Heads in the sand as the tide rises: environmental ethics and the law on climate change.

• Jurisdiction: United States
• Author: Taylor, Prue
• Date: 22 June 2001

I.

INTRODUCTION

In 1992 the Preamble to Agenda 21 gave a clear definition of the magnitude of the environmental crisis together with a prescription for remedies. Article 1.1 states:

Humanity stands at a defining moment in its history. We are confronted with a perpetuation of disparities between and within nations, a worsening poverty, hunger, ill health and illiteracy, and the continued deterioration of ecosystems on which we depend for our well-being. However, integration of environment and development concerns, and greater attention to them will lead to the fulfillment of basic needs, improved living standards for all, better protected and managed ecosystems and a safer, more prosperous future. No nation can achieve this on their own; but together we can - in a global partnership for sustainable development. Nonetheless at the new millennium we confront an accelerating environmental crisis. The tools we have developed to respond, over the last 30 years, are little more than a "weak patchwork" of laws, covering narrow and segregated sectors of international activity.(1) Many of these laws are treaties that have not been ratified or implemented by the world's nations. Clearly, something more is needed.

This paper argues that the "something more" is the development, and the implementation in law, of an ecological ethic.(2) It begins by illustrating some of the benefits of implementing such an ethic, within the specific context of climate change. The particular focus is on the difference an ecological approach would make to our choice of response measures. In later sections, this paper makes reference to other examples of the development and legal implementation of an ecological ethic, including: the creation of a comprehensive, integrated and ethically guided global framework treaty for international environmental law; the Earth Charter and IUCN Covenant on Environment and Development initiatives; and the emergence of ecological rights.

Law is reflective of prevailing social attitudes, conventional thinking and values. They provide an important foundation for law, and are perhaps most clearly reflected in the environmental laws and policy of states.(3) A close analysis of legal principles and doctrines, together with specific criteria and standards, reveal the values, or ethic(s), upon which they are based.(4) An analysis of the 1992 United Nations Framework Convention on Climate Change ("FCCC")(5) and the Kyoto Protocol,(6) clearly reveals that the prevalent value is one of preserving current forms of economic prosperity, i.e., maintaining the economic status quo - "business-as-usual." This paper demonstrates how legal language sanctions the economic status quo, and why the economically driven measures in the FCCC and Kyoto Protocol are seriously inadequate as a response to the threats of climate change.

But how do we move towards the development and implementation of a new ecological ethic, one which values the environment above the economic status quo? And would its adoption lead to improvement? Would, for example, the response measures in the FCCC and Kyoto Protocol be any more effective in managing climate change? This paper explores these questions by applying an eco-centric interpretation of the "precautionary principle" to selected response measures. As will be seen, this would require a form of prior environmental impact assessment to ensure that the measures adopted will be effective in achieving the necessary levels of environmental protection or mitigation. Applying the "precautionary principle" to existing reduction targets, the emissions trading concept, and the net approach, reveals very serious flaws in each.

Reaching the level of consensus needed for the genuine implementation of an ecological value in law is the most difficult problem. The modus operandi of most domestic political systems, together with the nature of international treaty negotiations, means that only a large scale and fundamental change in the attitude and behaviour of the world's civilian population (particularly those from developed states) will create the necessary political will for change. In the context of climate change, this requires nothing short of drastic restructuring of economies and industry away from fossil fuels. It also requires a major revolution in current patterns of human consumption. The final sections of this paper consider some of the efforts being made to generate this change of attitude and behaviour.

II.

THE EXAMPLE OF CLIMATE CHANGE

In the absence of a clearly defined and agreed ethical approach to climate change, which guides our legal responses, not only are we failing to avoid dramatic changes to our climate system, but we may well end up at the catastrophic end of the scale offered by the global climate change models, somewhere only computers and dooms-dayers anticipate.

Since the 1980s, when the prospect of radical change to our global climate system was first discussed, we have managed to build an international consensus for protection of this system. To a large degree, this consensus is based on an extensive and rigorous scientific debate, together with general adherence to the merits of taking a "precautionary approach." It is a testimony to both the quality of scientific debate, and the precautionary approach, that the FCCC even exists. But underlying this development of international consensus is a major disagreement or lack of consensus about why we should protect the global climate system. Should we protect it because of the almost incalculable havoc large scale climate changes are likely to wreak on our economic systems? Or should we protect it because it is one of the most fundamental features of our biosphere, in protecting it we are respecting the Earth and all life forms and ensuring a future for unborn generations? Or should we protect it for some other, as yet unarticulated, reason?

The FCCC's objective, which is to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, within a time frame which allows ecosystems to adapt and enables economic development to proceed (albeit in a sustainable manner),(7) suggests a mixture of both environmental and economic reasons for protecting the climate system. But as will be seen, the economic rationale has absolute dominance at the expense of the environmental objective.

The analysis which follows demonstrates that the FCCC values our continued economic prosperity, premised as it is on production and consumption of resources (in particular fossil fuels), more highly than it values protection of the Earth's global climate system. As a consequence, the various responses and commitments developed in the FCCC (and related instruments) are defined and limited by this fundamental value. Accordingly they:

(i) do not go far enough or fast enough, i.e., the reduction targets are too small and the timetables too generous;

(ii) lock us into the status quo, whereby we repeat the patterns of human activity which caused the threat of climate change;

(iii) avoid, or at best, delay the fundamental social and economic restructuring necessary to address the causes of climate change;

(iv) enable some nations to be economic opportunists;

(v) fail to address important equity issues.

In valuing our current patterns of economic prosperity more highly than the environment, we also deny ourselves the opportunity to think more creatively about possible responses to the dangers of climate change.

These criticisms of the FCCC, and related instruments such as the Kyoto Protocol, are illustrated in detail in the following paragraphs.

How, if at all, would a different ethical approach be an improvement? If the FCCC was based on an ethic of "respect for all life," would our legal responses be more effective? In other words, would a different moral prescription for guiding conduct lead to a substantially improved legal regime for addressing climate change?

In addressing these questions it is useful to explore the current interpretation and use of the "precautionary approach" in the FCCC, and compare this with the potential use of the "precautionary principle," interpreted and applied in the context of an eco-centric ethic.

III.

THE PRECAUTIONARY APPROACH

While there is plenty of debate about the precise definition of the "precautionary approach," one of the most classical :formulations appears in Article 3 of the FCCC.(8)

Article 3: The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost effective so as to ensure global benefits at the lowest possible cost. Put simply, this means that states should not use the fact that there is not complete scientific certainty regarding the adverse environmental effects of activities to postpone putting in place measures to prevent those effects. There is considerable controversy also about the definition of the "precautionary approach" and the criteria to guide its implementation. It has variously been described as "fuzzy," "vague" and "too general" to be of practical use.(9) On the other hand, some commentators such as O'Riordan and Jordan have found a simple core concept being: "[t]he intuitively simple idea that the decision-makers should act in advance of scientific uncertainty to protect the environment (and with it the well-being interests of future generations) from incurring harm ... In essence it requires that risk avoidance becomes an established decision norm where there is reasonable uncertainty regarding possible environmental damage or social deprivation arising out of a proposed course of...