environment

The world of law is not especially welcoming of the idea of the commons.  There are too many blurry lines and idiosyncratic contingencies.  Lawyers like bright-line rules and cause-and-effect scenarios.  The varieties of commons are also unsettling to legal minds, it seems, because commons can be difficult to systematize and square with western law and its focus on individuals. 

Lawyers also prefer to see law as a partner with neoliberal capitalism and its mythopoetic narratives about human progress through technology, consumerism and economic growth.  These attitudes are especially problematic when it comes to environmental law, which has not been terribly effective over the past fifty years in restraining the appetites of capital-driven markets and corporate property owners.

To be sure, property law scholars spend some time dealing with the commons as an alternative to the standard narratives.  But here, too, the “tragedy” parable tends to prevail and the commons is usually treated as a curiosity of medieval history and rural, “under-developed” countries.  It is not seen as a hardy, versatile contemporary paradigm that might actually address some deep pathologies of the "free market."  For example, the commons helps us talk about the compulsive externalizing of costs, the ethics of monetizing all value, the growth imperatives of the economy today, the legal prejudices against collective stewardship and long-term commitments, and our cultural alienation from nature and each other, among other issues.

Generations of such thinking will not be easily overcome, I realize, but I am nonetheless pleased to announce a brave attempt to carve out a richer space for the commons in legal education.  A new law textbook, International Environmental Law and World Order:  A Problem-Oriented Coursebook, just published in the Third Edition by West Publishing, includes a chapter by me, “The Future of International Environmental Law:  A Law of the Ecological Commons?”

The Rio+20 conference in Rio de Janeiro this June will be a major event in the world’s ecological history.  The event, officially the United Nations Conference on Sustainable Development, will provide an opportunity for the world’s nation’s to take stock of what has happened to the environment since an earlier, landmark conference in Rio in 1992 – climate change, loss of biodiversity, species extinctions, desertification, etc., etc. – and to plot ambitious strategies to save the planet in the coming decades. 

But don’t hold your breath.  The world’s governments are not likely to come up with anything significant.  The G-20 nations, which have been described as the “executive board of the world,” have little interest in bold political and institutional reform.  That would only disrupt the desperate search for economic growth.  An open, candid inquiry into the growth economy, consumerism and the finite carrying capacity of Earth’s biophysical systems would be far too politically explosive.  It is far easier to talk about a “green economy,” as if greater efficiencies alone will save the planet. 

The real goal of governments at Rio+20 will be to make it look as if they are doing something significant for the environment.  No one expects that Rio+20 will result in serious, practical government commitments to “sustainable development” (whatever that means), let alone new forms of multilateral governance that could arrest the planet’s ecological decline. 

One of the treats at the Vis Green Academy in Croatia last week was seeing an exhibit of photographs by Marina Kelava, of Bjelovar, Croatia, who works as a journalist and photojournalist for Croatian Internet magazine H-Alter.org, which focuses mainly on environmental issues.  The exhibit included a number of photos documenting various enclosures of the commons in Croatia as well as photos taken while covering large international events, from the UN Climate Change Conference in Copenhagen and the World Social Forum to the beginning of Radovan Karadzic’s trial at the International Criminal Tribunal. 

Kelava graduated from the Faculty of Political Sciences, University of Zagreb, with a degree in journalism.  A larger collection of her photos can be seen on Facebook at Marina Kelava Photography. 

I met Marina when she interviewed me for H-Alter.org.  Then I saw her photos on the wall and was impressed by their power in depicting the personal, social and emotional dimensions of commoning, the social practices of defending and celebrating a community's shared wealth.  The photos are simultaneously political and human, which is not always an easy thing to combine in rich, subtle ways.  Kelava's photos do.

View from the untouched hill of Srdj above Dubrovnik, Croatia, where a huge golf project is planned and the civil initiative "Srdj is Ours" is fighting against it.

I delivered the following remarks on May 11 as part of The Illahee Lecture Series 2011, "Searching for Solutions:  Innovation for the Public Good," in Portland, Oregon.

This evening, I’d like to get innovative about how we think about innovation itself.  The corporate cliché is to “think outside the box.”  That is such an inside-the-box way of thinking!  I say let’s get rid of the box!  Tonight I want to talk about a new vector of innovation:  how we’re going to manage our dwindling, finite natural resources and arrest the pathological growth imperatives of our economy while recovering a more sane, socially constructive way of life for human beings.  Now there’s a radical innovation challenge!

The subtext of most innovation-talk these days is efficiency and profitability.  Innovation is essentially the bigger-better-faster ethic – the next super-computer or bio-engineered cow or Segue scooter.  But the grim reality is that there are a whole class of societal problems that are not likely to become market opportunities,ever. 

Worse, conventional markets, in the course of creating new wealth, are generating all sorts of illth, in John Ruskin’s phrase – cost, unintended byproducts that must be put on the ledger sheet in any calculation of our supposed wealth.  Our market economy is generating whole new classes of illth such as  global warming, dying coral reefs, biodiversity loss and species extinctions.

Looking for novel ideas for protecting the environment? Bolivia is way out ahead of any other nation.  In January it enacted the Law of the Rights of Mother Earth, to recognize natural resources as “blessings” and enumerate eleven specific rights of nature. As reported by The Guardian (UK), these rights include “the right to life and to exist; the right to continue vital cycles and processes free from human alteration; the right to pure water and clean air; the right to balance; the right not to be polluted; and the right to not have cellular structure modified or genetically altered.”

The law declares, “She [Mother Earth] is sacred, fertile and the source of life that feeds and care for all living beings in her womb. She is in permanent balance, harmony and communication with the cosmos. She is comprised of all ecosystems and living beings and their self-organization.” Mother Earth is also granted the right “to not be affected by mega-infrastructure and development projects that affect the balance of ecosystems and the local inhabitant communities.”

While such legal language is often seen as symbolic and aspirational, the Bolivian legislature has given some substance to its enactment. The new law establishes a Ministry of Mother Earth and an ombudsman position to advocate the rights of Mother Earth in legal proceedings. Perhaps as significant, communities were granted new legal powers to monitor and control polluting industries.

A small group of innovative commoners in Phoenix is closing in on an innovative breakthrough:  a commons-based revenue model for photovoltaic solar energy development in cities.  It’s called the Solar Commons, which sports the tagline, "The sun shines for everyone." 

The idea is to use the public rights of way in cities and towns to collect solar energy, and then channel the revenue to a community trust.  The trust will manage the solar panels and electricity sales, and distribute the revenues to help the community.  In this case, the Solar Commons will support low-income housing and commons education efforts in Phoenix. 

It sounds simple enough, but the Solar Commons has taken considerable out-of-the-box thinking and operational innovation to get on track as a demonstration project.  Among the challenges:  the city-commons relationship, legal liability and project maintenance and management.  At this stage, the Solar Commons is on track to becoming a demonstration project.

The post below is excerpted from James K. Boyce's acceptance speech, "The Environment as Our Common Heritage," for the Fair Sharing of the Common Heritage Award, presented by Project Censored and the Media Freedom Foundation in Berkeley, California.  It originally appeared on the TripleCrisis.com website, on February 10, 2011.  Jim teaches ecological economics, among other things, at UMass Amherst, and has been a long-time defender of the commons.

What does it mean to say that the environment is our “common heritage”? On one level this is a simple statement of fact: when we are born, we come into a world that is not of our own making. The air we breathe, the water we drink, the natural resources on which our livelihoods depend, and the accumulated knowledge and information that underpin our ability to use these resources wisely – all these come to us as gifts of creation passed on to us by preceding generations and enriched by their innovations and creativity.

Yet once we take seriously – as I do – the proposition that this common heritage belongs in common and equal measure to us all, we move beyond a positive statement of facts to a normative declaration of ethics. We move beyond an understanding of what is to an assertion of what ought to be.

To say that the environment belongs in common and equal measure to us all does not mean that we have inherited a free gift with no strings attached. For our common heritage carries with it a common responsibility: the responsibility to share the environment fairly amongst all who are alive today, and the responsibility to care for it wisely to ensure that our children, our grandchildren, and the generations who follow will share fairly in our common heritage, too.