Environmental Rights and Canada’s Constitution

Environmental Buttons

Our Conservative government’s recent penchant for gutting several decades’ worth of environmental rules all at once using the stealthy technique of omnibus legislation is no secret. Given this depressing reality, some Canadian environmentalists yearn to ground conservation in something more stable, more permanent, than mere statutory law.

Enter environmental rights.

Environmental lawyer David Boyd, author of The Environmental Rights Revolution and The Right to a Healthy Environment, makes a powerful case for directly and explicitly enshrining environmental rights into national constitutions. He notes that over 140 countries in all parts of the world now have constitutions that feature some form of environmental protection, finds a correlation between these provisions and strong environmental performance, and provides examples of these tools being put to work by regular people and enforced by the courts.

Unfortunately, Canada finds itself on the wrong side of this divide, making no mention of the environment in any of its constitutional documents. Accordingly, and contrary to our self-image, we tend to find ourselves situated near the bottom of OECD rankings on environmental measures. It is for this reason that David Boyd and many other Canadian environmentalists support some kind of green amendment to Canada’s Charter of Rights and Freedoms.

Three possible objections to this approach spring immediately to mind. First, it is often claimed that human beings ought to regard their relationship to the natural world from a perspective of duties, whereas national constitutions more often than not speak the language of rights. Would environmental rights take us in the wrong direction?

I prefer not to get bogged down too much in such symbolic considerations, as it is a well-known truism that every right has a corresponding responsibility. If Canada were to confer upon its citizens a constitutional right to a healthy environment, this would entail enforceable responsibilities to respect this right on the part of individuals, industrial polluters, and all levels of government. But if semantics are a concern, I would certainly not object to a constitutional amendment that characterizes sustainability as both a right and a duty.

Second, not everyone has equal access to the institutions of justice. Could it be that the environmental rights approach would provide remedies only for those who can afford to take the government to court?

The legal system’s inaccessibility is a serious problem for many poor people, but it is a problem that is neither created nor exacerbated by the idea of constitutionally enshrining protection of the environment. Much environmental destruction is so widespread and indiscriminate that virtually everyone suffers (although the poor are without doubt more vulnerable). However, even in those unjust cases where the cries of poor communities go unheard, the solution is not to prevent a potentially useful environmental remedy from coming into being, but to work all the more strenuously to reduce inequality and make the benefits of the legal system more widely available.

The third possible objection is that environmental laws are best left in the hands of democratically elected governments. To allow unelected judges to overturn any aspect of environmental governance put in place by Parliament, according to this argument, is anti-democratic.

This objection is routinely trotted out every time someone disagrees with a court decision, and in fact was commonly heard during the original debate over the adoption of the Charter of Rights and Freedoms. But if it is granted that the courts ought to be able to overrule the government on at least some occasions — and the majority of Canadians who support the Charter’s existence must believe this — then we should ask ourselves what makes it acceptable.

For me, it comes down to the issue of majority rule. In certain situations, even in a democracy, majority rule is not the appropriate way to settle things. Take individual and minority rights, for instance. Freedom of speech, freedom of religion, marriage equality, and Aboriginal rights are a few of the many areas widely considered to be none of the majority’s business, and hence offered explicit or implicit constitutional protection. I believe that the well-being of the natural world is entitled to the same protection, because not all relevant stakeholders are included in a democratic majority. Particularly glaring in their absence from the electorate are future generations and other species — entities who, it might be argued, have even more to lose from environmental destruction than the current generation of human voters.

Yes, for practical reasons it is necessary to secure the consent of the majority and its representatives in dealing with many environmental questions, but that should not give elected governments unlimited authority. For future generations and other species, as well as for ourselves, we must to some extent keep the long-term health of the natural world out of reach from the frivolous, short-term machinations of this or that government, to bestow upon the environment the same aura of almost inviolate importance as constitutionally protected civil liberties.

If only such environmental rights existed already, whining about foreign-backed radicals might be the extent of a government’s attack on the natural world, rather than a mere opening salvo.

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On Growth and Its Limits

Sustainability diagram

George Monbiot offers a fascinating insight in the wake of last week’s United Nations Conference on Sustainable Development (Rio+20) in Rio de Janeiro. While rightly deriding the declaration adopted by world leaders for containing little more than meaningless fluff, he notes an evolution in diplomatic language regarding the environment over the years from “sustainability” to “sustainable development” to “sustainable growth” to, most recently, “sustained growth.”

This seems as good a time as any to launch into a topic dear to every environmentalist’s heart: the growth debate.

Intuitively, it does not make much sense to suppose that infinite economic growth is possible in a finite world. Natural resources are limited, as is the Earth’s capacity to absorb pollution. To observe that we have not yet run up against any economy-shattering limits is to miss the point. Such undying faith in growth, according to biologist Paul Ehrlich, “is roughly equivalent to bragging about one’s ability to write a bigger check each month, while paying no attention to the balance in the account.” And while many predictions of ecological doom have come and gone, miscalculations over timing do not get us off the hook. The fact that limits exist, and that the world will eventually reach them unless we radically change course, is a matter of ecological, physical, and mathematical necessity.

It is here that three points need to be made.

First, the counterargument: human ingenuity (the ultimate free lunch!). Infinite economic growth need not be unsustainable, this line of reasoning goes, provided that it is geared towards such environmentally beneficial ends as recycling, mass transit, and wind farms. Technological fixes and the brilliant minds that think of them will always keep us a step ahead of disaster.

Unfortunately, such solutions will merely delay the inevitable rather than prevent it — which is not entirely a bad thing. The challenge of convincing the world of the monumental socioeconomic change that is needed is not to be underestimated, and environmentalists so far have not been up to the task. In this context, buying time is an important part of any strategy for sustainability. However, the time available to us is limited. Yes, we can substitute renewable for nonrenewable resources, but even the former have fixed rates of regeneration. And gains in energy efficiency are circumscribed by the laws of thermodynamics. Growth can be “green” for only so long before reverting to more familiar forms of ever-increasing production, consumption, pollution, and depletion.

A second consideration: distribution. If what I say is correct, we will eventually have to bring an end to economic growth or else have such an end forced upon us by the laws of nature. In fact, since the world population’s current ecological footprint is already too large to be sustained, we will almost certainly need to “degrow” — to reduce the overall size of the global economy. This is easy enough for somebody in a rich industrialized country to say, it might be objected, but what about those in the developing world, those for whom higher incomes are not a matter of greed but of basic dignity and survival?

My answer, sadly, will not make the job of persuading my fellow First Worlders any easier. The only morally acceptable way to pursue degrowth is, at the same time, to massively redistribute wealth both between and within nations. This means that while the global economy as a whole shrinks, the world’s most impoverished countries will continue to grow until their standards of living improve. Developed countries, meanwhile, those with wealth to spare, will need to “pick up the slack” and degrow even further until some kind of equilibrium is reached. This is the only way to bring about global environmental sustainability without pushing the world’s most desperately poor further into destitution.

My third point is one that makes even environmentalists a little uncomfortable: when we talk about growth, what we are actually talking about is capitalism. Private enterprise needs endless growth to survive. Without it, competitive market economies are reduced to zero-sum games where one person’s win is literally another’s loss. This is why recessions and depressions carry such heavy human tolls. While a no-growth economy could easily be environmentally sustainable, it would not be socially sustainable unless we transition to a completely different mode of production.

That’s right, comrades, I’m talking about the dreaded S-word! (Maybe Joe Oliver was right. Maybe greens — at least some of us — really are radicals.)

So, of the many forms of socialism out there, which should we adopt? How do we get there from here? How much time should we allow ourselves to make the transition? And how do we go about convincing regular people, to say nothing of those with money and power, to embrace such fundamental change?

I leave these questions to someone more knowledgeable than I. In this post, I prefer to restrict myself to superficially discussing limits to growth and their moral and economic implications, and to marking the lack of long-term solutions from last week’s Rio+20 conference. But as always, I am happy to entertain contributions of ideas, strategies, and criticisms in the comments section below from any whose human ingenuity is not quite so subject to natural limits as mine.

A Manifesto of Hopeless Abstractions

I have started this blog mostly in order to give voice to my political opinions, so I feel that an appropriate place to begin is with the three fundamental principles that underlie what I believe: freedom, sustainability, and equality.

Freedom is the most basic of the three — the axiom from which the other two spring forth.  I define it broadly to include doing what you want, getting what you want, and satisfying your preferences (in preference utilitarian fashion, for any moral philosophers out there).  Overall freedom in a society is a product of the negotiation of these sometimes competing individual preferences.  Needless to say, my conception of freedom incorporates both negative and positive rights.  For example, governments can and should provide the positive rights of health care, education, and income assistance.  One cannot meaningfully be said to be free without the basic means of survival and the minimal ingredients for a good life.  But this is not to dispute the importance of government stepping out of the way when appropriate to facilitate the growth of negative rights.  I am a strong believer in the anti-paternalism of John Stuart Mill: “the only purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others.  His own good, either physical or moral, is not a sufficient warrant.”  To me, this means that very high standards of necessity must be met for a government to grant itself jurisdiction over sex, drugs, religion, or expression.

My conception of freedom manifests itself not just individually but collectively as well.  In other words, democracy is not, as it is sometimes purported to be, in conflict with freedom, but rather is its collective manifestation.  (Some might consider “self-determination” a more appropriate term here, but I still believe that freedom is at the heart of my axiom, and I do not wish to dilute it with endless rewordings and qualifications.)  Democracy, according to this line of thinking, should be defended, broadened, and deepened.  In general, consensus is to be preferred over majoritarianism, decentralization over centralization, and participation over representation.  Furthermore, democracy ought to be expanded to realms beyond the political.  The economy, for instance, is in crucial need of democratization through well-designed government regulation and growth of the public sector, as well as increased unionization and the spread of cooperatives.

So where do sustainability and equality fit in?  Beginning with sustainability, it goes without saying that any value derived from freedom is limited by time — by how long it lasts.  And with air and water quality, natural resources, the global climate, and the integrity of ecosystems on which we depend for survival all under threat from the excesses of our civilization, it is not entirely clear how much longer the “good life” will last.  It it therefore imperative, for the sake of holding on to what we have, that we view each individual and collective decision we make through the lens of environmental sustainability.

What is more, we must recognize that it is not only humans whose freedom is important, but all those sentient beings who are on the front lines of the ecological damage that we cause.  It may sound strange to speak of the freedom of animals, for they lack rationality and human language, and for the most part are probably without self-awareness.  But the basic mark of inherent moral worth, as Jeremy Bentham noted, is the ability to feel pleasure and pain.  Just like us, animals are drawn to pleasure and repelled by pain, and we are obliged to fairly weigh these preferences (or proto-preferences) against our own.  To consider only human interests when altering the natural world is the height of selfishness and arrogance.  Other species too deserve our consideration.

Which brings us to equality — by which I mean economic equality, sexual equality, racial equality, intergenerational equality, and even inter-species equality (with qualifications).  The principle of diminishing marginal utility states, plainly speaking, that the more you have of something, the less you want of any additional unit.  One more dollar in the hands of a millionaire, for instance, while he or she will still certainly want it, will not be nearly as appreciated as it is in the hands of a welfare recipient.  This principle is the line that connects freedom (as broadly defined by me) and equality — two values that are commonly (and wrongly) thought to be locked in an eternal battle of mutual exclusivity.  In fact, those on the bottom must be lifted up in order to satisfy their preferences and truly experience freedom, and in a finite world this can only realistically happen if those on top are knocked down a peg.

This is not to say that we must be in a state of absolute equality.  There is some truth to the conservative claim, for instance, that some economic inequality is necessary to provide incentives for good work.  All that I say is that because of the principle of diminishing marginal utility, the burden of proof must be on those who resist calls for greater equality.  It is hard to deny that in today’s world, and in most of its countries, current levels of inequality are far higher than they need to be (to say nothing of the shaky link that exists between riches and merit in our imperfect world).  Accordingly, it is reasonable to judge any policy proposal in part by how it affects the haves and how it affects the have-nots.

So that, briefly, is what I believe.  The principles of freedom, sustainability, and equality are what inform my pie-in-the-sky vision of utopia: a diverse, decentralized, participatory democracy; structured around a strongly civil libertarian constitution; and coexisting with a zero-growth, de-centrally planned economy leaning towards the libertarian or associational end of the socialist spectrum.  I hope to continue to expand on these themes in future posts, as current events unfold and as new ideas come to me.  Thank you for reading!