The Gardener and the Sick Garden: How Not to Address the Planet's Environmental Issues

• Date: 01 May 2015

5-2015 NEWS & ANALYSIS 45 ELR 10391

D I A L O G U E S

The Gardener and the Sick

Garden: How Not to Address the

Planet’s Environmental Issues

by Jan G. Laitos and Juliana E. Okulski

Jan G. Laitos is Professor of Law and John A. Carver Jr. Chair in Natural Resources and Environmental Law at the University of

Denver Sturm College of Law. Juliana E. Okulski is a 2016 J.D. candidate at the University of Denver Sturm College of Law.

I. Introduction

When we humans rst began to notice that the planet’s

natural resources were not inexhaustible, and then later

when we realized that Earth’s environment could eventually

become poisoned by human-generated waste, we created

government policies to regulate and impose limits on our

tendency to exploit the planet’s natural goods. Virtually all

of these institutional responses have presumed that humans

are like metaphorical gardeners trying to enjoy a garden—

in eect, exploiting Earth’s many natural resources for our

own selsh interests. What we gardeners realized was that

the garden was being depleted and contaminated by our bad

and greedy habits. rough legal institutions, we sought to

control the destructive gardener (a truly self-destructive gar-

dener), and to manage the garden.

Over a number of decades, various rules have been

imposed on humans intending to limit our obsession with

exploiting the garden of Earth. During this time, diering

management techniques have been tried to ensure that the

garden could continue to provide t he resources and nat-

ural systems for humans to survive. But despite all these

rules and laws and institutional commands, the garden

has seemed to be getting sicker. Why have environmen-

tal policies not worked very well? W hy have governmen-

tal responses neither deterred the exploitative gardener nor

much helped the garden?

ese important questions can be answered by examin-

ing the three central models that historically have served

as the foundation for policies that dene and direct our

actions toward our natural environment—models that set

out (1)how nature works; (2)how humans behave; and

(3)how humans perceive their relationship to nature. Our

environmental policies have failed because each of the three

central models we have used is awed. As a result, humans

continue to pollute environmental goods and deplete the

planet’s resources. e self-destructive gardener has not

been successfully regulated; eventually, the garden may not

be able to provide for the gardener’s needs.

If environ mental policies are to succe ed, they must be

based on accurate models of nature, of humans, and of

humans-in-nature. A model of how nature works should

not be bas ed on how we want nature to work. A mode l

of how humans behave should not be formulated on how

we assume huma ns behave. And a model of our relation-

ship to n ature must not be predicated on wrongheaded

beliefs about what we think that rela tionship should be.

Instead, t hese thre e mo dels should reect a ccurate, s ci-

ence-ba sed rea lity.

When reality replaces wishful thinking, then two

realizations follow. First, because current environmental

policies (typically either regulatory mandates or economic

market-based instruments) are based on awed models,

they have little chance of long-term success. Second, an

alternative strategy proposed by many commentators—a

strategy that confers on humans a legal right to an uncon-

taminated natural environment—is simila rly doomed

because it too would be based on the same awed models.

A truly workable environmental strategy would start by

being grounded in better, more realistic and empirically

accurate models of how nature works, how humans behave,

and humankind’s relationship to nature. Such an envi-

ronmental policy would realize that the gardener and the

garden are not separate, but one. And this environmental

policy would embrace t wo correlative legal norms: (1)we

should recognize a positive right, held by both humans and

their natural surroundings, to environmental conditions

that may sustain human survivability1; and (2)we should

1. As discussed below, Nature as such does not need to be protected or con-

ferred a special right, because Nature, natural systems, and environmental

goods will adapt to any and all human-caused exogenous changes to, or

alterations of, purely ecocentric, non-anthropocentric natural conditions.

     

be considered, in a much expanded version, in Professor Laitos’

forthcoming book: Why Environmental Policies Fail (Cambridge

Univ. Press 2016).

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.