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.
Context and Purpose
Apparition above a Massachusetts suburb September, 2019
Martin Luther King is famous for saying that “the arc of the moral universe is long, but it bends towards justice”. He was drawing on the words of Theodore Parker, a Unitarian minister opposed to slavery, who in a sermon published in 1853, wrote:
I do not pretend to understand the moral universe, the arc is a long one, my eye reaches but little ways. I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. But from what I see I am sure it bends towards justice. Things refuse to be mismanaged long. Jefferson trembled when he thought of slavery and remembered that God is just. Ere long all America will tremble. (Emphasis added).
Today Charles Blow writes in the New York Times that the “impending impeachment of Donald Trump will be a rebuke, but it will not be a restraint.” Elizabeth Drew writes that “we could be on the brink of having no check on the president, no matter how radically he defies the Constitution”.
Lovers of the environment are lovers of justice, as surely it is unjust to degrade the foundation on which all life depends. Such lovers may, at this moment, be aided in maintaining their energy to resist degradation and restore the hope of justice by remembering the words of the Preamble to the American Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
This is the declaration of purpose – the mission statement – the plan - of the founders of our system of democracy. Lovers of life and the justice required to sustain it must remember these words and resist all attempts to narrow their meaning. Abraham Lincoln’s Gettysburg Address, envisioning a new birth of freedom, a new founding of the country after destruction, took an expansive view of its purposes. He also drew upon Parker, who in a speech in 1850 stated:
There is what I call the American idea. I so name it, because it seems to me to lie at the basis of all our truly original, distinctive, and American institutions. It is itself a complex idea, composed of three subordinate and more simple ideas, namely: The idea that all men have unalienable rights; that in respect thereof, all men are created equal; and that government is to be established and sustained for the purpose of giving every man an opportunity for the enjoyment and development of all these unalienable rights. This idea demands, as the proximate organization thereof, a democracy, that is, a government of all the people, by all the people, for all the people; of course, a government after the principles of eternal justice, the unchanging law of God; for shortness' sake, I will call it the idea of Freedom.
Context and Purpose
In 1893 the historian Frederick Jackson Turner famously said the American frontier was closed. The great openness of the West had brought a physical freedom for those who came to this country, but now it was full. This was a narrow perspective, ignoring that of the people already here, who had already lost freedom as a result of the arrival of the crowd. Now, with so many billions of people, everyone has to face the same fact, that a crowded world is in some sense closed.
We do however still have some open spaces, because of the wisdom of past leaders. A traveler in the Great American West will find what Ken Burns’ film calls “America’s Best Idea” - our National Parks. Wisdom also gave us another kind of open space - the freedom of thought and conscience. The First Amendment opens the world of closed belief to a shared space. The possibility of mutual respect for the thoughts of others creates a new world of freedom.
Travelers to the West can also find the park known as Monument Valley. It is not a federal park. It is a Navajo park. Its website provides its real name: Tsé Bii’ Ndzisgaii (Valley of the Rocks). It is owned and preserved and opened to visitors by the people who were there before the land became crowded. We can be grateful for their wisdom in not building hotels that would mar its extraordinarily beautiful landscape.
Sustainability Policy and Events, Law for Sustainability, Context and Purpose, Activity
Jost Haller, St. George Slaying the Dragon, Unterlinden Museum, Colmar, France, 15th Century, photo by Vincent Desjardin, no alteration. Creative Commons by 2.0: https://creativecommons.org/licenses/by/2.0/deed.en.
For too long we – all humans of today, plus all other living things – have been victims of monstrous misconceptions, roaming like vicious dragons over the lands of this green earth, scorching it and terrifying everyone. These are the misconceptions bred by the compulsion to make money at all costs. The placement of the profit imperative at the top of the priority pyramid has led otherwise sensible people to reach into the underworld and pull poisons from hell and pour them into our seas, skies, and soils, where they have burned in rapid and slow fashion to the ruin of more than anyone could calculate.
But as in the stories, of Hercules, Sigurd, Rustam, Indra, Marduk, Gilgamesh, and so many others, we also know that the reign of the monsters can end, if someone will stand up to them, and use the right tools. For the purpose of simplicity that tool is often a sword, but it can be a mirror (Perseus), a bird bringing knowledge of a chink in the dragon’s armor (the Hobbit), or an oxygen-destruction device (Godzilla). Today, we – all citizens – have been given a tool – the Green New Deal – and it will work if we decide to use it.
The virtue of this tool is that it is infinitely flexible. At this point it is fashioned as a Congressional Resolution, and its features are recognitions and aspirations. For the tool to work, to be sharp enough to slay the dragon of our addiction to money generated by poisonous fuels and the illusions of comfort and convenience it produces, we only have to perceive that such a program is needed – and support its goals. Hope has arrived in the form of a sensible posture towards our present and future prospects, and it can be manifested by acceptance. The dragons of greed, pollution, cynicism, selfishness, blindness and rank irresponsibility can be defeated and their day cast aside for the light of reason, which can perform the action of a hero if we give to it our mindful attention and assent.
That such a resolution is before Congress, with 69 proponents in the House and 12 in the Senate, is a sign of the maturation of the environmental movement. Modern environmental consciousness began as something to worry about, and then we got tired of worrying about it, so fretful that it would cost too much to address that a mindless destruction of environmental protections gained political support, an emotional catastrophe of mythical dimension, an abandonment of the project of developing social responsibility, a reversal of the positive trend towards sensible civilization. But while the teardown was building strength, first under Nixon, then under Reagan, then under the second Bush, and now under he who is not here named, in case after case it was being proven that environmental investments are actually good for us.
One big win, hardly gaining any public attention, was the billions of pounds of toxics use eliminated from commerce by the pollution prevention movement, saving companies billions of dollars at the same time. The next big win was the energy efficiency movement, and then we had the success of solar, and wind, and now energy storage. We stopped major forms of pollution and didn’t hurt ourselves or the economy. Yes, some suffered from the loss of dirty jobs. But that didn’t have to happen – had we invested in helping people through the transition, that story could have turned out differently. The point is that there has been far too little attention to the fact that it makes sense to transform to clean and safe technologies and practices. It makes business sense, it makes moral sense, it stands to reason, it stands up to challenge. The Green New Deal Resolution uses that truth like a sword.
It proceeds from the recognition that investing in making our planet safe and not poisoning the bodies of every living thing can also create millions of good jobs while improving infrastructure, buildings, agriculture – everything we do. It is not wishful thinking, mythical exaggeration or ludicrous hope that recognizes this. Investing in the great transformation of our built systems so that they exist sensibly within the biosphere only makes sense, and it is a dark mystical delusion that motivates opposition to the dawning of this new day. In many of the myths, dragons are not just breathers of fire, but have powers of mind control. You don’t want to let them look in your eyes or you will become transfixed. That is what has happened to modern civilization. It has been fixed to the spot that the dragon wants us to stay in. But this is a hero-story that every citizen can enjoy. All we have to do is open our eyes and hearts to the fact that we don’t need to continue poisoning ourselves, and the sword of truth will bring a new day.
 See the complete resolution as introduced in the House Feb. 7 by Alexandria Ocasio-Cortez: file:///C:/Users/rick/Documents/Courses/The%20Green%20New%20Deal%20resolution.pdf or see Ed Markey's summary: https://www.markey.senate.gov/news/press-releases/senator-markey-and-rep-ocasio-cortez-introduce-green-new-deal-resolution.
ACTIVITY - help bring in that new day.
Step One. Think about who needs to be convinced of the importance of supporting the Green New Deal, and about specific things it should do, specific actions that should be taken. In addition to representatives at all levels of government, there are influential people, key professional and trade associations, nonprofit organizations, newspapers, radio shows. Who are the commentators and what are the platforms where support can make a difference, where the vision of the tools and actions can be formed so that people don't regard this proposal as pie in the sky? What are the arguments you can use to make people see that this is real, that this is our chance to work together and make a world that can survive, and in which everyone benefits?
Step Two. Write and speak your mind.
Step Three. Consider all the things that can go wrong - anticipate the complaints and questions and confusions. Prepare yourself to welcome constructive criticism and make sure it does not blunt our forward movement. We will not progress by denying the potential problems with the plan, but by addressing them. Do not be impatient with others who do not have the vision. Help them see.
Step Four. Strategize how to overcome. Do this by yourself, and do it with others. Make it a habit and you will get good at it.
Sustainability Policy and Events, Context and Purpose
Blaise Pascal, (1623-1672), portrait at Palace of Versaille (CC).
The Stanford Encyclopedia of Philosophy characterizes the “wager” of seventeenth-century philosopher Blaise Pascal as the idea that we should assume “that God exists because it is the best bet”. If we are wrong, and God does not exist, we have hardly been harmed and may have lived a virtuous life as a consequence. If we are right, we may enter heaven. Today, just before the mid-term elections in the United States, we are facing a great gamble seen in two very different ways. On the right are those who believe we must restore what they consider “traditional” values. On the left are those who believe we must restore democracy. The environmental citizen tends to be located on the left, because the Administration has been dismantling environmental protections. What arguments can this citizen employ to convince those who are considering supporting the Administration? Perhaps a version of Pascal’s wager can help.
Instead of a belief system that pictures an afterlife, judgment, and a system of belief or observance that passes muster, picture the world as it is and humans as they are. Substitute World for God. Living things require clean water and air, not to be faced with rapid extinction, and for the oceans and the air not to be heating up. They need to not have poisonous chemicals in their soil and food. On the right, many question whether these things are really happening, or whether they are happening to the extent claimed, and they point to the damage that such beliefs can cause (lost jobs, costs, inconvenience). On the left, many reply with facts that are simply not believed. Maybe those who are willing to gamble with our health, and with ecosystems, can apprehend a Best Bet argument.
If the left is correct, and the very life systems of this planet are indeed threatened, and failing to act is indeed harming us very substantially, acting means saving the world. If the right is correct, failing to act will prevent some irritating rises in price and having to make some adjustments in our lives, such as not being able to emit as much, or having to use products that don’t work quite the same as the ones to which we have become accustomed. On the one hand, world salvation: on the other, perhaps some small gain (and even this is disputed by those who point to the many benefits of greening economies).
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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