We the people, and the river: a possible future for environmental law

Loja Province, Ecuador. From http://commons.wikimedia.org/wiki/File:Monta%C3%B1as_en_Macar%C3%A1.JPG

The river won in the end.

Consider the name of the court case in which it happened: Vilcabamba River v. Provincial Government of Loja, Ecuador.

In this case, a river was granted legal standing in court to sue a local government for harm suffered by the river. This was possible under article 71 of the 2008 constitution of Ecuador, which explicitly grants nature and its ecosystems certain constitutional rights. These include "the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution."

Thus, when the local provincial government began dumping broken concrete and rubbish from road construction into the Vilcabamba river, the river sued. Represented in court, as any non-human entity would be (like a government or corporation), by human lawyers.

The river won. The provincial court of Loja ruled in 2011 that the provincial government had violated the constitutional rights of the river. It issued an injunction ordering the government to make restitution to the injured party, by repairing the damage.

It all sounds so remote, doesn't it? Surely nothing like this could happen in the United States. Under the Constitution of the United States, nature is considered property. Nothing more. Just like women and black people once were as well. Surely the property status of nature will never change. Just as the property status of women and black people, viewed from the days of Jefferson and Madison, would never change.

Surely.

Since 2006, more than two dozen municipal governments in the United States have passed laws recognizing nature and its ecosystems as entities entitled to inherent legal rights. One of the communities to pass such a law is Pittsburgh, Pennsylvania.

You can read more about this at the website of the Community Environmental Legal Defense Fund.

Last night, I attended a talk by the executive director of this organization, Thomas Linzey. His group advised the assembly that drafted Ecuador's constitutional provisions on the rights of nature. The CELDF works with U.S. towns and cities to give similar aid, helping them draft ordinances and conduct lawsuits against environmental abuses by transnational corporations.

The long-term aim of such work is to mobilize a coalition of U.S. city governments favoring fundamental revision of state constitutions. The goal of those revisions would be to end various legal powers corporations wield to destroy local environmental protections.

In his talk last night, Linzey was extremely blunt about the extreme hardship (political, legal, personal) that his organization's strategy entails, both for his group and for the local communities seeking its aid. Nevertheless, Linzey makes a convincing case that the conventional legal and policy approach to environmental protection has failed. The condition of planetary ecosystems, he points out (echoing this blog's obsession on the subject), is deteriorating ever more rapidly. Local communities around the world are beginning to feel the effects. And, in many cases, to connect those effects to a basic, underlying cause: the political and legal power of transnational corporations.

Linzey admits that his strategy for constitutional change will take decades to bear fruit, if it ever does. But he believes there is no realistic alternative. National and international legal and political approaches are essentially pointless, given the power of the existing corporate-dominated structure of government. And the ecological situation grows ever more desperate, although many policy-makers and advocates are not yet able to see this.

It will become clearer as the vice begins to tighten, Linzey believes. As do I.

January 6, 2112: two hundred years of statehood for New Mexico

Sangre de Christo Mountains, near Espanola, New Mexico

January 6, 2012, marked the one hundredth anniversary of New Mexico's admission as the forty eighth state of the American republic.

On the sixth day of 1912, about 330,000 people lived in the state, clustered around the small river town Albuquerque and the old Spanish imperial outpost at Santa Fe. Today, a massive concentration of urban infrastructure along the Rio Grande is home to over a million people, with two million in the state as a whole.

There is virtually no chance that this state will have a population of two million or more when it celebrates its two hundredth anniversary in the early twenty second century. There isn't enough water for that population today, much less after one hundred years of climate change and ecological collapse have decimated the rivers, aquifers, and biosphere of the American West.

Consequently, the massive influx of migrants that came to New Mexico in the years 1912-2012 will reverse itself, over the next century, to an outflow that promises to be at least as dramatic. During the next hundred years, waves of heat, drought, plant disease, and ecosystem disruption will annihilate the mountain forests; refashion the lowland scrub brush; and denude the lush bosque growth along the dwindling rivers. The roads and buildings of the twentieth century boom years will gradually fall into disuse, to be dismantled, cannibalized, or abandoned.

The middle Rio Grande valley on January 6, 2112 will be a ghostly landscape of decayed, crumbling foundations, inhabited by scavenging animals and a few remaining clusters of human communities able to live on vastly reduced supplies of water in a landscape of burning dust and rock. Most likely, the surviving towns and villages will cluster around the base of the mountains, where temperatures will be cooler and whatever precipitation endures will be more plentiful. There may or may not be an authority ruling those future communities that calls itself the United States of America.

People will be born, grow up, love and work, and then die. In the meantime, we have our own world to manage, as best we can. The future comes quickly, the former things pass away.

Generations of men are like the leaves.
In winter, winds blow them down to Earth,
But then, when spring season comes again,
Budding wood grows more. And so with men --
One generation grows, another dies away.

The Iliad, 6.181-5

The sovereign's justice, circa 2500 C.E.

Nerrivik Harbor, Victoria Island province, Arctic Ocean. July 4, 2502 (old calendar).

Source file at http://commons.wikimedia.org/wiki/File:LeDiben_Harbor.jpg

13 High Summer, 2502

Report to the Sovereign Convention

regarding the Reformulary (Third) of National Jurisprudence

by James Asiaq Hernandez Washington

Investigator, Collaborative of Ecological Social Inquiry

Aurora University

Nerrivik Harbor, Victoria Island province

Arctic Confederation of America

Gentle ones, 

May this letter find the emissaries prosperous and well. Enclosed with this parcel you will find our most recent draft of chapters 1, 2, and 3 of the Reformulary, covering basic rights and obligations of the communities and of the beings entrusted to their care. 

Adhering to guidance from the convention, we have included in our foundational research the surviving legal records of the former United States of America and its successor polities. Although many records have been lost, substantial documentation exists for intervals between the declaration of United States independence in 1776 and the dissolution of the Third Constitutional Republic in 2132. We believe our inquiry has produced insights useful to the synthesis of a new legal understanding relevant to the needs of our own time.

Our existing legal culture, of course, differs radically from the ancient common law of England and its North American settlements. English law originated when Norman conquerors fused their own military-feudal institutions with tribal customs of the indigenous Anglo-Saxons in the centuries after 1066. The resulting legal system embodied the basic political philosophy of the Middle Ages: that government authority and legitimacy flowed ultimately from a monarch, ordained by the creator of the universe to rule over a people. The monarch was sovereign, claiming a monopoly on the use of force and therefore the power to make any decisions necessary for safeguarding the realm. Ultimately, the realm and its sovereign were the same. Over time, lords and parliament contested the king's power, but the theory of the king's justice as the expression of national sovereignty remained. 

The independence of Britain's North American colonies in 1776 created a wholly different political sovereignty. Inspired by precursors of the Greco-Roman era and the medieval Italian republics, the founding institutions of the United States located political sovereignty in the human population of the new federal republic. Although acknowledging diverse beliefs in a greater divine order to the cosmos, the new concept of sovereignty relied on human reasoning for legitimacy. It required that any authority exercised among human beings be done so only with their consent. The resulting government was, in time, the first of many in the carbon energy era to idealize democracy. 

The behavior of those governments in practice proved very different from the ideal. While fighting and defeating totalitarian adversaries in twentieth century Eurasia, the democratic powers created a global system channeling real political and legal power to a tiny fraction of the human population. An elite class of managers oversaw the capital and technology necessary for global society to function. Therefore, the politics and laws of that global society failed to attain anything close to genuine democracy, declarations to the contrary notwithstanding. 

Ultimately, this fundamental flaw destroyed the global capitalist order. By channeling resources and therefore political power to a tiny elite, capitalism created institutions immune to change when ecological cataclysm began. Enriching itself by destroying the biosphere, the elite had no incentive to take corrective action when fossil energy depletion, ecosystem collapse, and climate super-heating accelerated in the early twenty first century. Action to prevent collapse would mean ending the exploitation sustaining the elite's political power. And so the collapse came. 

Historians today endlessly debate whether the period of the most profound social disintegration, from the abrupt breakup of the West Antarctic Ice Sheet until the Renewal of the twenty third century, constituted a so called "Long Night." Lately, that era has been relabeled as the Long Fire, or the Long Twilight, or the Long Death.

All of these views acknowledge the continuation of cultural frameworks from the old world into the new era of a planet made wholly alien to its former self. In the Earth's new climate, human cities today congregate in the temperate Arctic Ocean rim and the the thawing river valleys of Antarctica. The former centers of population in the middle latitudes lie in ruins -- a vast expanse of desert and rubble across most of the Americas, Africa, and Eurasia. In this planet-encircling graveyard of nation-states, cities and civilization have become impossible. A dead zone encompasses most of our planet, ravaged by super-storms, extreme heat, and plant extinction that destroyed any possible basis for stable agriculture and infrastructure. Only at the newly thawing poles could temperate climate let the Renewal take place.

If the former world is passed away, ours still retains old beliefs in the rights of human beings against their ruling authorities. Many alternative political and legal systems have been attempted in the last century and a half of rebirth at the north and south planetary poles. Societies of northern Scandinavia, Murmansk, and the Urals have generally adopted the old Napoleonic legal architecture. The Napoleonic civil law tradition, of course, now bears the legacy of five hundred years of military regimentation, resource wars, and epic migration.

The same is true in the river valleys and Arctic ports of Siberia, thoroughly conquered by generational floods of Chinese. The Sino-Siberian civilization has evolved from a wasteland of simple warlord city states four centuries ago to an uneasy melange of political and legal traditions from across Asia today. Many of these traditions reflect the eco-pacifism of the Great Teacher of Islam, Rashid the Blessed, who converted millions of people on his twenty third century journey from Spain to Kamchatka. Still other Siberian nations practice Chinese neo-Confucian law or Hindu-Buddhist fusions. Patagonia and the Antarctic nations have generally adopted the Second Ius Commune of the Catholic Church.

In the tiny outposts of Australia and southern Africa, a variant of the Anglo-American common law survives. The common law lives on in Arctic North America as well, still faithful, in spite of epic changes, to ideals of human dignity and limited government. Those ideals predate the collapse of half a millennium ago.

For all of this diversity, today's plethora of legal-political systems share a common historic legacy. Formed in the generations since the collapse, they have all abandoned the human-centered political sovereignty of the old world. They did so because that kind of sovereignty brought the old world to an end. In its place, the source of today's authority and law rests not in the divine power of kings or the reasoned will of the people but in the transcendent forces of nature itself. The Gaian matter-energy exchanges of this planet have become the sole legitimate source of power and justice in human societies.  Religious and secular people differ on whether Gaia is literally conscious. All agree that we live of the mercy of her power, or its, forever.

And so we render fealty therein, in fact and in law, for the remainder of human existence on this planet. Our constitutions, our parliaments, our executives, and our police reflect the hard won wisdom of five centuries.

Our purpose now is to use this legacy for the benefit of ourselves and our posterity. We have it in our power to make the world over again. And so we will.

The most popular post ever on this blog -- mobilizing for national emergency

Google very helpfully provides me with data about hits on this lovely blog. I can find out all sorts of information on who comes here, from which city in the world, to read which particular post, for how long, from what service provider. I can even tell which particular key words were typed into a search engine to find this here blog. Keywords that readers used to find this blog in the last few days include "termite farts," "Roman moat," and "Picard personal army."

The post on this blog that is most often read by readers is "Mobilization for national emergency: lessons of World War II for the age of eco-collapse," posted by me on April 15, 2011. This post has received 37.5% more hits than its next nearest competitor. It receives at least a few hits every week, sometimes even more than whatever posts have gone up that particular week. 

I try to attach cosmic significance to the relative popularity of that particular essay compared to other entries on this blog. I'm not justified in finding such significance, of course. This blog doesn't get a lot of hits, despite my periodic hopes that it might break through to some sort of significant readership. I haven't done enough promotional work for that to happen, mainly because I have too many other things to do. 

Still, I end up thinking about why some patchwork thoughts about economic production in World War II seem to be so interesting to the few readers who find their way here. In that essay, I tried to argue that industrial societies undergoing extreme disruption can continue to maintain basic government and business functions, even in desperate circumstances. Since national institutions and infrastructure did not rapidly, totally collapse under the extreme physical disruption of World War II, I contended that they would not do so under the extreme climate and resource disruption likely to emerge in the next 50 years or so (after that is another story).  

I may nor may not be correct in my argument. Whether I am or not, I still think that national mobilizations for World War II provides one of the most relevant real-life examples of what a viable large-scale response to climate change and resource depletion would look like. Such a response, currently, is not politically feasible. I believe this will change, sometime between now and 2050, as the physical consequences of planet wide ecological collapse become ever more direct and undeniable to national governments. And even to avid readers of the mainstream media. 

We can see tantalizing early hints of a sea change already. The United States and Russia are making plans for the industrialization of the Arctic, for example. The two governments, we can infer, see where the planetary ecology is headed and what will be necessary -- in their view -- to prosper in a changed world. U.S. and Russian efforts are underway to establish oil and gas drilling around the Arctic Ocean on a massive scale, with planned military and naval deployments to support economic development efforts. These plans suggest the eventual establishment of frontier towns and ports along the Arctic Ocean, as conditions there become increasingly temperate, the ice retreats, and the tundra thaws. Eventually, there will be cities -- communities of tens of thousands of people or more. In and around them we will see the coming and going of tankers, freighters, submarines, aircraft carriers, helicopters, strike aircraft, and troop formations. 

To me, as someone who cares about the future of the Earth's biosphere and the creation of social systems based on something other than predation, this is all horrifying. Mainstream media and policy wonks, once they awaken from their current zombified stupor of ecological ignorance, will see the Arctic industrialization and arms race -- of course -- as a complex series of trade offs among ecological, economic, and geopolitical realities. In the reality that exists outside of such ideological blather, the development of the Arctic will help ensure that human civilization burns. 

The rest of us will be left to pursue more local solutions, carving out a tolerable existence at the neighborhood, town, and city level as best we can -- within the constraints of larger systems of power and force. Those systems, increasingly, will be operating under emergency conditions, seeking to maintain order and prioritize the flow of remaining resources to corporate and military assets vital to the enrichment of nation-states and their ruling elites. 

My own part in all of that will consist of finding ways to put my 2014 law degree (fingers crossed) to good use, helping to prevent the worst local abuses (e.g. natural gas fracking, abusive behavior by leaders of military facilities) or lay the local foundation, ever so tentative and fragile, of a potential post-carbon, post-corporate future (through, for example, changes in rules for land use and economic exploitation). 

It will not be boring. 

Again with the cold fusion! Or, how [a quack invention, coincidentally located in Italy] is about to save us all from doom

I make no claim to know anything detailed about this, but evidently two Italian "entrepreneurs" are making quite a fuss claiming to have achieved cheap, table-top, room-temperature nuclear fusion. You can read about it here.

The two enterprising "inventors" have been demonstrating a device which claims to achieve fusion of nickel and hydrogen in water, without the need for solar-interior levels of heat, and without releasing enough radiation to blast everyone in the room into drooling, semi-molten, cancer-infested blobs of protoplasm.

So far, the two Italian guys have not made details of their technology, or anything about the methodology and the alleged science behind it, available to scientists who, like, you know, would like to be able to replicate this potentially revolutionary phenomenon in their own labs. The Italian dudes won't allow such replication, but they are evidently negotiating with Italian universities for "contracts" allowing the "entrepreneurs" to research the physical phenomena allegedly underway.

Hmmm.

I'm willing to bet $100 that this claim of cold fusion will turn out to be one hundred percent crap. By which I mean, the results will never (within the next, let's say, five years) be unambiguously replicated systematically by independent, professional, credible scientists and then published in a peer-reviewed journal and then go on to survive the intense scrutiny to follow such publication.

* * * * *

In 1989, two American guys in Utah made much the same claim about room-temperature nuclear fusion. It turned out to be total crap. Over the years, an underground community of rogue researchers has flourished, claiming all sorts of data about heat release without harmful radiation, which allegedly can be explained only by nuclear fusion or a fusion-like nanoscopic process. Twenty one years after the Utah cold fusion fiasco, the revolution in cheap, virtually limitless clean pseudo-semi-quasi-nuclear energy remains just around the corner.

Of course, "hot fusion" suffers from much the same difficulty. It is perpetually about 20-50 years away, as opposed to just around the corner. The difference is that hot fusion researchers actually adhere to scientific standards of transparency and publish in real scientific journals.

* * * * *

I have a rule of thumb regarding certain extraordinary claims. In particular, regarding claims that are so extraordinary as to be staggeringly, world-shakingly, nigh cosmic in their potential importance. My rule of thumb is that these claims are always wrong.

And, contrary to normal standards of open-mindedness and academic rigor, there is no need to investigate the claims. At all. They can be dismissed as lunacy, ignorance, or stupidity. There is no need to sift evidence, counter arguments, or exert any cognition whatsoever. Much less engage in face-to-face conversation. Ever.

The only exception would arise in the event that there is some viscerally staggering bit of evidence, itself stupendously out of the ordinary, to suggest that further investigation is warranted. In practice, such evidence is never presented in regard to these claims. Instead, you get the garden variety version of the claim, just as it's been presented on multiple prior occasions.

For example, someone claims room-temperature, table-top, radiation-free nuclear (or quasi nuclear, whatever) fusion. And the evidence for this is: take my word for it.

Or, as in the case of the Italian researchers, the evidence lies in "demonstrations" that produce heat in a tabletop device, without any access by independent observers to the device, the data or the methodology behind the heat production. Basically, the Italian guys are saying: take my word for it.

The believers in such claims always claim that they are, in fact, offering extraordinary evidence. But in practice, they never do. It always boils down to flimsy bullshit that really amounts to "take my word for it."

Conclusion: each new arising of the same tired claim of a world-shaking, revolutionary phenomenon can be dismissed, out of hand, as bullshit.

One is not supposed to put it in quite those stark terms. I do. Because I'm tired of wasting my fucking time arguing about such topics. They involve claims such as:

1) Cold fusion in a laboratory is occurring (no independent, subject-to-inspection evidence presented).

2) The U.S. government planned and executed the 9/11 attacks (no transcripts of conversations among the conspirators provided).

3) Extraterrestrial vehicles are routinely traveling through the Earth's atmosphere and abducting human beings to probe their bodily orifices (no submission of sample alien vehicle to peer reviewed journal provided).

4) Human beings can levitate solid objects with their minds (no live demonstrations of non-trivial, unambiguous results provided).

5) Sipping water can cure human ailments because the water "remembers" the ailment (no live demonstrations of non-trivial, unambiguous results provided).

6) Patterns of luminous stellar objects distributed in a certain pattern in the terrestrial sky determine human personality traits (ummm.... yeah).

7) Written records 30 or more years after the death of a supposedly real human being, who lived 2000 years ago, demonstrate that this human being rose from the dead and today disapproves, from a spectral afterworld, of how you have sex with other human beings (sigh).

8) Human personalities survive the disintegration of their neuro-chemical foundation after brain death, and proceed to hang around a house that was traumatic for them in real life. But never, say, a department store, or a bathroom.

9) Human bodies are permeated by an invisible energy field -- undetectable by conventional scientific methods -- that determines fundamental aspects of human health and can be radically altered by sticking needles through it, in a way that is distinguishable from the release of analgesic chemicals by needle penetration and other conventional biochemical processes.

Et cetera.

So. I bet $100 against the Italian cold fusion claim. Stay tuned.