The evolved mind: rising to the environmental challenge

20 March 2012 by Rosalind English

This is a shortened version of an article published by Rosalind English in the Journal of Environmental Law and Management November 2011: Cooperation and Public Goods: an evolutionary perspective on environmental law  23 ELM 278-283 

In my 2011 post Why be nice? Human rights under pressure I explored the extent to which our limited tendencies to altruism, insofar as they have survived natural selection, could be institutionalised and enforced. In this article I apply the scientific learning on our cooperative instincts to the question of environmental regulation. I argue that whilst we seem to be hard-wired to cooperate, environmental responsibility will only be instilled under certain conditions that resonate with our evolved psychology, and that most modern environmental law fails to acknowledge these conditions.

Our selfish interests

In law, as in other social sciences, we do well to remind ourselves that our cooperative tendencies, such as they exist, do not derive from some drive to produce objective justice. Our propensity to cooperate with non-related individuals evolved, like everything else, because this trait advanced the reproductive fitness of its bearers. In other words altruism is only transmitted genetically and spread in a population if its bearers are more likely than they would be by chance to receive a benefit from those with whom they interact.  The evidence that human and non-human animals do things that benefit others at net cost to themselves can be explained if it involves helping close relatives who share a high proportion of genes, but scientists have been puzzling for decades over evidence for cooperation between unrelated individual animals and even species. Applying some of these important discoveries to people, evolutionary biologists, economists and psychologists agree that people cooperate only if it is in their long-term self-interest. Individuals gain direct benefits (thereby enhancing their ability to pass their genes on to offspring) from helping others, but only if this cooperation is underpinned by reciprocity, reputational benefits or punishment of non-cooperators.

There is now a huge theoretical literature investigating the possibilities of cooperation in relation to modern society, economics in particular. But of all the social sciences, law has attracted relatively little attention in this field, and most of the literature applying evolutionary psychology to environmental law tends to focus on the international treaties and other regional instruments which occupy centre stage.

Over the past few decades social scientists have devised a series of ingenious experiments to determine how widely and willingly we are prepared to contribute to the public good – the environment being a prime example of such an asset.  A striking and general outcome of these “community investment games” is that cooperation is fragile and declines over time. The conclusion drawn from this research is that the collective action that produces or protects public goods for all, without inbuilt punishment mechanisms, is rendered unstable by the incentive it creates for people to free-ride. This is illustrated by Gerrett Hardin’s classic scenario of the “Tragedy of the commons”, a paradigm of modern human nature in the environment:

In a group of herders, each farmer has an incentive to put as many cattle on a common grazing pasture as possible. The inevitable environmental degradation that follows causes all farmers to suffer. Collectively, all farmers would be better off if they were able to constrain the number of cattle that graze on the commons. Yet, each individual farmer is better off by maximising the number of their own cattle on the pasture.

To avert this self-perpetuating tragedy, we need to have in place systems that ensure continuing cooperation. A group agreement to contribute to public goods must be policed by third party enforces. These take a number of forms, and the impersonal institutions of the law constitute just such a mechanism.

Our fallible minds

However, law must reflect who we are, not what we aspire to be. Aspirational and utopian legal systems invariably fail. For environmental regulation as with everything else, legal instruments should be fashioned on an honest picture of ourselves and our motivations. We are not well adapted for environmental responsibility, and here are the main reasons why:

• We have limited scope for caring about consequences that go beyond kin and friends.
• In so far as we do agree to cooperate with non-relatives, we rely on reciprocity of favour. If this reciprocity can’t be implemented or enforced, cooperation collapses.
• Status is a stronger driver than far-sightedness
• We are prone to self-serving delusions about our own autonomy, generosity and wisdom

In my article I ask whether any of these tendencies are addressed properly, or at all, by the panoply of laws and regulations that are supposed to secure the planet’s future for us.

One of the many psychological biases which militates against any true sense of environmental responsibility is the phenomenon of “temporal discounting”. This is economist shorthand for our tendency to undervalue rewards when there is a delay between paying the cost and reaping the benefits of cooperating. Our propensity to behave as if we will die in a few years is no more than a legacy of the conditions in which our ancestors lived tens of thousands of years ago, when life was short and the future completely unpredictable.  It is perhaps for this reason that we fail again and again to rise to the toxic challenges of our environmentally damaging lifestyles. If we respond to threats at all we constantly show a bias toward those calamities that are immediate, visible, and close to home. Foreseeable externalities like greenhouse gases and waste “sinks” in the air, groundwater, overfishing, species extinction and export of waste to far away countries of which we know nothing barely cause a blip on our emotional seismometer.

Another of these biases, possibly the most powerful, is overconfidence, an exaggerated sense of our own integrity, generosity and control over events, what behaviourists call “positive illusions” which have been shown to have been advantageous in an evolutionary sense. Anyone interested in exploring this subject further should go to Robert Trivers’ fascinating book on the survival value of self deception.

This important mindset informs our sense of morality and in turn feeds into the thinking behind environmental policy, sometimes doing more harm than good. It lures us into the seductive myths of sustainable development (a rationalisation of our species’ continuing consumption and proliferation) or intergenerational equity (an attempt to co-opt our desire for the competitive superiority of our own genetic offspring into the service of the next generation as a whole). These are both placebos masquerading as wonder drugs for the planet’s malaise. As Hardin said, these notions of responsibility are fake –

a verbal counterfeit for a substantial quid pro quo. It is an attempt to get something for nothing

Similarly, status – an evolutionary impluse very much supported by self-deception – is at odds with any potential for environmental responsibility. We are as powerfully driven by notions of rank and conformity as we were when we lived in small hunter gatherer groups. Whatever we are told by our governments, media or even by the evidence in front of our own eyes, we are still all set on out-competing our neighbours, except now we do it with bigger cars or satellite dishes rather than finesse in fighting or tribal rank. Our first impulse is to spend money on goods that will enhance our status rather than shoring up investment in intangible goods even though we know they are to our benefit, such as health and a clean and pleasant environment.

Some solutions from the common law

In the second part of my article I argue that in the rush to formulate from scratch international instruments and administrative rules as a response to the environmental crisis we have neglected some of the most important tools of the common law, which have been very effective in the past at policing opportunism and overriding people’s incentive to free-ride on other people’s contributions. The philosopher Roger Scruton explores this theory at large in his recent challenge to the accepted political orthodoxies of environmentalism in Green Philosophy. Coming at the question from a lawyer’s point of view, I look at the private law of nuisance and its superiority as an instrument for environmental regulation in this country.

Going back to the original argument, laws are effective only if they reflect reality rather than utopia. The law of nuisance is superior to most state-based initiatives, not because it is organic and home-grown as such, but because it secures our sense of mutual accommodation by allowing individuals to calculate how far they can use their surrounding resources without denigrating the value of their neighbour’s property. Based as it is on a delicate balance between reciprocity and self-interest, the right to sue in nuisance corrects the democratic deficit in most environmental regulation.

The right to claim the courts’ protection in respect of our neighbour’s activities which threaten to interfere with the enjoyment of our land has developed in a remarkably flexible way in response to our need to control the use of our immediate environment. It was in response to the pollution problems spawned by the industrial revolution that the landmark nuisance actions found their place in the law reports, moving the line of battle from parochial disputes between individuals to neighbourhoods over large distances. Although parliament sought to allocate liability for pollution in legislation, the evidence is that the giant nuisance actions of industrial Britain provided the most reliable grounds for a cooperative resolution of the considerable environmental challenges then at hand. As one historian has pointed out,

Some of the most noxious nuisances, such as, for instance, the pollution of rivers, are so imperfectly provided against [by regulation] that the old remedy at [common] law, expensive though it is, remains the only resource to escape grievous injury to health or property. (D Fraser, Urban Politics in Victorian England, Leicester Universtiy Press 1976, p 22)

There is no reason why the common law action in nuisance should not continue to evolve to meet the broader environmental crisis via the same mechanisms of neighbourhood, reciprocity of benefit, foreseeability and reasonableness. It has numerous advantages over regulation in holding polluters to account and allocating responsibility, not least of all because it is enforceable by private individuals in cases where official regulators have no vested interest, not just protecting property rights but securing an arrangement for land use to the satisfaction of the community it supports. Nuisance has also evolved to deal with sophisticated forms of cheating. A polluter is not permitted to taint the neighbourhood first and then rely on his own tortious actions as a defence, having changed the quality of the locality in question (see what Buckley J has to say on this in Dennis v MoD [2003] EWHC 793).

The private law of nuisance neatly harnesses our evolved tendencies to be altruistic and respond to social norms, by making self-interest its goal and giving legal status to our need to conform. Nuisance mechanisms work because they are based on the social norm that people ought to be aware of the risk of damage to neighbouring property and if they fail to take steps to prevent it they are liable for the consequences. And this common law manifestation of our environmental responsibility is resistant to the psychological biases described above, temporal discounting and our addiction to status. Individuals can seek the attention of the courts fairly quickly and such action may well enhance reputational benefits, particularly if the nuisance in question affects a large sector of the community.

A stark example – one which faces us every day, in crude and obvious forms (unlike climate change), is pollution. The problem with most pollution regulation emanating from the state is that it fails to address people’s propensity to withhold costly contributions to public goods like clean air and water, and  free-ride on the contributions of others – the NIMBY problem, in other words.I take as my example the case of Barr v Biffa Waste Services Ltd, a recent triumph in the Court of Appeal, showing how a nuisance action can be effective in allocating the benefits and burdens of noxious sites and necessary waste disposal, where an entire arsenal of regulations and laws governing the collection and disposal of waste had signally failed (see David Hart’s post on the CA ruling).

However, the important service that the tort of nuisance has performed in the past in many areas in which humans affect the natural environment – land use, water abstraction and pollution – has been overlooked and diminished as a consequence of a series of judicial pronouncements to the effect that the common law should take a back seat where complex statutory environmental controls are involved (see Lord Goff in Cambridge Water, 1994). This reflects a long-standing orthodoxy about the interface between law and industrialisation, which is essentially that the common law could not by its very nature control environmental impacts with anything like the precision and reliability of regulatory laws enforced by public bodies.

The efficacy of this patchy and over-complex legislation has gradually fallen into doubt. As Lord Hobhouse said in 2003, this area of government intervention

is not exhaustive: it does not necessarily give the third party affected an adequate, or even, any say: the government decision may give priority to some national or military need which it considers must override legitimate individual interests; it will not normally deal with civil liability for damage to property; it does not provide the third party with adequate knowledge and control to evaluate and protect himself from the consequent risk and insurance cost.

Conclusion

It is no accident that the law of nuisance and the concept of neighbourhood developed where communities were local. It is easier to monitor and enforce when there is immediate physical interdependence between people and clearly this is not a model amenable for application to cross-border problems. It remains, nevertheless, a potentially useful tool for environmental regulation at home and therefore it is worth considering how to take nuisance forward in to the twenty-first century. One possible avenue would be to expand the notion of “enjoyment of the land” to mean something more than that identified by the traditional formula of “anything which discomposes or injuriously affects the senses or nerves” (per Lord Westbury in St Helens v Tipping, 1865). In other words, we can derive from the traditional set of specific interests threatened by the nuisance a much wider ranging but nevertheless valuable public good whose value is determined by its scarcity or fragility.

The requirement that the claimant in nuisance should have an interest in property may be a stumbling block if the proprietor of the affected land had no vested interest in taking a claim. Dispensing with the proprietorship requirement was a change to the law of nuisance lengthily debated but ultimately rejected by the House of Lords in Hunter v Canary Wharf and it may yet prove too conceptually problematic in the environmental context. Instead, an environmental commissioner could be appointed to represent these interests in a system analogous to the guardian ad litem or Official Solicitor.

We have made the mistake of trying to overcome the problems of scale presented by the global environmental crisis with correspondingly grand solutions – intergovernmental panels, international treaties, regional tribunals. This is a costly regulator apparatus which creates myriad opportunities for advantage seeking by self-interested individuals and groups. We cannot do without it because the most serious environmental problems are cross-border ones. However, we neglect our local nexus of legal relationships at our peril.
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