Law for Sustainability, Purpose and Context
Justice, by Pierre Hubert Subleyras (1699-1749), at the Musée Thomas-Henry
When Justice Roberts was quizzed by Senators on his judicial philosophy during his confirmation hearings he said that judges ought to be like umpires. They don’t make law, they just call balls and strikes. But what about the role of the judge in providing justice? Let’s say the rules of the game have been corrupted – the strike box is smaller for one team than for the other. The judge must be a backstop, and apply the concepts of fair treatment embodied in the Constitution and our hearts. That would meet the original intent of the founders in creating a government of the people, and that would be making law. Of course judges are to restrain themselves, the judiciary is only one branch of government and the function of making and executing statutory law is reserved to two others. But judicial restraint must not include failure to defend the fundamentals. Judges must protect the basic purposes of government – to balance such things as freedom and equality on the scales of justice. In order to do that, they must occupy the center, and not the extremes, of our politics.
Sustainability Policy and Events, Law for Sustainability, Purpose and Context
https://climate.nasa.gov/climate_resources/24/graphic-the-relentless-rise-of-carbon-dioxide/. “This recent relentless rise in CO2 shows a remarkably constant relationship with fossil-fuel burning".
In 2009 climate activist Bill McKibben’s group 350.org had a day of action with rallies all around the world – sending the message that we need to keep the level of carbon dioxide lower than 350 ppm. It’s now approaching 420.
As a lifelong environmentalist people sometimes tell me that they really care about the environment but don’t know what they can do. This leads to discussions about flying less, buying less-polluting machines and products, recycling, eating less meat. But nothing compares to the good every American citizen can do this Fall. This is not a political blog. There have been many Republicans we should respect for their environmental commitment. But at this historic moment the environmental citizen must take sides and must vote to save the world. If we vote wrong, we can expect more descent into the abyss.
A National Academy of Sciences study just found that the number of people exposed to “extreme heat” in cities will sharply increase (by a factor of 12.7–29.5 by 2100) if we continue to fail to restrict greenhouse gases. We are seeing the West in wildfire emergencies every summer now. Hurricane Laura just caused from $8 – 12 billion in damage, but the fire at the Biolab plant in Lake Charles, Louisiana should make us think about all those facilities refining oil and producing chemicals on the Gulf Coast. It’s one thing to have your house flooded, it’s another when the flood waters and the air are toxic. Global warming is not just about Greenland melting. It’s about all hell breaking loose.
I was recently asked if there is a real difference between the current presidential nominees, or if they really aren’t all the same in being beholden to corporate interests. As an educator I strive very hard to avoid partisanship. I do not consider my role as helping a political party. I believe fervently that liberals need to understand honest conservative concerns about proposed changes, and that conservatives need to respect the hopes for greater justice that liberals express. I have spent my life trying to mediate between extremes – and have been successful an astonishing number of times. I believe in the vital center. But at this particular point in history, it is necessary to see and say that the very survival of life itself depends on people opening their eyes and voting this current Administration out of office. Trump is a wrecking ball and Biden offers a chance to save what’s left. I am a partisan in defense of the Earth and I call on all of Nature’s children to stand up for her, and themselves, as well. We have the vote and we can use it to save the world.
Recommended Reading, Law for Sustainability
Clear brook at high elevation, (inaccessible to livestock grazing). Great Basin National Park, Nevada, 2019.
To read Christopher Ketcham’s This Land (2019) is to be disabused of any notion that what’s left of our wild land is safely managed for the people of the United States. He makes clear that grasslands have been given over to sheep and cattle ranchers, the great sagebrush sea that covers much of the West now belongs to fossil-fuel extractors, and our old-growth forests are being mowed down. This is a book full of the kind of anger that one might feel seeing one’s dearest loved ones threatened, and the subtitle tells us who Ketcham blames: How Cowboys, Capitalism and Corruption are Ruining the American West. But it is not without attempts to understand. In one arresting moment in a book packed with them, he blames himself as well for contributing to climate change, because of his air travel: it further harms the endangered high-mountain whitebark pine which produces fat-rich nuts for the grizzlies he can’t find. In another he describes the “terror management theory” of psychotherapist Irvin Yalom in an attempt to understand how people adopt killing as a way of reacting to a potentially hostile environment.
Intoxicated with the beauty of life itself, eager to find and experience its wonders, he draws you into the wild, and then you see how once-clear brooks – so precious in the arid West - are trampled into mud by cattle and filled with their feces. With him you get up at dawn and watch wild bison being corralled by the Park Service, and hear
the moans of bulls and cows, the calling of the calves for their mothers, the cracking of the wrangler’s whips, the cruel voices of men…
In mid-April the EPA refused to tighten standards for “fine soot”, otherwise known as ultrafine air pollution, or PM2.5 (Particulate Matter less than 2.5 microns in diameter), even though its own scientists had found that this would prevent thousands of deaths per year. Also in mid-month came news from Harvard researchers that exposure to air pollution exacerbated the chances of dying from the COVID-19 virus. The report states that the finding that “a small increase in long-term exposure to PM2.5 leads to a large increase in the COVID-19 death rate” is “consistent with previous findings that air pollution exposure increases severe outcomes during infectious disease outbreaks”. (Air pollution “is believed to have contributed to nearly 5 million premature deaths worldwide in 2017 alone”).
Later in the month, researchers in Italy posted a report of finding the novel coronavirus on particles of air pollution. Although at present, “no assumptions can be made concerning the correlation between the presence of the virus on PM and COVID-19 outbreak progression,” the finding is consistent with other evidence concerning viruses. If we are to follow the sensible practice of preferring to be safe than sorry, we should take seriously the probability that particles of air pollution can carry COVID-19 viruses. The ultrafine particles are so dangerous because they penetrate past ordinary obstacles and reach vulnerable interior parts of our bodies. A new risk assessment of particulate matter should be performed, because the focus of the Harvard researchers was long-term, chronic exposure to air pollution. But if air pollution is a vector of this new disease, it is an acute risk to public health.
The public can comment until June 29 on EPA’s proposal to leave particulate air standards unchanged. A public hearing will take place on May 20 and 21.
Sustainability Policy and Events, Purpose and Context
The Green Screen for Safer Chemicals, a product of Clean Production Action, is a method of comparative Chemical Hazard Assessment that can be used for identifying chemicals of high concern and safer alternatives. Logo used with permission. See: https://www.greenscreenchemicals.org/
In 1987 while working as an environmental analyst in the Massachusetts budgeting office, I learned about a little program that was focusing on “Source Reduction”, and I went right over to ask if I could work there, because after 17 years of trying to figure out how environmental problems could be most effectively addressed, I felt they had the answer: you address the problem at the source, instead of waiting for problems to arise and then trying to clean them up.
The next year I started working on what grew into one of the world’s first and biggest programs of technical assistance for toxics use reduction (at its height, our office was a little more than thirty employees. If I ran environmental policy, such agencies would have hundreds of staff). I stayed with what became more generally known as pollution prevention for the next twenty-seven years, becoming a true believer in its value, because I saw hundreds of companies find ways to reduce their toxics use and become not only safer, but more economically viable. Nearly all of the companies I worked with had good experiences and came to appreciate how worthwhile it can be to focus on environmental issues as clues to how to improve process and product. They also learned how helpful government can be when it is not just out to punish you: a much needed change in the relationship between government and the regulated community. My experience convinced me that our society can transition to cleaner production without the economic penalty so many expect from environmental initiatives, and without having to use harsh enforcement, except when dealing with the most entrenched laggards. (I also spent a few years as an enforcement attorney, and know that some companies do need punishment, or its threat). Many businesses will utilize a helping hand, and that made me convinced we should have a “two-handed” approach, offering assistance first, and using enforcement as a powerful backup when it doesn’t work. It is not one or the other, but both, appropriately targeted, that can accelerate progress.
Although many millions of pounds of toxics were reduced and companies saved millions of dollars, and the rest of us received reduced toxic pollution and waste, skeptics constantly told me that my story could not be true, because, as one expert put it, company managers are “expert money hunters”, and if there really was a lot of savings in toxics use reduction, they would have found it by now. It is like the joke about an economist not bending down to pick up a twenty dollar bill, because “it couldn’t be there”. I came up with my reply too late after being humiliated by this expert in front of prestigious thinkers at MIT, but perhaps it can still do some good: “They don’t usually hunt in this part of the forest”.
The Environmental Citizen is for people who want to help meet the challenge of how to live within the biosphere without harming it, and thus protect ourselves, other living things, future generations, and the source of all wealth and value that we hold dear. It builds on topics in the text Developing Sustainable Environmental Responsibility but is addressed to anyone interested in what each individual can do on their own, as members of the societies in which they live, and as members of the universal group - the human race.
Designed to easily be used as classroom resources or to offer people direction, many of the articles within The Environmental Citizen include activities, questions, and recommended readings.
I welcome your input and ideas.
Rick Reibstein teaches environmental law at Boston University and Harvard’s Summer School. He has helped develop toxics use reduction policy and assistance practices for the Commonwealth of Massachusetts and has served as an attorney for the U.S. Environmental Protection Agency (EPA). He has trained businesses and governments in developing programs for pollution prevention, compliance assistance and environmental performance improvement. He initiated the Massachusetts Environmentally Preferable Purchasing program, founded two Business Environmental Networks and is an individual winner of the EPA’s Environmental Merit Award (2000). Reibstein has published in Pollution Prevention Review, the Environmental Law Reporter, the International Journal of Cleaner Production, the Journal of Industrial Ecology, and the Journal of Ecological Economics, as well as producing many reports, guidance and proposals as a state official.
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