Warning: Wild Lawyers at Large

28 September 2010 by Rosalind English

A group of lawyers, academics and campaigners has been deciding how to shake up our legal landscape to make the future safer for our environment.

Sixty years of human rights and it feels like they’ve been with us for ever.  Two hundred and nine years since the founding fathers’ Bill of Rights came into effect in the United States; two hundred and eleven since the French National Assembly adopted the Declaration of the Rights of man. Now, there are more humans to seek out and flourish those rights than was ever imaginable in those brave new worlds.

In Paul Simon’s words, there are

Too many people on the bus from the airport

Too many holes in the crust of the earth

The planet groans

Every time it registers another birth

People’s rights and aspirations, as set out in these pioneering aristocratic instruments, may have reached the end of their useful life.

It is time to take the “human” out of “human rights”

How shocking that would be… but think about what we are seeking to replace. The most soaring claims to health, prosperity and happiness were all made in documents propping up some of the world’s most oppressive regimes, notably the Union of Socialist Soviet Republics and its satellite states.  The more modest political and individual entitlements enshrined in regional instruments such as the European Convention on Human Rights will avail no one when the world is ravaged with water wars and migrations of starving refugees. They are declarations of optimism for times of plenty and the time has come to rethink and even reverse out of the anthropocentric focus of traditional rights jurisprudence, which is

A human- centred mindset that disregards Nature’s laws and sees humans as disconnected from Nature. This mindset is embedded in our laws, our governance systems and in our education, religion and economy. It legitimises the domination and ill-treatment of Nature as an object to be exploited and destroyed.

This is the mission statement of Wild Law, which this weekend held a workshop – the fifth in the series – in a forest outside London. The aim is not to conspire to assassinate the rich and throw the takings to the underprivileged, or to promote universal anarchy.  But it is an attempt to usurp power, by challenging the control mechanisms of our current governmental and legal regimes. By bringing together  a range of practitioners, writers and diverse thinkers from the law, universities, campaigning groups, commerce, industry and even government itself, the idea is to knock heads together  until this human-centred regime can be turned on its head in to lead us “from an era of ‘resource use’ to one of ‘relationship’ with the land.”

Nature has intrinsic rights to exist, to habitat and to participate in the evolutionary process.

Wacky? A bit. Utopian? Possibly. Po-faced? Not at all. Unlike many of its cousin movements, this constellation of individuals with wide-ranging interests from farming and neuroscience to geology and the new economics, are not bent on hair-shirtism. In the pleasant environs of the Lee Valley Country Park, one of the last remaining semi-natural habitats in Greater London, the talk and the wine flowed and food was plentiful (locally sourced of course). Nor was it all motherhood and apple pie. The three formal sessions of the weekend concentrated on hard-edged law (David Hart QC on the Habitats Directive); hard science (biologist and farming campaigner Colin Tudge) and the tough statistics of emissions reduction (architect and planner Dr Mayer Hillman).  In the break-out sessions delegates explored the facts and proposals set out in these presentations, to try to agree a position on various difficult questions like “How to get to Zero Carbon”; “Is Ecofascism the only answer?” and “Intergenerational Equity” – considering the rights of future generations in today’s policy and decision-making.

Animal agriculture is the number one cause of climate change.

People are not unanimous on this but many of us feel strongly that food is at the centre of all these debates. Animal agriculture makes a 40% greater contribution to global warming than all the transportation in the world combined. Farming is arguably at the centre of the Wild Law reformist movement because, as Colin Tudge says, agriculture is the place where humans interact with the wilderness (the rest is tourism). Unless we crack the Food Inc/Agribusiness problem, all else is noise. With rampant urbanization and a soaring global population, demand for cheap meat particularly from East Asia and India is set to go stratospheric. Feeding ourselves without trashing the planet is an urgent question, more pressing arguably than global warming.  In any event it’s the same question because intensive food production is bound up with questions of emissions and the squeeze on land: more than a third of the land surface of the planet is dedicated to livestock.

We should reflect on the fact that, of the current vertebrate biomass, we humans represent about 26% and the animals we breed to eat constitute 65%. That leaves a staggeringly small proportion for the rest, and by current trends, those figures are not going to get any better.

Tudge’s Campaign for Real Farming seeks to lead us out of a system of agriculture which is designed to maximize wealth and back into the sort of farming – local and non-intense – that actually feeds people.  Just in case this sounds like a manifesto for a negligible proportion of the affluent West, Tudge argues forcibly that

it became clear by the 1970s that human protein needs had been greatly exaggerated. People don’t need a diet with 15 percent protein a day. …Cereals and pulses together provide first class protein…So the shift in nutritional theory – towards much less protein, and particularly less animal protein – could and should have transformed the face of agriculture. It should have halted the frantic emphasis on livestock. But of course it did not. …livestock can be highly lucrative, and where lucre leads these days, all human endeavour, including agriculture, is bound to follow.

Any attempt, says Tudge, to persuade governments to act differently is a waste of effort. He advocates an “agricultural enlightenment” – where people take over the food supply from government and big business – and by returning to the land, we can create a self-reliant system whereby we produce “lots of plants, not much meat, and great variety”, which is what we need, nutritionally speaking. The current system produces vast amounts of greenhouse gasses, pollution, surplus and money, which is concentrated in the hands of agribusiness whose funds back political parties who are consequently terrified of upsetting them. This is not a thought experiment; grassroots land reform must be undertaken and driven by people who try to farm well.

We can do this in two ways, says Tudge. Either via a trust for enlightened agriculture, whereby a conglomerate of people contribute funds to buy land for this “renaissance” of real farming; or by securing the agreement of current landowners (50% of the land in Britain is in the hands of 5,000 people) to have their land divided and managed in the interests of this “enlightened agriculture”. Tudge’s word for this is “Renaissance”, which is an attractive notion compared to “Reform”, which has failed despite decades of effort, and “Revolution”, for which, of course, there is no will.

This relates back to the fundamentals of  the Wild Law movement, which is underpinned by the notion that law can and must be turned from an instrument of dominion over nature to the service of the wilderness in its widest sense.

We have to rethink the way we eat.

We also (not a surprising message from a conference of this sort) need to stop kidding ourselves about our climate change initiatives. Sustainable development is an oxymoron, says an uncompromising Dr Mayer Hillman. Low carbon travel is a dangerous illusion perpetuated by nonsensical notions such as planting a tree to compensate for jet travel. And high-speed trains may be better than Boeing 747s, but they’re not carbon neutral.  Economic growth simply cannot be reconciled with the reduction of greenhouse gasses. But this is not the message that people want to hear, and of course the people are the prime movers of policy in a democracy. So… does this mean the institution of an autocratic command system in its place, a sort of “eco-fascism” that will address the pressing need to reform by taking unpopular action? A question for parliament – this was a suggestion from the floor – is at what level of carbon emission is the government permitted to declare a state of emergency?

So,  apart from producing more gas-guzzling international talking shops like Copenhagen and the like,  what role does law play in this regard? If we can’t tolerate the notion of detaching rights from humans, one suggestion was to formulate a jurisprudence that incorporates the rights of future generations and instituting an ombudsman to act in their interests. This is neither ridiculous nor impossible: Hungary has just such an institution. It buys in to our emotional attachment to the concept of “children” and capitalises on the woolly but forceful notion that we can determine their future. Why not?

Then there is the more fundamental proposal  from Hillman, who has spent the last forty years campaigning to implement realistic rather than wishful ways of preventing catastrophic climate change. We need to recalibrate the fundamental tenet of our legal system, that people have an inalienable right to do what they want to do within the law. And if we are not up to that task – and Hillman is not optimistic on that front – then carbon rationing will have to be introduced. That means making it a criminal offence to go beyond our personal carbon emissions allowance.

We must steel ourselves for the argument about human rights (Matthew Parris)

This is the tough side of wild law – where, as I suggested earlier, it parts company with motherhood and apple pie. But the point of the workshop is not to plunge us all into despair, with the last-teaspoon of burning oil mindset that follows and to hell with the planet. The idea is to provoke us into thinking hard about solutions, even though that thinking leads to unpalatable ideas. Like, for example, the introduction of family carbon rationing (this was another question from the floor). Like our hard-wired urge to consume as much fat as we can to guard against Neolithic famine, the “right” to breed and the “preciousness” of children is so deeply engrained that even the most puritanical Greens feel honour bound routinely to condemn the population-limiting policies of India and China. But insulating our houses and using the right kind of light bulbs will count for nothing if we continue to insist on our freedom to produce a genetic footprint of whatever size our emotions and instincts dictate at the time. No government or international organisation has the stomach to implement any kind of restraint on this fundamental drive. But something has to be done, if only indirectly. Dr Hillman’s research has indicated that

the considerable, rapid and necessary reduction of emissions is highly unlikely to be achieved on a voluntary basis. I have concluded that, as a matter of great urgency, governments across the world must set mandatory targets based on a global agreement on per capita rations, delivered in the form of personal carbon allowances.

Terrifying notions, but things that should be talked about, not ignored.

The concept of Wild Law proposes that we rethink our legal and political systems to turn the tide of environmental damage and enable new means of addressing the significant challenges we face. Most of our environmental laws focus on how much pollution and damage we can get away with rather than restraining our activities to benefit the whole of the “Earth Community”.

So, do any of our existing legal norms and practices incorporate the values at the heart of Wild Law? David Hart’s paper on the  Habitats Directive was perhaps the most cheering of all the discussions during the weekend.  Hart distinguishes between the broad and sweeping statements of policy and aspiration, embodied for example in the Human Rights Convention, which he describes as “headline law”, and the nitty gritty mechanics of enforcement found in the small print of legislation like the  1992 Directive:

Optimists will think that there is a prospect of changing these headline laws in the light of changing expectations of how we should behave towards our earth. Plainly, we need somehow to embed a rather more wildlaw-friendly set of values into our headline laws. This, we believe, may modify the terms of our nerdy law, by stripping away some of the humanocentric backing for it.

So this venerable Directive upholds the interests of nature to the detriment of proposed projects, constructions and activities in any areas inhabited by species designated by the Directive . By Article 6 the Directive imposes an obligation not to do anything that leads to deterioration of the habitat in those areas (Art 6(2); the obligation to assess plans and projects and agree to them only if they shall not affect the integrity of those areas (Art. 6(3)), and finally the let-out, although a “tough one” as Hart’s presentation demonstrated: if proposed measures do affect the integrity of the site, and if there are no alternative solutions, they must pass the “Imperative Reasons of Overriding Public Interest” test and the Member State “shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected.”

A good example of how this might work in action is the proposed Severn Barrage.

The Severn Tidal Project is one of the starkest environmental dilemmas of the day

The plan is to harness the tides of the Severn, either by some sort of dam or lagoon, or via various turbines placed in the Severn. The largest of the remaining proposals is to put a 16km barrage from Cardiff to Weston. The upside would be that, once this was built, such a barrage would supply some 7% of the UK’s electricity carbon-free, or over 8,000 MW. The downside is the potential loss of over 20,000 hectares of intertidal habitat:

The estuary at the moment is an internationally important site for migratory birds, and a number of species including the shelduck, dunlin, redshank, teal, European white-fronted goose and pintail are there in internationally important numbers. There are also implications for migratory fish such as the salmon and two species of shad who spawn in rivers upstream of the dam, and are likely to be severely affected by passing through the turbines generating the power.

As Hart points out, without the Directive, the government would have simply gone ahead and built the barrage. But it falls squarely into Article 6 territory. Even if the project clears the “any alternative solution” hurdle, it is hard to imagine how the government would satisfy the requirement that any compensatory measures required by Article 6(4) could be found or would be acceptable:

Habitat plays a much more subtle part in other organisms’ lives than simply being a place they can live and feed. The whole point about a wide distribution of a species is that it leads to genetic diversity, which may not simply be able to be replaced by an increase in numbers in an entirely separate site whether in or out of the UK.

And this is by no means hypothetical. Projects have been stopped on the shoals of Article 6. As Hart’s presentation illustrated, it is remarkable and, to my mind, deeply heartening that a piece of nature legislation could stop a massive renewables infrastructure project from proceeding, simply on the basis that the lost habitats were, put simply, irreplaceable as a matter of fact.

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Read more:

• More posts on environmental law
• Pressure grows for reform of access to environmental justice
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