Changing America's Environmental Laws

Abstract from a talk by Andrew Kimbrell at the Gaia Foundation, September 2007. Written by Stephen Frank.

Andrew Kimbrell is an attorney involved in public interest legal activity in numerous areas of technology, human health and the environment including genetic engineering, nanotechnology, climate change, human cloning and the labelling of GM foods. He is executive director of The Center for Food Safety and founder of the International Center for Technology Assessment, USA. He has written several books and appears on radio and TV across the USA. In 1994 he was named as one of the world's leading 100 visionaries.

How can a tree or a mountain take care of itself? Where can they find an arena in which to fight for themselves? They cannot argue in court because they are considered to have no agency - that is, they cannot express the power to achieve a result. When one doesn't have agency in the human world, such as with young children in divorce cases, a guardian ad litem is appointed to represent the best interests of the children involved. Attorney Andrew Kimbrell sees a way in which this concept could be applied to environmental litigations. Imagine two corporations: one wants to use a mountain for strip-mining the other wants to have hiking trails. But what does the mountain want? In the dispute the court would appoint a guardian ad litem for the mountain.

Andrew Kimbrell is an advocate for the environment. Against a background of ideas like this, he and his legal partner, Joseph Mendelson, devised a lawsuit and fought the Environmental Protection Agency (EPA) over seven years, up through the lower courts, until finally achieving victory at the US Supreme Court in April 2007. The decision forces the EPA to regulate carbon dioxide pollution for new motor vehicles. As an air pollutant, carbon dioxide 'can be reasonably anticipated to endanger public health or welfare' and can therefore be regulated under the Clean Air Act.

This was the first time the US Supreme Court expressed an ecological consciousness. There was discussion about the weather and about living systems and the acceptance that while the disruption of those living systems may not lead to clearly defined results, it might lead to bad results. In other words, they expanded the right to initiate or participate in legal actions that includes a precautionary principle: in environmental cases, even if you cannot say with certainty exactly what harm will be caused, it is enough to proceed on the basis that some harm will be caused.

The Supreme Court's decision opens up the likelihood of litigation against carmakers and fuel companies that will require them to create better systems to cut CO2 emissions. But the implications of this are more far-reaching. It will bring about the possibility of litigation that could force other government agencies to address global warming. In other words, this single Supreme Court decision will have a significant impact on the future course of environmental regulation in America.

Kimbrell also sees other ways in which environmentalists can proceed. He has won cases using an Environmental Impact Statement (EIS) rather than going the usual route of suing for damages. When suing for damages, you have to prove, for example, that your cancer was caused by the pollutants from the factory next door and did not originate from the exposure to chemicals you received growing up on a military base. However obvious the origin of one's cancer may appear to oneself, in court, causation can be almost impossible to prove and, of course, a keen lawyer will make the most of any ambiguity. An EIS, on the other hand, avoids the causation issue by exploring the probable environmental, social and health consequences on virtually every type of activity affecting the quality of the human environment. If you put something into the environment that has foreseeable consequences - for example GM crops that will pollute organic or other crops - you are liable, even if causation can't be directly shown. With an EIS, Kimbrell was able to stop the use of GM crops because organic farmers were going to lose their local markets and conventional farmers their European markets. When a company puts a known carcinogen into a product and someone exposed to that product gets cancer, using an EIS that company can be held liable because it put something into the stream of commerce that it knew could have this impact. Direct causation does not have to be proved.

We are today completely webbed in to highly technologised systems. The animals we eat are often brutally murdered in horrific circumstances; forests are burnt down to rear those animals; the airplanes we take so automatically are one of the worst purveyors of global warming. In so many instances we make decisions at such great distances from the impacts of those decisions that Kimbrell feels we have lost our moral and ethical accountability. This does not make us evil. But it does make us complicit. He sees global warming, world starvation and what is happening with the economic system and its consequences in human suffering as systemic evils, linked to each of us through these technological industrial systems. We do not just have an environmental crisis, we do not just have a food crisis; we have a moral crisis and an ethical crisis and, in truth, a legal crisis because the majority of the legal profession is actually assisting that systemic evil become ever more efficient. Not that the lawyers involved are themselves necessarily bad, any more than you or me. But the legal system is so entwined with the systems that cause so much harm, that it can seem as if they are more culpable. But, in the end, we are all complicit.

We Have lost our moral and ethical accountability. This does not make us evil. But it does make us complicit.

Kimbrell calls this systemic evil Cold Evil because it is essentially non-relational. It has no heart. Efficiency, objectification and competition offer us a non-relational theology of Cold Evil. Efficiency, the consciousness behind technology, is maximum output with minimum input and minimum time. This is a good thing for machines but not for people. In the name of objectivity science separates the qualitative from the quantitative, only valuing the latter. Emotions and intuitions are irrelevant to it. Competition tends towards the elimination of the other. It is essentially exploitative, hostile. Efficiency, objectification and competition are an isolating and alienating combination. They do not further relationship. We see this loss of relationship in the stock market where the only aim is to profit. Those who invest in the stock market are not even accountable for its crimes. Corporations may be particularly unpleasant in the way they do things, but ultimately it is the technological systems themselves that are destructive. Even if we did away with corporations, as long as we have our non-relational, unethical systems, other technocracies would come along to take them over.

In an ideal world, the legal system would be neutral. The Greek goddess, Themis, is the antecedent of the Roman Justitia, Goddess of Justice, who is depicted as a beautiful strong woman with a set of weighing scales upon which she measures the evidence of each party in a case. She carries a double-edged sword, the sword of Truth, which, using the power of Reason and Justice, may be wielded either for or against any party. She wears a blindfold, indicating that justice is meted out impartially, without fear or favour, regardless of the identity, power, or weakness of the parties involved. The more ancient Themis symbolised the 'law of nature', and was the embodiment of divine order, law and custom. When Themis was disregarded, Nemesis brought just and wrathful retribution. Judges were often referred to as 'themistopoloi' - the servants of Themis.

Natural law is the fundamental order underpinning modern law. The American Declaration of Independence and a number of documents of the Enlightenment contain rights and freedoms we consider natural to us, for example, the freedom to act, to speak, to be happy, to fulfil our destinies. Legal dictionaries define natural law as laws that comport with the laws of nature - but so far they do not mention ecology! Yet you cannot have natural law without understanding the laws of nature. Kimbrell thinks that natural law could be the basis of a potential new movement. By recognising ecological relationships, the courts are returning to this fundamental concept. Our job is to continue expanding the concept of natural law - to extend it from the human to the entire biocommunity, so that it's not just about social relationships, it's about all ecological relationships.