environment

The brave new world of “owning life” began 32 years ago when the U.S. Supreme Court first approved the patenting of a genetically engineered bacteria that can help decompose oil.  By a 5-4 decision, it was the first instance of U.S. law recognizing ownership in a "manufactured" lifeform.  On Wednesday, I had the opportunity to participate on a panel with the microbiologist who brought that 1980 case, Ananda Chakrabarty, who was then an employee of General Electric. 

The panel was part of a series of live radio programs hosted by Action Speaks! in Providence, Rhode Island, an usually intelligent, spirited show hosted by the genial polymath Marc Levitt.  The theme for this fall’s series is “Private Rights and Public Fights,” which is devoted to looking at “moments when the rights of the individual have clashed with the needs or beliefs of the public—and where the line between private and public has been defined or blurred.”

Anyone who noses around the legal literature soon realizes that the case of Diamond v. Chakrabarty is a real landmark case because it opened the door for the  patenting of lifeforms.  Over the past thirty years, more than 3,000 gene patents have been granted.  Nearly 20 percent of the human genome is now privately owned.  The U.S. Patent and Trademark Office has issued nearly 50,000 patents involving human genetic material.  Patents have been granted for microorganisms, genetically modified plants and animals, stem cells, tissue and many other living things.

Chakrabarty, now is a 74-year-old professor at the University of Illinois College of Medicine at Chicago, had few reflections to offer on the seismic impact of the case.  He was proud of his role in legal and scientific history, but he focused mostly on the scientific aspect of his work and of patent law in general.  Too bad, because I think the extra-legal, extra-scientific ramifications of the Chakrabarty case have been significant. 

Can we begin to reconceptualize how we interact with Nature and afford it the legal protections that are now available only to people?  Along with Bolivia and Ecuador, New Zealand appears to be in the vanguard of this fascinating, welcome trend. 

In his blog about the Northern Territory of New Zealand, Bob Gosford reports that a court there “has recognised – perhaps for the first time in legal history – that a river has personality sufficient to allow it to be heard in a court of law.”  (A tip of the hat to Tim Gregory for passing this news along.)  Gosford cites reporter Kate Shuttleworth in the New Zealand Herald:

The Whanganui River will become an legal entity and have a legal voice under a preliminary agreement signed between Whanganui River iwi [“peoples” in Maori] and the Crown tonight. This is the first time a river has been given a legal identity. A spokesman for the Minister of Treaty Negotiations said Whanganui River will be recognised as a person when it comes to the law – “in the same way a company is, which will give it rights and interests” … Under the agreement the river is given legal status under the nameTe Awa Tupua – two guardians, one from the Crown and one from a Whanganui River iwi, will be given the role of protecting the river.

One of my working hypotheses has been that commons discourse has great power because it is able to function as an open platform.  It is both general and specific.  I frequently compare the commons to DNA because both are under-specified design structures that evolve and adapt in relationship to local circumstances.  A certain ambiguity and incompleteness in the language of the commons is precisely what enables people to infuse it with their own specific values, needs and aspirations.  And this is what makes the commons both universally appealing and particular in its manifestations.

Now I have found a wonderful confirmation of my hypothesis in the history of the Buffalo Commons.  In 1987, Frank J. Popper and Deborah Popper, husband-and-wife geographers, wrote an essay that argued that some 139,000 square miles of the Great Plains -- the drier parts extending across ten Western and Midwest states – should become a vast nature preserve.  They dubbed their idea the Buffalo Commons, believing that reintroducing the American bison, popularly known as buffalo, could symbolize their vision for the region’s restoration and conservation in ways compatible with human needs.

The Poppers noted that the Great Plains had gone through several major boom and bust periods in American history, in which economic growth resulted in overgrazing, overplowing and excessive water use, which then resulted in busts as people migrated elsewhere, as they did during the Dust Bowl crises of the 1930s. The Poppers proposed that some 10 to 20 million acres of land should be allowed to return to its native vegetation, especially native prairie grasses, and that farming and ranching should be gradually phased out.  Writing in 1987, during yet the third major “bust” phase in the Great Plains, the Poppers realized that neither large-scale government intervention (dams, irrigation projects, etc.) nor conventional economic development (farming, ranching, mining) were sustainable.  Hence the idea of the commons -- a collaborative plan that might emerge from people themselves.

While the official Rio+20 environmental summit will surely be a bust, reaffirming the supposed power of markets to solve our planetary eco-crises, the alternative People’s Summit has made some progress toward positive outcomes.  A wide variety of civil society groups from around the world has been meeting since November 2011 to try to hammer out a shared vision that addresses the theme, “Capitalist Crisis, Social and Environmental Justice.” 

The dialogues seek not only to provide a critique of what’s wrong and needs fixing, but to suggest some coherent themes and proposals for moving forward.  I am pleased to report that one of four short working documents produced by the so-called Dialogue Platform of the Thematic Social Forum (TSF) sees great promise in reclaiming the commons.

My colleague Silke Helfrich has been involved in these proceedings, participating in group discussions that occurred in Porto Alegre in January and in Rio de Janeiro in May.  She shared her insights with me from her blog, and will be attending the People’s Summit in Rio in about two weeks.  (See also her excellent presentation about how the commons can help us navigate the coming "Great Transition.")

The People’s Summit bills its gathering as “part of a historical process of accumulation and convergence of local, regional and global struggles, that have anti-capitalist, classist, anti-racist, anti-patriarchal and anti-homophobic political frames.” For a fairly short document that emerged from a very diverse group, the Dialogue Platform’s statement on the commons is remarkably deep and subtle.  It is clear to these activists that the problem is not just misguided policies and economic analysis; it involves fallacious mental maps, epistemological categories and modernity itself. 

I am impressed that a large group of this sort could agree on such a statement, and show such depth of understanding about the commons and its role in building a better future.   Here is the Dialogue Platform’s statement:

In mid-June, governments from around the world will converge on Rio de Janeiro for a major environmental conference that aspires to come to major new agreements for saving the planet's fast-declining ecosystems.  Since the event comes 20 years after a landmark 1992 environmental conference, this one is called Rio+20. 

Unfortunately, the conference is almost certain to be a bust because there are no signs that the world's governments are willing to entertain any significant new approaches to environmental protection, least of all ones that would genuinely protect the commons; it would be too economically disruptive and require shifts of power to the 99%.  So the chief task of Rio+20 will be to create the appearance of change.  Early indications suggest that the only green solutions to get any traction will be those that would help develop or expand markets for addressing environmental problems. In other words, a green rebranding for more of the same.

In anticipation of this likely outcome, a British anti-poverty campaigning organization, the World Development Movement, has taken the official logo for the event and created a few creative alternatives.  WDM has also launched a "micro-blog" about the need for a "real green economy."  Also check out the People's Summit Rio+20 web portal.  Don't say that you weren't warned.

A week or two ago, I blogged about the rise of new sorts of eco-digital commons that blend virtual spaces with environmental management.  It's a bit of serendipity to learn this week about the a fascinating new online tool, the Great Lakes Commons Map.  The map is an interactive platform that solicits contributions and conversation by people who love the Great Lakes.  The idea is to turn a resource that is often seen as belonging to no one into one that is actively stewarded by everyone.  How?  By inviting everyone to post their own videos, text, photos and comments about specific portions of the Great Lakes.  Over time, it is hoped that the site will help build a new shared “mental map” and shared space for people to talk about the Great Lakes as an integrated bioregion -- and to take action to defend it.

The map was created by Paul Baines, an environmental educator, and Darren Puscas of reWORKit (“web production for unions and social change”).  Here is Haines' video introduction to the map.  Haines hopes that the website will help people annotate their conservation projects, cleanups, ecological education and restoration initiatives, activist efforts, walking tours, historical markings, a

Haines eventually hopes to make it possible to post and share video and audio on the site; use SMS and Twitter feeds for reporting and campaigning; host workshops and training on community mapping; and translate the website into other languages. 

What’s especially beautiful about the site is its use of Ushahidi, an open source, interactive geospatial platform for the crowdsourcing of information in crisis situations.  The platform has been used to enable the geospatial visualization human trafficking, for example.  Haines adapted it to serve as a way to crowdsource information, images, video and more that can create a new shared cultural space for saving the Great Lakes.

When thinking about the commons, most people make a sharp division in their minds between natural resource commons (for water, air, land, forests, wildlife, etc.) and digital commons (free software, Wikipedia, Creative Commons-licensed content, social networking, etc.)  It is assumed that these two universes are entirely separate and distinct, and have little to do with each other.  But in fact, these two realms are starting to blur – and we should be more mindful of this convergence and the synergies that it is producing.

The reflexive division between digital and natural resource commons is understandable.  One type of commons deals with rivalrous, finite resources that can be physically depleted, while the other manages non-rivalrous resources – information, creative works, research – that can’t really be “used up” because it is virtually costless to reproduce them digitally.  Most natural resources can be over-exploited if there are too many users, so the challenge is how to manage access and usage.  By contrast, the biggest challenge facing digital commoners is how to curate information and community participation in intelligent, respectful ways.

But the “obvious” logic of this mental map is deceptive – because a new constellation of what I call “eco-digital commons” is using networking technologies to better manage natural resources.  The digital and natural worlds are starting to “co-mingle” in very interesting and constructive ways, suggesting that the more salient differences between the two resources are perhaps less consequential than we had thought.  Indeed, there are many powerful new capabilities that arise.

An example is a new iPhone and Android app designed to help stop invasive species.  It was developed by my friend Charlie Schweik, a UMass professor, in cooperation with the UMass Extension service, the Massachusetts Department of Environmental Conservation, the University of Georgia and other partners.  Invasive species are non-native plants, animals, fish, insects, fungi and other organisms that are often quite harmful to an ecosystem.

For the past two years or more, I’ve been working on a major research and writing project to try to recover from the mists of history the bits and pieces of what might be called “commons law” (not to be confused with common law).  Commons law consists of those social practices, cultural traditions and specific bodies of formal law that recognize the rights of commoners to manage their own resources.  Most of these governance traditions deal with natural resources such as farmland, forests, fisheries, water and wild game.  Commons law has existed in many forms, and in many cultures, over millennia.

Ever since the rise of the nation-state and especially industrialized markets, however, commons law has been marginalized if not eclipsed by contemporary forms of market-based law.  Over the past 200 years, individual property rights and market exchange have been elevated over most everything else, and this has only eroded the rights of commoners, it has contributed to the destruction of the Earth and its fragile natural systems.

To address this problem, the noted international law and human rights scholar, Professor Burns Weston of the University of Iowa School of Law, and I started the Commons Law Project in 2010.  We wanted to re-imagine the scope of human rights law, validate neglected forms of commons-based ecological governance and reframe the very notion of “the economy” to incorporate non-market sharing and collaboration.

It has been, I concede, an ambitious enterprise.  But we had concluded that incremental efforts to expand human rights and environmental protection within the framework of the State/Market duopoly were simply not going to achieve much.  Indeed, the existing system of regulation and international treaties has been a horrendous failure over the past forty years.  Neoliberal economics has corrupted and compromised law and regulation, slashing away at responsible stewardship of our shared inheritance while hastening a steady decline of the world’s ecosystems – forests, wetlands, fisheries, coral reefs, the atmosphere, the polar zones, and more.

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.