The Ecocentrists

U.S. Intellectual History Blog just finished a very interesting roundtable, organized by Anthony Chaney, on Keith Makoto Woodhouse's The Ecocentrists: A History of Radical Environmentalism (Columbia UP, 2018), the 2019 winner of the Society for US Intellectual History’s award for best book of intellectual history. The roundtable includes insightful essays by Roy Scranton, Natasha Zaretsky, Paul Murphy, and Daniel Wayne Rinn, as well as a response by Woodhouse.

An excerpt from Zaretsky's piece demonstrates the relevance of the series to legal and environmental historians and practitioners alike:

[The] fantasy of a world emptied of people casts humans as an invasive species and the non-human world as bouncing back once we have exited the scene. In The Ecocentrists, Keith Makoto Woodhouse terms this thinking “holism”—a tendency to portray human civilization as comprised of an undifferentiated mass of people bearing down on a planet with finite resources and capacities. This proclivity toward holism was at the heart of radical environmentalism, where it played a paradoxical role. On the one hand, it gave the movement its teeth and empowered activists to reject the incrementalism of mainstream environmental organizations and engage in direct action, often at personal risk. On the other hand, at its worst, holism could shade into misanthropy, a blindness to social and economic inequality, and even anti-immigrant nativism.

Woodhouse is keenly aware of this paradox, and the portrait of radical environmentalists that emerges are nuanced. This book neither pathologizes nor romanticizes radical environmental activists. Much of the book centers on the story of Earth First!, and at one point, Woodhouse stresses that Earth First!ers saw themselves as part of a movement rather than an organization. It is worth taking a moment to reflect on the depth of that distinction. Earth First! was founded in April 1980 at the start of a decade when the radical energies of many social movements of the 1960s and 1970s would be routed into a dense and well-funded liberal apparatus comprised of non-profit organizations, think tanks, and lobbying groups that sought to reform the system from the inside. Modern environmentalism was particularly vulnerable to this kind of institutional capture because of its reliance on litigation strategies. But Earth First!ers were “movement” people. To be a movement person is to set oneself apart from the dominant society, to feel swept up by the forces of historical change, and to place political commitment at the center of your everyday life in ways that people outside the movement often find baffling and inexplicable. These tendencies arguably ran even deeper for radical environmentalists, who were motivated by a sense of urgency predicated on the prediction that the planet was running out of time. The Earth First! slogan—“no compromise for Mother Earth”—captured the movement’s single-minded drive.

But that single-mindedness also created contradictions that dog radical environmentalism to this day. The portrait of an existential standoff between an imperiled earth and “human civilization” overlooked the histories of global capitalism, colonialism and imperialism, enslavement and coercive labor structures, the appropriation of indigenous lands, concentrations of wealth and resources in the global north, and widening social and economic inequality. When radical environmentalists simplistically argued that “people were the problem,” they failed to grapple with how these histories were entwined with assaults on land, air, and water. This critique of a “universal humanity” will be familiar to anyone who has followed the more recent debate about the Anthropocene, the geoscientific term used to mark the moment when human activity became traceable in the geological record. Scholars such as Jason Moore, Andreas Malm, and Donna Haraway reject the term “Anthropocene” for its universalizing tendencies, introducing instead clumsier but more precise designations such as the Capitalocene, the Chthulucene, and the Plantationocene. Woodhouse’s book reminds us that the current Anthropocene debate has deep historical roots. It has long proven difficult for radical environmentalists to simultaneously combat both the planetary threats posed by humans and the inequalities that exist among humans. (Radical environmentalists are not the only ones who struggle with this. Activists focused on human inequality have also tended to subordinate the non-human world, but that is a different–if not unrelated–story). 

Law in the Anthropocene? Maybe not

Eric Biber recently posted a series at Legal Planet based on his recent Georgetown Law Journal article, "Law in the Anthropocene Epoch" (abstract below). The Anthropocene, for those who have somehow missed this buzzword, is (according to its proponents--it has yet to be officially adopted) a new epoch, in which the signs of human changes to the planet are visible in the geologic record. The article and blog posts contain a useful catalog of ways in which current legal doctrines and institutions do a poor job of dealing with environmental challenges, and essentially argue for the desirability of major changes in liberal conceptions of individual rights and private property. That sounds right, but I'd like to quibble over three historical elements of the argument.

First, Biber's confidence in the direction of future political and legal change ("Humans will inevitably respond to the Anthropocene", "These responses will ineluctably lead to greater government involvement", etc.) seems to me problematic, reflecting an environmental-determinist and functionalist view of legal development that I find unconvincing. Many of the challenges identified by Biber have been with us for some time, and the law has apparently not adapted to them. It is not clear that it must or will do so in the future. I think a more tentative or even a normative tone would have made for a more convincing argument.

Second, Biber's use of "the Anthropocene" is idiosyncratic. Many proponents of the idea of an Anthropocene epoch seem to have settled on a start date in the mid-twentieth century, though others (including the originators of the idea) argue for an 1800 start, and others would push it back even further. In any case, if there is an Anthropocene, we are already in it, the challenges identified by Biber are already upon us (with many of them hundreds of years old), and so if, as he argues, the law will change in response to them, it should have already done so. If the Industrial Revolution took place during the Anthropocene, it is hard to make sense of his argument that "These changes will parallel similar revolutionary legal changes associated with industrialization and the development of a national economy in the United States in the nineteenth and twentieth centuries."

Water management and American liberalism

Water Alternatives recently published a review by Joe Williams of JJ Schmidt, Water: Abundance, Scarcity, and Security in the Age of Humanity (NYU Press, 2017). From the review:

The central argument – which might rankle were it not so meticulously made – is that as critical hydro-social scientists we have been getting things wrong for years. Schmidt contends that the old story about the separation of society and nature under modernity and the entrenchment of binary Enlightenment thinking does not apply to water management. The conceptual starting point of many critical scholars, of the transformation of naturally occurring and materially messy 'water', to the industrial product 'H2O', delineated, separate from nature, is, according to Schmidt, a false premise. The logic of water management conceived in the United States in the late 1800s, that has since spread across the world, has instead always connected human society, through water, to the land and geological history in particular and politically significant ways. "The difficulty", he argues, "is not a society/nature dualism or even unique human agency. Rather, the problem is the historical attempt (and ongoing consequences) of a failed strain of social science in the United States that sought to do away with the society/nature dualism" (190). This philosophy of water, through which American (and now global) societies are intimately connected to the land, is given the conceptual handle of 'normal water'. By this, Schmidt refers to the "program of bringing water’s social and evolutionary possibilities into the service of liberal forms of life" (6). Normal water, then, describes a normalised and entrenched set of socio-cultural practices, economic conventions, technological and institutional structures, and geological processes, that link together human society, biological life and planetary evolution under the logic of liberalism. The book traces the development of normal water through its inception at the beginning of American expansionism, its internationalisation under post-war development, and into the Anthropocene.

The political, techno-institutional and conceptual emergence of normal water, according to Schmidt, is premised on three assumptions: "that water was once abundant, that it has now become scarce, and, as an outcome of mismanaging scarcity, that water is now an issue of security" (41). The book is correspondingly structured into four parts. Part one, Abundance, concerns the framing of water as a resource central to the development of American society. It focusses on several key figures associated with the Washington DC-based Cosmos Club around the end of the nineteenth century and beginning of the twentieth, notably W.J. McGee and John Wesley Powell. Water was seen by these men as having geological agency that, if combined with human agency, could form the basis of the most advanced form of liberal society. The driving principle of normal water in the era of abundance, Schmidt says, was that the agency of water could be "synced with the coevolution of American society and the mutual adjustments that water and society made to each other" (79). In an attempt to cement American independence from European colonialism, W.J. McGee even proposed that currency should be tied to water rather than the gold standard. In this respect he was unsuccessful, but the corresponding principle that water was a public good that should be managed for 'the people', Schmidt argues, has formed the bedrock of normal water.

Coming into the Anthropocene

A few months ago we noted Jonathan Cannon's Environment in the Balance: The Green Movement and the Supreme Court (Harvard UP, 2014).

Jed Purdy's forthcoming (Harvard Law Review) "Coming into the Anthropocene" is a thoughtful review essay of the book, recently posted. The abstract:

This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and highly contested regulatory and judicial interpretation. This analysis, however, does not limit the interest of Cannon’s analysis to this political moment. Rather, Cannon’s integration of legal and cultural analysis has great promise for the Anthropocene, the dawning era when human decisions and values will be among the most important forces shaping the planet. In the future, it will be necessary to think of environmental law as both reflecting and producing ideas of the value and meaning of the natural world. Cannon’s analysis is an excellent starting point for an Anthropocene approach. 

The beach lots at issue in Lucas v SC Coastal Council, the salient case in
which the Supreme Court used Property to limit environmental regulation
(courtesy of William Fischel)

More on the book here.

Stone Age environmental law

Environmentalists are sometimes accused of wanting to return to the Stone Age. Here's a fascinating, recently posted article--Ryan Soa's "Droughts, Floods, and Wildfires: Paleo Perspectives on Disaster Law in the Anthropocene"--that argues that the problem with modern American environmental law is precisely that it neglects the coping strategies of hunter-gatherer societies in favor of patterns of behavior adopted in the wake of the neolithic revolution. From the article's conclusion:

Hundreds of thousands of years of hunter-gatherers survived, and in some ways evolved as a result of, extreme droughts, floods, and wildfires. They did so despite extraordinary ecological changes they could not dream of controlling, adapting themselves to the new realities of their environment. Some approaches worked, and inevitably some did not. But a hominid record that stretches millions of years reveals a model for resilience to extreme natural events like droughts, floods, and wildfires. First and foremost, they were mobile. For some hunter-gatherer societies this meant the entire community migrated to a more favorable environment; for others, the relocations were temporary. Whatever the extent, societies that prioritized mobility were successful in removing people and assets from harm’s way. Second, their approaches were diversified. Societies were adept at recognizing and exploiting many potential food sources and ecosystem services. Mobility and diversification, in turn, were made possible by a sophisticated awareness of the surrounding environment. Ecological changes and opportunities were recognized and effectively integrated into community decision-making processes. These characteristics of the Paleolithic hunter-gatherer – mobility, diversification, and awareness – allowed societies to survive for thousands if not millions of years. 

Neolithic tools

The Neolithic Revolution brought a fundamental shift to the human lifestyle. Agricultural systems require settlement and management of a static area. When a drought, flood, or wildfire strikes the region, escape to more favorable conditions is not possible. The vulnerabilities of this approach are exacerbated by reliance on one or a limited number of short-sighted resilience strategies, such as cutting down a forest or building a dam. What mitigation options remain are not capitalized on due to a low level of awareness of the surrounding environment and its feedbacks, or an inability to effectively translate awareness into meaningful policy change. These characteristics of vulnerable civilizations are apparent in the legal frameworks of the United States. The totality of drought, flood, and wildfire laws and policies conform to three basic approaches: 1) controlling nature; 2) spreading risk across society; and 3) providing ex-post disaster relief. The first approach utilizes impressive feats of human engineering and ingenuity, but inadequately considers the consequences of modifying natural systems. Relying on infrastructure is equally problematic because built structures are prone to deteriorate and fail.Spreading risks across society by subsidizing insurance premiums for people and property in high-risk areas is compassionate and may promote other policy interests, but for purposes of building resilience to extreme natural events is not productive, and may in fact be counterproductive. The current trend of distributing generous disaster relief packages to affected communities is similarly compassionate but ineffectual in building resilience. Taken together the paradigm of disaster law in the United States boils down to strategies that control nature or, should that fail, reactively soften the blow.

...It is unlikely that the highly populated agricultural societies of the Anthropocene will return to a nomadic hunting and gathering lifestyle. Nonetheless, millions of years of human evolution and adaptation to droughts, floods, and wildfires tells a success story that has long been overlooked. For the sake of our collective resilience to extreme events, we would be wise to take another look. Despite the contrast in lifestyles, droughts, floods, and wildfires have been a constant feature of humans in their environment. The resilience model of the past provides a paleo perspective on contemporary legal frameworks, and can helpfully inform the future.

Evolution and environmental law

Jotwell recently posted "A Legal Beagle's Voyage", Steve Gold's review of Nicholas A. Robinson, "Evolved Norms: A Canon for the Anthropocene", in Rule of Law for Nature (Christina Voigt ed., Cambridge UP, 2013). Robinson, Gold tells us, observes that "the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law."

In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant.

Gold is somewhat skeptical:

Robinson’s claim that cooperation, biophilia, and resilience have become built-in principles of environmentally sensible behavior seems based more in dogged optimism than in observed reality. After all, if these supposedly instinctive norms truly dominated human behavior (and the legal systems humans build to channel their behavior), the world would not be facing the “existential challenges” Robinson rehearses at the outset of Evolved Norms.