A. Philippopoulos Mihalopoulos -Law and Ecology 2011 Original

Law and Ecology

Law and Ecology: New Environmental Foundations contains a series of theore-tical and applied perspectives on the connection between law and ecology,which together oer a radical and socially responsive foundation for environ-mental law. While its legal corpus grows daily, environmental law has notenjoyed the kind of jurisprudential underpinning generally found in otherbranches of law. This book forges a new ecological jurisprudential founda-tion for environmental law where ecological is understood both in thenarrow sense of an ecosystemic perspective on law and in the broad sense ofcritical self-reection of the mechanisms of environmental law as they oper-ate in a context where boundaries between the human and the non-humanare collapsing, and where the traditional distinction between ecocentrismand anthropocentrism is recast. Addressing current debates including theintellectual property of bioresources; the protection of biodiversity in view oftribal land demands; the ethics of genetically modied organisms; the rede-nition of the human through feminist and technological research; the spa-tial/geographical boundaries of environmental jurisdiction; and thepostcolonial geographies of pollution Law and Ecology redenes the wayenvironmental law is perceived, theorised and applied. It also constitutes aradical challenge to the traditionally human-centred frameworks and con-cerns of legal theory.

Andreas Philippopoulos-Mihalopoulos is Professor of Law & Theory at theUniversity of Westminster.

Law, Justice and EcologySeries editor: Anna GrearBristol Law School, UWE

In an age of climate change, scarcity of resources, and the deployment ofnew technologies that put into question the very idea of the natural, thisbook series oers a cross-disciplinary, novel engagement with the connectionsbetween law and ecology. The fundamental challenge taken up by the seriesconcerns the pressing need to interrogate and to re-imagine prevailing con-ceptions of legal responsibility, legal community and legal subjectivity, byembracing the wider recognition that human existence is materially embeddedin living systems and shared with multiple networks of non-humans.Encouraging cross-disciplinary engagement and reection upon relevant

empirical, policy and theoretical issues, the series pursues a thoroughgoing,radical and timely exploration of the multiple relationships between law,justice and ecology.

Law and Ecology

New Environmental Foundations

Edited byAndreas Philippopoulos-Mihalopoulos

First published 2011by Routledge2 Park Square, Milton Park, Abingdon, Oxon. OX14 4RN

Simultaneously published in the USA and Canadaby Routledge

A GlassHouse book

Routledge is an imprint of the Taylor & Francis Group, an informa business

2011 editorial matter and selection: Andreas Philippopoulos-Mihalopoulos;individual chapters: the contributors.

The right of Andreas Philippopoulos-Mihalopoulos to be identied as editor ofthis work has been asserted by him in accordance with sections 77 and 78 ofthe Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced orutilised in any form or by any electronic, mechanical, or other means, nowknown or hereafter invented, including photocopying and recording, or in anyinformation storage and retrieval system, without permission in writing fromthe publishers.

British Library Cataloguing in Publication DataA catalogue record for this book is available from the British Library

Library of Congress Cataloguing in Publication DataLaw and ecology: new environmental foundations/edited by AndreasPhilippopoulos-Mihalopoulos.

p. cm.Includes bibliographical references and index.ISBN 978-0-415-58713-6 (alk. paper)1. Environmental law. I. Philippopoulos-Mihalopoulos, Andreas.K3585.L385 2011344.04?6 dc22

2010037052

ISBN13: 978-0-415-58713-6 (hbk)ISBN13: 978-0-203-82969-1 (ebk)

711 Third Avenue, New York, NY 10017

This edition published in the Taylor & Francis e-Library, 2011.

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Contents

List of contributors viiSeries editors preface x

1 Looking for the space between law and ecology 1ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

2 Towards a Critical Environmental Law 18ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

3 Foucauldian-inspired discourse analysis: a contribution tocritical environmental law scholarship? 39BETTINA LANGE

4 The ecological narrative of risk and the emergence of toxictort litigation 65JO GOODIE

5 The precautionary principle: practical reason, regulatorydecision-making and judicial review in the context offunctional dierentiation 83JOHN PATERSON

6 Biotechnology as environmental regulation 105ALAIN POTTAGE

7 Perspectives on environmental law and the law relating tosustainability: a continuing role for ecofeminism? 126KAREN MORROW

8 Animals and the future salvation of the world 153PIYEL HALDAR

9 Seeking spatial and environmental justice for people and placeswithin the European Union 171ANTONIA LAYARD AND JANE HOLDER

10 Heterotopias of the environment: laws forgotten spaces 193ANDREAS KOTSAKIS

11 Majesty and monstrosity: Deleuze and the defence of Nature 214MARK HALSEY

Index 237

vi Contents

List of contributors

Jo Goodie is a Senior Lecturer in Law at Murdoch University, PerthWA. Reecting on her work as a toxic-tort lawyer, her recent publicationshave focused on the interface of legal and non-legal understandings ofenvironmental risk. She is working on a contextualist historiography ofthe conception and constant reconception of the environment in the legaldomain.

Piyel Haldar is Senior Lecturer in Law at Birkbeck College, London.He has published in a wide range of elds in legal history and is workingon the staging of the distinction between animals and humanity inlaw. His interest in animal literature began shortly after the birth of hisdaughter Lila.

Mark Halsey teaches criminal justice in the Law School, Flinders University,Adelaide SA. He is the author of Deleuze and Environmental Damage andhas a long-standing interest in the sociolegal construction of environ-mental harm, particularly with regard to the envisioning, regulation andexploitation of forests. His work has appeared in the edited collectionsDeleuze/Guattari and Ecology and Deleuzian Encounters as well as invarious journals. He is researching the dark (unremarked) gure ofcarbon emissions in the context of climate change policy.

Jane Holder is Professor of Law at University College London. Her researchinterests are land use and development decision-making regulation, EUenvironmental law, common ownership, green legal theory, environ-mental justice and issues of environmental identity, environmental citi-zenship and sustainability in the university sector. In association withCapacity Global she has established an Environmental and CommunityClinic at UCL, staed by students and academics working on environmentallaw and related policy areas.

Andreas Kotsakis is a PhD candidate in the Law Department of the LondonSchool of Economics. He has taught environmental law at the University

of Westminster and legal method at the School of Oriental and AfricanStudies. His research interests lie in the areas of critical legal theory,international environmental law and policy, Foucauldian analysis, geography,environmental history and philosophy.

Bettina Lange is Lecturer in Law and Regulation at the Centre for Socio-legal Studies, Oxford University. Bettina is working on a research projecton the invocation of emotion discourses in EU regulation of transgenicagriculture, and with Dr Nafsika Alexiadou, Keele, on the deployment ofsoft modes of governance for achieving convergence of education policiesin the EU. Her book Implementing EU Pollution Control: Law and Inte-gration (2008) explores from a discourse analysis perspective the contributionof environmental law in action to EU integration.

Dr Antonia Layard, Cardi, researches law and geography at the local,national and EU level, particularly the law of place. She is working withProfessor Jane Holder on Creating European Territory: Law, EnvironmentalProtection and the EUs Land Project.

Karen Morrow is Professor of Environmental Law at Swansea Universityand Co-director of the Centre for Environmental and Energy Law andPolicy (CEELP). She has published widely on environmental law andpolicy and her research interests focus on theoretical and practical aspectsof public participation in environmental decision making. She is deputyconvenor of the Environment Panel of the Society of Legal Scholars anda visiting member of Faculty on the LLM in Environmental and EnergyLaw at the University of Leuven. She co-edits the Journal of HumanRights and Environment and the IUCN Academy e-journal.

John Paterson is Reader in Law and Co-director of the Centre for EnergyLaw at the University of Aberdeen. His research has covered systemstheory, the regulation of risk, governance in the EU, corporate govern-ance and energy law. He has been involved in a number of internationalprojects both in research and teaching and has acted as a consultant forthe OECDs Nuclear Energy Agency. He is editor (together with ProfessorJulian Webb) of the Law, Science and Society series published by RoutledgeCavendish.

Andreas Philippopoulos-Mihalopoulos is Professor of Law & Theory,University of Westminster, and Co-director of the Westminster Interna-tional Law & Theory Centre. He tries to limit his research interests butfails. They include law and space, critical autopoiesis, Continental philo-sophy, law and literature, gender studies, law and art. His edited volumeLaw and the City (2007) and his monographs Absent Environments (2007)and Niklas Luhmann: Law, Justice, Society (2009) are published byRoutledge.

viii List of contributors

Alain Pottage is Reader in the Law Department of the London School ofEconomics. His research interests lie in intellectual property (with parti-cular reference to the eld of biotechnology), theories of property, lawand anthropology, and social theory. With Martha Mundy he edited thevolume Law, Anthropology and the Constitution of the Social: MakingPersons and Things (2004).

List of contributors ix

Series editors preface

The Law, Justice and Ecology series celebrates questioning the accepted,unsettling the categorical and re-engaging and re-imagining possible cong-urations and interplays of law and the contexts that it both shapes and isshaped by, or emplaced within. It is dicult to imagine a better agshipfor the series than the book you hold in your hands, Law and Ecology: NewEnvironmental Foundations.The self-proclaimed ambition of Law and Ecology is to set up the foun-

dations for a theoretically adventurous, politically radical, methodologicallycritical environmental discipline that combines law and ecology in a way thatbelongs solely neither to law nor to ecology. The theoretically pioneeringbook in your hands is an invigorating incursion into the terrain at the heartof this series. The book is provocative and productively unsettling in itsidentication of a foundational void at the heart of contemporary environ-mental law. It is just as engaging in its construction of a less managerial, self-satised, technicistic and impoverished vision of what environmental law canbecome. Challenging the legal illusion of control, in this case, control overthe natural, this work focuses on carving out a space between law andecology in order to present to us in full the paradoxical and idiosyncraticnature of environmental law and to construct, in short, a space of criticalenvironmental law that engages with themes at the heart of this series:themes concerning animality, justice, spatiality, materiality and context, etc.Taking radical questioning as its starting point, the book bravely pointstowards the uncertainties and volatility of environmental law, reconceived inthis work less as a discipline than as a transdisciplinary construction or anunfolding transdisciplinary event.The book, in short, oers timely and vital encouragement to laws

radical self-examination, for law to embrace its lack of stable or monolithicfoundation, and to open itself expansively to the entire ecology within whichlaw nds itself emplaced, that is to say, the disciplinary and ontologicalplane on which law exists. Situating law in uctuating space or spaces in

which the human, the legal, the political, the economic, the scientic,the articial, the animal and the environmental coexist and interpenetrate,it represents the perfect rst publication in the series Law, Justice andEcology.

Anna Grear

Series editors preface xi

Chapter 1

Looking for the space betweenlaw and ecology

Andreas Philippopoulos-Mihalopoulos

1.1 Introduction

This book is about a new critical environmental law. Its ambition is to set upthe foundations for a theoretically adventurous, politically radical, methodo-logically critical environmental discipline that combines law and ecology in away that belongs solely neither to law nor to ecology. While it is a fact thatenvironmental law and ecology have been going through a co-evolution ofsorts for the past few decades,1 it is also true that the majority of the literaturedealing with the connection between law and ecology has been rather mea-sured in its ambition and impoverished in terms of its theoretical credentials.It has remained content with assessing instances of the connection, usuallyassociated with ecosystemic principles and management, while shying awayfrom radicalising the connection and revealing its politically pioneer potential.While such an approach is useful and indeed fundamental for a newly sociallyand ecologically contextualised environmental law, its eect might provecounterproductive for a theoretical, as opposed to a normative, developmentof environmental law. It has indeed been noted by critics2 that the literature onlaw and ecology tends to emphasise how existing law already performs (rela-tively) well through the integration of ecological principles in its dealing withgeographically determined, ecosystemically systematised areas of biodiversity,property rights, atmospheric pollution, and so on. The above approach, how-ever, is often associated with two basic problems: rst, it is tied up to anunadventurous normativity which, because of its goal-oriented attitude, rejectsat the outset any theoretical links whose relevance to the existing law is notimmediately evident. Second, the emphasis on ecosystemic organisation risksgiving the impression of a rather facile managerial closure of the naturalsphere and a corresponding ability of environmental law fully to achievesuch management. In other words, the literature reproduces the problems ofenvironmental law itself: short-term goal orientation and the legal illusion ofcontrol of the natural.The present book, therefore, institutes a break with the above under-

theorised, goal-oriented, disciplinary-focused environmental legal perspective.

Likewise, it will quickly become apparent that, here, we have not engagedwith whether ecological principles and processes can, do or should applyto environmental legal thinking. Indeed, this has been successfully doneelsewhere.3 Our endeavour instead has focused on carving a space betweenlaw and ecology in which to address the paradoxical and idiosyncraticnature of environmental law. Across the contributing chapters, this space isbeing referred to variably as critical environmental law, spatial and environ-mental justice, animality, heterotopia, radical encounter, and so on. The abovespaces are not stabilised but volatile, they do not assert but doubt, they do notclose the discipline but open up the whole notion of a discipline.The book constitutes an ambitious critique which at the same time

encourages the law to look outside itself, over at new theoretical areas ofinuence; and look deeper into its own limited ecological position as simplyanother form of social expression alongside politics, economics, technology,science, and so on, which, however, is expected to make use of given legalnotions and mechanisms. To this eect, ecology in this volume is under-stood in its broadest possible meaning as the disciplinary and ontologicalplane on which law nds itself. For the purposes of this anthology, weunderstand the law to be situated in this wider ecology, what I would call openecology, that combines the natural, the human, the articial, the legal, thescientic, the political, the economic and so on, all of which coexisting on aplane of contingency and uid boundaries.4 In some respects, this is the realmeaning of Barry Commoners rst law of ecology, namely that everythingis connected to everything else.5 We put forth a processual rather thanvalue-based ecology and, to quote Deleuze and Guattari, we make no dis-tinction between man and nature: the human essence of nature and the nat-ural essence of man become one within nature in the form of production ofindustry.6 This makes our understanding of ecology legal, just as it makesour law ecological. The production of industry, that is the various elementsthat repeat themselves in nature and humanity in the form of processes/pro-ducts is the focus of the present connection between law and ecology. Valuesthat have led nowhere successfully so far, are now replaced by a study of theprocesses that transcend the usual dichotomy between human/natural. Inthis, we follow Guattaris conception of three ecologies, namely a mental,a natural and a cultural ecology:7 nothing less then, than an ethicopoliticalarticulation of the connections between subjectivity, biosphere and society,8

in which the law nds itself oating about. This new, critical environmentallaw we attempt to sketch here can only situate itself along other disciplinesin an open eco-logy and, in the process, both construct a new oikos (ahome, eco-, from Greek oikos) that will embrace continuous materialand conceptual movement; and, at the same time, a new critical languageand rationality (-logy, from Greek logos, meaning both language and reason)that will address the complexity of the interconnection between law andecology.

2 Law and ecology

But (and this is the coup of our approach) this situatedness is unhingedfrom traditional ontological and epistemological boundaries. This book is aproduct of the following realisation: that only some of the constituent ele-ments of environmental law can be considered relevant for a new, criticalenvironmental law. We are faced with a double paradox: on the one hand, alaw that is both law and non-law, in the sense that it both employs thehabitual legal mechanisms and processes in order to deliberate, and allowsitself to be inuenced, perhaps to a never before seen degree, by other dis-ciplines; and, on the other hand, an ecology that does not focus on naturebut on the absence of nature, and its replacement with a plane of con-tingency, whose articulations belong at the same time to the conceptual andthe material, the human and the natural. As a result, environmental law islooking for its identity in an empty ecology, one with neither common lan-guage (-logy) between its parts, nor a home (eco-) about which to talk. Theeco-logy in this volume signals the collapse of both the house in whichenvironmental law is supposed to situate itself, and the language in whichthe law is supposed to communicate. Law as existing logos (language andrationality) is spectacularly discredited when faced with the challenges ofenvironmental law: traditional legal dogmatics collapse before the idiosyn-cracies of environmental law, bastions of reason are replaced by oats ofcontingency, and trusted linguistic forms manage to attract vehement cri-tique from feminists, ecologists, spatial theorists, autopoets, corporeal mate-rialists and so on.9 In the same vein, nature as oikos has been demolishedlong ago,10 its death celebrated by a constructivism that allows little roomfor manoeuvring. There is nothing outside11 is bad enough, but there is nooutside is both worse and more accurate. To situate environmental lawwithin this kind of draughty ecology requires a conceptual leap that neithertraditional legal reasoning nor ecosystemic rationality can oer. This isa realisation that deviates dramatically from the current law and ecologyliterature, but one we think pivotal for the construction of a criticalenvironmental law.Thus, the task of a critical environmental law is to work along its con-

nection with ecology, indeed within this open ecology of disciplinary andontological uidity, and construct a new language in order to communicateabout this new home. The challenge is multiple, not least because this lan-guage can no longer be just a language but rather a performance ofwholehearted embracing of materiality. It is not coincidental that environ-mental law is the most readily available means to drag law outside its lin-guistic ivory tower and land it on the material, the social, the corporeal, thegendered, the spatial, the animal, the molecular. These are the inhabitants ofthe new home for environmental law: no longer based on the distinctionconceptual/material, environmental law becomes one with its ecology, onegesture amongst so many others, trying both to dene itself and carry onwith its job of protecting its home.

The space between law and ecology 3

It is clear from the above that we believe in the need to push further thetheorisation of the connection between law and ecology. The contributors inthis volume have employed theoretical currents and constructions whoserelevance for environmental law may not always be immediately apparent,whose role in a planet-saving mission may not be so central, whose con-tribution does not amount to a blueprint for action. This is of course not afailure. On the contrary, we believe that the above-constructed emergencieshave reduced environmental law to mere reaction rather than thoughtfulaction, to patching up rather than taking a step back and then throwingitself in, and indeed to a not so qualied failure in terms of environmentalprotection. To a large extent, this is attributed to a lack of distance, bothontological and epistemological, from the processes and goals of environ-mental law. We rarely stop to assess, we have accepted as given a certaintraditional legal thinking that remains too positivist for the complexity ofenvironmental issues; we have unquestionably reproduced the human/naturaldivision and even the anthropo/ecocentric distinction; we have looked intoenvironmental law merely as law and not as the idiosyncratic transdisciplinarysingular construction that is.

1.2 A new critical environmental law

For the above reasons, the need to theorise is imperative: environmental lawneeds both to develop its theoretical apparatus to a level comparable to thatof other legal disciplines, such as constitutional law, family law or interna-tional law and their respective theoretical foundations; and to keep abreastwith disciplines at least formally outside traditional legal boundaries butwith which environmental law nds itself in a relation of direct connectionand reciprocal inuence. It is not an exaggeration to say that science, geo-graphy, gender studies, development studies, sociology, political theory, eco-nomic analysis, to name a few, are directly present in the majority ofenvironmental laws, frameworks, decisions in short, environmental legalthinking. No longer can the law barricade itself against other disciplines and if this is true for law in general, environmental law is arguably the mostprominent example of such a change. There is no longer a clear-cut bound-ary between environmental law and, say, science.12 On the contrary, envir-onmental law is constantly internalising scientic ndings, correctly orincorrectly, and acts upon them. Science (at least the science used in theproduction of legal thinking) is part of environmental law. In that sense, it isof the utmost importance for environmental law to follow the theoreticaldevelopments in those disciplines and at least be aware of what is this thingthat seems to be changing environmental law from the inside.In epistemological terms, therefore, the present anthology attempts to deal

with the double problem of, on the one hand, an undertheorisation of theconnection between law and ecology; and, on the other, an absence of the

4 Law and ecology

kind of critical theorising that by now informs everything in and aroundenvironmental law. All the contributors in this volume have tried to addressthe former through the latter. Indeed, it would seem that critical theorisingof the kind advocated here is the only possible theorising of environmentallaw at a time of uid interdisciplinarity, increasing ecological risks andunparalleled technological advancements. The combination of these threefactors is a most powerful and novel one, and characterises all levels ofenvironmental legal thinking, be this local, national, regional, transnationalor international.But allow me to clarify that here we are not merely talking about the need

to employ interdisciplinary methodologies, formulate ecological legalregimes, trace the conceptual movement between ecocentrism and anthro-pocentrism or even attempt a further legal integration of environmentalethics. These are all important issues that to a certain extent feed into exist-ing environmental legal thinking,13 although more often than most byappearing briey in the rst couple of paragraphs of socially contextualisedwritings on environmental law and then calmly forgotten. Rather thanreiterating the need for integration of the above, we are insinuating that thereis something much more threatening nestled in the very heart of environ-mental law, a self-destructive movement that potentially contains a great dealof violence against environmental law (and consequently the environment)itself. This is a multiple problem: we are currently witnessing that environ-mental law is rapidly losing a battle of self-denition, of indeed identity for-mation amidst threats of, rst, politico-economic co-optation and, second,epistemic fragmentation.The rst kind of threat belongs to the eld of ontological understanding of

the discipline (What is environmental law?), while the second to an episte-mological understanding (Is environmental law a discreet legal discipline?).Still, the two threats are clearly linked, not only in the way they are deployedbut, more important, in terms of a potential defence against them. In short,this book essentially argues for a solid ethical orientation of environmentallaw that will enable it to resist both political co-optation and disciplinaryfragmentation. Such an ethical orientation, however, can no longer comefrom a habitual employment of environmental ethics.14 While this remainsimportant, it is also culpable of misguiding expectations that society mayhave had of environmental law. To put it bluntly, environmental law cannotsave the planet. What is more, society cannot expect environmental law towant to save the planet. As Keith Hirokawa writes, although from a per-spective that the present author does not share, deeply held beliefs alone areill-equipped to achieve progress in environmental law.15 And this is perhapsthe crux of the problem and indeed the main challenge that the presentanthology is facing. For, although environmental law is required to positionitself amidst the ecology of unbounded disciplines, non-linguistic materiality,dead nature, human/natural/articial hybrids and looming ecological disasters;


at the same time, and after all its disciplinary excursus, environmental lawmust always return to the employment of a legal language and house itself incourts. Just as within the dissolved boundary between the human and thenatural, there always remains a dierence that emerges across temporalitiesand observational positions,16 in the same way there is a dierence betweenenvironmental law and this wide ecology.However innovative the processes employed by contemporary environ-

mental law, the latter remains a law, still using norms and norm-producingprocesses, jurisdictional boundaries, temporal limitations. It also remainsbroadly adversarial, even in its newer forms of market-based mechanisms,regulation and mediation. (There is always one that dictates and the otherthat resists, there is always power involved in whatever conguration onemay care to conceptualise it.) Which means that environmental laws marginfor ethical ecological considerations and any desire to become-other, asDeleuze and Guattari would have it, is still inscribed within legal processes.These processes have on their side a tried and tested sedimentation, facilityof application, path dependence, and indeed the burden of social expecta-tions as to what the law can and should do. There are good reasons forwhich these processes have remained relevant across time, and it is not ourpurpose to discredit them. Rather, we aim at fully facing the foundationalparadox of environmental law, namely its residual inscription within theboundaries of legal science and its putative gesture towards a radical extra-disciplinarity. For environmental law is dierent. It is not just law (to theextent that there is such a thing as just law). It constitutes the clearestexample of law in postmodernity, faced with insurmountable dilemmas thatrange from cultural relativism to decisions about life and death in a biopo-litical context and projected temporalities and future risk of nanotechnology.As Brooks writes, a complete re-examination of current environmental lawmight [operate] not only as a preface to environmental law, but as apreface to the understanding of all law.17 This is precisely the challengethat this volume is trying to address: how, while remaining within relativelygiven legal boundaries, environmental law can transcend its conservativelimitations and assume a radical stance that will not be co-opted by politicaland economic interests. To put it dierently, the main objective of theanthology is to imagine an environmental law that is equally at home in law andoutside of it.

1.3 The chapters

The contributions attempt to accommodate the various, often paradoxicalneeds of environmental law. The quest of identity is sometimes articulated interms of its disciplinary loyalty to existing legal mechanisms, and sometimesin terms of its productive conuence or even conict with other disciplines.In all contributions, however, there is an underlying articulation of the

6 Law and ecology

importance of balancing out its internal and external demands, namelylegal proper and extradisciplinary ones, and a general, albeit critical, faithin its potential. It has to be noted though that this balancing out is not ahark back to a nostalgic image of natural balance, where law nds its posi-tion in a harmonious universe. On the contrary, conict between thesedemands, and consequently between law and ecology, appears all the time asyet another manifestation of how the old semantics of ecocentricity can nolonger be of any help. With this renewed interest in all things legal and eco-logical, the contributions to this volume aim at sketching the foundations ofa new legal environmental discipline.As a continuation of this introduction, the rst chapter aims to develop

further the underlying aim of the volume, namely the production of whatcan be called Critical Environmental Law. Situated in the open ecologyof unhomeliness (no all-encompassing oikos) and miscommunication (nounifying logos), I attempt to establish environmental laws foundationalparadox: that its conceptual limits are both potentially all-inclusive (sinceevery societal problem can be seen as more or less environmental) anddevoid of any content (since environmental law can no longer distinguishits object, namely environment per se). In that sense, environmental lawrearticulates the problem of the connection between the universal and theparticular. The traditional imaging of the environment as the thing thatturns (French virer) around a stable pivot (a distilled sense of pure humanity)has been discredited in view of the collapse of the boundaries between thenatural/human/articial. In order to address this permeability, environmentallaw has the opportunity and responsibility to construct an adequate theore-tical base for its role in environmental protection. The chapter argues forfour critical environmental positions that are necessary for environmentallaws attempt at catching up both with other disciplines, and the demandsmade to it by an ever-changing ecology. Thus, rst, environmental lawmust theorise itself as acentric, namely conceive of itself as only one amongsta multiplicity of perspectives, none of which could ever be central (yet all ofthem claiming precisely that); second, environmental law must de-individualisethe individual and position the human in an ecological plane beyondanthropo/ecocentricity; third, environmental law must relinquish the (tradi-tional ecological) ideal of unity and accept uncertainty as a structuraland constantly present inevitability rather than an invisibilised externality;and fourth, environmental law must move beyond the illusionary construc-tion of prescriptive idealities and focus on a measured legal description ofits own limitations. Largely following a critical reading of Niklas Luhmannstheory of autopoiesis, and inuenced by postecological, feminist, spatialand other radical theoretical writings, I attempt to carve a space of critiquesimultaneously within and outside environmental law, a mirror of ethicalresponsibility against which the law can measure its potential, its limitsand ultimately its objects of desire. In eect, critical environmental law


is an acentric, postecological, manifold and self-aware thrown-together ofevents and spaces which become solid and relatively permanent throughrepetition.Bettina Langes chapter maps the current critical environmental scene with

inspired lucidity. Since critical environmental law scholarship is not a coher-ent, hegemonic project with determinate legal obligations, Lange attempts tolook into its principal inuences, which she then categorises as external andinternal critiques of the law the former coming from critical legal studiesand the latter from socio-legal studies. They both aim at destabilising theusual liberal theoretical foundations of laws autonomy especially in relationto the political sphere, while determining its limits as a tool of environmentalregulation. According to Lange, critical environmental law asks further corequestions, such as how environmental law stabilises or disrupts existingsocial orders, and how existing social orders can be transformed in order toachieve more sustainable forms of living. As a result, critical environmentallaw contextualises itself in the intersection between politics, economics andthe law, situating thus itself within the wider ecology of social relations,subjectivity and sustainability needs. Langes critical space between law andecology is determined by what she calls a Foucauldian-inspired discourseanalysis, namely a theoretical approach that can be associated with empiricalresearch techniques, and as such not a grand systematic methodology. Langeapplies the basic Foucauldian tenet of discursively constructed agencies andinstitutions to the specic area of EU administrative authorisation of trans-genic agricultural products. This approach helps transcend essentialist con-ceptions of actors, institutions and practices, reveals the inbuilt ambiguity ofthe scientic and legal discourses, and allows an impressive possibility forthe analysis of emotion discourses and their undercurrent impact. Thisapproach claims not to marginalise the material by reducing the social worldto language, but, based on analogy, it studies the material as analogous tothe linguistic. In this sense, Langes work addresses the main challenge ofthis book, namely the critical task of situating the law in a multidisciplinary,processual ecology in such a way that the law both engages with its envir-onment in an illimitable way and at the same time remains a contained,limited entity.After starting with an overview of the traditional understanding of law

and ecology as the marriage of the two dierent rationalities of the ecosys-temic and the legal, Jo Goodie quickly broadens the scope of what is con-sidered ecological. Her chapter focuses on the ethical import that instability,variability and uncertainty have for the critical environmental legal dis-course, thereby expanding both the concept of the ecological and that of theenvironmental legal (to include science, subjectivity, common sense, socialvalues, morality, cultural conceptions and so on). Goodie presents animpressively multifaceted understanding of toxic risk litigation that drawsfrom the literature as well as her personal experience as an Australian

8 Law and ecology

plaintis solicitor in the eld of toxic tort litigation. Beginning with thehaunting proclamation that legal understanding of the environment is con-tingent, the author builds a meticulous classication of the way in whichenvironmental hazards are legally interpreted in toxic tort claims. She con-structs four (non-exhaustive) categories of legal interpretation of toxic risk:insurantial, scientic, clinical and commonsense. Through an elaboration ofthe above Goodie shows how, in the current ecological (in the broader senseadopted here) context, the law struggles within itself with a host of dier-entiated and often incompatible rationalities that must perforce convergeinto the delivery of a court decision. This multi-factor approach distancesitself from simple causality and even probabilism and enables the court toconstruct a moment of decision where the various rationalities simulta-neously underpin and obstruct each other. The process demonstrates at thesame time the resilience of the law (in its guise as environmental law) toremain law (a disinterested, yet authoritative, arbiter on risk) by success-fully integrating the vocabulary and techniques of risk calculation; and theinability of the law to distance itself from imparting blame and indeed guiltin the form of punishment for people who are judged to be inadequatelyrisk-aware and risk-averse. The last feature is a symptom of the laws assimila-tion of the common sense (whose common sense?): as Goodie writes, the ubi-quitous vocabulary of risk has replaced the notion of sin, and the court feelsentitled to ascribe moral culpability to the irresponsible while deculpabilisingthe victim.When John Paterson begins his chapter on the precautionary principle by

quoting the reaction of the French Academy of Science condemning theproposed constitutional incorporation of the principle as catastrophic, hepoints precisely to the paradox of the precautionary principle as an ambi-tious but by denition ambiguous principle that oats in an ocean of dier-entiated perspectives, conicting interests and levels of implementation andjudicial control. Paterson delivers a step-by-step analysis of the status of theprinciple, rst, as scientic; second, as operational in terms of policy; third,as justiciable; and fourth, as relevant in terms of practical consequences.Drawing on philosophy of science and systems theory, Paterson builds a testof plausibility of the hypothetical harm and reasonableness of the proposedresponse, that attempts to accommodate both societal and judicial uncer-tainty, while retaining the uidity yet relevance of the principle. In that sense,Patersons chapter addresses the space of uncertainty that characterises con-temporary environmental jurisprudence that nds itself in the cusp betweenscience, regulation, economy and legal demands. Thus, the principle is foundto be scientic with all the caveats that such an epithet entails since itentails decisions made under conditions of ignorance. It can also be madeoperational, provided that the dierence between the various systems thathave a stake in such a decision (such as law, science, politics, economy) isinternalised by each system as an observable ignorance, namely as a thing


that cannot be fully understood by any system, yet this inability of fullunderstanding is taken into consideration by each system as a positive andcalculable value. Paterson illustrates the above in a detailed analysis of judicialdecision-making as it appears in the European Court of First Instance caseof Pzer Animal Health SA v Council, which results in observing both thediculty that the law has in distinguishing between risk and ignorance, aswell as its diculty in handling the boundary between procedural and sub-stantial matters, which becomes particularly subtle in cases of potentialprecautionary principle application.Alain Pottage treads an alluring ground of paradoxical ecology by focus-

ing on the interfolding of material and instrumental technologies in thecontext of the regulation of biotechnology. In a Luhmann/Deleuze-inspiredtext that is equally at ease with the multiple ecologies of this volume and,impressively, with the technicalities of GMO, Pottage oers a future-arresting,almost prophetic account of the way in which biotechnology aects sociality.The text begins with the way in which biotechnological artefacts, such asGM crops, become the actual means rather than simply objects of environ-mental regulation, and specically the Transcontainer. This aptly namedregulatory instrument aims at developing GM crop plants that are biologi-cally contained through the inscription, into the very texture of the plant, ofits genetic tracing (namely, its identicatory event, its birthmark as it were)and its temporal containment (in the sense that the yield of the particularseeds are limited in order for the farmer to return every time to the seedproducer for more). The author questions the EU policy of crop coexistence,not merely on the usual grounds of economic expedience but signicantlyon account of its policy of tolerance of 0.9 per cent adventitious GM con-tent in what is otherwise considered (and, importantly, labelled as) non-GMO. It becomes quickly obvious that the dierence between GMO andnon-GMO is one of degree rather than one of kind. This is only part ofthe broader coexistence initiative that employs the already well digested col-lapse between the articial and the natural, or in this case the grown andthe made, and observes it (interprets it/uses it) as an always already occur-rence. This legitimising realisation augurs what Pottage calls the regulatoryecology of a material and regulatory assemblage that does not distinguishbetween categories of being (GMO/non-GMO) but between methods. Theseremain open to a multiplicity of interpretations that dier radically betweenactors and discourses, such as those of the politician, the campaigner, theproducer, the distributor, the testing agency and the consumer. A related andequally fascinating side of coexistence brought forth in the text is the way thespatial (in the form of crop segregation and buering) coexists with thegenetic containment in this complex ecology of landscape/human factors/economic vectors. This spatiality, however, is bound to be minimised in theface of increasingly more ecient genetic containment and this posits thequestion: how irreversible and indeed how alien will future forms of this

10 Law and ecology

paradoxical ecology be? An ecology already with us and somehow neverfully here, never fully apprehended and certainly never even remotelycontained.Karen Morrows contribution continues the critical environmental project

by developing the ecofeminist perspective with a view to a truly inclusivepolity. Morrows approach is neither narrowly feminist, nor narrowly ecological,but open in its inclusiveness and ready to embrace broader understandingsof ecology and gender. In that sense, Morrows contribution stands squarelywithin this books critical ecological project of locating the law in the planeof ecological processes and oering perspectives that attempt to revolutioniseconcepts of inclusion. Her chapter begins with an analysis of the WCEDBrundtland Report in terms of its partnership approaches to governanceand civil society participation. While this is welcomed, it has admittedly ledto some issues, such as the overreliance on NGOs in terms of their presumedability to talk for the people, as well as the possibility of the public delegat-ing both responsibility and activism to professional NGOs. This is hoped tobe counteracted by an emphasis on a more inclusive participation agenda,which shall be highly political, knowledge-based and embodied. Morrowsinspiration comes from the work of Lorraine Code, whose concept of eco-feminism refers to a broad church indeed. Codes ecological thinking includesthe traditional ecofeminist goals of identifying and tackling patriarchy, butgoes beyond that by developing practices, policies and theories which arenot male-gender biased, and which look at humans as ecological beings. Inthat sense, Codes project includes inclusive decision-making processes and astrong critique of scientic certainty. To that, Morrow adds the practice ofwhat she calls quotidian epistemology, namely an embodied, evidence-based body of observations that will help produce ecologically informed,inclusive decisions. Morrow remains a believer in resistance movementsagainst the given power- and control-based rationality, and the chapter urgesus to think precisely of such possibilities.In an incantatory mode, Piyel Haldar talks of future, salvation, sover-

eignty and exception as observed through a scholarly and often lyrical studyof Christian bestiaries, namely catalogues of both actual and imaginaryanimals employed in Christian literature in order to educate the faithful.Haldar situates environmental law in a legal, philosophical, cultural, religiousand scientic textual omniana, trying in this way to establish the particularsovereignty that determines the nature of environmental law. Two apparentlycompeting sovereigns emerge: nature, or as Haldar calls it, a sort of greensovereign that emerges from the earth itself , and the Law, who appears andeventually reverses the sovereignty of nature over man. With the Law, natureis excised and in its place a sovereign environment is installed this is whatthe author calls the passage from the verdant to the desiccated. The envir-onment now needs the law to order and maintain the distance between manand nature. Nature is thus reduced to a cipher for the law, a sort of resource


for the perpetuation of mans higher position. This primacy of law overnature, argues Haldar, is rooted in a Christian hermeneutic that constructeda logos, by inception higher than animality. Indeed, it is precisely this kind ofChristian religious thinking that turned man against nature, thus establishingthe primacy of law over nature. The need for deciphering nature in order tomaintain the primacy of law becomes abundantly clear in the examples thatHaldar employs from a range of bestiaries that span the post-pagan to thelater medieval, and include natural histories, mystical zoography, generalanimal symbolism, as well as werewolves, unicorns, onocentaurs and jacalus.But the end purpose of deciphering both the actual and the fabulousbecomes quickly apparent: through the didactic construction of mans nor-mative behaviour towards his environment, the bestiaries present the onlyway of future salvation. This is the paradox of animals, at the same timesubservient to the law and without original sin. This paradox, like thedonkey leading Christ into Jerusalem, leads man to salvation. In that sense,natures subjugation is presented as the necessary and justied means in theface of a known, mapped-out future that promises redemption. Bestiaries,therefore, are not unlike environmental law, which looks with hope into anall-justifying future point of salvation, while consuming itself into all sorts ofpresent exceptions.Antonia Layard and Jane Holder weave an intricate conceptual, spatial

and social canvas on which they rehearse their main preoccupation with theconceptualisation and application of Environmental Justice. Their chosenpolitical/legal/spatial context is the European Union, and their conceptualtools are the EU notions of solidarity and territorial cohesion. What appearsas mere background, however, takes centre stage in the authors attempt tosketch a dierent, spatially dened, ecologically just environmental law. Inthat sense, their project of bringing forth environmental justice through the twolegal tools of solidarity and territorial cohesion is a remarkable additionto an ecologically situated law, indeed a critical environmental law. Begin-ning with a rather measured claim that location should not be a dis-advantage, which the authors consider to be the common core of the aboveconcepts in the context of the EU, the chapter proceeds with a profoundunderstanding of both the practicalities and the theoretical potentialities of aEuropean environmental law that goes beyond the rhetorical and activelyengages with the specicities of a locality. Indeed, the spatial situatedness ofenvironmental law and the related struggle for spatial justice is one of thepivotal notions of the argument. This, coupled with the relatively new andinchoate concept of territorial cohesion opens up avenues of questioning andre-evaluating of the relation between space and territory. Is there a Europeanterritory of the kind that would imply a stable and agreed model of Eur-opean society? Does it transcend national or even physical boundaries? Canenvironmental law meaningfully limit its application to such boundaries, ormust it expand by applying a dierent, non-causal understanding of locality

12 Law and ecology

(as some recent court cases seem to be pointing at)? Where does the ethicalobligation for solidarity between member states stop? Balancing between arealistic stance (There is no imminent prospect of an Ecotopian state) and acritically radical position (This more holistic, integrative approach to cohe-sion is clearly compatible with a philosophy of social environmental justice),the chapter eventually closes in on the importance of a spatially embeddedsocial legal presence that takes advantage of, while at the same time spear-heading the quest for the European holy grails of integration and harmoni-sation. From normative to descriptive, environmental justice is a measurablepotentiality and one that can become central to territorial cohesion andsolidarity.Andreas Kotsakiss contribution focuses on Foucaults idea of

heterotopias, namely the dark underbelly of utopias: as opposed to whatutopias are often considered to be, namely places of unquestioned order,heterotopias are actual, lived-in places of unsettling, anti-foundationalistcritique, rife with uncertainty, discontinuity, dierence. Through the threeheterotopic environmental instances of natural reserves, local communitiesand ethno-botanical institutions Kotsakis constructs a heterotopology, thatis, a method of analysis of space that takes into account the need to con-struct a critical environmental law in the face of laws spatial turn. For this,the author follows Foucaults famous proclamation that the presentepoch will perhaps be above all the epoch of space and rides along thequest for a spatially aware environmental law that will nally open up andattempt to understand spatial juxtaposition, superposition, simultaneity anddispersion as determining parts of environmental legal thinking itself. Alongthat vein, Kotsakis assembles an ecological canvas of multiple locations,inhabitants, narratives, discourses and processes, on which he attempts tosituate his vision of a critical environmental law. Heterotopy proves to be aninvaluable tool to apply the kind of critique that takes nothing for granted.Thus, natural reserves constitute what the author calls crisis heterotopias,namely the salvaging space, not so much of nature, but of an incessantglobal urban development that is enabled to carry on elsewhere. Or ethno-botanical institutions, much favoured by current biodiversity regimes, thatare found to be heterotopias of deviation and in which only the stake-holders in conservation and development are admitted, rather than rightholders, property owners or raw material producers. And nally, sustainablecommunities the golden cudgel of the era of sustainability which are seenas yet another heterotopia of deviation, this time freezing rural identities thatobey a logic of nostalgic relics on which global economic growth blossoms.Perhaps the most important oering of environmental heterotopias is theiringrained memory of all these narratives that sooner or later fall out offavour all the more important since heterotopias remain lived-in places.And as Kotsakis writes, a failed place is harder to hide than a failed legalagreement.


Mark Halseys chapter is a widely ranging lament for the loss of naturethrough legal, political and economic partitioning. Based on Gilles Deleuzestheory, but with important insights from Foucault, Virilio and others, Halseyexamines world heritage areas and big protected trees as manifestations ofthe divide between what is worth preserving and what can be disposedof. This is the legal divide between, on the one hand, protected areas andspecies, and, on the other, all other spaces and beings not deemed worthyof legal protection. In what reads like a gallery of rogues, Halsey describeshow the world is partitioned into categories of varying protection value,thereby bulldozing over what Deleuze calls the dierence borne by theindividual, namely each beings irreducible, never to be repeated dierence.By designating a national park or a big tree an object of legal protection onaccount of its individuality, the law denies the importance of all other partsof nature as excess. This is what Halsey calls an encounter with the mon-strous: when faced with the protected giant tree, one encounters somethingboth magnicent and abhorrent, both splendid in its individual dierenceand monstrous in its violence of presence, which relies on the perdition ofmillions of other trees not deemed worthy of protection. Such encountersforce us to think beyond the boundaries of given thought, pushes us into theacategorical, the one that cannot be contained by either law or the repre-sentation of nature as a categorisable, legally manipulated object. Andthrough its legal designation, the monstrous retains its sovereign, exclu-sionary power to marginalise everything else that either comes under its owncategory (something like Noahs ark, where one specimen of every species isto be saved), or under any other, not important category. Halsey deals withseveral intertwined themes of conceptions of the social and the natural, ofthe various truth discourses, of the dierence between the geological and theindustrial speed; but at the end, like Deleuze, he returns to a plane of eco-logical immanence where the dierence becomes both unique (for eachbeing/space/discourse) and somehow obsolete (since the boundary betweenthe natural and the human/articial has collapsed).

Notes1 Brooks et al., 2003; Turgut, 2008.2 See Hirokawa, 2002: 225, who notes that the literature seeks to alter the shape andoperation of environmental law by making legal arguments that already existinglaw compels the proposed changes. This is generally a North American approachto law and ecology, and one that is explicitly focused on mainly US jurisprudence.

3 Brooks, 1991: 13.4 The idea of ecology put forth in this book, although conceptually not necessarilysubscribed to by all contributors, is directly inuenced by Guattaris, 2000, notion ofecologies, as well as his work with Deleuze, 1986, 1987. According to this, ecologydoes not refer to the science of ecosystems but to the plurality of machinic assem-blages that construct the plane of immanence. This understanding of ecologyembraces the technological, scientic, natural, human, articial, and so on, not only

14 Law and ecology

without dierentiating, but purposely dissolving the distinctions. Although suchinclusive ideas have been successfully rehearsed in the wider ecological debate (e.g.,Baarschers, 1996: 14, who equates ecology with an attitude, a world-view), there isa dierence between a vaguely or even contextualised ethical/ecological view, andthe kind of ecology that combines the material and the conceptual without dis-tinction and transversed by continuous movement. For two excellent contributionsto the connection between Deleuze and ecology see Herzogenrath, 2008, 2010.

5 Commoner, 1971: 33.6 Deleuze and Guattari, 1986: 4; in that sense, one can talk about ecophilosophy see Papuzinski, 2009.

7 Guattari, 1995: 20.8 See Genosko, 2010, for an excellent analysis.9 See indicatively Verchick, 2007; Delaney, 2003; Holder and McGillivray, 1999;Cairns, 2003; Tarlock, 2004. This is more than a Galileo problem as Cassuto,2004, puts it, namely that the environment or indeed environmental law couldever aect a pretence of objectivity. For even when environmental law is forced toaect precisely such a pretence its eect becomes all too apparent.

10 Merchant, 1980.11 Lyotard, 1993.12 See Adelman, 2008.13 See for example, Gorovitz Robertson, 2008.14 Although innovative applications of environmental ethics do promise a certain, if not

way out, at least way of seeing things dierently. This is perhaps the greatest con-tribution of environmental ethics. On its own, however, it is unable to deal with thekind of increasing uncertainty present in environmental law, not least because of itscontinuing reliance on a human nature that can be changed from within andaccording to ecological urgencies. It is characteristic, for example, that ChristopherStones, 2007, observations on ethics and international environmental law concludewith the following, rather disheartening to the present reader, sentence: Ultimately,international environmental ethics may be less about human welfare or even theenvironment than about the unavoidable molding of ideal human character. If evenat the arena of international law, arguably the least human-centred legal discipline,the focus of ethics remains the ideal human character, it seems obvious that theconnection between ethics and contemporary concepts of agency is still far away.

15 Hirokawa, 2002: 227.16 This is a dierence not between subject/object but between observer/observed, and

even that only at specic moments when the distinction is momentarily frozen.This is what Hanjo Berressem, 2010: 70, in his excellent hybrid language ofDeleuzian and autopoietic topologics, calls radical paradoxical logic.

17 Brooks, 1991.

BibliographyAdelman, David, The art of the unsolvable: locating the vital center of science forenvironmental law and policy, 37 Lewis and Clark Law School Environmental LawOnline 3, 2008.

Baarschers, W. H. B., Eco-facts and Eco-ction: Understanding the EnvironmentalDebate, London: Routledge, 1996.

Berressem, Hanjo, Structural couplings: radical constructivism and a Deleuzianecologics in Bernd Herzogenrath (ed.), Deleuze/Guattari and Ecology, Basingstoke:Palgrave Macmillan, 2010.


Bodansky, Daniel, Jutta Brunne and Ellen Hey (eds), The Oxford Handbook ofInternational Environmental Law, Oxford: Oxford University Press, 2007.

Brooks, Richard, A new agenda for environmental law, 6 Journal of EnvironmentalLaw and Litigation 2, 1, 1991.

Brooks, Richard, Ross Jones and Ross Virginia, Law and Ecology: The Rise of theEcosystem Regime, Aldershot: Ashgate, 2003.

Cairns, John, Sovereignty, individuality and sustainability, Ethics in Science andEnvironmental Politics, 717, 2003.

Cassuto, David, The law of words: standing, environment, and other contestedterms, 28 Harvard Environmental Law Review, 79128, 2004.

Commoner, Barry, The Closing Circle: Nature, Man, and Technology, New York:Knopf, 1971.

Delaney, David, Law and Nature, Cambridge: Cambridge University Press, 2003.Deleuze, Gilles and Flix Guattari, Anti-Oedipus: Capitalism and Schizophrenia,trans. R. Hurley et al., Minneapolis MN: University of Minnesota Press, 1986.

Deleuze, Gilles and Flix Guattari, A Thousand Plateaus, trans. B. Massumi,London: Athlone Press, 1987.

Genosko, Gary, Subjectivity and art in Guattaris The Three Ecologies, in BerndHerzogenrath (ed.), Deleuze|Guattari and Ecology, Basingstoke: PalgraveMacmillan, 2010.

Gorovitz Robertson, Heidi, Seeking a seat at the table: has law left environmentalethics behind as it embraces bioethics?, 32 William and Mary Environmental Lawand Policy Review, 273, 2008.

Guattari, Flix, Chaosmosis: An Ethicaesthetic Paradigm, trans. P. Bains andJ. Prefanis, Bloomington IN: Indiana University Press, 1995.

Guattari, Flix, Three Ecologies, trans. Ian Pindar and Paul Sutto, New BrunswickNJ: Athlone Press, 2000.

Herzogenrath, Bernd (ed.), An [Un]Likely Alliance: Thinking Environment[s] withDeleuze|Guattari, Newcastle upon Tyne: Cambridge Scholars, 2008.

Herzogenrath, Bernd (ed.), Deleuze|Guattari and Ecology, Basingstoke: PalgraveMacmillan, 2010.

Hirokawa, Keith, Some pragmatic observations about radical critique in environmentallaw, Stanford Environmental Journal 21, 22481, 2002.

Holder, Jane and McGillivray, Donald (eds), Locality and Identity: EnvironmentalIssues in Law and Society, Aldershot: Ashgate, 1999.

Lyotard, Jean Franois,PoliticalWritings, trans. B. Reading andK.Geiman,MinneapolisMN: University of Minnesota Press, 1993.

Merchant, Catherine, The Death of Nature: Women Ecology and the Scientic Revolution,London: Wildwood House, 1980.

Noss, R. F., Some principles of conservation biology as they apply to environmentallaw, Kent Law Review 69, 893909, 1994.

Papuzinski, Andrzej, The idea of philosophy versus eco-philosophy, 4 Problems ofSustainable Development 1, 519, 2009.

Stone, Christopher, Ethics in international environmental law, in D. Bodansky et al.(eds), The Oxford Handbook of International Environmental Law, Oxford: OxfordUniversity Press, 2007.

Tarlock, D., Is there a there in environmental law?, 19 Journal of Land Use 2,21354, 2004.

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Turgut, Nukhet Yilmaz, The inuence of ecology on environmental law: chal-lenges to the concepts of traditional law, 10 Environmental Law Review 2, 11230,2008.

Verchick, Robert, Katrina, feminism, and environmental justice, 13 Cardozo Journalof Law And Gender, 791, 2007.


Chapter 2

Towards a Critical Environmental Law

Andreas Philippopoulos-Mihalopoulos

2.1 Introduction

On the one hand, environmental law encompasses, actually or potentially,everything that may ever be encompassed by law in general. On the otherhand, and simultaneously to the above, what we commonly refer to as thelegal discipline of environmental law does not really exist. These two seeminglycontrasting propositions, namely both non-existence and all-inclusiveness ofenvironmental law, are one and the same thing. What seems mere sophistry, isactually, I argue, the foundational paradox of environmental law. With theboundary between human and environmental/natural collapsed, environ-mental law is left in a limbo of indierence (what would be its point?) and all-inclusiveness. The repercussions of such a paradox go beyond the rhetoricaland touch upon the delineation of the eld of environmental law, its objectand objective, its limits and most importantly, its limitations. The paradox andits repercussions are the focus of the present chapter. However, I do notattempt to resolve the paradox, nd a way out of it or indeed clarify the con-ceptual area in which environmental law applies. On the contrary, the purposeof this chapter is to expose the paradox and build on it. In so doing, I amconscious of the fact that I am making environmental laws work harder. I wantto think that I render visible a complexity that is consistently marginalised byenvironmental laws mainstream theoretical and applied attempts, andexpose the limitations of environmental law as well as its weighty and insome respects unique responsibility.This is a strategic move. Amidst the tension between the opposing and rather

aggressive sides (environmental-law-includes-everything and environmental-law-does-not-exist), I want to carve a space for what I call Critical Envir-onmental Law. This space must remain a space of tension and self-generatingundecidability, nowhere permanently anchored and irting equally with theall or (better: and) nothing of environmental law. The term space is meantin the most literal sense possible. It is an actual space of critique withinenvironmental law, which situates itself away from barren debates onanthropocentricity versus ecocentricity, proof of causality, measurements of

harm and even diering prioritisation of temporalities (present versus futuregenerations). Instead, the space of Critical Environmental Law is groundedon three catching up necessities, namely three issues in which environmentallaw lags behind other disciplines and in which it needs to catch up if it wantsto retain its relevance: rst, the need to decentre environmental law and toconstruct a theoretical approach that will not succumb to the usual hier-archical centralising but will wake up to its possibility of functional acen-tricity; second, the need to accept the fragmentation of environmental lawwith special emphasis on the collapse of the human as an individual (namely,undivided) and its replacement with hybrid connections between the human,the natural, the spatial, the articial, the technological; and, third, the need toland environmental law on a theoretical grounding of dierence rather thanunity. These three elements dene the way in which Critical EnvironmentalLaw is to be shaped and practised. In what follows, I attempt to sketch thoseelements within the context of environmental law, and relate them in parti-cular to the theory of autopoiesis, namely the sociological theory developedby the German theorist Niklas Luhmann. This is with a view to show thatenvironmental law is a potentially decisive tool in these new turnings andtidings we are currently witnessing, and that such an opportunity is accom-panied by a deep responsibility. To address this, environmental law is in needof radical theoretical elaboration. In this respect, autopoiesis represents anideal if rarely suggested bedfellow for environmental law. Before that, how-ever, a brief explanation of why I consider that in the heart of environmentallaw there lies an unsolvable paradox.

2.2 The paradox of environmental law

To start with the bravado of the type environmental law does not exist isnot a denial of the existing body of legislature and jurisprudence that dealswith environmental causes. Rather, it points to the impossibility of deningany cause as environmental in a manner that would exclude claims fromother branches of law. In support of this, it has been said that environmentallaw is not an organic mutation of the common law, or more generally, thewestern legal tradition As a result, environmental law remains largelyunintegrated into our legal system; thus, it is vulnerable to marginalizationas support for environmentalism ebbs and ows.1 Its reliance on envir-onmentalism aside, environmental law remains a sui generis branch of law,hazy yet urgent, undenable yet omnipresent. Take a simple example: pol-lution is variously claimed by property law, landlord and tenant law, plan-ning law, public law, commercial law, intellectual property law, criminal law,administrative law, and then regional and international law, European Unionor federal law, civil law, nancial law, regulation, policy, soft law, agendasand declarations, preambles and protocols. And of course by environmentallaw too. But does anyone else apart from environmental lawyers care about

Critical Environmental Law 19

this categorisation? And if so, is this just an identity quest for the lost girlsand boys of the environmental legal lobby? Please indulge for a moment mysuspicion that there is something else, a tad more important at stake here.The other side of the same problem is an overcompensation in terms of

claims of problems on behalf of environmental law in order to make surethat eventualities are covered. This has the potentially useful but more oftendebilitating consequence of considering everything more or less environmental.It would hardly be out of place to suggest that everything can eventually beregulated by this conceptually expansive branch of law that swallows uplarge chunks of local, statal, regional, international and supranational legalagendas and is left wanting ever more. Arguably, this happens for good rea-sons. Environmental law is potentially the only law that in the current con-ditions remains relevant a relevance not only because of its closeconnection to the survival of the human species but also because of suchissues as quality of life, health, poverty, gender equality, intra-personal rela-tions, adequate housing, societal organisation, urban development, interna-tional commerce, and so on. But this means that environmental lawpotentially embraces every aspect of life that remains relevant to what reallymatters. The same can be put from the point of view of risk. Seen from oneperspective, the advancement of technology equals the multiplication ofrisks,2 and if risk precaution is environmental laws most valiant radicalrepresentative,3 environmental law plays a potentially limitless role in thedetermination of acceptable technology. And it would not be far-fetched tosay that regulation of technological eects is to a large extent the mainchallenge of our society. Since technology increasingly mediates the relationamong humans, and between humans and everything else (natural, articial,technological) by even altering the connection between means and object ofregulation,4 legal processes that can be considered environmental nd themselvespopping up everywhere with more or less intensity.The same paradox can be put from the perspective of time: environmental

laws temporality is one of a paradoxically imminent yet distant all-embracinghorizon. Environmental protection matters tend to make their presence feltwith unprecedented urgency, imposing deadlines concerning global survival,health and quality of life. While these present themselves in the present, theyusually refer directly to the future. The temporality of environmental law is ahydrocephalous one, with the future weighing massively over present decisions the most obvious example of which is the concept of intergenerationalequity. Such a distribution of juridical weight requires of environmental lawunprecedented degrees of exibility that are accompanied by an uncomfortablyintense and counterproductive checking for consistency.The reasons for this paradoxical dis/appearance of environmental law are

multiple: environmental law is considered a relatively new, relatively uncrys-tallised legal discipline, whose limits are both more exible and tested sig-nicantly more intensely than those of other legal disciplines. This is the

20 Law and ecology

direct consequence of the combination of inadequate epistemic distress andsuperabundant urgency: as yet there are few sustained attempts at theestablishment of an extended, theoretically rich debate on the precise natureof environmental jurisprudential underpinnings. No doubt, this omission isalso prompted by the idea that theory is counterproductive in the face ofsuch acute and urgent problems.5 The paradox is accentuated by the intenselyfragmented societal presence of environmental law: calls for reliably consistentresponses come from social domains as diverse as science, transnational poli-tics, global economics, ethics, environmental philosophy, geography, and soon. Take the example of sustainable development, a concept that incorpo-rates the handling of the conict between economy and environment fromwithin the law.6 As a consequence, environmental law nds itself in a prac-tical continuum with policy and regulation. This is supplemented by anextensive use of the concept of soft law which deliberately oscillates betweenbinding and non-binding law.7 It is far from surprising, therefore, thatenvironmental law provokes social reactions that range from supportand fanaticism to indierence and hostility. It has to play along and resist(un)fashionable environmentalism, persistent economic weighing (and,equally, remuneration, since both protection of the environment and protec-tion against the protection of the environment are lucrative), avid inter-nalisation of environmental issues by the political system, unsettlinginternalisation of scientic uncertainty, ethical reection that urges towardsparadigm shifts of the kind established law is unable to perform, and so on.Perhaps the most important reason for the perpetuation of the environ-

mental legal paradox is its intense connection to science.8 The establishmentof thresholds, for example, is only a minor theme compared with the formid-able task of risk prevention in view of lack of exhaustive scientic information.The inherent necessity of environmental law more than any other legalbranch to internalise scientic data demands ephemeral decisions andconstant re-evaluation of already established problem-solving methodologies.The ephemeral nature of environmental legal decisions is further demandedby the role that economic considerations play in decision-making, in theform of technology transfer, exploitation of biodiversity, and pollution allo-cations, amongst other mechanisms.9 Environmental problems are char-acterized by the need to reduce their inevitable uncertainty through theconstant generation and application of new knowledge. They often do not, asdo many other areas of the law, display a repetition of similar fact pat-terns.10 However, it is not only the patterns that change. The scienticallyrecommended way of evaluating such patterns changes also. Environmentallaw is a showcase of Murphys description of the future in the era of statis-tical positivisation: [t]he future is reconstituted as inherently revisable sta-tistical projections on a screen.11 The in-built need for revision of statisticsrenders shaky the connection between present decision and future stability:it makes little sense to agonise over todays decision when it is likely to


require revision tomorrow.12 This, however, seems a major failure of envir-onmental law, at least in comparison with other legal branches. Put from atemporal perspective, the main function on the law is to x over time theexpectations that society has of what is permitted and what is not.13 Theinability of environmental law to deliver such certainty as adequately asother legal branches do, seems to target precisely the ability of environ-mental law to become or even to be law. However, I argue that environ-mental legal volatility and inherent uncertainty are not a malfunction: theyare simply inalienable attributes in view of the irreducible complexity ofenvironmental laws subject matter.Thus, we have the paradox: environmental law is both a cut through other

legal specialisations, itself undened and undenable; and inclusive of allother legal specialisations, claiming a space of direct or indirect integrationin every legal decision, and eventually mediating every relation between thehuman and whatever else is left on the other side. While this may undercertain conditions be a paralysing predicament, I opt for the time being toleave it unresolved, in full tension and in rather febrile potential for theidentity of both the discipline and its lawyers.

2.3 What environmental law?

Etymologically, environment comes from the word environs, in its turncoming from the French words en (in) and virer (to turn). This implies aninside that stands erect and an outside that surrounds this inside and turnsaround it.14 Environment is the thing that surrounds us, the dervish-likeoutside that whirls like a frilly skirt around a stable pivot. But the pivotremains not only stable, xed and unyielding but signicantly central. Thiscan imply only one thing: that one can do away with the frills and stick tothe thing in the centre. This centre, however, is occupied by an impoverishedunderstanding of the human form: divorced from the animal except in theform of dependence, separated from the articial except as technological(rather than natural) evolution, distanced from any sort of hybridity exceptas monstrous aberration, the human in the centre is a theoretical distillationof such conceptual purity that one would be hard pressed to nd anythingcomparable in the real world.So it is the environment that is expected to skip and turn while the central

theoretical construction, that of a puried human, remains imperiouslystable. There are two fundamental problems with this formulation. The mostobvious one is the implicit causality, where movement is understood as theprecondition of stability. To put it dierently, the turn is needed in order for thepivot to remain pivotal. The way the environment whirls around the human isa precondition for human centrality, indeed a resource (to use the environ-mental parlance when referring to the environment) for an adequate existence.In the eye of the storm, there is quiet. But there is no connecting

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transgression between the two: human and non-human, human and resource,human and nature. All mendacious dichotomies that betray a simplicityin conceptualising human nature. Where does human end and naturalstart? Where does technology begin being evolutionary? When are disastersnatural?The other problem revealed in the etymology of the word environment is

the assumption of a centralised geography, one that understands the observer,the utterer, the actor (in other words, the parameters of locating the mode oflocating) as the centre of the environment. The thematisation of the surround-ings by the only one who has the linguistic ability to express dierence(namely man, in the fullest gendered bias of the term) is reminiscent ofGalileos trial, where the earth had to be torn out of the centre of the uni-verse, leaving an unbearable absence for the religious system of the era.15 InGalileos mind, the static centre was replaced by a movement. Eppur simuove! Yet it moves! For a brief moment, the turning has rolled over andooded the inside, making the latter collapse under its own gravitas. But,even out of the ruins, a local universe was established in its proper syntax ofcentre and surroundings: thus, our anthropomorphic planets and our sun.Order restored and stability re-established, albeit in a celestial body nearby.And with this example in mind, one looks for the centre.But things are changing.16 Environmental considerations become integrated,

environmental law is claiming a eld, the purity of the human is stronglydoubted. The environment is in a process of relocation, away from the per-iphery as the surrounding frills, and right on the gesture of transgressionbetween human and natural. However, the reasons for the change may beless benign, less ecofriendly than one would hope. It is not as if environ-mental law was born enlightened. It too has looked for its very own centre.But the quest has yielded nothing but a void, or better, a series of questions.Can the national valiantly occupy the centre? Would a move to the regional/supranational/international prove more satisfying? Even more fundamen-tally, is really law in the centre of environmental law? Could one not arguewith conviction that science, economy or even politics are in the centre ofenvironmental legal decisions? And what about the centrifugal pulls ofanthropocentricity and ecocentricity? The answer to these questions isdeceptively simple: none of the above moves is in itself satisfying. So what isone left to do? Move away from the concept of the centre altogether. It is thecase that environmental law has been pulling itself o the grand delusion ofthe centre from its very (non-)beginning, from the heart of its paradoxicalfoundation. And this pulling away would have been much more obvious andeventually successful if environmental law was not tied down to some traitsthat seem to characterise every legal discipline, such as the need for systematicunity, for binding decisions of the binary kind, for a reliable reproduction ofsocietal expectations, for consistency and constancy. But environmental law isdierent from other legal disciplines, its nature inevitably oscillating between


law and non-law (science, economy, politics, media), between knowabilityand impossibility to know, between more or less risk, between present andfuture generations. No doubt some of these idiosyncratic features can beencountered in other legal disciplines too. However, their accumulationbrings about an intensication of uncertainty that renders environmentallaw a truly sui generis discipline. One of the characteristics of such a nature,therefore, is also environmental laws inherent marginalisation of the conceptof the centre. Environmental law decentres the centre, responding to a new-fangled and profoundly unsettling discovery: that whatever was thoughtto occupy the centre around which the environment was required to turnand twist has long departed, leaving behind a barren nostalgia. Hence envir-onmental laws simultaneous all-encompassing presence and disciplinaryemptiness.The other reason for the change is the fragmentation of the environmental

subject. The articiality of the division between human and natural as imposedby natural disasters on the one hand and climate change, on the other, israpidly losing ground. At the same time, the traditional insistence on subject/object distinction has been dramatically banalised by such ecological radicalthinking as Christopher Stones proposition that trees should have standing.17

To link it with the previous comments about the etymology of the termenvironment, the separation between movement and stability is no longerimpermeable. Environmental law has already observed the transgressionbetween external movement and internal stasis, between environmentaloering and human receiving. Again, this awareness is less ecologically driventhan necessity-dictated. Regardless, the changes are already taking place andenvironmental law nds itself at a point of turning, of environing, as itwere, of spinning around itself in order to locate its new role, its function.Perhaps the most advantageous (because of its anti-foundational eect) fea-ture of environmental law over other legal disciplines is its unique position asa luxury item that comes decidedly after survival, development, economicviability, etc., and simultaneously a matter of life or death in terms ofnuclear catastrophes, climate change and rising sea level, environmentalhealth, GMOs and so on. This superuity and necessity seem to span pre-cisely the scope of its action: environmental law is a law that, on the onehand, looks into itself, its legal construction and identity as a system thatcan be relied upon to produce consistent decisions; and, on the other, looksoutside itself, desperately trying to accommodate concepts, operations, geo-graphies and temporalities that have never hitherto been part of any legaldescription. Environmental law seems to be attempting to bridge the dis-tance between the inside and the outside, stability and mobility, what isbeing surrounded and what is around.What is the line that separates the inside from the outside, the rumbling

of the wheels from the scream of the wolves?18 asks Italo Calvino, in fullknowledge that the line is never anywhere to be found except on the other

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side, in a space of invisibility, absence, paradoxical coagulation. This is thespace of opportunity as well as responsibility. Environmental law is a majorpotential tool for such an environmental revolution because these changessuggest nothing less than that. The way environmental law operates withinsociety (reversing, decentring, fragmenting) is already in itself an event oftransgression and one can only hope that this is not a short-lived moment,but one that will capitalise on its momentum and remain appropriatelydestabilising. But such an opportunity brings along a foundational respon-sibility. Not so much a responsibility for environmental action. That too, ofcourse. But fundamentally, this is a responsibility for a radical theoreticalreconguration of environmental law, one that will no longer rely on the oldsemantics of environment as resource, of the human as centre, of the logo-centric idolisation of public participation, of illusionary discursive consensus,of causality proven and best means measured. Only a radical rethinking thatwill distance itself from the above and live up to the challenge of environ-mental degradation will bring the kind of environmental action that isrequired, targeting the root rather than the symptom and assisting environ-mental law in its crystallisation as a truly radical legal discipline. This,I argue, is what Critical Environmental Law is about. I shall now approach adiscussion on how to conceptualise a Critical Environmental Law through thetheoretical tradition of autopoiesis.

2.4 The autopoiesis of environmental law

Autopoiesis means self-creation.19 The process is complemented by an ele-ment of continuous self-generation. Autopoietic production is circular, andthe product is autopoiesis itself. Thus, life is autopoietic in that its produce isfurther or more life. Although of biological beginnings,20 autopoiesis revo-lutionised the sociological theoretical arena by applying itself to social sys-tems, such as law, economy, politics, religion, and so on.21 Saying that law isan autopoietic system manifests an indierence towards laws beginnings,with a consequent reluctance to engage in how, when or why law becomeslaw. Likewise, to designate environmental law as an autopoietic systemembodies the urgent desire to deal with the present, the topology of hereand the responsibility that stems from such dealing. Indeed, in autopoiesis,the most relevant moment is the present. All systems operate in the present.The past is included in the form of memory while the future in the form ofexpectations, both of which are exclusively present operations. At the sametime, the specic temporal focus dictates a spatial focus. The topology ofautopoiesis is a grounded, geographically expanded, material and corporealpresence, with a strong sense of the uncertainty, multiplicity of directions anddisorientation that are brought in with the spatial discourse.22

In that sense there is no historical foundation in autopoiesis, no centralityfrom which everything originates, no necessary precondition (such as the


human in the centre) for the existence of the system. But if there were one,that would be the paradox. The autopoietic paradox is the distinctionbetween system and its outside. This outside in autopoiesis is called envir-onment, and enables the system to dene itself in contradistinction. So, atleast prima facie, the environment is whatever is not system. The autopoieticsystem remains closed to its environment, in that the latter is a terra incog-nita for the system, a space outside the limits of the self, the nest of a radical,sometimes threatening sometimes simply indierent otherness. The interest-ing double entendre of the term should not go amiss. Just as environmentallaw deals with an indenable, rather vague and certainly uncontrollable(natural) environment, in the same way an autopoietic system deals with an(autopoietic) environment that is neither known nor knowable to the system.The parallels are deeper than just terminological. Just as environmental

laws foundational paradox of all-yet-nothing informs both the way the dis-cipline is developed and the kind of theoretical elaboration pursued here, inthe same way an autopoietic system both is and is not a system. It hasnothing focal, central or xed about it and its environment does not turnaround it. It

A. Philippopoulos Mihalopoulos -Law and Ecology 2011 Original

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