Environmental Laws and Principles

NATURAL RESOURCES AND ENVIRONMENTAL LAWS
i.
Environmental laws and principles

a. Conservation Principles and theories
i. The carrying capacity of a biological species in an
environment is the maximum population size of the species
that the environment can sustain indefinitely, given the
food, habitat, water, and other necessities available in the
environment.
ii. The biophilia hypothesis
suggests
that
there
is
an
instinctive bond between human beings and other living

systems. Edward O. Wilson introduced and popularized the
hypothesis
in
his
book, Biophilia (1984).
He
defines biophilia as "the urge to affiliate with other forms

of life".
iii. Hard-Look Doctrine is a principle of Administrative law
that says a court should carefully review an administrativeagency
decision
to
ensure
that
the
agencies
have
genuinely engaged in reasoned decision making. A court is

required to intervene if it becomes aware, especially from
a combination of danger signals, that the agency has not
really taken a hard look at the salient problems. The
Administrative Procedure Act instructs federal courts to
invalidate
agency
decisions
that
are
arbitrary
or
capricious. Close judicial scrutiny helps to discipline

agency decisions and to constrain the illegitimate exercise
of discretion. The hard look doctrine is simply a reflection
of the courts' view of how an effective and meaningful
process of judicial review should be conducted.
iv. Regression takes many forms. It is seldom explicit, since
governments do not have the courage to announce
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backtracking in environmental protection officially for fear
of an unfavourable public response from environmental
and consumer NGOs.
Internationally, it can take the form of refusing to adhere to
universal environmental treaties, boycotting their implementation, or

even denouncing them. This happened for the first time in the field
of
international
environmental
law
when
Canada
decided
to
denounce the Kyoto Protocol during the Conference of the Parties to

the Climate Change Convention in Durban in December 2011.
In EU environmental legislation, regression is diffuse and
appears when certain directives are revised.

National environmental legislation is subject to increasing and
often insidious regression:

changing procedures so as to curtail the rights of the
public on the pretext of simplification;

repealing
or
amending
environmental
rules,
thus
reducing means of protection or rendering them ineffective.

Exceptionally, such regressions may be validated by a judge:
for example, on the 27th April 2012, the Panama Supreme
Court ruled for a provisional suspension of the Protected Area
status given to the mangroves of Panama Bay.
Faced with this diversity of forms of regression, environmental
lawyers must respond firmly and rely on implacable legal arguments.
Public
opinion,
once
alerted,
would
not
environmental and therefore health protection.
By: Tanya Pimentel
Page 2
tolerate
reversals
in
Pimentel, Julie Tanya

Natural Resources and Environmental Law
1:30-4:30 Saturday
SYNOPSIS OF LAND ETHIC
In a persuasive essay, Aldo Leopold tries to explain how we are

ethically and morally obligated to take care of our resources. In his paper,
The Land Ethic Leopold explains how we have viewed the land as, strictly
economic, entailing privileges but not obligations.
This is the main
statement in his essay, and throughout the writing he elaborates on this

statement. He says we have not given the land (the soils, waters, plants,
and animals) the respect it deserves. He talks about our National Anthem
and how we sing of our love for and obligation to the land of the free and
the home of the brave and then he questions our uses of our resources
and in an almost disgusted way, says if you say youre going to take care of
it and love it, than follow through. He discusses how land ownership has
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played a big part of how we now use the land in different communities and
poses the question of many researchers; What if the outcome of settling the
states, and planting the fields if the plant succession had given us some
worthless grasses, shrubs, and weeds to a condition of unstable equilibrium.
Where would we be today?
He talks about resource conservation as an ethic and the land which
contains the most diversity such as marshes, bogs, dunes and deserts may
be privately owned. But if the owner was ecologically minded he would,
be proud to be the custodian of a reasonable proportion of such areas. He
goes on to say some of these lands can be set aside and managed by the
government, but it is the land ethic that comes in to play for the private
citizen whom owns the biologically rich land. He includes the land as part of
the community, and talks about how we should act respectfully to it as part
of our community, rather than treat it as just a tract of land with not intrinsic
value.
SYNOPSIS OF THE TRAGEDY OF THE COMMONS
In his 1968 Science essay entitled "The Tragedy of the Commons,"

Garrett Hardin challenged the morality of humankind's freedom to breed,
suggesting society's only hope, and only solution, for handling the population
problem.1 An extension on the topic originally published by William Forster
Lloyd in 1833, Hardin boldly delivers a solution to the problem that for the
scientific world was a new concept lacking a technical answer. Hardin
reaches his conclusions based on the concept that a communal resource of
universal ownership will inevitably fall to ruin as each rational owner decides
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to maximize utilization of the resource so that he/she collects the full reward
of his/her action. With each individual acting under this rationale, the
collective communes are undeniably limited to a finite resource.
Hardin's thesis is present in the article's subtitle The problem has no
technical solution; it requires a fundamental extension in morality. Humanity
requires the basic extension of a new value insisting that we surrender the
freedom to breed in order that we preserve the other freedoms. We live in a
finite world that can only sustain a limited amount.
His moral implications and philosophical analysis allow for a wellrooted insight on sustainable development. As a civil engineer, sustainable
development is an issue of great significance when assessing global issues
challenging human societies such as global climate change, water resources
supply, energy supply and use, and the hole in the ozone layer.
Hardin's argument and solution to the problem of The Tragedy of the
Commons is therefore a pertinent discussion to the civil engineer. The
approach taken by him, as shown in his writing, is one that boldly navigates
all avenues with no overwhelming bias. Throughout my discussion, I will
present the concept of the Tragedy of the Commons from Hardin's article. I
will analyze his conclusions in relation to how his argument ties into the role
of civil engineering through issues relating to morality and the concept of
sustainable development. A conceptual inspiration generated by Hardin's
moral assessment will be evident in potentially shaping the ethics of a civil
engineer focused on meeting the developmental needs of society without
compromising the needs of future generations.
The inspiration for Hardin's thesis derived from another article by
Wienser and York in Science concerning the future of nuclear war. In their
article, Wienser and York carefully proposed the dilemma of a nuclear age
that has no apparent technical solution. This implicitly suggested that if a
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plausible solution were to exist, the explanation must lie in another realm of
human behavior, a non-technical realm.
To quote Hardin: "It is fair to say that most people who anguish over
the population problem are trying to find a way to avoid the evils of
overpopulation without relinquishing any of the privileges they now enjoy."
With human morals in light, Hardin was effective in proposing a solution to
the population problem, a quandary complex enough to invoke nearly
inconceivable sacrifices in a sense that forces a collective consideration for
society. It seems natural to assume no strong inclination to address this
problem; however, in considering a finite world with exponential growth and
dependency on nonrenewable energy, scarcity will one day become
conceivable. It is through ideals of sustainable development that we must
address this issue. To avoid adverse effects of overpopulation without
sacrificing any privileges is the same as risking everything on one endeavor.
Is it normal human behavior in attending a legal gambling facility to
make just one bet? Do gamblers at the roulette table place all of their money
on one color, one number? No, they typically bet conservatively, hoping to
sustain their payroll until an opportunity comes along to make good on a bet.
Hardin becomes an icon of sustainable development as he proposes his
solution to the population problem with an underlying concept suggesting
that society needs to sacrifice our freedoms of breeding to allow freedoms
that are more important. His solution suggests meeting the needs of today
(sacrifice) to conserve the needs of future generations.
The Tragedy of the Commons develops through Hardin's cattle
herdsmen illustration in which the logic of the commons spawns tragedy.
With these herdsmen keeping their open grazing pastures as full of cattle as
possible, they are inexorably forced to answer a question concerning their
benefit of adding an additional animal to the herd. The answers, broken into
two components, to add or not to add, produce an unbalanced result favoring
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the addition of an animal. The positive outcome of adding another cow to the
herd outweighs the negative overgrazing effect possible from the decision.
An essential factor in this conscious decision is the acknowledgement of the
imbalance. The rational being knows that the adverse effects of overgrazing
will be shared among all.
"Ruin is the destination toward which all men rush, each
pursuing his own best interest in a society that believes in the
freedom of the commons. Freedom in a commons brings ruin to all"
(Hardin).
A major common that Hardin relates is our environment, vastly
threatened by pollution, a direct function of population growth. The moral in
judgment again lies on the lap of individualistic thought. It is easy for one's
waste to disappear into, let us say, a river. That is however, until the
individual considers who will be affected by his actions: his neighbors
downstream. There is no concern for pollution. An increase in the population
density forced humankind to learn the consequences of this "overgrazing
effect." It is concluded that the Tragedy of the Commons could be prevented
most effectively through incentive. To avoid pollution, it must be easier and
lower in cost to treat the pollutants, than to get rid of them untreated.
Therefore, through government and law, humankind will be compelled to
work in harmony.
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SYNOPSIS OF THE MAITHUNAN THEORY
Thomas Robert Malthus was the first economist to propose a

systematic theory of population.
He articulated his views regarding
population in his famous book, Essay on the Principle of Population (1798),

for which he collected empirical data to support his thesis. Malthus had the
second edition of his book published in 1803, in which he modified some of
his views from the first edition, but essentially his original thesis did not
change.
On the basis of a hypothetical world population of one billion in the early

nineteenth century and an adequate means of subsistence at that time,
Malthus suggested that there was a potential for a population increase to
256 billion within 200 years but that the means of subsistence were only
capable of being increased enough for nine billion to be fed at the level
prevailing at the beginning of the period. He therefore considered that the
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population increase should be kept down to the level at which it could be
supported by the operation of various checks on population growth, which he
categorized as "preventive" and "positive" checks.
The chief preventive check envisaged by Malthus was that of "moral

restraint", which was seen as a deliberate decision by men to refrain "from
pursuing the dictate of nature in an early attachment to one woman", i.e. to
marry later in life than had been usual and only at a stage when fully capable
of supporting a family. This, it was anticipated, would give rise to smaller
families and probably to fewer families, but Malthus was strongly opposed to
birth control within marriage and did not suggest that parents should try to
restrict the number of children born to them after their marriage. Malthus
was clearly aware that problems might arise from the postponement of
marriage to a later date, such as an increase in the number of illegitimate
births, but considered that these problems were likely to be less serious than
those caused by a continuation of rapid population increase.
He saw positive checks to population growth as being any causes that

contributed to the shortening of human lifespans. He included in this
category poor living and working conditions which might give rise to low
resistance to disease, as well as more obvious factors such as disease itself,
war, and famine. Some of the conclusions that can be drawn from Malthus's
ideas thus have obvious political connotations and this partly accounts for
the interest in his writings and possibly also the misrepresentation of some of
his ideas by authors such as Cobbett, the famous early English radical.
Some later writers modified his ideas, suggesting, for example, strong
government action to ensure later marriages. Others did not accept the view
that birth control should be forbidden after marriage, and one group in
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particular, called the Malthusian League, strongly argued the case for birth
control, though this was contrary to the principles of conduct which Malthus
himself advocated.
SYNOPSIS OF THE NATURAL CAPACITY
Natural Capital is the environmental stock or resources of Earth that

provide goods, flows and ecological services required to support life.
Examples of natural capital include: minerals; water; waste assimilation;
carbon dioxide absorption; arable land; habitat; fossil fuels; erosion control;
recreation; visual amenity; biodiversity; temperature regulation and oxygen.
Natural capital has financial value as the use of natural capital drives many
businesses.
Current business practices; development patterns; environmental
modifications; exploitation of resources from other countries and government
policies are degrading or decreasing stocks of natural capital. This not only
has financial implications such as increased market prices due to resource
depletion, but also environmental implications as services provided by
ecosystems are damaged and unable to function effectively which in turn,
causes flow on effects. For example, as greenhouse gas emissions increase
and areas responsible for carbon sequencing decrease, global temperatures
rise, weather patterns change, sea levels increase, terrestrial and aquatic
ecosystems re-adjust and land usability patterns change.
Natural income is monetary income derived from natural capital.
However, protection and appropriate pricing of environmental resources has
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been largely neglected by economic theories and practices. If economic and
societal development is allowed to grow uncheck, stocks of natural capital
will continue to decline, resulting in problems for natural life support
systems, increased market prices and a decrease in the quality of human life.
Not all services or products provided by natural capital can be replaced
by technology and some alternatives are either expensive or inefficient.
Problems related to the protection of natural capital include the
inability of economics to appropriately model and price both market and nonmarket environmental resources; lack of willingness to pay; lack of
knowledge about minimum levels or time spans required for resources to
replenish or renew; lack of knowledge regarding the interaction and
dependences between resources and their true value, usefulness or
necessity; poor management of trans-boundary resources; and inequalities
between developed and developing nations.
The concept of natural capital is used in other sustainability concepts
and tools, including ecological footprints, environmental accounting and ecoefficiency.
SYNOPSISOF THE CASE FOR BIOTIC RIGHTS OF JAMES NASH
Nash argued that there has to be more than one basis for moral rights
not only the human right of universal equality. Biotic rights are an effort to
redefine responsible human relationships with the rest of 4 the planets
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beleaguered biota, and to ground these responsibilities not simply in human
generosity and utility but in moral claims inherent in their conation for
appropriate
treatment Nash
fully
recognized
that
patriarchy
and
anthropocentrism go together hand in glove.
Although Nash was critical of some of the uses of Natural Law, he

maintained that some version was necessary in order to do social ethics in a
pluralistic context. He saw some essential elements of natural law in
ecological ethics as an affirmation of objective moral values and norms,
which correspond to the conditions for flourishing among relational beings.
This includes a rational experiential method for evaluation and justifying
moral standards, and a dependence on and dialogue with empirical
disciplines in searching for moral norms. It also entails a quest for common
moral ground accessible in principle to all humanity and a necessary
autonomy from and yet compatibility with basic Christian affirmation of faith.
Nash was, however, deeply concerned that various expressions of the

natural law tradition were anthropocentric and had nothing to do with
ecological relatedness. That is, much of the natural law tradition simply
ignored the physical and biological non-human order. Nash called for a
universal and immanent moral order, where the words law and nature are
distinguished (i.e., law in the sense of moral norms and obligations) natural
(moral values should reflect the reality of human conditions and the planets
whole biota). These norms could be developed through natural reasoning
capacities, without relying upon special revelation, but always utilizing the
knowledge gained from the empirical sciences. For example, he called for an
ecosystemic compatibility adapting ecologically to natural cycles and
constraints and respecting ecosystemic values, an ecologically sensitive
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theology, the trans-valuing of value , the extension of covenant justice to
include all other life forms as beloved creatures- i.e., bioresponsibility , and
also reforming our virtues of sustainability and frugality.
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Environmental Laws and Principles

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NATURAL RESOURCES AND ENVIRONMENTAL LAWS