Sándor Fülöp held the office of the first Parliamentary Commissioner for future generations in Hungary from 2008 to 2012 – a pioneer in intergenerational government. Here, wearing his hat as an environmental lawyer, he defends the vital role that the law – reinvigorated by public participation and reformed at the deep level of its principles – can play in environmental action.
Greta Thunberg said: “We will not be able to save our environment by obeying the laws, because our laws are wrong.”
Now, let’s compare the opinion of a 16-year-old environmental activist with the opinion of a 60-year-old environmental lawyer. Not much difference. Our legal system is similar to a big fat dinosaur, which is not inclined to accommodate to the reality, therefore…
Inertia, favouritism and window-dressing
The laws are really difficult to urge to move. You can modify them here and there; the whole body will shake itself and peel off the parts that do not fit.
You can insert nice words about future generations, enthusiastic directives on biodiversity protection, you can even determine the order of the use of water or strictly forbid burying hazardous wastes or dumping them into bodies of water.
But the law will still keep serving those who use public natural resources as exclusively theirs – those who claim all the profits for themselves but are happy to share the environmental expenses with the whole of society (big hearts, love their community!)
If, on the other hand, we push our “bravest entrepreneurs” into a corner, our economies will decline. No annual GDP growth, no generous support to political parties; the good old social systems will start to crack as a warning of an approaching collapse. Only the weirdest, darkest greens and eco-rebels might wish to see such a doom-laden scene.
Society takes action (not)
Lawyers suggest, shrugging: try to modify the underlying social values, that’s all you can do.
Possibly, educate people, show them the dangers of the system of ecological catastrophes, add that many of them, such as climate, biodiversity, soil degradation, are irreversible. Cautiously point out the socioeconomic factors that underline these processes.
Do not threaten people, however, because they might easily activate their defence mechanisms, such as denial, deferring the problems in time or space, understating them, rationalising and so on.
Radiate optimism, show small but effective steps, organise family competitions for the most environmentally-friendly households, give awards to big companies that have achieved some decrease in their emissions and promise to do much better.
Thus, as you see, the world becomes better. Several centuries from now, probably…
That sinking feeling
Dennis Meadows and other system scientists warn that we have no time. If you’re on the Titanic and the iceberg is 50 metres away, there is no point running to the captain’s bridge. Try the lifeboats, if there are any.
Additionally, according to Meadows, given that we don’t have much time we might have to resort to lawyers (you know the trouble is really big then!). Law is generally imperfect and cumbersome, but it can be quick and decisive. It can do something with the ecological dangers that are mounting ahead of us.
However, how can you truly change the law? How can you bring about deep, systematic changes that are not just scratching the surface of the coarse skin of the big beast? Well, every big beast has a soft belly. In the case of the law, this is the part which relates to legal principles.
Legal principles represent the narrow path where social values diffuse into the system of legislation, the decisions of the authorities and the courts. Additionally, they might open the way for some strong scientific insights, too – not only the iron rules of natural sciences, but also social ones, such as ideas about social justice or fairness for our offspring.
Environmental legal principles bring new prospects into the law, and sometimes with the ambition to turn old legal thinking upside down.
Public participation can join forces with the law
Approximately 30 years ago, when I was a law student, if I had ventured to suggest to my professor that in administrative cases someone else should have a word, not just the client who applied for a construction permit for a big factory and the authority itself, I would have been kicked out from the exam, for sure!
Now, public participation is natural in all cases where the environment or the interests and the future of local communities are at stake. Yet it is still an alien body in the tissue of the law, with officials trying to get rid of the stupid locals or the aggressive NGOs at almost any price (biased, unprofessional, killing time and causing extra expense, they say).
In vain, fortunately, because decisions backed by appropriate public participation will be better, more legitimate and more sustainable.
The integrated legal approach
However, it is not just the principle of public participation that is bringing some fresh air into our laws. The integration principle also reinforces the idea that law is a system which can be used as a force for good.
Let us consider as a harmonised unit the legal tools of traffic law, forestry (agricultural) law, the laws of plant protection, water protection and land protection and environmental law and see how, with them, we can prevent a plan that would build a road through a protected forest and divide the wildlife populations such that, in the smaller isolated parts, they would not survive.
And don’t forget about the good old “polluter pays” principle.
Dear entrepreneur, do not use public resources for free! If you compromise the fresh air, pollute the clean waters and lands of a community, please calculate the whole price and go to the cash machine. It then might not even be profitable to continue your business. Please, try it in another way!
On the side of caution
The precautionary principle is my favourite. The investor is not sure about all the environmental consequences of his/her great, lucrative project. Then, she/he will argue: “I do not see any objections and the dangers are very remote, and the technology is the newest. I have to get in before my competitors.” We would say: “No, no, the burden of proof rests on your shoulders. Your risk is not ours. If there are doubts, please eliminate them fully, or refrain from the investment until you can do that.”
Environmental legal principles can be considered as feet on the doorstep. Let us pull the door wide open; let them permeate the whole legal system with their “postmodern”, “post-industrial” approach. They might make the laws genuinely better, even worth implementing.
As concerns the law, I don’t see many other options. But this is just the opinion of an old lawyer, all of whose sympathy and hope lies in the new generations.
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