Environmental Law From the Inside: Local Perspective, Local Potential
| Date | 01 December 2017 |
| Author |
47 ELR 11048 ENVIRONMENTAL LAW REPORTER 12-2017
Environmental
Law From the
Inside: Local
Perspective, Local
Potential
by Keith Hirokawa
Keith Hirokawa is Professor of Law at Albany Law School.
He received an LL.M. from Lewis and Clark School of Law
in 2001, a J.D. from the University of Connecticut in 1998,
and an M.A. from the University of Connecticut in 2003.
Perception and experience are important to under-
standing the relevance and eectiveness of how we
relate to and regulate our natural surroundings. is
Article uses the term “insider” environmental law to
distinguish local environmental governance capacity
and suggests that local needs should ser ve more of
a driving role in the formulation of environmental
law and policy. It rst introduces the insider envi-
ronmental perspective by observing the ways that
the environment is experienced, which facilitates an
understanding of why ecosystems a re regulated dif-
ferently by dierent levels of government. Second, it
distinguishes the value of insider environmental law
from the more traditional understanding of local eco-
system governance as local protectionism. ird, it
explores the concept of ecosystem services to show
how local perspective can be motivated by an open
and honest consideration of the costs of environmen-
tal governance. Insider environmental law is con-
cerned with identifying an objective description of
environmental quality that is consistent with a real
and felt sense of place.
ere are these two young sh swimming along, and the y
happen to meet an older sh swim ming the other way,
who nod s at t hem and says, “Morning, boys, how’s t he
water?” A nd the two young sh swim on for a bit, a nd
then eventua lly one of them looks over at the other and
goes, “What the hell is water?”1
e physica l environment itself has an eect on percep-
tion. People who live in a “carpenter” world are susceptible
to d ierent kinds of allusion from those who live in an
environment l acking in orthogonality. It is seldom pos-
sible to relate environmenta l characteristics to perceptual
biases as cause to eec t: culture mediates.2
e environment is always the setting for what we see in
nature, how we interact with it, and how we value our-
selves and surroundings within th is context. Because of
the diversity of environments, there will be a diversity of
perceptions. But it is dicult to art iculate the dierent
strains. We live and lea rn in an a llusion to nature, subject
to a bit of mediation by cultural priorities to direct what
we are experiencing.3
e thrust of this observation is, for purposes of this
Article, that perception and experience are importa nt to
understanding both the relevance and eectiveness of how
we relate to and regulate our natural surroundings. Referred
to here as “insider” environmental law, the term is intended
to distinguish local environmental governance capacity on
grounds of how the environment is experienced. I suggest
that local needs should serve more of a driving role in the
formulation of environmental law and policy.
1. David Foster Wallace, is Is Water: Some oughts, Delivered on a Sig-
nicant Occasion, About Living a Compassionate Life, Commencement
Address at Kenyon College (May 21, 2005), https://web.archive.org/
web/200 80213082 423/htt p://www.mar ginalia. org/dfw _kenyon_ com-
mencement.html.
2. Y-F T, T: A S E P, A-
, V 246 (1974) [hereinafter T]. Yi-Fu Tuan goes
on to remark that the eect is pervasive:
We can say that the develop ment of visual acuity is rela ted to
the ecological quality of the environment . . . Environment
necessarily provides the majo r building block s of autochthon ous
cosmologies and two world view s: the contrasts between Egyptian
and Sumerian world views in the frame of their individual envi-
ronments are reveal ing.
Id.
3. is is largely the point of social constructivists. P B T-
L, T S C R: A T
S K 16 (1966); Keith H. Hirokawa,
-
, 21 V. E. L.J. 387 (2003); E L
C I N: A C A (Keith H.
Hirokawa ed., Cambridge Univ. Press 2014).
searching dialogue on the ideas presented in this Article, and to Jay
comments and research.
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
12-2017 NEWS & ANALYSIS 47 ELR 11049
To accomplish this task, this Article is intended to
identify the footings and lay the foundation for local eco-
system governance based on the way communities regu-
late their environments locally a s insiders to ecosystems.
First, it introduces the insider environmental perspective
by observing the ways that the environment is experi-
enced. is discussion helps in grasping how a perception
of nature derives from experiences with it. is discussion
also facilitates an understanding of why ecosystems are
regulated dierently by dierent levels of government.
Second, the Article distinguishes the value of insider
environmental law from the more traditional u nderstand-
ing of local ecosystem governance as local protectionism.
On the one hand, a relationship between local government
and local environments might be depicted only as a means
of thriving with the greatest economic benets. From
there, we could interpret local laws as protectionist policies
regarding natural resource allocation. Nonetheless, I pro-
pose a perspective of ecosystems that is an alternative to the
competitive concerns of political boundaries and economic
risk. e act of being in an ecosystem prioritizes the notion
that ecosystem governance is co-extensive with local gov-
ernance, where community identity, economy, equity, and
human well-being are fundamentally linked to the loca-
tion and ecological place of community.
ird, the Article introduces the concept of ecosystem
services to grasp the manner in which local perspective can
be motivated by an open and honest consideration of the
costs of environmental governance. e ecological eco-
nomics of ecosystem services posits that where ecosy stems
fail, humans, and particularly humans situated in commu-
nities, suer real, calculable harm. Flooding, water and air
quality concerns, noise pollution, haza rdous waste expo -
sure, and climate control are felt locally, even if acknowl-
edged on a regional or federal basis. Insider environmental
law is, to its credit and confusion, concerned with the dif-
culties of identifying a n objective description of environ-
mental quality that is consistent with a real and felt sense
of place.
I. Space, Place, and Perspective
To the casual visitor, the limits of the village domain are
not evident i n the landscape. e villages themselves are
evident, each sur rounded by an apron of elds. To t he
local people, sen se of place is promoted not only by their
settlement’s physical circumscription and space; an aware-
ness of other settlements a nd rivalry with them signi -
cantly enhance t he feeling of uniqueness and identity.4
4. Y-F T, S P: T P E 166
(1977) [hereinafter S P].
To provide a foundation for considering the ecacy of local
control over ecosystems, this part concerns the reverence for
“place”: what is the relevance of location to the governance
priorities and values we attribute to the environment? is
question ha s become increasingly more important under
the regulatory hesitancy of the current administration, and
has come into focus with the clear emergence of serious
thought about the importance of ecosystems to our homes
and communities. is part considers what it means to
be local, borrowing from other disciplines5 to discuss the
foundations and scope of sense of place.6 is understand-
ing dives into the “why” of the relationship between com-
munity and ecosystem and is grounded in the idea t hat
community identity is personal,7 experienced, and always
in an ecological context. I attempt to nd the best way
to frame the relationship between environment and loca-
tion in a way that unlocks the potential of communities
to manage ecos ystems. Here, the ideas of community and
ecosystem cannot be considered in isolation.
As Rick Su states, “[A]lthough it is easy to generalize
about space at an abstract level, there is no substitute for
close analysis of a specic community at a particula r point
in time.”8 us, we begin with local declarations of com-
munity and ecology. ese are self-characterizations.9 In
5. ere seems to be no shortage of disciplinary counterparts for sense of
place. is Article focuses on lessons from land use planning, geography,
and psychology.
6. It should be noted that the terms “space” and “place” are not used inter-
changeably in this Article. Tuan explains:
“Space” and “place” are familiar words denoting common experi-
ences. We live in space. ere is no space for another building on
the lot. e Great Plains look spacious. Place is security, space is
freedom: we are attached to the one and long for the other. ere
is no place like home.
S P, supra note 4, at 3. Tuan goes on to note the relationship
between the two: “When space feels thoroughly familiar to us, it has become
place.” Id. at 73.
7. is Article does not take a position on the question of whether the concep-
tual focus of policy should be the person or the place. Susan S. Fainstein
& Ann Markusen,
, 71 N.C. L. R. 1463, 1465 (1993) (discuss-
ing the “desultory intellectual debate over whether policies should be aimed
at places, like inner cities and depressed rural areas, or at people”).
8. Rick Su, ,
45 U.C. D L. R. 1637, 1647 (2012).
9. e term “sense of place” has seen a variety of co mpeting d enitions.
For in stance, Nic holas Fromhe rz descri bes sense of place as a personal
connection to a particular pi ece of land, rathe r than a shared pic ture of a
common envi ronment:
As I use the term, a “sense of place” is a bond felt by a person or
community toward a particular piece of land. e person associ-
ates the place with memories (good and bad), family or community
well-being, and hope for the future. e person cannot think upon
her past without thinking of this place, much less envision a future
in its absence.
Nicholas A. Fromherz,
, 39 E
L.Q. 57, 80 (2012).
Melissa Berry argues that sense of place is in the decline in urban areas
due to three disconnections:
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
To continue reading
Request your trial