environment

Professor Burns Weston and I recently published a series of six essays on CSRWire (CSR = “Corporate Social Responsibility”) that were derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press in January 2013.  

The book – an outgrowth of the Commons Law Project -- is a direct response to the mounting calls for a paradigm shift in the way humans relate to the natural environment. Green Governance opens the door to a new set of solutions by proposing new types of environmental protection based on broader notions of economics and human rights and on commons-based governance. At the heart of the book is a new architecture of environmental law and public policy that is theoretically innovative, but also quite practical.

The paperback edition was recently released, making it available to a much larger readership.  To introduce the book to people who may have missed it the first time around, I am posting the original six CSRWire essays by Burns and me over the course of the next week.  I hope you enjoy them!  -- David

At least since Rachel Carson’s Silent Spring, we have known about humankind’s squandering of nonrenewable resources, its careless disregard of precious life species, and its overall contamination and degradation of delicate ecosystems. Simply put, the State and Market, in pursuit of commercial development and profit, have failed to internalize the environmental and social costs of their pursuits. They have neglected to take measures to preserve or reproduce the preconditions of capitalist production – a crisis now symbolized by the deterioration of the planet’s atmosphere.

Despite the scope of the challenges facing us, there are credible pathways forward. In our recent book, Green Governance: Ecological Survival, Human Rights and the Law of the Commons, we propose a new template of effective and just environmental protection based on the new/old paradigm of the commons and an enlarged understanding of human rights. We call it “green governance.” It is based on a reconceptualization of the human right to a clean and healthy environment and the modern rediscovery of the age-old paradigm of the commons.

For many people, the commons exists as some sort of Platonic ideal -- a fixed, universal archetype.  That’s silly, of course, because commons are so embedded in a given place and moment of history and culture, and therefore highly variable.  Derek Wall takes this as a point of departure in his new book, The Commons in History:  Culture, Conflict and Ecology (MIT Press).  At 136 pages of text, it is a short and highly readable book, but one that conveys much of the texture of commons and enclosures as paradigms -- and the implications for ecosystems.

Wall is an economist at Goldsmith College, University of London, so he knows a few things about the biases of conventional economics.  He is also a member of the Green party of England and Wales, and therefore knows a few things about corporate power and oppositional politics. 

As the author of a recent intellectual biography, The Sustainable Economics of Elinor Ostrom (Routledge), Wall has a subtle mastery of Ostrom’s approach to the commons, but he is not afraid to wade into the political aspects of commons.  He notes, for example, “most commons have not been found to succeed or fail on the basis of their own merits.  Instead, they have been enclosed, and access has been restricted and often turned over to purely private ownership or state control.”  He adds that “commons is a concept that is both contests and innately political in nature.  Power and access to resources remain essential areas for debate.”

It is entirely appropriate, then, that Wall goes beyond the familiar Hardin-Ostrom debate on the rationality and economic value of commons, to explore what he calls “the radical case for the commons,” as outlined by E.P. Thompson and Christopher Hill, among others.  While Marxist criticisms of the environmental effects of capitalism so often hit the mark, Wall points out that “the commons is not utopia.  A common-pool property rights do not guarantee a free and equal society.”  

That’s partly because a commons is not a unitary model, but only a template with highly variable outcomes.  People may have common rights to use “usufruct rights” on privately owned land, for example, authorizing them to gather fallen wood.  This can be considered a type of commons, albeit not one as self-sovereign and robust as those with communally owned and controlled land.  Commons may also coexist with hierarchical power relationships – a reality that also militates against a radical equality.

Jonny Gordon-Farleigh of STIR magazine shared with me an arresting little snippet of history that speaks eloquently about the quiet role of social reciprocity in a civilized life.  Consider walking paths as commons, as described by Robert Macfalance in his book, The Old Ways:  A Walking Journey:

“Paths are consensual, too, because without common care and common practice they disappear....In nineteenth-century Suffolk [UK] small sickles called 'hooks' were hung on stiles and posts at the start of certain well-used paths: those running between villages, for instance, or byways to parish churches. A walker would pick up a hook and use it to lop off branches that were starting to impede passage. The hook would then be left at the other end of the path, for a walker coming in the opposite direction. In this manner the path was collectively maintained for general use.”

It seems to be that we need more modern-day “hooks” that invite people to participate in anonymous acts of self-directed enterprise and reciprocal generosity.  Sounds like a great alternative, when feasible, to the connivances of large markets and remote, centralized bureaucracies.

The good folks at the Tellus Institute in Boston have recently relaunched the Great Transition Initiative -- “an online forum of ideas and an international network” dedicated to developing “a new praxis for global transformation.” As part of that effort, I was invited to submit an essay on how the commons might contribute to the “Great Transition.”

In my essay, “The Commons as a Template for Transformation,” I argue that “the commons paradigm can help us imagine and implement a serious alternative—a new vision of provisioning and democratic governance that can evolve within the fragile, deteriorating edifice of existing institutions.”  My basic argument: 

The commons—a paradigm, discourse, ethic, and set of social practices—provides several benefits to those seeking to navigate a Great Transition. It offers a coherent economic and political critique of existing Market/State institutions. Its history includes many venerable legal principles that help us both to imagine new forms of law and to develop proactive political strategies for effecting change. Finally, the commons is supported by an actual transnational movement of commoners who are co-creating innovative provisioning and governance systems that work.

For readers of this blog, most of the themes in my GTI essay will be familiar.  My goal was to synthesize many disparate threads into a single, 5,000-word case for the commons. I wanted help a policy-oriented readership see how the commons paradigm could help us re-imagine and transform economics, politics, culture, and particularly ecological stewardship. 

After introducing the whole commons concept for the uninitiated, I review a sampling of commons that manage ecological resources and describe the rise of the contemporary commons movement.  I also urge that we imagine “a new architecture of commons-based law and policy,” drawing heavily on my recent book with Burns Weston, Green Governance:  Ecological Survival, Human Rights and the Law of the Commons (Cambridge University Press).  And finally, I assess the prospects and limitations of the commons paradigm, and conclude:

In her brilliant new book, Mary Christina Wood, a noted environmental law scholar at the University of Oregon, Eugene, courageously sweeps aside the bland half-truths and evasions about environmental law.  In Nature’s Trust:  Environmental Law for a New Ecological Age (Cambridge University Press), Wood argues:  “That ancient membrane of law that supposedly functions as a system of community restraint [is] now tattered and pocked with holes.”  Our current regulatory system will never solve our problems.  She continues:

"A major source of administrative dysfunction arises from the vast discretion [environmental] agencies enjoy – and the way they abuse it to serve private, corporate and bureaucratic interests.  As long as the decision-making frame presumes political discretion to allow damage, it matters little what new laws emerge, for they will develop the same bureaucratic sinkholes that consumed the 1970s laws.  Only a transformational approach can address sources of legal decay."

Wood’s mission in Nature’s Trust is to propose a new legal framework to define and carry out government’s ecological obligations.  For Wood, a huge opportunity awaits in reinvigorating the public trust doctrine, a legal principle that goes back millennia.  She explains how the doctrine could and should guide a dramatically new/old approach to protecting land, water, air and wildlife. 

In 1970, Professor Joseph Sax inaugurated a new era of legal reforms based on the public trust doctrine with a famous law review article.  For a time, Sax’s essay sparked energetic litigation to protect and reclaim waters that belong to everyone.  The focus was especially on beachfronts, lakes and riverbanks, and on wildlife.  But as new environmental statutes were enacted, some courts and scholars began to balk and backtrack and hedge.  They complained that the public trust doctrine should take a backseat to environmental statutes.  Or that the doctrine should apply only to states.  Or that it applies only to water and wildlife, and not to other ecological domains.  And so on.

The recent industrial disaster in West Virginia, which saw the leakage of vast quantities of toxic chemicals into the river and drinking water supplies, prompted Grant Mincy of East Tennessee to reflect on the enclosure of countless commons in the Appalachia region of the US.  His piece in Counterpunch, “Reclaiming the Commons in Appalachia,” caught my eye because it pointed to the extreme inequalities, suffering and dispossession that have occurred in Appalachia as corporate control has gotten more concentrated.  A sudden – the huge spill of chemicals into the river – then shines a bright spotlight on the situation.

Mincy notes how the “extractive resource industry” – chiefly coal companies – have used their property rights and political influence to enclose the commons of Appalachia:

The use of eminent domain and compulsory pooling has robbed communities of their cultural and natural heritage.  Capital is the authority of the Appalachian coalfields, and has created systemic poverty and mono economies.  Instead of prosperity in the commons, the mechanism of authority has spawned tragedy.

Property is theft in Appalachia. The current system is concerned with the well-being of the politically connected corporati instead of the common good – Appalachian communities. This system exists because legal privilege is granted to industry. The development of this socio-economic order is political, as opposed to free and participatory. The current authority in the coalfields, the corporate state, is illegitimate. It is far past time we transition to society free of it.

Some communities in Ohio are fed up by the way that corporations, colluding with state legislatures, simply override the concerns of local communities.  Communities are often helpless in preventing their local environment from being blighted by hydrofracking, factory farming, and the extraction of groundwater supplies, among other enclosures of the commons. 

So, banding together as the Ohio Community Rights Network, community members from eleven Ohio Counties recently released "The Columbus Declaration," which calls for a movement to “elevate the rights of people, their communities and nature above the claimed ‘rights’ of corporations.”  The goal of the movement is to secure “local community self-governing rights through constitutional change.”

The Ohio Community Rights Network plans to form 88 county chapters throughout the state and seek a statewide constitutional convention to “guarantee that the people in every City, Village and Township of Ohio have the ability to protect the health, safety, welfare and fundamental rights of residents, free from state preemption or corporate interference.”

The campaign is the outgrowth of work by the Community Environmental Legal Defense Fund CELDF), which has worked with a number of Ohio communities in fighting fracking, drilling and injection wells throughout the state.

The Columbus Declaration may seem like a small, marginal project, but at a time when oil companies, big box stores, industrial agribusiness and transnational water bottlers can march into most communities and more or less override community sentiment, this initiative strikes me as one of the more promising legal vehicles for communities regaining some measure of control over their futures.

Writer’s Voice, a national radio show and podcast featuring authors, recently devoted an hour to talking with me about the commons. The chief focus was on my new book co-authored with Burns Weston, Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, which Cambridge University Press published in January. 

Our book recovers from history many fragments of what we call “commons-based law” from such sources as Roman law, the Magna Carta and Charter of the Forest, and public trust doctrine governing natural resources.  We also point to many modern-day analogues such as international treaties to manage Antarctica and space as commons. We wish to show that commons-based law is in fact a long and serious legal tradition – but one that has also been quite vulnerable, particularly over the past two centuries as market-oriented priorities have eclipsed the commons. 

Burns Weston and I argue that the right to a clean and healthy environment, and to access to nature for subsistence (as opposed to for profit-making market purposes), should be recognized as a human right.  The right to meet one’s everyday household needs – by responsibly managing forests, pasture, orchards and wild game as a commons – was recognized by the Charter of the Forest, adopted by King Henry III, the son of King John, in 1217.

This right was essentially a right to survive because commoners depended on the forest for food, fuel, economic security and other basic needs. Such precedents ought to inform our discussions today, when the rights of investors and markets in effect override any human right to survival (consider the many free trade treaties that override democratic sovereignty, ecological protections and local control).

Farmers in the small town of Hoxie, Kansas, have been pumping water out of the Ogallala Aquifer six times faster than rain can naturally recharge it.  This is a big deal because most of the town depends upon the flow of water to grow corn, which is the mainstay of the local economy.  But here’s the remarkable thing:  In order to preserve the water at sustainable levels, the farmers have agreed among themselves to cut back on their use of the water by 20 percent for five years. 

As Dan Charles of National Public Radio reported (October 21):

A few years ago, officials from the state of Kansas who monitor the groundwater situation came to the farmers of Hoxie and told them that the water table here was falling fast. They drew a line around an area covering 99 square miles, west of the town, and called together the farmers in that area for a series of meetings.

They told the farmers that the water was like gasoline in the tank. If every one agreed to use it more sparingly, it would last longer.

Proposals to cut back water for irrigation have not been popular in parts like these, to say the least. In the past, farmers across the American West have treated them like declarations of war. Raymond Luhman, who works for the groundwater management district that includes Hoxie, says that’s understandable: “Many of them feel like the right to use that water is ...” he says, pausing, “it's their lifeblood!”

It’s also their property. Under the law, it’s not clear that any government can take it away from them, or order them to use less of it.

But in Hoxie, the conversation took a different turn.

Contrary to the “tragedy of the commons” parable, which holds that no single farmer would have any incentive to rein in his or her water consumption, the farmers of Hoxie found a way to cooperate and overcome their over-consumption problem.  They came up with a set of rules to reduce their water usage for a five-year trial run; had the state government make it a formal requirement; and installed meters on everyone’s pumps to verify compliance. 

Maybe it’s time for the commons and liberalism to have a frank talk.  Liberals would seem to be natural allies of the commons; they certainly often profess its values and goals, however superficially.  But the politics that liberals generally deliver -- even in their re-branded guise as “progressives” – tends to be seriously disappointing.   

Consider this little vignette recounted by the New York Times last week.  It was a story about declining sales for soda, the rising popularity of water and First Lady Michelle Obama’s role as a cheerleader for healthy choices.  This paragraph jumped out at me:

“Last month, Michelle Obama heavily endorsed water, teaming up with Coke, Pepsi and Nestlé Waters, among others, to persuade Americans to drink more of it.  Health advocates complained that Mrs. Obama had capitulated to corporate partners by not explaining the benefits of water over the sodas they sell and that her initiative promoted even greater use of plastic bottles when she could have just recommended turning on the tap.”

What could be more quintessentially liberal:  sincere, passionate commitment to a laudable social goal (drinking water instead of sugary soda) but no willingness or courage to fight for the right choice – tap water.  The reason is fairly obvious:  What would the corporate benefactors think?

The corporate backers of the First Lady's anti-obesity campaign are only too willing to bask in the socially minded glow. The brand director for Dasani, the bottled water brand sold by Coca-Cola, proudly declared, “…We are looking to lead in packaging and sustainability because those things also matter to out customers.” 

Yes, let’s sell more bottled water in “sustainable” plastic bottles.