Coalition for Christian Colleges and Universities

Global Stewardship Initiative

ENVIRONMENT AND RESOURCE OWNERSHIP

How Can We Do Justice to Both Public and Private Trusts?

James W. Skillen

Executive Director

Center for Public Justice

October 1996

The purpose of this paper is to raise some questions and to offer some tentative suggestions about a principled approach to the making of environmental policy by governments which are called to uphold the public trust, the commonwealth, the res publica of the United States. The author is neither an environmental specialist nor an expert on policy making in this arena. Nevertheless, there are certain considerations of a fundamental sort that ought to be discussed with respect to the identity of the "public trust" and government's responsibility for upholding it. These considerations are especially important in regard to the basic natural infrastructure of human society, including air, water, and land.

During the past couple of years, many of the nation's environmental and conservation organizations have begun to change (or think seriously about changing) their legal status from that of educational entities [501(c)(3)] to that of lobby groups. The reason is their sense of obligation to assume greater responsibility for environmental defense, a responsibility that many believe belongs with government. (See The Washington Post , Feb. 18, 1996, p. A28.) What are the implications of this little-noticed development? What does it say about the nature of politics and policy making in the United States? Is it a sign of health and maturation or of regress and demiseon the environmental front? These are the questions I would like us to try to answer. A

National Security Issue ?

"For a while," writes Robert D. Kaplan in the February, 1994 issue of the Atlantic Monthly ("The Coming Anarchy"), "the media will continue to ascribe riots and other violent upheavals abroad mainly to ethnic and religious conflict. But as these conflicts multiply, it will become apparent that something else is afoot, making more and more places like Nigeria, India, and Brazil ungovernable . . . . It is time to understand 'the environment' for what it is: the national-security issue of the early twenty-first century" (pp. 54, 58). Kaplan goes on to discuss the crises that will arise because of "surging populations, spreading disease, deforestation and soil erosion, water depletion, air pollution, and possibly, rising sea levels . . . (p. 58).

Well, you might say, all of that is because of the social and political instability in much of the poorer world. At least here in the United States we don't face the prospects of ungovernability, and thus we should be able to deal with these environmental problems through the democratic process.

But is it true that Americans do not face a governability crisis and thus need not worry about severe environmental problems becoming the national security issue of the next century? While I have no desire to scare anyone with apocalyptic visions of political breakdown in the United States, and while we certainly should give thanks for the relative political stability here that goes way beyond conditions in Somalia, India, and Russia, I do want to examine a critical weakness in American politics and governance that should give us reason for concern--a weakness that bears directly on environmental issues both here and in the rest of the world.

Increasingly, environmental protection is thought of as one among many interests in American politics. And as a separable item of concern--one among many--its place in the political decision-making process depends on the strength of environmental interest groups to protect it. Our political process tends to allow business, education, defense, agriculture, energy, the environment, and every other "interest" each to be self-defining on its own. Thus many environmentalists now consider it obvious and natural that they should enter the arena of interest-group competition to do battle with all other interest groups.

Several years ago, a report in The Economist magazine (March 30, 1991) pointed out that two of the biggest polluters in the United States are the defense and energy departments of the federal government. Furthermore, the article explained, if environmental protection is going to advance, there will need to be a lowering or withdrawing of existing federal subsidies that actually encourage loggers in Alaska, irrigators in California, and cattle grazers in Nevada to perpetrate environmental damage. You see, we Americans simply take for granted that greater environmental restrictions, which may be necessary, have to compete with the economic and legal interests of logging, farming, ranching, energy development, and defense.

Must the Environment Have its Own Interest Group ?

But is this correct? Is this the way we should approach environmental well-being? Should we just take this whole complex process of interest-group competition for granted--as necessary and acceptable for democratic politics--and then ask where environmental-protection advocates should jump into the fray? Should we simply assume that as young people leave school and enter their professions, they will have to choose sides? If they go into business, will they have to decide to leave environmental protection to others? If they enter the military, will that free them from environmental and business concerns. And, on the other side, if they want to become strong environmentalists, does that mean they will have to adopt an anti-business, anti-military, anti-energy consumption, anti-progress mentality?

What I'd like to show here is why this kind of thinking is seriously misguided. But before doing that, we might ask, How has American come to accept this approach of interest-group politics, and what is wrong with it?

The current patterns of law making and adjudication in the U.S. generally assume that both the non-human world and human beings will be adequately guarded by an umpire-like government seeking to balance various competing interests, as long as the democratic process and the courts remain open, and as long as most social change and economic development are allowed to occur through relatively free market exchanges. Our political system is grounded generally in the bias that individuals should be free, with as little prior constraint as possible, to pursue their self-defined interests. Justice in such a system is fulfilled if the government begins with the obligation to protect individual freedoms and legally acquired property, and then enforces rules for free exchange. In some cases, government may be justified in intervening to help certain disadvantaged persons obtain some of the benefits of freedom and property where they are unable to obtain these on their own.

Now, look closely at how this framework of assumptions, rules, and processes is tilted away from the conviction that human life should be governed in strict accord with prior environmental and ecological limits. Note how this framework does not assume that good stewardship of nature is a fundamental pre-supposition of public law. Instead, it assumes the opposite--that environmental protection, if it comes about, will be as a consequence of interest-group competition and individual-rights protection. Generally speaking, the starting point for government policy today is not "public justice for humans on the basis of justice for all non-human creatures and conditions," but rather "freedom first for human property rights and individual initiatives."

An excellent illustration of this point was a Pennsylvania proposal a few years ago to protect wetlands. State Senator David J. Brightbill put the issue before fellow lawmakers in Harrisburg. According to an editorial in Harrisburg's Patriot News (April 10, 1991), Brightbill's proposal to strengthen wetlands protection would leave the "stickiest issue" for the courts. That issue had to do with how far government can go in taking private property without delivering "adequate" compensation. Even in the best years, said the editor, "the state does not have the money to compensate the owners of private wetlands who claim to be deprived of the right to put their swampland to its 'highest and best use.'" Isn't there something absurd, however, the editor asked, about the assumption that taxpayers should have to "compensate every property owner for the intrinsic merits of his land when left to the devices of nature," or that taxpayers should have to "compensate property owners for allowing trees to grow because they absorb carbon dioxide and produce oxygen to the benefit of the public and planet?"

Indeed, I would argue that there is something absurd in this assumption, unless one recognizes the general presuppositions of our existing system that I just sketched above. If one starts with the assumption that all rights and public well-being begin with individual freedom and human initiative, and that the adjudication of rights among competing individuals is the means by which public justice is established in every--or almost every--respect, then one will not recognize prior human obligations to protect land, water, plants, or animals. Environmental protection will necessarily have to be seen as growing out of human conflict over competitive uses of these creatures and resources. Human obligations exist not toward any original, inherent needs or values of the environment but only with regard to the fulfillment of competing, self-chosen designs by individuals on various properties. Thus, it is perfectly logical, and not at all absurd, for a private property owner to assume that any outside "interference" in his property rights requires compensation (whether from government or from another individual) at the going market rate (meaning the highest rate that would satisfy the property owner) for any use he might want to make of his property.

The absurdity comes to light only if one steps outside that framework of these liberal assumptions, as the Harrisburg editor did when he asked why a property owner should be compensated for allowing trees to grow. The truth then jumps out that the ecological value of trees in the larger natural and social environment predates the property owner's initiatives. A person's property right neither creates nor exhausts the value of what is owned. The limits of nature that ought to be part of the definition of property and recognized as part of the stewardship obligation of owners from the start should not, therefore, be disregarded and superseded by private whim and caprice simply because one gains legal right to some property.

However, if the legal and political system is grounded in the contrary assumption that most if not all "value" of property is determined by ownership or added to it by the owner's initiative, then any later discovery that private property carries additional public or ecological value will have to be handled by a process of "intrusion" or "interference" through which government seeks to satisfy the later "interest" by buying out or compensating the prior or more fundamental interest of the owner. And if government cannot obtain either a majority vote or sufficient funding to pay for the later interest, then, by definition, justice has been done because the just-compensation rule within a framework of competitive, interest-group democracy has been sustained.*

Do you see how the underlying assumptions of a political and legal system may determine not only the outcome of certain environmental battles but also the very framework of interest-group competition in which environmental advocates are forced to contend? Ecological well-being not only has to prove itself by scientific evidence but also by winning the political right to intrude into, and overrule, prior interests. The difficulties here come into view only when one begins to recognize that the ecological context of life has been there all along--predating every claim made by individual property owners. Most people now recognize intuitively, if not in a critical and reflective way, that human freedom and property use cannot survive and flourish unless justice is done to water, air, land, plants, animals, and all other non-human creatures and resources. The environmental movement has, in many ways, been built on that intuitive insight, which grows as people become dissatisfied with polluted air and water. But notice how the political and legal processes have channeled the energy of the movement into the familiar practice of interest-group competition as it tries to win support of environmentalists over against other interests that are presumably antagonists. That is the deeper, more serious mistake.**

We Need a Different Set of Assumptions

It is my contention that justice for both people and the non-human world demands that we seek a different political and legal point of departure and not merely focus on environmental protection within the framework of the present system. What will that mean? Given the present political and legal processes, it will mean some very hard-fought battles to be sure. But what we ought to get out of these battles is not just a few new government regulations or a little more taxpayer money to allow the government to purchase some environmental protection. The battles should also lead to major legal redefinitions, even perhaps to some constitutional changes that will put public law on the side of a basic recognition of the life and health of the ecosystem. Allow me to illustrate.
From the point of view of fundamental justice, our Constitution should never have allowed the ambiguous identification of African American people that it accepted at its inception. Slaves were recognized both as people and as property in a way that could not do justice to them as people. Unfortunately the injustice was not redressed without a civil war, but after the war, constitutional amendments in essence removed black people from the list of "things" that white people could own. To do justice to people requires that they not be owned as property by other people. Public law had to re-identify African Americans in a fundamental way.

Think how unsatisfactory it would have been if the federal government had simply tried to buy the "person value" of slaves while not questioning the unjust ambiguity inherent in slavery itself. Think how unjust it would have been if all that had changed was that a new interest group concerned about the health of slaves had been able to push the government to regulate slavery more closely in order to make the life of slaves a little easier--all the while having to fight every year against slave owners and others whose interests in slavery continued to be recognized. Today, we accept that the only way to redress the injustice of slavery is to eliminate it rather than to regulate it more tightly while allowing it to continue.

Obviously, the struggle to end slavery was not easy, and it had to be fought within the framework of the political system of that time. But the outcome was not simply a further differentiation of interest groups that continued to operate in a system that accepted slavery. Rather, the basic law was changed to remove slaves from slave owners. These changes did not represent illegitimate governmental interventions into the free market. They were essential steps toward public justice for all people--steps that the government was obligated to take since its calling from God is to establish and uphold justice. Earlier laws had been fundamentally unjust.

In effect, the change in laws demonstrated that the first principle of public justice cannot be individual freedom and property ownership. The first principle must be the just recognition--the proper identification in law--of every person and non-human entity that exists under the law and in the marketplace. If a later discovery shows that an earlier law misidentified or failed to recognize the true character of some person or thing, then the revision of basic law to correct that error is a priority of justice that must, legitimately, take precedence over less fundamental issues of justice such as adequate compensation of property owners for the property removed from their ownership. This is not to say that property owners, for example, should not be compensated for their expropriated property. Every consequence of a legal revision should be dealt with as fairly as possible. But the end result should be a clarification of what is more fundamental and prior, in contrast to what is less fundamental on the priority list. And if imbalance occurs in implementation, government should err on the side of redressing the more fundamental concern. Freedom for slaves is a higher priority than compensation of slave owners.

In the widest sense, therefore, I am arguing for a reconceptualization of the pursuit of environmental justice as a cause that ought not to remain in the hands of one interest group perpetually slugging it out with other interest groups. Recognition in basic law of the necessity of ecological health as the precondition of all public and market relations should become as fundamental as the recognition that certain human rights exist as the precondition of all public rules and market regulations.

Environmental Implications

With respect to land and other elements of the natural world this approach requires that public-legal distinctions continue to be advanced--distinctions, for example, among forest lands, wetlands, agricultural lands, and other land types. Human and non-human creatures cannot live without food, clean water, and clean air. The bias in favor of unqualified private-property claims and free-market commerce may not be allowed to persist as a legitimate reason for blocking more fundamental claims of justice. Various types of private property need to be redefined as possessions that entail clearly articulated stewardship obligations. Homeowners in most cities and towns already know something of what this means in terms of building codes, zoning limits, and other restrictions that obtain as a condition of ownership. Healthy stewardship obligations attached to privately held property do not reflect illegitimate government interference but rather a proper public-legal delimitation of conditions necessary for healthy and harmonious private ownership.
None of what I've said here should be taken to imply that all of the best means of achieving environmental justice will automatically fall into place if we adopt a new mindset. Efforts, for example, to use the market force of economic incentives (and not merely command and control regulations) to cut pollution may play a legitimate role in clarifying stewardship obligations and changing the character of public law. The Economist 's point (March 30, 1991) that "the best economic incentive to achieve environmental goals is often a tax" may be true. But tax laws can be predicated on many different assumptions about what is just and right for the public good. If proposed tax changes arise from interest-group squabbles as simply another tactical maneuver within the present framework of political and legal presuppositions, then they may make no difference whatever in the long run.

The ethics of environmental protection, I'm suggesting, require that we do more than try to haul in a few external moral values from outside nature and the marketplace in order to convince the public that there is an environmental interest that is at least as important as business interests and personal-freedom interests. Rather, we must rethink the very nature of the political system from the inside out, and ask what justice demands of human beings in their relationships not only to one another but to the entire ecosystem.

Conclusion

In conclusion, let me quote from Calvin DeWitt, who, in a very fine article in a recent issue of Prism magazine (December-January, 1993-94), said that the rethinking we need to do as Christians about the environment should be built on three principles: the earthkeeping principle, the Sabbath principle, and the fruitfulness principle. In essence, DeWitt is reminding us that the earth's conditions precede our human development of it, and that those conditions are God-given. To keep the earth means to "make sure that the creatures under our care are maintained with all their proper connections" (p. 10), or, as I would put it, are kept according to their true identity. To heed the Sabbath "means giving creation necessary rests, intentional nurture, and active restoration." (p. 10) And finally, we may eat the earth's fruits, but not destroy its ability to continue to be fruitful.***

In order to be good stewards of the earth, we need to be citizens who work for justice and not merely compete for interests. If we do not find a way to build a just political order that gives legal recognition to certain ecological priorities, then I am not very hopeful about the future governability of the United States. Today we have the water wars in California. Earlier we had the wars between farmers and ranchers. Before that we went to war over the slave system. And from the beginning we battled native Americans over fundamentally different views of land and community. Could the United States degenerate into a war zone over environmental issues in the future? Yes, I am afraid it can. But our chief aim should be not simply to avoid conflict. Instead, it should be to advance justice. And justice must begin with earthkeeping not with interest-group politics.

**See Chapter 10 on the American system of representation in my book Recharging the American Experiment: Principled Pluralism for Genuine Civic Community (Grand Rapids: Baker Books, 1994).

*** In the same issue of Prism that contains DeWitt's article, there is the new "Evangelical Declaration on the Care of Creation" (pp. 12-14), which is an excellent statement of principles.