environment: The History and Future of Montana’s Environmental Provisions’ (2003) 64(1) Montana Law Review, pp. 57–98Google Scholar, at 187.

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14 See Daly, n. 12 above, at p. 82.

15 See n. 11 above.

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17 Ibid., at pp. 2136–45.

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19 O’Neill, J., ‘Representing People, Representing Nature, Representing the World’ (2001) 19(4) Environment and Planning C: Government and Policy, pp. 483–500CrossRefGoogle Scholar, at 497 (‘Given the necessary absence of authorisation, accountability, and presence, claims to speak on behalf of non-humans and future generations relies on epistemic claims, coupled with care’).

20 Tarlock, n. 7 above, at p. 224.

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22 Cf. Slovic, P., ‘‘If I Look at the Mass I Will Never Act’: Psychic Numbing and Genocide’ (2007) 2(2) Judgment & Decision Making, pp. 79–95Google Scholar (describing psychological studies in which both positive affective sentiment and willingness to make donations to humanitarian causes were shown to decline when analytical thinking was primed through statistical information and through increasing the number of individuals benefitted).

23 Ackerman, B., ‘The Living Constitution (2006 Oliver Wendell Holmes Lectures)’ (2007) 120 Harvard Law Review, pp. 1737–812Google Scholar, at 1793.

24 Thompson, n. 2 above, at p. 898.

25 See Ackerman, B.A., Social Justice in the Liberal State (Yale University Press, 1980), at pp. 93–5.Google Scholar

26 See Kysar, n. 16 above, at p. 2128.

27 Cf. Habermas, J., Between Naturalism and Religion (Polity Press, 2008), at p. 273Google Scholar (describing Rousseauean tradition in which ‘sovereignty branches internally into a communitarian understanding of the political freedom of the members of a national community and toward the outside into a collectivist understanding of the freedom of a nation that asserts its existence against other nations’).

28 Agamben, G., The Open: Man and Animal (Kevin Attell, 2004), at pp. 76–7.Google Scholar

29 Ibid.

30 Ibid.

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32 See Vlahos, J., ‘Pill-Popping Pets’, New York Times Magazine, 13 July 2008, available at: http://www.nytimes.com/2008/07/13/magazine/13pets-t.html?pagewanted=all.Google Scholar

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34 Klaus, V., ‘What is at Risk is not the Climate but Freedom’, Financial Times, 14 June 2007, at p. 9.Google ScholarPubMed