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The Lens of Ecological Law Carla Sbert ELGA-L4E Ecological Law & Governance Webinar 18 February 2020
The Lens of Ecological Law
Carla SbertELGA-L4E Ecological Law & Governance Webinar
18 February 2020
What is the Lens of Ecological Law?An analytical tool for contrasting existing laws with ecological law to identify synergies and obstacles for a transition to ecological law.Based primarily on:• Bosselmann, Klaus. 2006. “Ecological Justice and Law,” ch 5, in Benjamin J.
Richardson & Stepan Wood, eds. Environmental Law for Sustainability: A Reader. Hart Pub: Portland, OR.
• Bosselmann, Klaus. 2008. The Principle of Sustainability: Transforming Law and Governance. Ashgate: Aldershot, England and Burlington, VT.
• Boyd, David R. 2004. “Sustainability Law: (R)Evolutionary Directions for the Future of Environmental Law. (Future Directions?).” J Env L & Prac vol. 14, 357.
• Cullinan, Cormac. 2011. Wild Law: A Manifesto for Earth Justice. Chelsea Green Pub.: White River Junction, VT.
• Garver, Geoffrey. 2013. “The Rule of Ecological Law: The Legal Complement to Degrowth Economics.” Sustainability vol. 5, 316.
• Voigt, Christina, ed. 2014. Rule of Law for Nature: New Dimensions and Ideas in Environmental Law. Cambridge University Press: Cambridge, UK.
What is the Lens of Ecological Law?...continued
Consists of three interconnected principles of ecological law–ecocentrism, ecological primacy and ecological justice–which • state a core value that is critical to ecological law
as an alternative to environmental law, and• guide behavior toward ecological law’s objectives
of constraining the economy within ecological limits, restoring and preserving ecological integrity, and enabling an ecologically just society or mutually enhancing human-Earth relationship.
The Lens of Ecological LawEcocentrism
Recognize and respect the value of all beings and the interconnectedness among them, equitably promoting the interests of human and nonhuman members of the Earth
community
Focuses on the law’s ability to support and promote a worldview in which humans are part of nature and no more important than other life. It aims at preventing decisions that disregard their ecological consequences and have a bias towards human short-term interests. This principle is relational and conceptual: it centers on the view and understanding of the human-Earth relationship underlying the law.
The Lens of Ecological Law
Ecological PrimacyEnsure that social and economic behavior and
systems are ecologically bound, respecting planetary boundaries
Focuses on providing clarity about priorities to ensure human development is pursued without irreversibly impairing ecological integrity or crossing planetary boundaries, including the use of precaution with respect to these boundaries. This principle has a material focus.
The Lens of Ecological Law
Ecological JusticeEnsure equitable access to the Earth’s sustaining capacity for present and future generations of humans and other
beings, and avoid the inequitable allocation of environmental harms
Serves as ethical grounding for decisions about equitable use of the planet’s sustaining capacity and the fair distribution of, and restraint on, wealth.Its focus is relational, but in a practical and material way, aiming to translate respect for all beings into actual equitable access to the Earth’s sustaining capacity.
How to use the lens of ecological law
Conceived for analyzing legal norms, but can be adapted.Main steps:1. Identify the norms in question, including but not limited to
environmental law. 2. Spell out specific questions under each principle, considering the
nature of the case and selected norms. E.g.: Ecocentrism-Does the law recognize the rights of non-human beings?Ecological primacy-Does it constrain economic activities based on ecological limits at the relevant scales (ecosystem/watershed, planetary)?Ecological justice-How is access to the Earth’s sustaining capacity (water, habitat, pollution sinks, etc.) distributed within and across generations of all beings? Is access based on human needs?
3. Consider the selected norms from the perspective of each of the principles.
4. Identify synergies and obstacles.
Lens of ecological lawcase studies so far
• Compared analysis of the Wildlife Acts of Ontario and Nunavut
• Amparos by Indigenous communities against mining concessions in Mexico
• Ban on Metal Mining in El Salvador• Proposed mining in Ontario’s Ring of Fire• Rights of Mother Earth and vivir bien in Bolivian law /
Salar de Uyuni lithium project
Example: Bolivian lithium project
Selected norms: Relevant provisions of the– Constitution of Bolivia – Rights of Mother Earth Law – Framework Law of Mother Earth and Integral
Development for Vivir Bien– Law of Environment – Mining and Metallurgy Law
Example…continuedLens of Ecological Law Analysis:
EcocentrismThe Rights of Mother Earth Law and the Framework Lawrecognize the rights of non-human beings in considerable detail and are consistent with this principle; the other norms do not mention the rights of Mother Earth or include provisions that are incompatible with ecocentrism.
Ecological primacyThe Framework Law requires that economic activities, including mineral extraction and industrialization, be carried out in harmony and equilibrium with Mother Earth, which amounts to requiring that they do not compromise ecological integrity.
Example…continued
Ecological justice• The concept of Vivir Bien is consistent with ecological justice,
including in its aim to fairly distribute and constrain wealth. • Overall, the Bolivian framework emphasizes intragenerational
equity, but also includes principles supporting intergenerational and interspecies equity. The concept of integral development aims to satisfy human needs “in harmony and equilibrium with Mother Earth.”
• However, the Constitution prioritizes resource extraction and treats nonhuman beings as property; while the Mining & Metallurgy Law rejects FPIC of indigenous peoples.
Example…continued
Salar de Uyuni lithium industrialization project:• There is no (desktop) evidence that the Rights of Mother
Earth Law and the Framework Law have been considered in the design, review or implementation of the Salar de Uyuni lithium industrialization project.
• The Salar de Uyuni ecosystem and its ecological limits are not well understood.
• Lithium carbonate production is driven by unsustainable consumption of energy and technology. For it to be consistent with ecological justice and supportive of a path toward vivir bien in harmony with Mother Earth, it would have to be, instead, driven by basic needs.
Mining Case StudiesKey Conclusions
An ecological law approach to mining would:• Prioritize use of minerals (primarily from existing stocks) to
satisfy basic human needs • Permit extraction from new deposits only exceptionally, at
human scales and with the strictest measures to prevent risks to human health (of miners and neighbors) and ecosystems
• Recognize indigenous jurisdictions and require the FPIC of indigenous peoples and the participation of local communities
• Not allow extraction in areas with high levels of ecological integrity or used for agriculture or water provisioning
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The Lens of Ecological Law
A Look at Mining
Carla Sbert, Independent Researcher
Containing an in-depth study of the emerging theory and core of ecologicallaw, this book insightfully proposes a 'lens of ecological law' through which thedisparity between current laws and ecological law can be assessed. The lensconsists of three principles: ecocentrism, ecological primacy and ecologicaljustice. These principles are used within the book to explore and analyse thechallenges and opportunities related to the transition to ecological law and toexamine three key mining case studies.
‘Carla Sbert's book, The Lens of Ecological Law, is a foundational text for theemerging field of ecological law and governance. Not only is it the first book to offer an expansive overviewand analysis of the principles of ecological law, but it applies those principles to one of the most pertinentindustries to existing environmental law – the extractive industry. This book is crucial reading for academicsand practitioners that seek to address the systemic and institutional flaws of existing environmental law, andtheir search towards a more responsive, sustainable, and just system of governance that better protects ourinterconnected, interdependent world.’– Kathryn Gwiazdon, Center for Environmental Ethics and Law, US
‘”Ecological law” reframes “environmental law” and this book shows its theoretical and practical superiority.Through the lens of ecological law, we can clearly see why traditional environmental laws have failed andhow domestic and international law must be advanced to protect and restore the integrity of ecologicalsystems, for example, in the context of mining. The book is an impressive testimony to the fact that a just,sustainable society is possible and, crucially, how it can be achieved.’– Klaus Bosselmann, University of Auckland, New Zealand
April 2020 c 256 pp Hardback 9781839102127 £80.00 £72.00 $125.00 $112.50Elgaronline 9781839102134
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