December 20, 2012

Earth Jurisprudence?

By Damien M. Schiff Senior Attorney

The fiftieth anniversary this year of Rachel Carson‘s Silent Spring has led me not only to read that foundational tome of modern enviromentalism, but also to reflect on the extent to which today’s modern environmental movement has changed from the days of Carson and other movement founders.  Perhaps a good example of the thought behind today’s environmental movement is this excerpt from Judith Koons’ article “Earth Jurisprudence”:

[B]usiness and technology must be reconceived to fit into the Earth community of the present for the future.  To re-envision business and technology means more than designing and making products to minimize their natural impacts.  It means that the purpose of business and technology must be aligned with the centrality of Earth as the source, ground, basis, and direction for all human activity.  Earth is the referent for moral responsibility, not humanity.

In other words, man must shift from his anthropocentric understanding of nature to a non-anthropocentric view.  Now, the degree of the shift depends on whom you speak to in the environmental movement.  I would suppose that a “traditional” prophet like Aldo Leopold (of A Sand County Almanac fame) would advocate for something like a primus inter pares role for man.  More radical types of a Deep EcologyArne Naess tinge might put man among the pares rather than designate him the primus.  But in any event, either version of Earth Jurisprudence seems some distance from the course that Rachel Carson advocated in Silent Spring, which in my view appears decidedly anthropocentric.  After all, Carson’s main beef was against the indiscriminate or excessive use of pesticides and insecticides, not against their use as such.

All this is not to say there is no insect problem and no need of control.  I am saying, rather, that control must be geared to realities, not mythical situations, and that the methods employed must be such that they do not destroy us along with the insects. . . .

[D]iseases and their insect carriers . . . . are important problems and must be met.  No responsible person contends that insect-borne disease should be ignored.  The question that has now urgently presented itself is whether it is either wise or responsible to attack the problem by methods that are rapidly making it worse.

To be sure, Carson subscribed to a “web of life” philosophy and, I would imagine, thought that natural ecosystems have an esthetic value quite apart from their utility to man.  (Why else would she criticize the “control of nature” as a program “born of the Neanderthal age of biology an philosphy, when it was supposed that nature exists for the convenience of man”?).  She favorably quotes Supreme Court Justice William Douglas for the proposition that the “esthetic values of the wilderness are as much our inheritance as the veins of copper and gold in our hills and the forests of our mountains.”  Following a macabre recitation of the death throes of an insecticide-poisoned squirrel, she asks provocatively, “By acquiescing in an act that can cause such suffering to a living creature, who among is not diminished as a human being?”

Yet, Carson seemed willing to sacrifice at least some of these esthetic or emotional values to the needs of man.  Her principal objection, at least as articulated in Silent Spring, was to an unnecessary or irrational sacrifice of environmental goods.

The earth’s vegetation is part of a web of life in which there are intimate and essential relations between plants and other plants, between plants and animals.  Sometimes we have no choice but to disturb these relationships, but we should do so thoughtfully, with full awareness that what we do may have consequences remote in time and place.

Her understanding of the otherwise potentially pernicious “precautionary principle” seems here remarkably weak or, if you will, benign.  (Granted, elsewhere in the book she appears to advocate an almost Puritanical regard to toxins, e.g., “In the kaleidoscope of shifting conditions, what does of a carcinogen can be ‘safe’ except a zero dose?”).

To what extent do the country’s prominent environmental laws reflect a Carson-like “soft” anthropocentrism, rather than a non- (or even anti-) anthropocentric view?  Take the Endangered Species Act.  The Act prohibits harm to endangered or threatened species, and seeks to preserve them and their natural habitats.  At first blush, these goals seem indifferent to whether species are valuable to man.  But, the statute does allow the killing of listed species in defense of human life.  It does not require the protection of insects that are harmful to man.  Moreover, it authorizes a “God Squad” to sanction the extinction of a species when its preservation would impose an unacceptable cost to man.  One of the Act’s main purposes was to preserve species that currently have, or may have in the future, real value to man.  Thus, one could argue that the Endangered Species Act is quite consistent with a Carson approach, in that it values a natural esthetic but ultimately makes man, not nature, the moral touchstone.

I would suspect that a similar analysis would obtain for other environmental laws, like the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, etc.  These statutes, even more than the ESA, reflect a “traditional” environmental approach, also espoused in Silent Spring, of regulating externalities of private enterprise that allegedly harm other human beings.  (Cf. Ronald Coase for an argument as to why such regulation would be unnecessary).  Contrast this approach to that of Professor Koons, who advocates an environmental ethic that accords non-human, and even non-living, beings, considerable moral significance because we are all equal parts of the same earth community.

[I]t is possible to consider human self-consciousness as “the most recent achievement of the immense evolutionary journey.”  Human consciousness is the latest evolutionary event, through which Earth ‘becomes conscious of itself in a special mode of reflective self-awareness.’  In other words, human consciousness may be thought of as an evolutionary gift, opening into a type of consciousness in which Earth, through one of its species, is able to reflect on itself.  Far from a barrier to the moral community, human consciousness is an evolutionary blessing—an “experiment”—to be shared as self-understanding with the Earth community.

Now, to be fair to Professor Koons, her sentiments Ms. Carson may also have shared.  For political and other reasons, Ms. Carson may have wanted to cast her environmentalist “j’accuse” in starkly anthropocentric terms, precisely to maximize its effects.  As the editors of Silent Spring at 50 contend, the book “was less ground-breaking than it is now typically thought to have been, and . . . Carson’s most important contribution [was] her ability to reach out to a broad audience rather than the originality of her ideas.”

Perhaps there is more affinity between Ms. Carson and the modern enviromentalist approach espoused by Professor Koons than one might think simply from reading Silent Spring.  Recent criticisms of the book support the conclusion that its scientific analysis was slapdash, and maybe deliberately so.  For example, the articles collected in Silent Spring at 50 contend:  (1) Carson “ignored information that directly contradicted her claims about birds being decimated by pesticides”; (2) Carson’s analysis of the impact of pesticides on human cancer rates was significantly confounded by her failure “to make key statistical adjustments for population and tobacco use”; and (3) Carson’s critique of DDT largely ignored the significant public health benefits it provided in reducing incidents of malaria and other insect-borne diseases.  The editors of Silent Spring at 50 conclude:  “Much of what was presented as certainty then was slanted; today we know much of it is simply wrong.”  One wonders to what extent a latent non-anthropocentrism in Carson affected her analysis in Silent Spring.

Whatever Carson’s motives, ifSilent Springwas a catalyst for the passage of now hoary federal environmental laws, it’s important to recall that the public side of the catalyst did notderive from the non-anthropocentric source that animates much of the enviornmental movement today, the spirit of which that movement wishes to infuse, often through judicial decision, into those same statutes.


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