The Earth as eggshell victim: a global perspective on domestic regulation.

• Author: Aman, Jr., Alfred C.
• Position: Response to article by Richard B. Stewart in this issue, p. 2039 - Symposium on Economic Competitiveness and the Law

In 1891, in a small schoolroom in Waukesha, Wisconsin, 12 year-old George Putney scuffled with 14 year-old Andrew Vosburg and kicked him in the shin. The kick would hardly have injured a healthy child; however, Vosburg was not healthy. The kick aggravated Vosburg's tibia infection, causing him serious injury. The Supreme Court of Wisconsin held George Putney liable for all the damages that followed, even though Putney did not know of Vosburg's weakened condition. In the now famous case of Vosburg v. Putney,(1) the Wisconsin Court enunciated the common law doctrine since known as the "eggshell skull" or "thin skull" rule: you take your victim as you find him.

The thin skull rule is a productive starting point for a dialogue on the place of law in any effort to control (or reverse) the cumulative damage to the planet's ecosystem. Any such dialogue requires a global perspective that fuses international and domestic approaches to law.(2) Environmental law must assess not only the level of assault against the earth, but also the risk of the planet's hypervulnerability to further injury. As in Vosburg v. Putney, some of the insult to the planet has been the result of unintended consequences, whose significance we are only now beginning to understand. The planet has become an eggshell victim of industrialization, population growth and the expansion of the consumer society.

In the case of the global environment, unlike Vosburg, we cannot point to a single culprit. The causes of environmental damage are multiple. But, as in Vosburg, the whole "body"--the earth--is an irreducible unit of analysis. True, pollution--Putney's kick--emanates from different countries and regions and with differing degrees of intensity, but its global environmental impact is general and cumulative. True, pollution, toxicity and damage to the global commons(3) are byproducts of processes to be "assimilated" at home or abroad. Yet, viewed from the vantage point of the eggshell doctrine, the interests of the earth are prior to the interests of any particular nation, industry, or individual. To claim otherwise would be tantamount to asserting that Vosburg was unharmed, except at the precise spot where Putney's shoe made contact with Vosburg's shin. The aspect of Vosburg that I believe clarifies an approach to the environment is not Putney's liability, but the implicit distinction the judge drew between kicking someone's shin, and kicking the shin of someone who is already weakened. The judge made Putney responsible for full damages to Vosburg because Vosburg's infection made him so vulnerable as to render Putney's assault serious, when it otherwise might have been a trivial incident. As in Vosburg, responsibility for the global environment should be measured in terms of the impact of the assault, which is one episode in a long term process of cumulative injury. Pollution is part of an ongoing process--just as the injury Putney delivered to Vosburg involved not merely "an act" but an incident in Vosburg's medical history.

Once Putney's act was connected to another person with unique qualities, it was no longer merely an act, but an element of the relationship between the two boys. Pollution, too, can be viewed as an element in a vast set of relationships, linking polluters through the global environment to all other people now living. That environment is severely debilitated and accordingly, those relationships are, at present, destructive ones. The eggshell victim doctrine is relevant to the collective responsibility we bear for the earth's condition. It is this perspective that I wish to articulate more fully in commenting on Professor Stewart's article. I deal primarily with the premises of this perspective rather than problems of implementation.

The purpose of this comment is thus three-fold: (1) to link the relationship of international trade and domestic environmental regulation to a broader global discourse; (2) to outline this global discourse, which includes both international and domestic elements; and (3) to articulate some additional factors (beyond trade) that are now integral to the relationship between domestic environmental law and the global regulatory discourse. I maintain that a global regulatory discourse now exists, and that it involves a logic that can and should be applied to a much broader array of circumstances than is now the case. Professor Stewart's article focuses on how concerns about international competitiveness affect domestic environmental regulation. My response to Professor Stewart emphasizes that the domestic and international realms of law and politics have recently merged--conceptually and in fact.

1. THE EGGSHELL PLANET

While Professor Stewart recognizes the role international competition can play politically, he cites empirical studies that question the overall impact of domestic environmental regulation on competitiveness.(4) He is, however, skeptical of the empirical studies(5) and argues that--quite apart from whether there is a connection between environmental regulation and trade--there are environmental regulatory changes we should undertake for their own sake. These include greater use of market oriented regulatory techniques and the use of an approach to environmental regulation that relies on regulatory contracts.(6)

Inherent in the studies that Professor Stewart cites are two distinct and important points of view on domestic environmental regulation: that of individual sovereign nation-states and that of individual corporations capable of locating their operations anywhere in the world. Neither of these are sufficiently global points of view. Individual nation-states seek to maximize their own interests by focusing primarily on the well-being of their own constituents. This puts a premium on domestic law and domestic politics. Corporations seek to maximize the interests of their own shareholders and managers, presenting an even narrower perspective.

While the changes in regulatory approach described by Professor Stewart may be welcome reforms on the domestic front, I believe that it is primarily because they resonate with the new global regulatory approaches that they seem particularly appealing at this point in our history. The impact of domestic law on the global discourse now developing adds a new and important dimension to our own domestic regulatory dialogues, one that necessitates a broader view of national sovereignty as well as of individual or corporate self-interest.

Elsewhere I have suggested that a new global awareness increasingly informs our domestic regulatory debates and actions. This shift of consciousness from a primarily domestic perspective to a more global outlook is the hallmark of the "global regulatory era."(7) This change of consciousness has been driven in part by increased and intensified international competition, especially in the 1980's. Competition among industries that operated in nations with different, lower, or minimal regulatory requirements helped place the cost of U.S. domestic regulation in stark relief for policy makers and the public. Multinational corporations could lower their production costs by relocating some or all of their manufacturing facilities in parts of the world where regulatory costs were minimal or nonexistent.(8) The cost of domestic regulation helped fuel the debate in the 1980's that encouraged deregulation,(9) more efficient regulation,(10) and harmonization of the regulation imposed by the U.S. and other states.(11)

More importantly, because of the new assumptions emerging about the nature, functions, and limits of regulation,(12) the complex global regulatory discourse now developing treats the earth as an eggshell victim. Accordingly, the logic of this discourse requires that we take seriously international differences in wealth, culture, and political will that lead to different perspectives on the environment. Moreover, this global discourse also proceeds from the premise that an individual country's domestic regulatory approaches to environmental matters simply may not be enough to protect the eggshell planet, no matter how effective or efficient they may be in national terms.

2. THE GLOBAL REGULATORY DISCOURSE

   1. The Global Perspective

      The image of the earth as eggshell victim redirects attention from the cause of harm to the impact of injury. Accordingly, if pollution is harmful to the global commons, its source should not be of primary relevance to law and policy. Simply because the developed world's relative affluence is, in part, the result of its history of pollution, it does not follow that pollution from less developed countries should be tolerated in the name of equity or as an inevitable stage of economic development.(13) In other words, responsibility is both retrospective and prospective.(14) The eggshell image also transcends propositions that focus on how individual corporate entities or countries should achieve short-term economic success or environmental soundness. From a global viewpoint, local successes "count" only if they improve planetary health, not if they simply shift the source or destination of pollution to some other site. Finally, the eggshell victim image underscores a less obvious long-term assumption inherent in the global perspective: that the historical process of the "first world's" economic development cannot be replicated by the developing world if the environment is to be preserved.(15) Preservation, in addition to restoration, will require advances in and new applications of "green" technologies. Sustainable development must also involve new institutions, new technologies, and new relationships with our environment.

   2. A Global Perspective and Trade

      Compared to standard economic approaches, a global perspective on environmental regulation involves a different view of economic growth and environmental quality.(16) Not all forms of economic growth are to be applauded. For example...