Environmental Organizations and Reasoned Discourse 303075605X, 9783030756055

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ENVIRONMENTAL POLITICS AND THEORY

Environmental Organizations and Reasoned Discourse

Richard M. Robinson

Environmental Politics and Theory

Series Editors Joel Jay Kassiola, Department of Political Science, San Francisco State University, San Francisco, CA, USA John Barry, School of History, Anthropology, Philosophy and Politics, Queen’s University Belfast, Belfast, UK

The premise of this series is that the current environmental crisis cannot be solved by technological innovation alone and that the environmental challenges we face today are, at their root, political crises involving political values. Therefore, environmental politics and theory are of the utmost social significance. Growing public consciousness of the environmental crisis and its human and nonhuman impacts exemplified by the worldwide urgency and political activity associated with the problem and consequences of climate change make it imperative to design and achieve a sustainable and socially just society. The series collects, extends, and develops ideas from the burgeoning empirical and normative scholarship spanning many disciplines with a global perspective. It addresses the need for social change from the hegemonic consumer capitalist society in order to realize environmental sustainability and social justice.

More information about this series at http://www.palgrave.com/gp/series/14968

Richard M. Robinson

Environmental Organizations and Reasoned Discourse

Richard M. Robinson Business Administration SUNY Fredonia Fredonia, NY, USA

Environmental Politics and Theory ISBN 978-3-030-75605-5 ISBN 978-3-030-75606-2 (eBook) https://doi.org/10.1007/978-3-030-75606-2 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover credit: Evandro Maroni/Stockimo/Alamy Stock Photo This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

This book is dedicated to Dr. MaryAnn Robinson, Anthony Ciccarelli of the EPA (retired), The Sierra Club, The Audubon Society, The Friends of the Columbia River Gorge, and The Environmental Defense Fund

Series Editors’ Foreword

Introduction One of the distinctive characteristics of Environmental Studies as an academic field is its wide-ranging, interdisciplinary, and multidisciplinary subject matter. The environmental disciplines encompass elements of the empirical–normative divide that separates so much scholarly research today. These topics for study include the natural sciences, politics, sociology, economics, history, philosophy, psychology, literature, ethics, discourses, organizations, and others. All conduct inquiry into the environment and contribute to our environmental understanding and decision-making. To the beginning student as well as the specialized expert, the wide scope and complexity of this field can be bewildering. Most students find refuge and order in university departmental categorization of courses and experts seek a disciplinary-based research focus. Nonetheless, the student knows intuitively and the expert knows explicitly that additional relevant knowledge and research methods are always being omitted when studying the environment. Such reductionism is necessary in order to achieve some measure of rational control over the particular question or problem being addressed. It is, therefore, rare to find a comprehensive and heterogeneous work that exhibits more than one of the environment’s subfields, and even rarer to combine normative and empirical discourses and methods; ethical theory and descriptive political science;

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and ethical argumentation with applications to environmental policy advocacy organizations. These observations are prompted by Richard M. Robinson’s ambitious and capacious book, Environmental Organizations and Reasoned Discourse, which now enriches the Palgrave Macmillan Environmental Politics and Theory Series (EPT). Robinson’s expansive volume spans several disciplines, discourses, and subject matters typically studied by researchers in isolation in their respective disciplinary silos, significantly limiting their conclusions’ applicability and value. The EPT Series overcomes this research overspecialization and reductionist trend because the varied subject matter of the environment requires an interdisciplinary and multidisciplinary approach. Consequently, this EPT Series contains empirical and normative political volumes, ethical and descriptive political books as well as theoretical and case studies. Robinson’s Environmental Organizations and Reasoned Discourse is an excellent addition to the EPT Series as it admirably represents the all-encompassing nature of environmental studies and problems with: moral social discourse; Kantian ethics; environmental ethics; economics; Rawlsian ethics; utilitarian philosophy; anthropogenic climate change; specific cases of domestic organizations protecting the environment; examination of the discourses on four urgent environmental problems; effectiveness assessments of four environmental organizations and coalitions; and comparative evaluations of three leading international environmental organizations’ activities involving three international environmental issues. Robinson deserves great commendation for the depth and breadth of environmental analyses contained in this book. We are honored that Robinson’s rich work incorporating its many enlightening factual descriptions and creative ethical arguments about the environment as well as its focus on environmental organizations and their role in the socio-rational process joins the EPT Series.

The Structure of Robinson’s Volume and Its Themes Environmental Organizations and Reasoned Discourse begins by emphasizing the essential moral nature of “reasoned social discourse” that is to be used in judging progress in environmental preservation and restoration. The author identifies four criteria for the ideal norms of social

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discourse: (a) inclusivity, (b) full information, (c) logic, and (d) the absence of conflicts of interest. Robinson asserts our age is characterized by “obfuscation” of these moral standards that harms our environmental progress. He introduces Kantian constructivism for assessing our social environmental discourse in order to detect its flaws (Chapter 1). Section 2 of Robinson’s work addresses the nature of environmental duty. It starts by applying the Kantian categorical imperative in order to pursue the “moral community” where the fundamental Kantian concept of “moral duty” is present and explicated (Chapter 2). The author then proceeds to apply the idea of moral duties to the environment including the global community. This chapter introduces the relevant portions of the philosophy of John Rawlsand his criteria for “fair and reasoned discourse and decisions” to be used by Robinson in assessing environmental discourse (Chapter 3). Finally, in the second section of his volume, Robinson discusses the philosophy of community and environmental ethics. He does so by proposing the central role to be played by environmental advocacy organizations as “collective imperfect [Kantian] duties” in order to lead to “fair and reasoned” environmental decisions. In in this chapter he also discusses the leading American philosophers’ views of nature, thinkers: Emerson, Thoreau, Muir, Leopold, etc. stressing the goal of preserving nature (Chapter 4). The third section of the Robinson work is devoted to environmental discourse. It begins with definitions of the concepts of “economic efficiency” and “equity” in our society’s environmental discourse as well as the key idea of “externality” in economics. Robinson explains how these concepts are vital to environmental discourse and decision-making. A case study of The Water Resources Council and its standards used by The U.S. Army Corps of Engineers in its environmental projects is used as an illustration (Chapter 5). The fundamental construct of “tradeoff” in economics is used in the next chapter to examine potential conflicts between environmental values and industrial production needs, including how such conflicts impact future generations and—unusually for such discussions—“people at a distance,” or internationally. Robinson proposes ways to think about and resolve tradeoff dilemmas. In addition, this chapter contains an appendix on utilitarian philosophy’s detrimental role in the rhetoric of environmental discourse to its deficiencies, according to the author (Chapter 6).

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Resolving environmental disputes to achieve Rawlsian “fair and reasoned” solutions is examined next by describing how Robinson’s Kantian and Rawlsian framework may establish agreements to remedy environmental problems now and in the future (Chapter 7). Section 4 of this volume focuses on how our environmental organizations can resolve environmental issues and what they need in order to play this important role for society. The first chapter in this section confronts the urgent contemporary problem of anthropogenic climate change and the attempts to moderate its harmful effects. The chapter probes the controversy between climate scientists and “deniers.” This climate change dispute provides the context for Robinson to assert his primary thesis that environmental advocacy organizations are essential to our reasoned environmental discourse and decision-making. This illustration of an environmental problem and our response to it serves as evidence for Robinson’s main claim that such organizations can contribute to the successful mitigation of the dire socio-environmental problem of climate change (Chapter 8). The next chapter elaborates upon climate change by introducing the concept of “collective imperfect duty” and how environmental organizations tackle this pressing environmental challenge to humanity. Three advocacy organizations are selected by Robinson to support his theoretical insights: The Wilderness Society, The Sierra Club, and The Environmental Defense Fund. He writes: These organizations promulgate environmental expertise into the public sphere, and provide the scientific and socio-economic information and expertise necessary for social discourse to be “reasoned”. But this “collective imperfect duty” also asserts the “noble nature” of declaring the immorality of environmental destruction and does so in our public discourse thereby marking the discourse “reasoned” (Chapter 9). Next, Robinson examines the current state of environmental discourse and whether it is fair and clear. He assesses the discourse surrounding four

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environmental problems: (a) “clean coal” and “acid rain;” (b) agriculturally caused water pollution and “dead zones;” (c) gas and oil drilling on public lands; and (d) “species preservation” (Chapter 10). Moving from environmental issues to organizations, the succeeding chapter discusses four environmental organizations and coalitions: (a) The Friends of the Everglades; (b) The Friends of the Columbia River Gorge; (c) The Chesapeake Bay Foundation; and (d) The Riverkeepers Coalition. These groups are said to exemplify the main theme of Robinson’s work: that environmental organizations and coalitions are necessary to achieve moral social discourse by using Rawls’ four criteria for “fair and reasoned” discourse (Chapter 11). The concluding chapter of this book is a rare application in the environmental political theory literature in proposing a theory be applied to the international domain, its discourse, and leading international environmental organizations. Robinson is to be applauded for expanding American environmental discourse and organization theory to the international level; something infrequently done in most domestically focused American books. In this final chapter, Robinson focuses on three well-known NGOs devoted to improving the international environmental problems of the oceans, climate, and species extinction: Greenpeace, The Nature Conservancy, and The World Wildlife Fund. The author conducts a comparative assessment of these organizations’ effectiveness in accomplishing their respective missions and reaching “fairness” as defined by the volume (Chapter 12).

Conclusion Environmental Organizations and Reasoned Discourse is prodigious in both its aspirations and detailed exposition. Robinson provides an enormous amount of theoretical insights into reasoned environmental discourse underscored by information about various environmental organizations and their activities. The book’s impressive scope explores vital topics: the nature of environmental discourse; environmental ethics including Kantian and Rawlsian theories; important environmental problems; prominent environmental organizations, (domestic and international); and, finally, American nature thinkers.

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Environmental scholars of many disciplines owe a debt to Richard Robinson for his stellar effort, far-reaching arguments, and wealth of organizational information contained in this extensive study. Thus, we proudly add Environmental Organizations and Reasoned Discourse to the EPT Series. We hope Robinson’s book will make a significant contribution to environmental politics and theory literature. It is an extraordinary work that does justice to this field’s huge and complex subject matter. Joel Jay Kassiola John Barry EPT Series Co-Editors

Preface

In this book, I argue that our environmental advocacy organizations (NGOs) provide the critical input to our society’s attempts at reasoned environmental discourse. These attempts have sometimes been successful, and sometimes only partly successful. Both are documented here. The critical questions we must ask are, “Do we live in a deliberative society?” Can we describe our US and other Western democracies as having the democratic institutions that enable us to engage in rational discourse concerning our environmental impacts? (By democratic institutions, we mean the government agencies, environmental laws including treaty agreements, plus the courts that will enforce these laws through appropriate and fair precedents, plus the NGO organizations that will publicly defend the public’s interests in the context of these institutions.) These questions are addressed by this book which supports a partly positive answer. The follow-up question begged by this answer is, “Do these enabling institutions allow us to fully express our democratic ideal for fair, inclusive, informed, and uncorrupted decisions?” Do we even have an understanding of what these terms mean or the role of these concepts for this “democratic ideal?” This question poses deeper particularly relevant questions for our environmental discourse. To answer, we need clarity as to what we mean by “this democratic ideal,” and what this implies for our conception of fair and reasoned environmental discourse. A bit more than four decades ago, I participated in a panel discussion with several other government officials. This concerned the role of public

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input in our environmental decisions. At that time, the critical question concerned the role of local input to the management of national forest problems that significantly impact local communities. Should we only consider the national interests, and therefore only national public input? I argued then that we should also consider local impacts and therefore hear from local interests. After all, all impacts can be broken down from the national to an aggregation of local community effects. This appeared logical to me because over time I became sensitive to the politics of these decisions, politics that were often strong and of local origination. The ultimate decision might be against these local interests, but to not fully consider their impacts would correctly expose the decision process to charges of not being inclusive, and hence of being corrupted. The opposing view was that local interests largely concerned only development and employment opportunities; that these interests were generally anti-environment; that they represented interests of political corruption. Therefore, the local views should be suppressed! Today, as shown in this book, the local interests—even those of local economic interests—tend to strongly represent environmental preservation and restoration, although there are always some arguing the opposite. But in today’s environmental movement, to act locally often means to act with global implications. These arguments of influences and interests are documented in this book. It documents a long-term trend of the strengthening of our democratic institutions for inclusive consideration of the impacts on, and inputs from those affected by our policy decisions, for being informed of the scientific and socio-economic impacts, of recognizing the forces of conflicts of interest , of being uncorrupted by them, and therefore of being fair. (Although the recent Trump Administration’s backward environmental steps are also documented here.) It is shown, moreover, that this long-term trend stems from the considerable efforts of our environmental advocacy organizations (NGOs) who act in North America and also worldwide. These environmental organizations have led North America’s efforts— and in some instances, the efforts of countries on other continents—at environmental protection, restoration, and regulation. Our organizations provide the necessary scientific and socio-economic information to our environmental discourse; their efforts serve our broad community interests rather than only narrow self-serving interests; and they act as the guardians of our environmental decision processes, assuring their logic

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and legality, i.e., whether they are “fair and reasoned.” These NGOs have a lengthy history of performance. They include national-level organizations such as The Sierra Club, The Audubon Society, The Natural Resources Defense Fund, and The Wilderness Society. They also include organizations dedicated to more localized environmental protections such as The Friends of the Everglades , The Friends of the Columbia River Gorge, The Chesapeake Bay Foundation, and The Hudson Riverkeepers (now Waterkeepers ). They also include organizations that purposely act globally such as Greenpeace, The Nature Conservancy, and The World Wildlife Fund. The efforts and accomplishments of these organizations, and many others, are documented in the chapters of this book. The context of this documentation is, however, the actual subject of this book. It is argued here that these organizational efforts are necessary for our discourse and decision processes to be “fair and reasoned.” I have reviewed scholarly journal submissions and articles that “deconstruct” these terms in the context of public debate, even in the context of environmental debate. What do we mean by “fair;” what do we mean by “reasoned?” Are we confused as to the meaning of these terms, and if so, how can we progress in our public debates? It is the clarity concerning these terms—“fair” and “reasoned”—that is necessary to be achieved here. I do not wish to “deconstruct” the debates of others, especially if they tend to be used in attempts to obfuscate the meaning of “fair” and “reasoned” in our public debates. I seek to clearly settle the question, “What do we mean by fair and reasoned in the context of our environmental discourse?” To establish the “fair and reasoned criteria,” I use the approach of Kantian construction, especially in the interpretations of the Kantian scholar of the last century John Rawls. I make no apology for this approach because Rawls’ elucidations are clear, and I suspect that after I review this elucidation, the reader will agree that the criteria presented are directly and fairly applicable. Of course, I can only hope the reader will make that judgment. I hope that this book does provide a considerable degree of clarity with respect to the appropriateness of our environmental decision processes, and also their improvements over more than a century of efforts. I hope this book provides clarity as to the importance of the efforts of our environmental NGOs. If so, then I credit the work of John Rawls and of these environmental advocacy organizations. If I fail, then I hope that at least

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this partial history of the efforts of these NGOs, as provided here, will be recognized as of some value. Fredonia, USA March 2021

Richard M. Robinson

Contents

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The Normative Elements of Our Social Discourse and the Environmental Issues to Be Confronted

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Our Reasoned Environmental Discourse

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Recognizing Environmental Duties and Applying Our “Fair and Reasoned” Criteria

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The Philosophy of Community and the Environmental Ethic

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Reaching Unbiased and Stable Environmental Decisions Through Fair and Reasoned Discourse

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4 5 6 7 8 9 10

The Environment as an Input to Production and as a Provider of Amenities

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Some Rhetoric of Environmental Equity and Economic Efficiency

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Duty, Environmental Advocacy Organizations, and the Commons

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The Current State of Environmental Discourse: Is It “Fair” or Otherwise?

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Some Environmental Organizations and Their “Fair and Reasoned” Contributions

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CONTENTS

Cross Border Governmental Organizations and Tragedies of the Commons

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Common Property Resources and the Making of the Global Tragedy

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Concluding Remarks: Our Environmental Advocacy Organizations and the Nature of the Crisis

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Index

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About the Author

Richard M. Robinson is a long-serving Professor at SUNY Fredonia. His Ph.D. is from the University of Oregon (Economics) in 1981. This is his third scholarly book, and he has published numerous peer-reviewed articles in scholarly journals. He is a former editor of the Journal of Economics and Finance, a Springer journal. He has been an active contributor to environmental efforts his entire adulthood. His web page is at “profrichardrobinson.com”.

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List of Figures

Chapter 6 Fig. 1 Fig. 2 Fig. 3

Production possibilities frontier for I t and E t Production possibilities frontier for I t and E t Production possibility frontiers with the environmental—technology dynamic: I is the index of industrial production and E is the index of environmental amenities

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Chapter 7 Fig. 1 Fig. 2 Fig. 3 Fig. 4 Fig. 5 Fig. 6

Market supply and demand with equilibrium price Pe and quantity Qe Fixed supply and demand with disequilibrium price (Puser fee ) and fixed quantity Longer-run supply and demand with equilibrium price Pe and quantity Qe Establishing market power by rotating demand function to have negative slope Negative sloped demand function for wilderness annual usage S1 has externalized costs, S2 has all costs internalized

167 171 172 176 177 181

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Chapter 11 Fig. 1 Fig. 2

The Columbia River Basin and the most significant HydroPower Dams Colorado River Basin

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The Normative Elements of Our Social Discourse and the Environmental Issues to Be Confronted

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Introduction

On Sunday, May 11, 1958, the great chemist Professor Linus Pauling appeared on NBC’s news and interview program “Meet the Press.” This highly respected academic was a man of purpose as well as accomplishment. On that day, his purpose was to convince our society of its nuclear waste folly. To do so, he had gathered his record of evidence of environmental degradation and its effects. Linus Pauling was a professor and Chair of the Chemistry Department at California Institute of Technology. Among many other discoveries, he defined the nature of the chemical bond, discovered basic protein structures, pinpointed the cause of sickle-cell anemia, and considerably advanced the fields of structural chemistry and X-ray crystallography. For these and other accomplishments, Pauling won the 1954 Nobel Prize in Chemistry.1 In May 1958, Linus Pauling was using his scientific prestige to campaign against aboveground nuclear weapons testing and its fallout effects on our environment.2 1 See “Linus Pauling Biography,” Linus Pauling Institute, Oregon State University. http://lpi.oregonstate.edu/pbio/lpbio2.html. 2 Pauling’s data indicated higher rates of cancers and birth defects located downwind for considerable distances from above-ground tests.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. M. Robinson, Environmental Organizations and Reasoned Discourse, Environmental Politics and Theory, https://doi.org/10.1007/978-3-030-75606-2_1

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On “Meet the Press,” Dr. Pauling reviewed his data on downwind problems associated with bomb testing, especially the increased birth defects caused by nuclear fallout. Panelists Lawrence Spivak and Ned Brooks, however, questioned if Pauling was just, to use a 1950s adage, “spouting the communist line.” During the hysteria and paranoia of the 1950s, the US Government branded Pauling as a communist, which he was not. For example, his passport was revoked to prevent him from traveling to London to be the keynote speaker at an international symposium on protein structures. Pauling, however, was a man of intellectual integrity, and not-to-be-shaken confidence and determination. He responded by speaking out more strongly against the despoiling of the natural environment by nuclear waste. He had his issue; he was not going to be intimidated by the ignorant. Under the Kennedy Administration, the US finally halted aboveground nuclear testing. For his efforts, Linus Pauling won the 1962 Nobel Peace Prize, and the US signed the aboveground Limited Test Ban Treaty in October 1963. Linus Pauling’s tireless television and other appearances occurred under considerable criticism and psychological stress imposed by the environmental naysayers. In retrospect, all of this makes his contributions appear to us as particularly heroic. The core of his heroism was his motivation, that is his sense of moral duty propelled by a strong moral character. 1.1

The Public Sphere of Morality

Progress on environmental preservation and restoration constitutes a paramount moral problem of our time. This progress depends on achieving a widespread acceptance that our society’s potential environmental efforts constitute the right thing to do. But achieving this wide acceptance requires sufficiently “reasoned social discourse” concerning the issues involved. The task of this book is therefore threefold: (1) to describe the structures necessary for this discourse to achieve reasoned resolutions of wide acceptance, (2) to suggest a list of the inhibitions that must be remedied in order to facilitate this public reasoning, and (3) to review the contributions of our environmental advocacy and regulatory organizations towards making our discourse “fair and reasoned,” and therefore similarly our decisions. An examination of this “facilitation of public reasoning” is presented in the latter chapters where the efforts of some effective environmental organizations are reviewed.

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Consider the efforts of Linus Pauling as reviewed above. In the 1940s, the atomic bomb ended WWII, so the efforts of the atomic scientists of the Manhattan Project generated considerable prestige and admiration. Pauling’s anti-testing arguments appeared to conflict with this prestige. They were also presented in the context of our cold war paranoia, and also in the public’s confusion as to whether it was even possible to conduct testing underground. These public inhibitions needed to be overcome prior to acceptance of the Limited Test Ban Treaty. Pauling was the leader among a small group of scientists who persuaded the public that the treaty was environmentally necessary. The morality of their argument was persuasive. Today, progress from our broad range of environmental deliberations requires the public to recognize that the issues are moral. Indeed, the environmental problems of today are quintessentially ethical and must be addressed as such. Only this recognition is capable of motivating a putting aside of our cynicism in favor of an engagement in reasoned discourse. Hence the search for this common morality is at the core of the conundrum that confronts us. This problem concerns humanity’s current and future actions as they broadly and massively affect current and future populations. Addressing this problem requires a concert of effort beyond any humanity has previously attempted, and so the recognition of the moral essence at the heart of the problem poses the initial task of this public discourse. What is the right thing to do with respect to one of the two or three paramount problems of our age, and what are the common criteria we should use for its resolution?3 How do we find agreement with respect to such criteria, assuming this finding is even possible? These are the difficult questions of our age, but what are the likely consequences of the omission of a reasoned social discourse that is capable of leading to environmental resolutions? With this omission, piecemeal solutions will still be formed by governments, perhaps with contributions from various non-government organizations (NGOs) such as the Environmental Defense Fund or The Sierra Club, but certainly also from industry. (The latter chapters explore many of these environmental

3 I suggest that the other possible paramount problems of our age include (a) the coming to a boil of a widespread genocidal bigotry and deep suspicions with respect to others not of our clan or type, and (b) given our modern social media, the widespread purposeful lying, deception, and manipulation for political purposes that this media facilitates. Both of these appear to be current and serious global problems.

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NGOs.) Industry will still generate negative externalities (pollutions of various sorts), but also generate some environmentally favorable products and services. But in net, the environment will continue to deteriorate, opportunities for resolutions will be ignored, and obfuscations and deceptions will continue to divide us. Reasoned social discourse is therefore the critical element that our age demands. To fully initiate such a discourse, we need clarity as to both the necessary elements of its composition and the issues it should confront. This “clarity” is the intended contribution of this book. The remainder of this chapter explains the content explored by this book. It reviews the logic of the overall organization of this monograph in its pursuit of what we should demand as the norms for environmental discourse.

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Origination of Environmental Institutions

The original state of nature device is a construct that social contract theorists have used to indicate the conditions that would exist without government.4 It was a device originally used by Hobbes (1651), Locke (1690), and Rousseau (1762) to explain the necessity of the social contract for lifting humanity from poor and brutish lives. It was particularly used by Locke to explore the notion of the natural law that exists even without the social contract, and from which lessons should be drawn for forming this contract. For example, in the context of the environmental problems examined here, a social contract must address the natural problems of pollution externalities that would spread disease to others, and also the prevention of the depletion of common property resources due to a lack of regulatory restrictions. This depletion is termed the tragedy of the commons , and also appears to be a natural phenomenon as explained extensively in latter chapters. We can therefore use the original state of nature device to explore the motivation for the establishment of the institutions that affect our environment. For the purpose suggested above, consider a hypothetical Hobbesian illustration of a small group of potential citizens who seek to form a civic society in an original wilderness setting.5 Assume that the first issue 4 See Milo (1995) for a brief review. 5 Thomas Hobbes (1588–1679) is an originator of the social contract theory of govern-

ment and ethics. In Leviathan (1651), a community’s formation from an original state of

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they wish to resolve is the establishment of a river-based port facility and the roads that lead to this port. To organize their efforts, they would likely form a group meeting, one that might establish a precedent for further meetings that are necessary for organizing legal-type rules and other group efforts.6 For example, in order to avoid the foreseeable problems of waste from flowing downstream and negatively affecting those located there, or to prevent those upstream from damming or diverting the water for their purpose at the cost of those downstream, it is logical that the group would anticipate the necessity of forming legal structures and the rules for adjusting these structures through further meetings. The group would recognize the necessity of formally organizing the rules necessary to control these negative externalities, and so laws and enforcement methods would be formalized. The point is that the agreements for the structure of these meetings, plus the formation of the environmental controls for this civic society, and the enforcement mechanisms for these legal controls, must all be organized for the purpose of managing the associated environmental concerns. These compositions pose the initial environmental institutions of this civic group. But the information necessary for these civic institutions to make informed decisions must also be examined and specified. For examples, how do we know that sewerage waste is flowing in the river, and how do we know where it comes from? How might we know an unauthorized divergence to the river’s flow has been constructed? It is likely that a policing authority would need to be appointed, one that can investigate and report their engineering-scientific findings back to the civic meetings. Legal-environmental enforcement must have an agreed-upon scientific and/or objective reliability or the problems of this Hobbesian society would not be resolved. The objectives of this civic organization would not be achieved without reasoned consideration via the social discourse that concerns the relevant information. It is this informed reasoned discourse that must be at the heart of these precedent-setting civic efforts if the environmental control mechanisms are to be effective. The institutions of discourse pose the refinements to the adopted environmental institutions. nature was posed as a device for exploring the formation of legal-economic institutions necessary for the individuals to emerge from brutish isolation. See Gert (1995) for a review of Hobbesian philosophy. 6 Gillroy (2000) argues that a purpose of government is to facilitate these collective efforts, that these ultimately express the autonomous reasoning of the individual.

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Clarity with respect to the institutional mechanisms that serve reasoned civic discourse and its resulting decisions must be achieved or the agreements with respect to environmental management will not be stable, if they are formed at all. By “not being stable” it is meant that they might not be consistently enforced, and/or complaints would lead to frequent changes. The agreements will not be stable because widespread disagreements will result from a lack of clarity. These mechanisms concern the customs or formal rules pertaining to the necessary information to be gathered and considered during these civic debates, and also the decision criteria that will be used. These mechanisms must be perceived as fair, effective, and clear or they will be abandoned. The environmental problems to be resolved will consequently fester. This monograph explores the methods for achieving this “clarity” and resulting “fairness.” What are the agreements that must be addressed? In our civic example posed above, we might ask how would the port facility be designed? Would it serve only a narrow interest such as the shipment of timber downstream, or would the community envision a future that includes the shipment of agricultural goods, or mining extractions, both of which require a deeper port facility for handling barge traffic with more substantial docks for loading these vessels? The locations of these facilities, and the community resources devoted to this effort depends upon these plans. All of this requires a minimum degree of community knowledge and discourse, and most important, “clarity” as to the consensus reached concerning these knowledge-based plans. The point here is that without a clearly understood consensus that the plans reflect sufficient expertise and applicable knowledge, then instability, and its consequences would infect the civic organization. These consequences might include general disagreement and the breakdown of the environmental regulations, and therefore the destruction of the community itself. The emphasis must be placed on the notion of “clearly understood.” Achieving this clear understanding via reasoned social discourse is a matter that concerns the foundational ethics of the community and its individuals who are in debate. In general, reasoned discourse is an ethical demand for any community. The ethical considerations involved are illustrated by exploring the six questions examined in the next section. The Hobbesian explanation for the origination of our civic institutions that affect our environment highlights the need for knowledge and reasoned discourse if we are to achieve a clear understanding and therefore stable

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agreement—“clarity” being a necessary but not sufficient condition for “stability.” Today the issues of global warming and environmental degradation frequently appear to be examined in a politically cynical atmosphere, one that exhibits obfuscation and lack of clear understanding. Our public discourse frequently does not appear to be reasoned or knowledgeable. The effort represented by this volume might assist our understanding of why this political failure exists and what the remedy might be. This understanding of our political failure and its possible remediation is the ultimate aim of this book.

3 Six Fundamental Issues Concerning Environmental Ethics The material below uses terminology such as “moral processes,” “reasoned discourse,” “biases,” and “equity issues,” all of which connote ethical content. This terminology is directly addressed in the latter chapters where the political theories of moral construction and duty recognition are effectively reviewed for application to our environmental issues. This is essentially political philosophy for the problem at hand. If we are to achieve clarity as to what the moral norms of the environmental discourse of our era should be, then we must ask questions such as, “Is it reasoned?” and “Is it fair?” What do we mean by these terms? For example, is it fair for the world to ask Brazilian peasants to stop burning the rainforest in order to create pastureland for their cattle? What should the conditions of this request be? In consideration of our global problems, terms such as “fair resolution” have been bandied about in a soupy fog of rhetoric. One person’s claim about fairness is thrown against another’s as we “watch Rome burn,” an argument akin to Nero’s fiddling. Today the rain forest burns and the polar ice caps melt. Is it fair for the world to ask peasant farmers to sacrifice and halt this intentional forest destruction? Can we explore the notions and applicability of the terms fair and reasoned in the context of our global environmental destruction, and do so without believing we are merely living in the intellectual atmosphere of fiddling while the Amazon burns? I suspect the first step is to achieve what we mean by a “clear understanding” as to fair and reasoned environmental discourse. That is the task of the next few chapters. For our review of the foundational ethics that we wish to apply to our environmental problems, it should be recognized that this foundation

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does not fit the consequentialist category,7 although the resulting likely consequences of establishing reasoned discourse with respect to these results are examined. The ethical theory utilized is Kantian (Kantian construction) with both Rawlsian and virtue ethics extensions.8 This nexus approach serves our task well. Fulfillment of this bold claim relies on the contributions of the twentieth-century American philosopher John Rawls. His political philosophy is utilized in several places in this book. For example, the Rawlsian criteria for competent moral decision makers and also for considered moral decisions, are reviewed in the latter chapters. These criteria are then utilized to analyze both the a priori conditions necessary for an environmental decision-maker, or contributor to such decisions, to be moral in outlook, and also to analyze ex post whether a particular environmental decision might itself be considered moral. Following Rawls (1951), the former set of criteria (for competent moral decision makers ) is necessary, but not sufficient, for the latter (considered moral decisions ). The usage of this Rawlsian criteria allows us to penetrate the surface veil of moral requirements with respect to our environmental discourse and decisions, and thereby delve into greater ethical substance. In general, this book follows a particular logic in organization. It examines the following six relevant and interrelated issues (roughly in order) as expressed by the following questions: Do we have moral processes for forming our society’s notions of environmental duty? By “moral processes” we mean that the a priori institutions designed to facilitate public discourse and decision-making must themselves be reasoned, informationally and societally inclusive, and respectful of the autonomy and reasoning capability of all participants (not paternalistic).9 To be “reasoned,” these processes must be designed so that the relevant scientific and socio-economic facts, plus their rational analyses are 7 In this context, consequentialist concerns utilitarianism in one of its forms. 8 John Rawls (1921–2002) was an American philosopher who emphasized Kantian

construction. See Rawls (2001), especially Chapter 16, “Kantian Constructivism in Moral Theory.” 9 As reviewed in Chapter 3, Habermas (1996) extensively explores the ethics required for reasoned social discourse. Also, Gillroy (2000) emphasizes the reasoning autonomy of the individual for contributing to environmental policy.

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fully solicited in such a way that the decision has the potential to be logical. Later chapters review the Kantian and Rawlsian criteria that are applicable to judging whether these processes are moral; and of how we objectively judge whether violations occur. For example, we might specify that a moral decision-maker (or contributor to a decision) should not have narrowly defined conflicts of interest , but we must define what we mean by these conflicts and recognize the possible positive roles that those conflicted might still play in our discourse provided they are transparent about their conflicts. The latter chapters examine some recent cases within the context of this Rawlsian criteria. Whereas the first relevant question concerns the morality inherent in the design of the processes of public decision making, the second issue concerns the objective evaluation of the actual reasonableness of this discourse. What do we mean by “reasoned public discourse” concerning the environment? As referred to above, we ask “Is this discourse influenced by the arguments of those with conflicts of interest? Does it actively solicit and consider all the relevant knowledge? Is it stifled by anti-intellectualism or other biases? Does it consider new relevant information, and the degree of uncertainty associated with these decisions?” Only through consideration of these questions can we then establish reasonable criteria we can use to judge the logic and completeness of the public discourse that affects our environmental decisions. Later chapters also present current illustrations of the problems associated with achieving this reasoned discourse, especially for resolving the political problems of cross-border resource management. Although we might have the institutions of open debate that should allow reasoned discourse, we still might not achieve reasoned resolutions. Consider the following third relevant question: Do we have any irrational biases concerning environmental problems? By these “particular biases” we mean those that warp our thought against such actions as (a) joining coalitions and thereby giving up some degree of personal autonomy, or (b) consideration of new restoration possibilities

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because of a cynical attitude such as “It’s gone and will not come back!” These biases can prevent either environmental restoration of the old or the reconstruction into something new and worthy. Chapter 5 concerns these biases. Current illustrations are provided in the latter chapters. The notion of inclusiveness of all societal input as it pertains to our “moral processes” and “reasoned public discourse” also poses various equity issues concerning environmental management. This begs the following related question: What are the equity issues generated by current environmental problems? These issues include consideration of the environmental effects of our actions on “future generations” and also “peoples at distance from us.” These are the significant moral issues of our time, but these equity issues can be addressed by particular Rawlsian criteria: we should apply robust moral principles considered acceptable from generation-to-generation, principles that are also widely accepted across cultures. This is the approach examined in Chapters 3 and 5. An additional equity issue is posed by the identification of winners and losers affected by changes in environmental policies. Applicable compensation criteria designed to restore equity are therefore examined in this context. They pose possible moral solutions to the “losers’ problem.” Later chapters examine the equity issues in considerable detail. The fifth relevant and overlapping issue addressed in this effort is posed by the question: How do we overcome the anti-intellectualism(anti-scientific knowledge), and its paternalismassociated with potential environmental restoration? The political environment of our age appears to have returned to one of anti-intellectualism, an atmosphere of “anti-elitism” that has periodically griped America, such as in the post-WWII age as documented by Richard Hofstadter (1963). It is argued here that currently this anti-intellectualism largely stems from a fear of paternalistic government programs that perhaps result from a lack of inclusiveness in our discourse. It follows that having inclusive rational decision processes are paramount in order

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for remediation of this anti-intellectualism. There might also be various equity issues related to this “remediation.” The sixth relevant and interrelated issue addressed in this monograph concerns: What role might public environmental organizations and coalitions play in resolving the above questions, and what inhibits the formation of these organizations? Environmental advocacy organizations and coalitions may be the key to environmental restoration. They have today become ubiquitous, but currently they demonstrate limited effectiveness in resolving our more significant environmental problems. This monograph tries to identify the inhibitions that threaten the formation and strength of these coalitions. This effort also suggests methods for limiting these inhibitions. Latter chapters extensively review the roles and contributions of these coalitions with the last chapter being focused on global contributions and concerns. These “six issues” are not exhaustive of the subject of environmental social discourse.10 It is hoped, however, that full or near full explorations of these interrelated issues help to achieve a high degree of clarity with respect to what is required for substantial progress. In confronting each of these issues, reasoned discourse is required. The remaining chapters of this monograph explore these fundamental issues as listed above, issues that fully explore whether our discourse has been “reasoned,” and whether it will likely be “reasoned” in the future.

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Our Environmental Advocacy Organizations and Duty

The significant theme of this book is that our environmental advocacy organizations (EAOs) express a particular type of duty—collective imperfect duty. Imperfect duty is a Kantian concept, and is differentiated from perfect duty, i.e. the absolute prohibitions we establish against narrowly defined disrespect of the dignity of individuals. Perfect duty encompasses actions such as murder, fraud, or violating our environmental law. These actions, and perfect duty in general, are narrowly defined in our law. 10 See Gillroy (2000) for an extensive examination of other associated issues.

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Imperfect duties, however, are widely aimed categories such as be civil, be civically involved, be charitable, protect and restore the environment, etc. They are volitional as to how the individual chooses to fulfill these wide obligations. They are not codified in law; they do have tradeoffs and practical limits. Imperfect duties pose what are by far the more interesting dutiful actions in our society as illustrated and reviewed in this book. In our society, nobody is coerced into pursuit of these imperfect duties, just as no one is coerced into “being civil.” But people become part of our environmental movement through joining—or in a few instances helping to establish—our environmental advocacy organizations (EAOs) and pursuing some particular environmental cause. This book reviews many such efforts, and the accomplishments of many EAOs. When we join these organizations, we manifest efforts toward collective imperfect duties—those coordinated imperfect duties exhibiting particular directions such as “fighting global climate change,” or “restoring the Everglades,” or “restoring the salmon runs in the Columbia River Basin,” etc. These express the efforts of the environmental community. Collective imperfect duties are expressions of community, at least some particular community as would be defined broadly such as “those pursuing some cause,” and not merely, or only “those in a particular geographic location.” Many examples of this are reviewed in this book where the efforts of a relatively small number of activists ultimately lead to defining perfect environmental duties. This phenomenon of “the efforts of collective imperfect duty leading to our society’s legally defined prohibitions with respect to environmental degradations” is documented and examined in this book. Indeed, it is a particular theme of this book. Through these examinations, perhaps we stimulate hope for resolving some particularly difficult problems as reviewed in the last two chapters; these are the problems of salvaging the “global commons.” I paraphrase Kant several times in this book in stating “perfect duties allow civilization to exist, but imperfect duties allow it to flourish.” Perhaps “allow it to flourish” is too strong a phrase for today. Perhaps we should say “imperfect duties allow civilization to continue to exist.” After the reader finishes the last few chapters of this book, perhaps the reader will agree with this “continue to exist” phrase and sentiment.

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References Gert, Bernard. 1995. Hobbes, Thomas. In The Oxford Guide to Philosophy, ed. Ted Honderich, 392–396. Oxford, UK: Oxford University Press. Gillroy, John Martin. 2000. Justice and Nature. Washington, DC: Georgetown University Press. Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg. Cambridge, MA: MIT Press. Hobbes, Thomas. 1651 (2012). Leviathan or the Matter, Forme and Power of a Common Wealth Ecclesiaticall or Civil, ed. Noel Malcolm. Oxford, UK: Oxford University Press. Hofstadter, Richard. 1963. Anti-Intellectualism in American Life. New York, NY: Knopf. Locke, John. 1690. Two Treatises on Government, “Second Treatise,” ed. Thomas Hollis. London, UK: A. Millar. Milo, Ronald D. 1995. State of Nature. In The Oxford Guide to Philosophy, ed. Ted Honderich, 894–895. Oxford, UK: Oxford University Press. Rawls, John. 1951. Outline of a Decision Procedure for Ethics. Philosophical Review 60 (2): 177–197. Reprinted in Collected Papers—John Rawls, ed. Samuel Freeman. Harvard University Press, 1999. Rawls, John. 2001. Collected Papers, ed. Samuel Freeman. Cambridge, MA: Harvard University Press. Rousseau, John-Jacques. 1762. The Social Contract, trans. G.D.H. Cole, at con stitution.org.

CHAPTER 2

Our Reasoned Environmental Discourse

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Introduction: The Nature of Kantian Construction1

How do we decide if our public debate concerning environmental matters is “reasoned?” How do we decide if our environmental policy decisions are “fair?” Do we have clear understandings of our society’s norms for the concepts of “fair and reasoned?” Surely we would demand that “fair and reasoned” requires an application of logic, i.e., of properly formed relevant premises and necessary deduction. These premises must include the relevant scientific and socio-economic information and analysis. To assure this, we would be open to and actively solicit and carefully consider the input from all affected constituents. We would also want our decisionmakers to be uncorrupted by any direct conflicts of interest. But how do we assure this last requirement? The typical way would be to utilize a panel of “judges” (decision-makers) who we know are not corrupted by conflicts of interest, and have them review the decision and the process for reaching its decision. Was the decision process inclusive of all relevant information and input? Did the decision logically follow? But we must also ask, “How do we know our society demands the pursuit of these standards?”. 1 Some of this section reflects Robinson (2019, Chapters 2 and 3).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. M. Robinson, Environmental Organizations and Reasoned Discourse, Environmental Politics and Theory, https://doi.org/10.1007/978-3-030-75606-2_2

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This and the next few chapters argue that we do have at least some degree of clarity as to the norms expressed above; and that our society has struggled to achieve this clarity. This struggle is shaped by the process we term “moral construction,” the philosophy that our ethical norms should be logically derived as a social contract and from fundamental axioms. A particular type of process—Kantian construction—uniquely appears to emerge from our democratic instincts. Kantian construction, I argue, poses the process that we commonly believe describes our aspirations as to how our public moral principles should be formed. It requires that the fundamental axioms used for this process be specified by what Kant termed our categorical imperative, which he argued represent our common understanding as to how our moral maxims should be derived.2 This is a social process involving the reasoned discourse suggested above. It is not an exercise in logic to be conducted solely in individual isolation. The norm we ascribe to is that this reasoned discourse should act as a filter for both the individual and society in testing our moral assertions. Once adequately tested, these assertions apply to the individual, but after sufficient discourse and manifestations of social acceptability, they also apply to society.3 (This is described clearly by the exposition below.) Hence Kantian construction describes a social process from which a reasoning society can express and adopt its moral principles including those that pertain to environmental issues. Our above description of our decisions being (i) fully informed, (ii) fully inclusive, being (iii) uncorrupted by conflicts of interest, and (iv) logical in conclusion is what we mean by “fair and reasoned.” This is an important point demanding the elucidation provided throughout this book. Kantian construction is European Enlightenment philosophy. It was composed during the era of democratic political establishment; as such it posed democratic ideals.4 Kant’s two major works (1785, 1797) were presented at the highpoint of the Enlightenment, i.e., the period when European and American democracy first emerged. This construction 2 The term Kantian constructivism was introduced by John Rawls (1980). It is founded

on the ideal of the autonomous free will of individuals who construct moral principles using practical reason. See Freeman (2003, p. 27). 3 See Rawls (1989) for a full description of this philosophy. 4 The European Enlightenment is that period of the late sixteenth century through

the eighteenth century that included the contributions of David Hume, John Locke and others.

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poses a “normative ideal,” a standard of comparison to perceive the possible flaws in our moral assertions, and in this case, our assertions concerning our environmental decision process. Enlightenment philosophy, and Kantian philosophy, in particular, contrasts with the rational intuitionism approach of Socratic-Platonic philosophy, which does not strictly rely on social discourse to provide a filter for our socially acceptable moral assertions.5 Nor does the Kantian social philosophy rely on religious scriptural assertions that do not stand on logical argument. Intuited moral assertions and/or scriptural assertions can still be envisioned as being brought to this reasoned social discourse, but the filter of what Kant described as our categorical imperative process (fully described below) with its social reasoning, still applies.6 Dogmatic assertions from religious or quasi-religious authorities, or even those assertions declared as authoritative due solely to someone’s personal intuition, must all pass the test of reasoned social examination. Today, this includes religious and quasireligious environmental assertions as reviewed and explored in the latter chapters. It is explained below that this social reasoning process provides a particularly appropriate norm for understanding our society’s attempts at forming our notions of environmental duty. In particular, it describes the ideal norms for the social reasoning within which our environmental organizations attempt to contribute. If Kantian construction describes our commonly accepted “ideal,” then we need not have studied Kant to perceive this social method. A reasoned social discourse is what we expect for establishing our society’s policies. Why, therefore, should we examine this moral construction? The answer is that through the conscious recognition and review of the logic of our process, we might achieve some clarity as to our strivings in this social reasoning domain, and thereby justify the claims that our “strivings” are moral.7 This clarity is the necessary element often missing from our discourse, i.e., the realization that our reasoned social-democratic discourse can derive the moral norms our society should wish to pursue, and that this is particularly manifested in our environmental discourse

5 It is obvious that Socratic philosophy relies on social discourse as in the Dialogues, but it does not suggest a broader social acceptance. 6 Habermas (2002) explores the role that religion might play in this Kantian discourse. 7 Habermas (1990, 1999) explores this ethical discourse in a Kantian framework. This

approach to discourse ethics is explored substantively in the next chapter.

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where we should not become confused as to the moral basis for our resolutions and actions. The ideal we subscribe to is that our discourse should be reasoned (logical), fully informed, broadly inclusive of the opinions of those affected, uncorrupted by narrow and direct conflicts of interest, and that we should want all to understand that we reach consensus only after these characteristics are obtained. We want the body politic to have confidence that these standards are being met; that it should be confident that its resolutions result from “fair and reasoned” deliberations. This confidence can only be reached by first forming the abstract logical conception of what this “fairness” requires.8 The realization that the process meets this “fairness requirement” then would presumably result in the public realizing that our derived resolutions are moral, and therefore should be pursued. Perhaps large segments of our citizenry have low confidence in our environmental resolutions. Perhaps they do not trust that our deliberations are fair. They might not be sure that our deliberations are unfair, but they are confused by what we mean by “fair.” Perhaps the notion of “fairness” has been obfuscated, and our citizenry is unable to judge. For example, “What do we mean by inclusiveness ? What do we mean by considered judgements ? What do we mean by conflicts of interest among deliberators? What do we mean by a paternalistic government ?” These are the sorts of questions for which we must achieve a clear understanding in order to establish confidence that our environmental resolutions are “fair” and that they meet our society’s objectives. It is the fairness of our environmental discourse that has been obfuscated by current claims of “we have been left behind, our interests have not been considered,” or by claims of “incorrect scientific evidence,” or claims of “elite paternalism from our government.” For progress to occur, we must reach an understanding that such claims are either unjustified or have been remedied. For this understanding, we must have clarity concerning our notions of fairness. That is why we must have clarity as to our ideal norm for the process of our deliberations, and how close or far we are from this ideal norm. This will facilitate recognition of our environmental duties. 8 In the terminology of Kant, we should be concerned with the synthetic a priori conception of “fairness.” See Kant (1781), and Downie (1995), for explanations of the synthetic a priori.

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If Kant is correct, then his description of our categorical imperative process (CIP)—as fully explained in the next section—is the way society commonly believes our moral duties should be formed. This means that we assume people should either accept or reject the results of our deliberations depending upon whether it is fully informed, and fully inclusive, uncorrupted, and logical and therefore “fair.” This “logic” begins with the axiom of universality as the basic premise of the environmental argument, i.e., we should behave by maxims which we believe all should behave by. This implies that we should search for agreements that we believe should apply to all. If this is true, and if we behave by commonly understood and accepted logic, then these maxims should become social policy either encased and declared by law or by common non-legal behavioral norms. (The latter is shown below to be particularly important for environmental advocacy organizations.) The further we stray from these ideal notions of “fairness,” the lower the confidence associated with our resolutions being fair. Kant (1781) deals with the possibility of “metaphysics,” i.e., “the philosophical knowledge that transcends the boundaries of experience,” which claims to be built upon the “synthetic a priori.” This latter concept means that the autonomous reasoning individual is capable of recognizing those necessary truths that do not stem from empirical evidence, for example, the mathematical proofs built from generally acknowledged axioms, or perhaps various abstract notions of “fairness.” The ability to form the synthetic a priori principle creates our ability to conceptualize and use practical reasoning to generate broad norms of conduct that Kant called “the autonomy of the will.” This common reasoning ability of humanity generates and justifies claims of dignity for all thinking persons, from this notion of common reflective reasoning, our moral construction follows.9 Kant argued that the very notion of morality requires that we envision individuals with “free will,” and this requires individuals who are autonomous in their reasoning and actions, i.e., that they be uncoerced by others. He indirectly argued that fundamental moral principles as they apply to individuals and society must be adopted through a “reasoned social discourse,” and that this discourse is a necessary component of moral construction and should be guided by the axiom of universality. As

9 See Allison (1995).

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autonomous individuals, we should participate in this reasoned discourse in environmental concerns. Kant’s transcendent metaphysics of human autonomy, as based upon our reasoning capability, leads to his description of our categorical imperative (CI) as the basis for construction. (This is presented in more depth in the next section.) From this construction we derive practical moral maxims that imply duties, some of which bind unconditionally, and some of which are volitional in their methods and extent of fulfillment. These duties play a critical role in our environmental efforts, especially as expressed by our environmental advocacy organizations, and are as described in Sect. 5 below. In addition, Kant argued that from our “autonomous will,” people have dignity and “ends in themselves.” From these notions, Kant argues that we should envision pursuit of a theoretical “kingdom of ends,” where each person respects each other’s universalizing wills and acts on those personal maxims we would have everyone act on.10 In a social sense, this pursuit of this kingdom of ends represents our aim for our practical moral maxims, a state we should wish to pursue. It is the pursuit of this theoretical kingdom, a union of people pursuing the moral maxims they legislate for themselves, that provides moral motivation. (Much more is explained about moral motivation below.) A theme of this book is that this pursuit provides the moral motivation for our environmental social discourse and consequent organized attempts at preservation and restoration. It is shown that our environmental advocacy organizations have generally held the high moral ground in our social discourse because of their motivation of pursuit of an ideal universalizing kingdom of ends that we call “a moral community.” In fact, these advocacy organizations provide the critical element for this pursuit. Kant described three interrelated formulae of our categorical imperative (CI), each derivable from, and necessitated by the others. (All three are reviewed extensively below.) These three interrelated formulae do not stem from any abstract laws of nature. They would not exist without the imposition of reasoning people. They are person-centered and proceed from our reasonable (rational) free will. These imperatives appear to us as obviously true and descriptive of our fundamental beliefs. They are therefore axiomatic, so we can derive our practical maxims from them. They need no prior argument to establish them. They stand alone

10 See Downie (1995).

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in forming the premises for our supporting arguments in favor of our derived practical maxims. They act as guides for our reasoned social discourse in forming our aspirational norms. Together with this discourse, they compose the categorical imperative process (CIP). From the CIP comes practical behavioral maxims which specify both narrow (or perfect ) and wide (or imperfect ) duties. The former category is constituted by narrowly defined absolute prohibitions such as “Do not commit fraud!” or “Do not discharge that poisonous pollution into the public’s water supply!” The latter categories of duty are wide in scope such as “Be charitable!” or “Protect and restore the environment!” They leave a broad area of volition as to how this wide duty might be fulfilled, and also the extent of that fulfillment. With respect to environmental issues, we have wide duties (imperfect duties) to protect and restore the natural environment, but we also have a wide duty to obtain knowledge concerning our environmental impacts. Both of these imperfect duties have practical limits, but both could involve the joining of collective organizational actions with the purpose of avoiding what is termed “tragedies of the commons.” The abilities and tendencies to recognize and fulfill imperfect duties, whether environmentally related or otherwise, constitute what we term “character,” and this is subject to personal and social development. These issues of duty are extensively explored in Chapter 3. The CIP and the environmental duties derived from it are the subjects of this and the next chapters. This material is necessary to understand how our moral environmental norms are established from reasoned social discourse. It allows us to evaluate the role and substance of this reasoned environmental discourse and the nature of the duties derived from it. This ideal process should be envisioned and understood as a state to be pursued so that by comparison we can examine the reasonableness of our current actual deliberations and resolutions. This examination is the subject of the latter chapters, but here we should recognize that although this ideal state may not actually be reached, nonetheless our pursuit of it allows judgments that motivate the progress we seek.

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The Categorical Imperative and Its Three Formulae

Kantian construction argues that the fundamental practical moral principles applicable to society must be adopted by a consensus of autonomous reasoning people after associated rational thought and discussion, and

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only when they are guided by our generally accepted axioms he called the categorical imperative as described below. This categorical imperative follows from rational free will, and represents a “supreme practical principle,” namely that the moral maxims we aspire to live by should be universal; they should apply to all. This rational “practical principle” is often termed the formula for universal law, and is actually only one of three statements of the categorical imperative. The second version is often termed the formula for the end in itself: treat yourself and other people as an end in themselves, not only as a means. This requires that we allow others to pursue their ends as long as they do not impinge the freedom of others to pursue their own interests. Engaging others via deception, as an example, is always in violation. The third version of the categorical imperative concerns what Kant termed the pursuit of a kingdom of ends , an end result that motivates our commitment to applying our practical moral principles. We explore this motivation in much more detail below. The second version of the categorical imperative requires that we act so as to allow others to act in their own interests; we do not use others only as mere tools, but rather as rational persons and in such a way as to allow them to pursue their own ends. If we follow these versions of the categorical imperative in deciding the principles of morality as derived through a consensus, then these principles can form a “system of justice.” Within this system, each person acts as a contributing legislator, and is bound by the resulting democratically agreed-upon law.11 Kant argued that his three statements of our categorical imperative are really different versions of the same imperative, i.e., that each follows from the other two.12 These versions are presented below as three “formulae,” as entirely consistent with each other, and in fact he envisioned each as logically necessitated by the others. It is important to keep in mind that these formulae are axiomatic guides for the derivation of our applicable and practical maxims: Formula 1—the formula of autonomy or of universal law: “I ought never to act in such a way that I could not also will that my maxim should be a universal law.” (Kant, 1785, 4: 402) 11 See O’Neill (2000) and Sullivan (1994) for reviews of Kant’s ethics. 12 Below, we use Sullivan’s (1994, p. 29) interpretations from the original language of

these imperatives.

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Formula 2—the formula for the respect for the dignity of persons : “Act so that you treat humanity, whether in your own person or in that of any other, always as an end and never as a means only.” (Kant, 1785, 4: 429) Formula 3—the formula of legislation for a moral community: “All maxims that proceed from our own making of law ought to harmonize with a possible kingdom of ends.” (Kant, 1785, 4: 436)

Kant’s formula for the respect for the dignity of persons would be violated by any type of fraud, which is essentially a lie. It deceives others into serving our own ends, while not allowing others to pursue their personal ends. Any maxim that poses that fraud is acceptable must violate universality, i.e., society cannot function under a universal maxim that allows deception. This example illustrates the consistency of the first two formulae. Consider the formula of universal law in the context of our individual and community’s effects on our environment. Since the environment is humanity’s home, by affecting the environment we necessarily affect others. If we actively will those actions that degrade the home of others, then we are reasoning that it is acceptable that they degrade our home as well, at least that they have the right to degrade our home. Of course, this begs the definition of what we mean by “degrade,” but we cannot mean that humanity’s home ultimately be destroyed. Such a universal maxim would be illogical. With respect to the environment, a universal practical maxim must be the opposite of willing degradation, but this again requires that we define what is meant by degradation. For example, consider actions associated with economic development. Would energy development, or the mining of minerals needed in manufacturing be considered degrading to our “environment as home.” (Note we will explore notions of humanity’s spiritual connection to nature, and our effects on the natural home of future generations, and of distant peoples, below.) The answer is that we must decide by reasoned social discourse that leads to consensus on what we mean by acceptable and unacceptable environmental degradation, and what we mean by acceptable development. This is the logical consequence of the formula of universal law: “I ought never to act in such a way that I would not also will that my environmentally related action be considered universal law.” If I did so, I would be acting in either an illogical fashion, or by some personal recognition that I have the right to perform actions others do

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not have, i.e., “I can degrade your home, but you cannot degrade mine.” For example, we might assert that “I have the right to impose my negative externality (pollution) on you, but you must not impose your negative externality on me.” This would be an illogical assertion that I have superior privileges others do not have. How can we understand the logic of people who would argue that they should have these superior privileges? Perhaps they see society as so broken that others will pollute whether they personally refrain from polluting or not. Perhaps they do not believe society could ever act in concert to prevent environmental degradation. Perhaps they need to be ostracized from society via sanctions that inhibit their polluting actions. Whatever the case, we should recognize that the formula of universal law presents an ideal to be pursued by society for all its members. This “ideal” is relevant to our problem of environmental degradation provided we reach a consensus as to the meaning of that term. The formula for the respect for the dignity of persons follows from the formula for universal law. If people are autonomous and reasoning then they must be respected as individual legislators in our process of moral construction. The only universal law that we could agree that we should all act on is to respect ourselves and one another. If we are to demand that our home and personhood be respected, then we must respect the personhoods and homes of all others. In addition, we note that we violate universality when we act with bias against people of another clan or type. The word “other” in this formula implies “all others,” not just “some others.” It is explained below that this recognition has strong implications for environmental ethics. Likewise, the phrase “in your own person” also has strong implications for environmental duty as explained in the next chapter. “Treating humanity always as an end,” and not merely as a “means” requires that we do not deceive people into pursuing our ends while frustrating the pursuit of their own ends. Coercion for this purpose would also be in violation. We should readily perceive the implication for “environmental degradation,” as reviewed above, and also the need to define this term. Whatever the type or degree of degradation that we agree by consensus is acceptable, there can be no deception or coercion in forcing this “degradation” on others, nor discrimination in the application of this to some group judged as “less worthy of respect.” Note that this antidiscrimination is directly relevant for our society’s current problem of social stratification by income or wealth where some groups are more

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able to avoid the effects of pollution while others suffer a greater impact, i.e., the issue of environmental social justice. The motivation for the pursuit of the first two formulae lies in the third formula, the formula of legislation for a moral community. Before examining this motivation, we might reflect on the notions developed in the Socratic dialogue Gorgias.13 In that dialogue, Socrates develops two principles: • “No man does evil voluntarily.” • “It is better to suffer evil than to commit evil.” With respect to the first of these propositions, Socrates states that to know what is good, and to choose what is evil, is an absurdity. No person knowingly and willingly selects evil; they select evil only in spite of the fact that it is evil, not knowingly and voluntarily because it is evil. Evil is merely the necessary result of ignorance. This is true because willingly committing evil is self-destructive of the reasoning individual, and no one rationally selects self-destruction, at least according to Plato and Socrates. (Of course, this assumes that we are reasoning mentally healthy individuals.) Note that this preserves the notion of free will in that people could still select to perform evil actions, but they would do so only out of ignorance. These Socratic principles also apply to environmental concerns. People would not knowingly and willingly destroy humanity’s home. To do so means self-destruction, if not of actual self then the destruction of family, friends, and community. They would have to either believe they exist in isolation, or that they have neither family or community, or even a future, in order to destroy our environmental home. (I repeat that we assume that people are reasoning.) If they did, they would be ostracized and bear the guilt of these actions. As indicated above, reasoned free will is what gives meaning to life, according to Socrates, Plato, and certainly also Kant. By selecting evil, a person therefore destroys that which gives meaning to life. Kant, however, sought to extend this Greek philosophical argument. Kant argued in the third formula that we ultimately seek a kingdom of ends , what in Greek

13 See Plato (1989).

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philosophy is termed the good.14 By kingdom, Kant means “the union of different rational beings in a system by common laws” or maxims (1785, 4: 433). Through the first two formulae, duties are derived and motivated by the pursuit of this kingdom of ends , i.e., the pursuit of a moral community. These duties, fully explored in the next chapter, are actually derived from the practical ethical maxims formed from our categorical imperative. By harmony, Kant means that these rational beings pursue consistent and coordinated duties aimed ultimately at pursuing this moral community. Moral actions are therefore those that are motivated by the pursuit of this ultimate good of “harmony.” They cannot be those that serve only the self at the expense of others in this “union of rational beings” (1785, 4: 430). Indeed, Kant (1797) argued that examination of motivation is the only basis for judging the morality of some action, and formula 3 provides the only justifiable motivation. Other possible motivations are self-centered on the individual actor, and hence are inherently selfish. Pursuit of the kingdom of ends is generally interpreted as pursuit of a moral community.15 This indicates the appropriate moral motivation, and it is directly applicable for motivating our environmentally related maxims. To illustrate this motivating notion of pursuing a moral community, consider environmental restoration. Our motivating thought cannot be, “What advantage can I obtain from this restoration?” but rather “How can we obtain harmony among our community?” We pursue a moral community in harmonious cooperation. We do so because of our respect for ourselves and the others affected. This ethical motivation is the ethical motivation according to Kant, and is expressed in formula 3. To state that we “respect the dignity of others” implies that we ought to “pursue” our notions of the “moral community.” (Note that this is not the utilitarian neoclassical economic argument explored in a chapter below.) One should realize the linkage between formula 1 and formula 3. The universality principle prohibits us from establishing maxims that are purely self-serving. Our maxims therefore must be aimed at, or motivated by, the communal pursuits. For example, consider the case of the temporary lying promise reviewed above. A maxim that allows the temporary lying promise under certain exigencies not only violates formula 1—the 14 The pursuit of the kingdom of ends can be interpreted as the pursuit of the good. This is the interpretation of an important contributions by Moran (2012) who points out the communal nature of this motivation. 15 See Moran (2012).

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universality principle, and formula 2—respect for the dignity of persons , but also formula 3—the pursuit of a moral community. A personal maxim that allows us the self-serving temporary lying promise is hardly in pursuit of the harmonious society. We see, then, that Kant’s descriptions of our three formulae are consistent with each other, and actually each is required by the other two. One easily perceives the parallel between religious judgments of proper motivation and Kant’s pursuit of a moral community. Religion generally argues that we should pursue right and not wrong because we seek a final individual nirvana, or heaven, or paradise, or similar state after death. We see this as a selfish pursuit, but religious explanations of the alternative (some form of hell ) are so drastically horrible that we are frightened into pursuing this ultimate end. Kant changes this motivation to a current world social end, one that is not self-centered. It is obvious that when one is only concerned with “after death,” then the pursuit of current world harmony is decreased in importance. Kant’s ideal of the pursuit of the moral community refers, of course, to the pursuit of an harmonious overall society, one where reasoning people pursue maxims which they form by consensus and therefore find acceptable, and which are derived from the other two formulae of the categorical imperative.

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The Categorical Imperative Process (CIP)

As emphasized above, the categorical imperative (CI) acts as a guide for a process (the CIP) for establishing the moral principles of action for (i) ourselves as individuals, and (ii) for society. Both of these applications require social discourse to act as a filter for the information we obtain that ultimately leads to an informed decision, and also a discourse that acts as a check on our logic. This discourse is therefore a test of our ideas and would be assertions.16 We need to persuade other reasoning and objective people (those without narrow and personal conflicts of interest in the result) in order to have confidence in our resolutions and assertions. Assuming Kant is correct about society’s common belief that the CIP represents how we believe we should derive our moral principles, then this process represents an ideal norm to aim for and also to

16 See Rawls (1989), and Sullivan (1994, Chapter 2).

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judge society’s shortfalls. Concerning this Kantian assumption, we should ask, “Which of the CI formulae – if any – do we object to?” Without reverting to some personal religious assertions, I suspect the reasoning and reflective person would have no “objections!” But we should keep in mind that assertions of our personal religious maxims are likely to lead to wide disagreements rather than “harmony,” and this would not be advantageous to environmental preservations. Given the above, we are justified in attempting to apply the CIP to our actual establishment of those principles that make up our environmental policies. This is an examination pursued in the latter chapters where it becomes clear that our society does attempt to apply the CIP to environmental concerns. Before we consider this examination, we must review the one missing element in this process, what Kant termed the universal principle of right, or in its more modern terminology the universal principle of justice (UPJ), as listed below. The universal principle of justice (UPJ): Behave in such a way that your choices are compatible with the greatest amount of external freedom for everyone. (Kant, 1797, 6: 230)

It can be argued that this UPJ naturally follows from the formula for respect for the dignity of persons . But even if it is implicitly present in the CIP, it is perhaps useful to list the UPJ as an additional element. Our ideal categorical imperative process (CIP) therefore consists of (i) a reasoned social discourse that (ii) is guided by the categorical imperative, and (iii) that is also constrained by the universal principle of justice. The CI together with the UPJ uses terms such as “everyone, persons, humanity, community,” and “any other.” How inclusive are these terms? This is a relevant question for our environmental concerns as we will explore below. The moral weight of the CIP depends upon these terms being universally inclusive. If “any other” excludes those affected by our decisions, then we cannot claim that our CIP-resulting resolutions are ethical. For examples, our environmental decisions affect many, and these “many” must be included in our reasoned social discourse. We cannot define our community (as in “moral community”) narrowly, or in a way that applies our environmental preservation and restoration policies only to our narrow concerns. For example, we cannot define our community in such a way as to allow us to dump our polluting garbage upon

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an unwilling but rational “other,” and then claim this action is anything other than immoral. We shall see in the latter chapters that this inclusivity also has strong implications when we consider that our environmental policies affect both future generations and those at great distances. This poses the conundrum of paternalism in determining environmental policies that affect others but without engaging their input into our discourse. We must and will address this issue below. At this point, it is important to contrast the intuitionist approach with Kantian construction. The difference lies in the categorization of applicable axioms. The intuitionist approach to ethics is founded in the Socratic dialogues where logical thought intuits a moral principle that is discussed and explored among a small group. This would be similar to the CIP except there is no explicitly applied universality, or respect for the dignity of persons, or pursuit of a moral community, or UPJ used as guides. These are the applicable axioms we believe in for our discourse. The intuitionist asserts axioms as naturally existing but manifested in personal intuition revealed through logical inquiry. These intuited principles cannot be justified by the use of other axioms. (By their nature, axioms are self-evident.) But Kant’s assertion that we believe individuals are ends in themselves allows the logical derivation of other maxims through democratic discourse. It makes no difference if the original idea for some principle was intuited by someone, it still must face the filter of democratic discourse guided by the CI, i.e., a wide consensus is necessary, not just agreement among a few friends. One cannot just assert, “It is obvious that …” with only the support and agreement of a few friendly discussants. Kant differentiates the moral imperatives we might establish from other will-derived intuitionist maxims that might serve only personal happiness. In particular, our CIP asserts that moral maxims must be followed because of the pursuit of the kingdom of ends, not because of any other motivation whether intuitionist or otherwise. One should not lie, not because of fear of discovery and ruination of reputation, nor out of fear of the consequences in some afterlife, but because of our pursuit of a moral community. If one poses a moral maxim, one should desire that it be universally followed. If I argue that some maxim should be universal, and others pose their own versions of universal maxims, then whatever we broadly agree upon through democratic discourse should be considered by all as universally binding. For example, consider the problem

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of speeding on a busy street. If I can do it, then we must believe that others can, and the street would no longer be useful given the problems this purely egoistic behavior would engender. Pursuit of a moral community, however, provides our motivation for not violating the maxim against duty. If my motivation for not speeding were merely “I might get caught, and suffer the consequences,” I might attempt speeding if I thought getting caught was unlikely. If others believed the same, then the street would become unusable. The proper motivation should be clear from these considerations. The same type of argument applies to our environmental maxims such as “Do not pollute our community park!” If one can pollute this park, then so can others. The park then becomes of no use to the community, at least not as a useful natural park.

4 Maxims for Achieving the Harmonious Community The material of this section is particularly germane to environmental agreements such as the cross-border agreements explored in the chapters below. It applies to notions for obtaining what we can term stable environmental agreements. Kant’s categorical imperative in the form of formula 2—the formula for the respect for the dignity of persons —is the fundamental proposition concerning correct conduct, and as such, its application is necessary for achieving a harmonious pursuit of a moral community. An argument in support of the essential importance of this harmony is presented here, but only after several potential maxims are reviewed. The following notion of harmony is essential to the ethical system presented here. By harmony we mean the achievement of a high degree of cooperation within a community so that clarity in pursuit of derived moral maxims is accomplished.

This clarity can be achieved only after the community fully understands and accepts that its derived moral principles are: • worthy of pursuit, • consistent with formula 2 of the categorical imperative, and • motivated by pursuit of a moral community.

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Note that we can pursue and promote a moral community without specific knowledge of Kantian philosophy. Indeed, Kant described the categorical imperative as merely our common thought about the establishment of ethical maxims. Hence the notion of harmony presented above is, according to Kant, the way we think about pursuing a moral community. This does not require an elite autocracy of philosopher scientists to lead us, but rather a democracy with confidence in its consensus. This is an essential point for our environmental considerations, i.e., an environmental policy imposed paternalistically by an elite is not what we seek. Such a policy would likely be empty of harmony and not serve our broad interests. To be effective, an environmental policy must stem from “the broad grass roots” in ways illustrated by the efforts of our environmental advocacy organizations as particularly reviewed in the latter chapters. It is argued here that pursuit of a moral community requires two general categories of attitudes and actions: i. Respect for the dignity of others as thinking individuals. A moral community would respect and solicit the creative and thoughtful input of its citizens. Otherwise cooperation is unlikely to be achieved.

ii. Reflective thought about the ethical problems faced by the community. Reflective thought is required for an understanding of the nature and motivation behind any of our moral maxims. This requires the mental effort of a thoughtful analysis in seeking the necessary relevant information. By this it is meant that without reflective thought about the necessities for its maxims, the community will lack commitment to them, and therefore cooperation will likely be lacking. This is particularly true concerning environmental maxims where people often need to understand scientific rationales.

Reflective thought about its ethical codes is necessary to avoid the breakdown in the community that is generally associated with becoming overly bureaucratic in its decision-making, or particularly bureaucratic in application of “codes of conduct.” This is an especially difficult modern problem, and it will be explored in some detail in the latter chapters.

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In the Groundwork of the Metaphysics of Morals (1785), Kant reviewed some maxims against particular actions, these maxims being derived from the categorical imperative. For the purpose of illustration, I pose some similar maxims that are consistent with the categorical imperative and that might be applicable to environmental situations. The limitations of behavior posed by these maxims are certainly required for maintaining an harmonious community within the context of our environmental pursuits. They are certainly consistent with the motive of respect for the reasoning individual as a moral agent, and they should form the basis for reflective thought about the ethical conundrums we potentially face. It is important to note that in all of this ethical philosophy, it is the person’s aim in acting on the particular maxim that forms the ethical content, i.e., the motive for action is fundamentally important, and the motive should be the pursuit of a moral community. Maxim 1: We ought not to make lying promises. This maxim is properly illustrated by the following question: Question: “Consider problems of environmental distress. Should we make someone a promise of remediation even though it has a low likelihood of success?”

This question is particularly germane to our government regulatory institutions. The motives for the lying promise might be to avoid psychological distress or to avoid some political or other inconvenience. In all cases, the lying promise violates the categorical imperative. People who make lying promises in pursuit of personal gain or advantage are in clear violation. They lack respect for the reasoning individuals they interact with. They are trying to manipulate others into pursuit of the ends associated with the lie, but in the process, they frustrate the pursuits of those manipulated. (Consider the importance of this for environmental actions.) Within the community, harmonious relations are destroyed by the violation. Any sense of community teamwork is violated, and the potential for future community cooperation is upset. One can never envision a society that could function efficiently if lying promises were common, and therefore the maxim prohibiting them satisfies our demand for the categorical imperative as expressed in all three of its formulae. Note that a commitment with low likelihood of fulfillment can be presented as “We will try to achieve!” In this case community commitment might still be achieved

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with all understanding the likely outcome. A general attitude of cynicism might be avoided. It should be obvious that strategies of “We will try to achieve!” may be particularly relevant for environmental problems. Maxim 2: Whenever we solicit the input from community members, we ought not to humiliate those we disagree with, or fail to recognize that they have a dignity equal to our own. This maxim is properly illustrated by the following question: Question: “When we communicate with others who do not understand the scientific rationale for some proposed environmental action, should we use humiliation to motivate them?”

Nobody seeks an end of humiliation for themselves. If we humiliate somebody, we violate Kant’s categorical imperative as stated in formula 2. We disrupt harmony by breeding frustration within the humiliated individual, and also, it should be argued, we show a lack of self-respect for ourselves due to our own frustration. We should, however, be able to manage that frustration. We should be able to present cogent arguments in order to achieve the motivation desired of others. Humiliating behavior is a disease that destroys the harmonious organization. Respect for the reasoning individual is always superior for motivating people. Frustration with the performance of others will always be with us. Our task is to overcome this psychological problem without giving in to humiliating behavior. Today there may be many who do not understand the scientific arguments underlying environmental actions, but perhaps more creative presentations could still be effective. Maxim 3: In soliciting input, we must recognize the dignity of others even when we know they have conflicts of interest . This maxim is properly illustrated by the following question: Question: “When considering pollution abatement, should we disrespect those from industry because we know they have conflicts of interest?”

We know the industry is likely to pursue their own ends, and this might mean generating pollution. Industrial interests may be, however, part of our community. As long as we recognize their conflicts of interest, we should not disrespect them. We must not avoid them because we do not feel comfortable interacting with them. This certainly would disrupt the

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harmony within the community. It would show a lack of respect for other reasoning individuals. This behavior would directly violate formulas 2 and 3, but it would also violate formula 1, the universality principle. Are we to say that we should only hear from those opinions we like? This principle could hardly be a universal maxim. If it were, respect for the dignity of other persons would be a rare characteristic. Respect should be shown to all. We must allow all to maintain their rightful self-respect and dignity. We expect to be treated with respect, and we should offer it in return. This is required of all three formulations of the categorical imperative. Consider the three maxims presented above, and ask “What are the characteristics of a community that does not pursue these maxims ?” We should be able to draw the conclusion that the characteristics would be: (1) A lack of trust among community members. (2) A lack of beneficent cooperation among community members. (3) A general lack of truthfulness. (4) A psychological state of inferiority among some members with associated fear of contact with others. It is not possible that a community exhibiting these characteristics could adequately pursue any environmental or other worthy goal. It is for this reason that leadership in pursuit of these, and/or other maxims consistent with Kant’s categorical imperative, must enable them to pervade the organization. Indeed, this is the essence of community leadership. As such, leadership towards inculcating these maxims into the community is a necessary condition for effective environmental progress. We state “it is necessary,” but it may not be sufficient since other characteristics such as strategic creativity and proper analysis of the risks the community faces are also required.

5

Imperfect and Perfect Duties

Our analysis distinguishes between imperfect and perfect duties generated from our derived moral maxims. These definitions and distinctions are essential for our environmental analysis. The following indicates the differences:

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• Perfect duties (often termed negative duties) are narrowly defined absolute prohibitions against attitudes and actions that violate a moral maxim of respecting the dignity of others. For example, there is an absolute prohibition against the lying promise, or fraud, or demonstrating contempt for the dignity of another or others as a group, or of purposely, either openly or surreptitiously, destroying some environmentally related community asset. • Imperfect duties (often termed positive duties) stem from volitional attitudes and associated actions that pursue some wide moral purpose aimed at respecting the dignity of others and self, but that have practical limitations. Charity, for example, must have practical limitations or the individual would not be capable of functioning in the everyday real world. This wide imperfect category, however, is much broader than only charity. It includes beneficent duties for individuals and the community including environmental aspects that facilitate the community’s flourishment as explored below.17 Whereas perfect duty essentially requires noninterference with the freedom of others, imperfect duty requires beneficent attitudes and actions towards both others and ourselves, and hence has tradeoffs and therefore practical limits. Perfect duties allow civilization to exist; imperfect duties allow the community to flourish. (This is particularly true of those related to the community’s natural environment.) In Metaphysics of Morals (1797, 6: 394), Kant specified that perfect duties should not be compromised by considerations of egoistic consequences. There are, however, tradeoffs involving imperfect duties. Kant (1797) identified imperfect duties as duties of virtue, and describes these as of wide obligation and disposition (ibid., 6: 390). He also identified an imperfect duty to oneself , as appears evident in the second formula of the CI, and describes this as a matter of character development. Which of these natural perfections should take precedence, and in what proportion one against the other? It may be a human being’s duty to himself to make these natural perfections his end, but these are matters left for him to choose in accordance with his own rational consideration concerning what sort of life he would like to lead and whether he has the 17 In this context, beneficence means “doing or producing good.”

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powers necessary for it (e.g., whether it should be a trade, commerce, or a learned profession). … a human being has a duty to himself to be a useful member of the world, … But a human being’s duty to himself regarding his natural perfection is only a wide and imperfect duty; for while it does contain a law for the maxim of actions, it determines nothing about the kind and extent of actions themselves but allows a latitude for free choice. (ibid., 6: 446)

The impetus of Kant’s argument is that in each of the broad categories of imperfect duty, there is a maxim for action, but there is also latitude for discretion as to what the action might be, i.e., choose what contributions you will, but “be of use to the world.” Specific actions are not prescribed; some general broad categories of actions are prescribed, i.e., make the ends of others our own, but not to the point of personal exhaustion and degradation. For example, one’s community involvement in environmental preservation or restoration allows the individual discretion with respect to the specifics, i.e., the actual means and extent of the efforts. In particular, Kant argued that our method and extent of the pursuit of any wide moral purpose is subject to our circumstances and inclinations. It is argued below that this “circumstance and limitations” argument applies to our environmental duties. White (2011, pp. 41–46) suggests that imperfect duties are subject to preference rankings consistent with notions of taste. Still, the rationality requirement of Kantian analysis, i.e., that moral decisions are made only after rational reflection, allowed Dworkin (1977) to describe a process for decisions involving imperfect duties: (1) gather all relevant facts, (2) weigh these facts, and (3) then decide what is right through a subjectively decided expenditure of resources or effort. This process describes a type of cost–benefit analysis as decision criteria for imperfect duty and its logical foundation. Kant states that imperfect duties exist because we are “…. united by nature in one dwelling place so we can help each other” (Kant, 1797, 6: 453). This dwelling place applies to our community as well as groupings of family, and broader groupings of communities such as manifested by our environmental advocacy organizations and coalitions. Kant terms this “the maxim of common interest” (ibid., 4: 453). It applies to those united under the umbra of the community as “rational fellow-beings with needs” (ibid.). For examples of practical maxims that follow from Kant, Hill (2012, p. 86) lists several “mid-level” maxims from which a broader list of duties

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can be derived: perfect duties against lying or servility, and imperfect duties of charity, friendship, and promoting our own happiness. In Metaphysics of Morals, Kant explored practical limits on all of these. The duties of beneficence, friendship, and promotion of our own happiness all fall under the umbra of imperfect duty. Within a community, however, an imperfect duty of beneficence, for example, must have a practical limit for individuals or they might not be able to function in their duties to themselves. Where should the line be drawn between what is practical, what is not, and what are the tradeoffs of one dutiful performance with another? This question is not easily answered by the community member, but requires reflective thought, and is likely unique to any situation at hand. A solution for discernment of these practical limits is explored in the next chapter.

References Allison, Henry A. 1995. Kant. In The Oxford Companion to Philosophy, ed. Ted Honderich, 434–438. Oxford, UK: Oxford University Press. Downie, R.S. 1995. Kantian Ethics. In The Oxford Companion to Philosophy, ed. Ted Honderich, 438–439. Oxford, UK: Oxford University Press. Dworkin, Ronald. 1977. Taking Rights Seriously. Cambridge, MA: Harvard University Press. Freeman, Samuel. 2003. Introduction—John Rawls an Overview. In The Cambridge Companion to Rawls, ed. Samuel Freeman. Cambridge, UK: Cambridge University Press. Habermas, Jürgen. 1990. Moral Consciousness and Communicative Action, trans. C. Lenhardt and S.W. Nicholsen. Cambridge, MA: MIT Press. Habermas, Jürgen. 1999. On the Pragmatics of Communication, Chapter 7. Cambridge, MA: MIT Press. Habermas, Jürgen. 2002. Religion and Rationality: Essays on Reason, God, and Modernity, ed. E. Medieta. Cambridge, MA: MIT Press. Hill, Thomas E. 2012. Virtue, Rules and Justice. Oxford, UK: Oxford University Press. Kant, Immanuel. 1781 [1787]. Critique of Pure Reason. In Basic Writings of Kant, ed. Allen W. Wood (2001), The Modern Library Classics. New York: The Modern Library. Kant, Immanuel. 1785. Fundamental Principles of the Metaphysics of Morals. In Basic Writings of Kant, ed. Allen W. Wood, The Modern Library Classics. New York: The Modern Library. Kant, Immanuel. 1797. The Metaphysics of Morals, ed. Mary Gregor. Cambridge, UK: Cambridge University Press.

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Moran, Kate A. 2012. Community & Progress in Kant’s Moral Philosophy. Washington, DC: Catholic University of America Press. O’Neill, Onora. 2000. Kantian Ethics. In Routledge Encyclopedia of Philosophy, p. 433. London: Routledge. Plato. 1989 [1999]. The Collected Dialogue Including the Letters, ed. Edith Hamilton and Huntington Cairns, Bollingen Series LXXI. Princeton, NJ: Princeton University Press. Rawls, John. 1980 [1999]. Kantian Constructivism in Moral Theory. Journal of Philosophy 77 (September): 515–572. Reprinted in Collected Papers—John Rawls, ed. Samuel Freeman, Harvard University Press, 1999. Rawls, John. 1989 [1999]. Themes in Kant’s Moral Philosophy. From Harvard University Lecture. Reprinted in John Rawls: Collected Papers, ed. Samuel Freeman. Harvard University Press, 1999. Robinson, Richard. 2019. Imperfect Duties of Management: The Ethical Norm of Managerial Decisions. Cham, Switzerland: Palgrave Macmillan. Sullivan, Roger. 1994. An Introduction to Kant’s Ethics. Cambridge, UK: Cambridge University Press. White, Mark D. 2011. Kantian Ethics and Economics. Palo Alto, CA: Stanford University Press.

CHAPTER 3

Recognizing Environmental Duties and Applying Our “Fair and Reasoned” Criteria

1

Perfect and Imperfect Environmental Duties

Some people appear to live their lives in an urban cocoon separate from our natural world and in structures and areas of only manmade materials. For them, flowing water might only come out of a faucet, or perhaps over some concrete wall as in an architectural waterfall. The high point of their year might be a vacation trip to a “resort” of natural settings, perhaps with enhanced natural interactions. Some others spend almost all of their lives in a dense suburbia, perhaps traveling daily by a small park which they view with some (perhaps small) degree of pleasure, or perhaps in sight of a significant river, or mountain range, or seacoast, but having little direct contact with these natural settings. Perhaps some people need not often reflect on the natural amenities that exist about them, or on the fragility of nature’s existence. A relative of mine spent her last days in a nursing home unable to move much, but still able to gaze upon a small birdhouse that hung from a pinetree limb just outside her window. It was placed there by a relative who knew her lifelong habit of watching birds in simple settings. Watching a lone bird might constitute an amenity of great purpose and pleasure. The experience can motivate one to a dedicated duty of natural preservation. The environmental amenity need not be a grand setting, but it could be, and if so, then perhaps it will motivate a grand dedication to preserve a © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. M. Robinson, Environmental Organizations and Reasoned Discourse, Environmental Politics and Theory, https://doi.org/10.1007/978-3-030-75606-2_3

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great river, or mountain area, or section of high desert, or the world’s oceans? Must a grand dedication come from a transcendental experience? What motivates us to join the great crusade of our time, i.e., the environmental movement? This motivation and its expressions are the subjects of this chapter. We commonly recognize duty as being of two sorts: the sort that asserts “you will not do that,” or the sort that asserts “that would be a worthy pursuit!” We have legal prohibitions for the first sort; we have various social propaganda that encourages the second. Our environmental legalities specify various prohibitions against some types of environmental degradations, but we also have a strong “environmental movement” that acts toward preservation. Both embody our process of moral construction as reviewed in the previous chapter. That chapter presented the philosophy of moral construction as descriptive of the formation of our aspirational ideal norms that specify our society’s ethical environmental principles. If Kant’s observations are correct, then we commonly aspire to construct these principles via a process termed our categorical imperative process (CIP). This CIP reflects “our common understanding” of how our moral principles should be formed, an essential proposition for our society. This process is guided by the categorical imperative (CI) with its three interdependent specifications (formulae) of (i) universality, (ii)respect for the dignity of persons , and (iii) pursuit of the moral community as motivation. Using these three specifications as guides for reasoned and reflective social discourse, society ideally derives the moral maxims that pose our practical duties, both those of narrow prohibition, and those that pursue wide positive aims but that allow discretion as to their methods. The former category of duty is best described as perfect duty. The latter category is best termed imperfect duty and has particularly interesting applications for environmental concerns. To understand the environmental movement, we must clearly distinguish between the two types of duty referred to above: imperfect and perfect duties as specified and briefly explored in the previous chapter. These duties should be properly generated by our CIP process as described above. To be “properly generated,” we mean that this ideal social process must exhibit (i) reasoned, respectful, and informed discourse, (ii) an attempt to include the views of all as part of this process, (iii) a logical analysis of all this information, and (iv) be motivated by the

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pursuit of a moral community.1 Although presented in Chapter 2, the following repeats the differences in these categories of duty: • Perfect duties (often termed negative duties) are absolute prohibitions against attitudes and actions that violate a narrowly defined prohibition aimed at respecting the dignity of others. For example, there is an absolute prohibition against surreptitiously destroying some environmentally related community asset. • Imperfect duties (often termed positive duties) stem from volitional attitudes and associated actions that pursue some wide moral purpose aimed at respecting the dignity of others and self, but that have practical limitations. As explored below, this imperfect duty category includes beneficent duties for individuals and the community’s organizations to facilitate its environmental flourishment.2 As reviewed above, perfect duties essentially require noninterference with the freedom of others, but they do pose restrictions on the freedom of self. For example, one cannot impinge on a neighbor’s property without prior permission and perhaps an agreement for compensation, and therefore one’s own freedom is restricted in order to avoid infringing the neighbor’s freedom. Perfect duties are most often encased in civic law, or regulation, as absolute prohibitions. They are posed as having no apparent tradeoffs with other duties. (An example of an environmental prohibition would be the Refuse Act of 1899 which prohibits the dumping of wastes into any navigable waters of the US. This Act is reviewed in Chapter 10.) As Kant stated (1797, 6: 394), perfect duties allow civilization to exist; but imperfect duties allow communities to flourish. These duties particularly apply to the preservation of the community’s environmental assets, but also to their potential restoration or enhancement. In Metaphysics of Morals, Kant (ibid.) specified that perfect duties should not be compromised for any egoistic reason, although there are tradeoffs involving imperfect duties. For example, there are many environmental assets that would warrant our attention, but as individuals pursuing environmental causes, we must ration our time and resources among 1 All these attributes were described by Habermas (1996) as required of discourse ethics. 2 In this context, beneficence means “doing or producing good.”

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competing demands. We individually cannot fix all the world’s environmental problems, but each of us might “strike a blow” for some particular environmental improvements. Imperfect duty requires beneficent attitudes and actions toward both others and self, and therefore have tradeoffs with resulting practical limits. These tradeoffs and limits result from resource constraints on one’s time, on one’s financial limits, and other limiting factors. For example, we all have a duty to be aware of our environmental impact, but this must be an imperfect duty. Why? Because one has other duties to be met and therefore can only offer so much time or other resources to this effort “to be aware.” Imperfect duties essentially express individual virtues which are subject to one’s character development. They are of wide obligation and disposition such as “be civically involved,” or “restore the environment.” Note that it is an individual’s choice as to how these wide obligations will be pursued, and the extents of these pursuits. It is an individual’s choice as to which environmental advocacy organization (EAO) one will support. But we can develop these “dispositions” to more expansively, and perhaps effectively, address these environmental issues. Kant identified an imperfect duty to oneself as subject to development for the purpose of becoming “useful to the world,” a process he also described as character development.3 This “character development” we can interpret as “becoming more useful to the world,” where as explored below, this “more usefulness” involves our expansive and effective collective involvements. As presented in Chapter 2, the following quote from Kant is repeated; it is germane to our argument. Which of these natural perfections should take precedence, and in what proportion one against the other. It may be a human being’s duty to himself to make these natural perfections his end, but these are matters left for him to choose in accordance with his own rational considerations about what sort of life he would like to lead and whether he has the powers necessary for it (e.g., whether it should be a trade, commerce, or a learned profession). … a human being has a duty to himself to be a useful member of the world, … But a human being’s duty to himself regarding his natural perfection is only a wide and imperfect duty; for while it does contain a 3 This was also presented in Chapter 2.

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law for the maxim of actions, it determines nothing about the kind and extent of actions themselves but allows a latitude for free choice. (Kant, 1797, 6: 446)

In each of our broad categories of imperfect duty—categories such as “be civil, be civically involved, be charitable, be diligent, …, and generally be of use to the world”—there is a maxim for action. But there is also latitude for discretion as to what the action might be, i.e., choose what contributions you will, but “be of use to others.” Specific actions are not prescribed; some general broad categories of actions are prescribed, i.e., make the ends of others our own, but not to the point of personal exhaustion or degradation. With today’s high degree of environmental degradation, the pursuit of the causes of preservation and restoration is popular, but still, collective community involvement in environmental preservation or restoration allows the individual discretion with respect to the specific means, and extents of one’s efforts. In particular, our methods and extents of the pursuit of any wide moral purpose are subject to what we recognize as the best use of our efforts and capabilities. It is argued here that this “capabilities approach” applies to our environmental duties, but in particular ways that concern our unique expertise, and perhaps ascetic preferences. We can perceive this more clearly when we examine those involved in various environmental organizations as reviewed in the latter chapters. In these chapters, individual capabilities are reviewed so that in turn we might ask ourselves “What can I affect, and what do I care about and know about the most?” These are the considerations that determine our environmental involvements and therefore collective accomplishments. Kant’s statement that imperfect duties exist because we are “…. united by nature in one dwelling place so we can help each other” (Kant, 1797, 6: 453) is germane for our environmental involvement. This dwelling place applies to the organizations we belong to as well as our collective actions in the community. Kant terms this “the maxim of common interest” (ibid., 4: 453). It applies to those united under the umbra of our community as “rational fellow-beings with needs” (ibid.). It is, therefore “rational interest” that determines our organizational involvement and effectiveness. These are the considerations that lead us to our specific environmental efforts and our involvements in effective environmental organizations. But there is another aspect of these involvements, a desire to not be servile in acceptance of the environmental degradations we most care about.

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Avoidance of servility is one characteristic that is particularly germane to why people join environmental organizations and therefore become involved in the environmental movement. Kant (1797) has much criticism of the characteristic of servility, i.e., a “false humility.” “Those who are servile throw away their character. … they make it one’s basic principle to have no basic principle and hence no character, …” (ibid., 6: 420). But belittling one’s own moral worth merely as a means of acquiring the favor of another whoever it may be, is false (lying) humility, which is contrary to one’s duty to oneself since it degrades one’s personality. (ibid., 6: 436) True humility follows unavoidably from our sincere and exact comparison of ourselves with the moral law (its holiness and strictness). But from our capacity for internal lawgiving and from the natural human being’s feeling himself compelled to revere the moral human being within his own person, at the same time there comes exaltation and the highest selfesteem, the feeling of his inner worth (valor) in terms of which he is above any price and possesses an inalienable dignity, which instills in him respect for himself. (ibid., 6: 436)

I argue that fighting for environmental preservation is an essential expression of this “inner worth in terms of which he is above any price and possesses an inalienable dignity, which instills in him respect for himself.” This motivates our involvements in our environmental organizations, which is a seeking of “inner worth” in fighting for what we care about. Observing environmental degradation, suffering the consequences, and doing nothing in oppositional response would be a demonstration of servility, a type of lying. Chapters 8–11 describes several instances of individuals not behaving in a “servile manner,” but organizing an environmental movement in opposition to this degradation. This recognition and assertion of “moral self-worth” is the essence of why we join environmental organizations. They are not organized for purposes of recreation or comradeship. They are assertions of character. These organizations are organized to oppose environmental degradation, and to do so with an emotional intensity best described as “outrage.” This describes the individuals’ immediate motivation for joining, the real underlying motivation is clearly an outraged pursuit of a moral community because they believe that the environmental degradation is a violation of our very notion of moral community.

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Imperfect Duty and Its Practical Limitation

The Kantian principles, explored above, recognize that the self-worth of agents motivates them to “pursue their own morally permissible welfare and happiness, but also to promote those of others” (Sullivan, 1994, p. 156). Communities are expressions of the mutual dependence of their participants, who we assume aim at fulfilling their own needs. But mutual respect requires that these agents treat each other not merely as the means to their own ends, but also they allow others to pursue their ends, i.e., conditions specified under the second formula of the CI. From these considerations, the following is posed: Proposition of mutual dependence: Mutual respect requires that we not only pursue our own ends, but that “we make ourselves an end of others” and “through our will we make others our ends as well, The happiness of others is therefore an end that is also a duty.” (Kant, 1797, 6: 393)

Imperfect duties are clearly necessary for promoting the interests of all, but in Kantian analysis, the closer the relationship between agents, the greater the expectation of duties of an imperfect sort to one another. This may be of importance for environmental organizations in that interactions between agents who are closer, rather than more distant, might exhibit a wider field of preferred action, or a looser boundary of practical limitation on these imperfect duties, more relaxed than we expect among perfect strangers. If the obligation for beneficent action is in fact stronger the closer the agents, then this closeness is largely determined by the nature of the particular interaction in question, whether it is among those who are close or of some more distant interaction of strangers. Of course, this begs the definition of close. This analysis of “closeness,” however, is impacted by environmental considerations where we are not considering only one agent impacting another single agent. Today we recognize that our environmental impacts affect many others including those at considerable distance. In addition, we know how these impacts occur, and we frequently know the remedy for associated problems. For example, consider the problem of plastic wastes finding their way into our oceans. All who use plastics and dispose of these cavalierly should know they affect those at distance, they should know how these effects occur, and they should know the alternatives to these plastics and their proper

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disposal. Those who do not have this knowledge have the imperfect duty to find out. As reviewed above, both perfect and imperfect duties stem from our respect for the dignity of persons and are motivated by our pursuit of a moral community. This pursuit begs the question of which community do we refer to: family, business, immediate civic community, or something broader? The more immediate the community, the greater the likelihood of actions aimed at the moral pursuit consistent with imperfect duties, and the more effective we would expect these actions to be. We claim this because we expect that the more immediate the community the more we will likely know the duties needed and the most effective way to fulfill them. For environmental considerations, however, the “immediate community” is now most often the whole world rather than a small neighborhood. We might hypothesize that our beneficent efforts would be more effective in serving a smaller community. This immediacy might heighten our knowledge of what is needed from our efforts, and also what action would be the most effective. The cost of obtaining this information might be lower the greater the degree of immediacy. In fact, we could use the extent to which we have this knowledge to define the degree of immediacy we possess since the community physically close to us might still be one we have little information concerning need or potential effectiveness. The interesting and relevant question then becomes, “What do we mean by immediate in the context above?” This definition is highly relevant to what we mean by practical limitations on our imperfect environmental duties. Hence we pose the following hypothesis, i.e., the knowledge hypothesis : The greater our knowledge of the needs of fulfilling some wide moral purpose, the greater the extent of our duty towards that end.

Environmental preservation and restoration are wide moral pursuits as explained above. Success depends on our knowledge of the scientific facts of the case, and of how to effectively meet these needs. As reviewed above, however, our knowledge of our environmental impacts extends most often far beyond our immediate community and into our global impacts. Today, when we act environmentally with knowledge, we act most often with global effects. Our environmental duty is therefore in

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some ways conceptually broader than other imperfect duties. We therefore pose the following two propositions, both of which are utilized in our following examinations. Proposition of environmental knowledge: (i)We have an imperfect duty to obtainknowledge concerning our environmental impacts. (ii) We have an imperfect duty to apply our environmental knowledge to preserve, enhance, or restore the natural environment.

Both parts (i) and (ii) of this proposition of environmental knowledge are very much supported by the arguments and case analyses of the latter chapters of this book. To further our analysis, however, we must tackle the notion of “community” referred to in several places above. The argument here is that our imperfect environmental duties are essentially expressions of community that address one of the broader issues of today. Proposition of environmental community: Sinceour knowledge concerning our environmental impacts often has global implications even for apparently local problems, our environmental community is now essentially global.

This proposition of environmental community is supported as a logical conclusion from the remaining chapters. For example, local air and water pollutions often touch other countries through our global air and ocean currents. Any notion that we could live in an isolated garden untouched by global degradation is illusory. Our duties must therefore stem from both local and global perspectives. There is one additional special aspect of environmental duty that should also be recognized. To do so, we must note that the pursuit of a moral community contains three dimensions worth exploring: (1) leadership in this pursuit, (2) followership in this pursuit, (3) the group dynamics associated with this pursuit. Leadership requires “the noble nature” of “speaking out” in a social context concerning what is right or wrong. This requires rational and reflective commentary aimed at stimulating others to accept this or that moral argument. It means arguing against the mob psychology frequently found in us versus them movements that vilify some subgroup.4 It is immoral to be servile to the crowd. 4 See Robinson (2012) for a more complete exploration of this group process that results in unethical conduct.

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For Kantian analysis of perfect duties, it is obvious there is an absolute perfect obligation to attempt an argumentative interruption of any group-think that involves an anti-duty dynamic. For imperfect duties such as our environmental pursuits, we might be inclined to analyze in a rational and reflective way the extent to which actions should be extended. We would also rationally accept some limitations. Surely this reasoned decision would depend upon the anticipated effectiveness of our efforts. Even for imperfect duties, however, the noble nature may play an important role when it is necessary for us to speak out that avoidance of this effort might be wrong. This speaking out in public may be necessary to stimulate others into a reflection about the worthiness of our moral pursuit, as well as the appropriate practical limit. This would be an assertion of moral character of particular importance in environmental matters.

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Some Maxims for Reasoned Environmental Discourse

Reasoned discourse is the glue that shapes and holds our imperfect environmental duties together, and that stimulates community efforts. What can we claim about this discourse? Beyond the larger requirements of “being informed” and “being inclusive,” can we establish some microoriented applicable criteria? Should reasoned discourse have constraints; if so, what should they be? The Kantian scholar Onora O’Neill (1995) suggests some principles for this social discourse. They are reviewed and explained here as relevant for our environmental debates. As reviewed extensively in the previous chapter, Kant’s interpretation of our CIP is capable of posing maxims of imperfect duty for guiding our environmental discourse. The following five maxims and their practical limits were posed by O’Neill (1995, pp. 34–50) as broad principles for our social discourse, although not in the specific context of environmental concerns. They are, however, particularly applicable to reasoned environmental discourse. The first four of O’Neill’s maxims are clear specifications of imperfect duties. We explore here their applicability to associated practical limits. The fifth of O’Neill’s maxims specifies a prohibition against falsehoods (a perfect duty), but there is an imperfect duty aspect to this that must also be explored. For example, we have an imperfect duty to try to be accurate in all our communications, although perfect accuracy might often be an unlikely attainment. Consider, for example,

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the problem of just measuring various environmental assets such as the amount of forest lands or wetlands still existing. One can estimate one of these inventory levels at a point of time, but some degree of inaccuracy must occur due to continued logging, or dredging, or other development incursions and deteriorations possibly due to disease or other factors. These causes of uncertainty should also be recognized and measured. O’Neill’s principles of reasoned communication are presented here. (1) Assertions of authority must be based on reason. Intolerance brings unreasoned authority to bear on communication. Wherever intolerance is practiced, whether by state or church or other bodies or individuals, those whose thinking and communicating are suppressed, are silenced not by reason, but by authorities that lack reasoned vindication. When these authorities govern us, the authority of reason is diminished, and our distance from a reasoned form of life and politics grows. (O’Neill, 1995, p. 48, italics added)

Consider our civic institutions that ultimately carry out our environmental policies, institutions such as the U.S. Army Corps of Engineers that has great power over our nation’s water resources, or the U.S. Environmental Protection Agency (EPA), or the U.S. Bureau of Land Management, and also the various similar state-level agencies. Their civic decisions should be based on properly communicated logical criteria that support the broad interests of the community. These criteria should be communicated through well-articulated and reasoned policy documents that indicate in order: (1) the environmental problems at hand, (2) the data considered that exposes these problems and subjects them to analysis, (3) the methods of analysis, (4) the results of analysis, and (5) the proposed logical remedies to the problems at hand. All of this should be “grist for the mill” of community debate, but these written analyses and policy documents attempt to articulate not only the necessary procedures but the reasoned argument that supports these

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procedures. This reasoned clarity is required to promote civic understanding for the purpose of promoting adherence. We cannot achieve stable environmental resolutions and agreements if our government institutions merely assert authoritarian decrees unsupported by reason and considerations of “fairness” (a notion to be examined below). In these situations, the communicated policy documents must be sufficiently clear, and the training and expertise of those engaged in these analyses must be sufficient so that the individual biases of those analyzing will not end up dominating the community. A breakdown in the reasoned communication could occur, and the imperfect duty to discover the correct policy ends up being ignored in favor of an obfuscating and logically mistaken argument. Illogical obfuscations of a few should not cavalierly replace logic. But effective discourse should prevent this by acting as a filter for the unreasoned argument. The practical limits to the imperfect duties associated with our social discourse are based firstly on the requirement for clarity in the reasoning of the argument itself. Some constituents might choose to not accept the logic of the argument however coherently presented, but always ask for more information, or simply deny the logical connections presented no matter how clear they are. It is the psychology of accepting authority, no matter how logically based, that might be the issue. The judgment of “how reasoned the argument is” should be based on the fictional “reasonable diligent judge,” and not on the conception that “all must be persuaded.” The imperfect duties of mutual dependence and applicable environmental knowledge (presented above), both have practical limits that apply to this maxim. As a result, this maxim is an imperfect duty. As specified in the proposition of environmental knowledge (see above), the decision makers engaged have duties to act as reasonably diligent judges in understanding the logic of the policy, and those who form the policy have imperfect duties to communicate this logic effectively. These efforts are required to maintain a sense of moral community. Failures in these efforts indicate either willful violation of moral community relations, or some degree of incompetence. Both might be remediated. (2) Community actors and decision-makers should tolerate the logical reason of others. What does this imperfect duty imply? One who adopts it,

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… detaches himself from the subjective personal conditions of his judgment, which cramp the minds of so many others, and reflects upon his own judgment from a universal standpoint (which he can only determine by shifting his ground to the standpoint of others). (Kant, 1793, V: 294)

This prohibits indifference to the reasoned communication of others. The practical limit to this imperfect duty is that one cannot consider all arguments from every individual constituent, at least not without being too exhausted to perform other imperfect duties. Decision-makers are not likely to have the time for all of these considerations, hence standardized policies are set. But decision-makers should also be open to new evidence and new arguments that appear to be relevant and logical. Why? There are two reasons: (i) all should respect the dignity of those who try to communicate with them, and should even encourage these communications; (ii) all should consider evidence that is relevant to their community’s potential performance. The rationing of decision-makers’ time, however, poses practical limits. Respect should be given to others, but attention to the community’s performance and all of its dimensions poses the primary demand on the decision makers’ time within the constraint of avoiding disrespect of “others.” (3) Reasoned argument should not be restricted or discouraged. Non-reasoned argument that denigrates, mocks, or bullies, or more generally fails to respect relevant constituents, may make it difficult for others to articulate their logical argument, and hence it violates a maxim to allow others to “think for themselves.” These communications foment divisions between individuals and groups. The practical limits to this imperfect duty of “non-restriction” may, however, pose the necessity for some form of censorship where its absence would lead to forms of defamation or harassment that lessens or stills the reasoned communications within the community. This “do not restrict” maxim is consistent with Kant’s universal principle of right.5 It is also an example of the proposition of environmental knowledge and its practical limit as presented above. 5 Kant’s universal principle of right (or justice) argues that the freedom of individuals should be maximized subject to non-interference with the freedom of others. See Kant (1797, 6: 231.) This applies to freedom to try and persuade, an aspect of communication.

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(4) Community stakeholders and decision-makers should reason in common with those affected by its policy decisions. Community interests cannot expect to reason correctly unless it does so in common with those affected by its policies.6 This “reasoning in common” requires broad social discourse within the community, and also with various external stakeholders. This discourse benefits the reasoning of decision-makers in that it makes them aware of the logical arguments of those affected. This maxim provides an example of the mutual dependence and the acquisition of environmental knowledge propositions explored above, and their potential limits. (5) Accuracy in community discourse should be pursued. Falsehoods are clearly prohibited by all three formulae of the CI.7 Falsehoods in communication could not serve as a universal principle among a plurality of individuals. The practical limits, of course, concern situations of uncertainty, where our declarations should be unbiased estimates of what we expect to be accurate, and that also include qualifying statements that indicate this uncertainty.8 There is an expectation of effort underlying the estimates of the relevant probability distributions, and this is subject to our due diligent efforts. Due diligence efforts also have practical limits, and these limits are explored in greater detail in later chapters. (6) Community stakeholders should not act in a servile manner. Servility means we do not act as an autonomous agent, one who reasons both independently and in common with other community members. (The problem of servility was also addressed in “Sect. 1” above.) Acting in a servile manner undermines our own dignity, and violates Kant’s formula of respect for the dignity of persons and self. It deprives the community of our reasoned input. We have imperfect duties to act in non-servile ways 6 See O’Neill (1995, p. 48). 7 See O’Neill (1995, p. 45), and Korsgaard (1996, pp. 325–349). 8 By unbiased we mean we expect to be accurate over numerous repetitive trials in that

across these hypothetical trials, the sum of the positive and negative errors would be in a statistical sense, insignificantly different from zero.

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as indicated by the maxims presented above. Universality cannot allow us to act as a free rider in environmental or other considerations particularly since it is virtually impossible for us to avoid our own environmental impacts. It is immoral for us to be servile to the crowd. Both the propositions of environmental knowledge and the environmental community (see Sect. 2 above) require us to participate in our community’s reasoned environmental discourse. These propositions concern our imperfect environmental duties. They cannot be avoided by attitudes of servility. Examples of this servility and non-servility are reviewed in latter chapters. Acting in a non-servile manner means acting autonomously from one’s own reason and reflection. Reasoned social discourse requires this autonomy so that it can reach an expression of the collective will in what Gillroy (2000) terms “Justice from Autonomy.”

4 4.1

The Nature of Reasoned Environmental Discourse

The Attempted Dissemination of Information and the Obfuscations to Be Avoided

As reviewed above, the environmental discourse has dimensions of both perfect and imperfect duty. The currently relevant perfect duty is to not deceive or obfuscate the severity of the problem. We might state, “Do not purposely deceive!” But currently, there is such an abundance of environmental knowledge readily available through reputable online sources such as government agencies, university research laboratories, and EAOs of various sorts, that any deceptions or obfuscations concerning the problems must appear to be willful. This public information usually has passed scientific review. It is readily available from internet sources, is scientifically authenticated, and can be compared to biased and non-scientific information foisted on the public by self-interested organizations for the very purpose of obfuscation. Given that accurate information is so available at low or no cost to the public reviewer, our duty to obtain it for the purpose of being a well-informed citizen appears to be a perfect duty. One should know what is happening in their surrounding environment. But there are still imperfect duty aspects. When the information is more stylized to fit narrow but legitimate interests—such as the condition of marine populations in a particular bay—our pursuit should be an imperfect

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duty to generate accurate information and to apply that information. That pursuit is an imperfect duty as stated in the proposition of environmental knowledge. Our pursuit of applying this information, as differentiated from obtaining it, is founded in the proposition of mutual dependence; it is an obligation posed as a wide or imperfect duty. There is discretion concerning how it is to be applied, but there is an absolute perfect duty to apply it in environmentally respectful ways as stated in the proposition, of environmental knowledge, part (ii). The scientific information (reviewed extensively in the latter chapters) indicates that our environmental needs are currently substantial, and our reasoned social discourse should reflect this as part of our society’s collective imperfect duty, a concept explored in detail below. Current environmental concerns have both scientific and socioeconomic aspects. Our environmental condition is analyzed through large volumes of scientific data and analyses. Latter chapters explore a considerable volume of this information. They explore the roles of both public and industry coalitions in gathering and analyzing this volume. While science pertains to how nature is affected, socio-economic effects concern who is affected. The resulting examinations compose much of the public’s current discourse, and therefore these sources are highlighted in our latter examinations where accuracy and/or obfuscations are the issues. 4.2

Fairness or Obfuscations

Our reasoned environmental discourse should concern issues of fairness (defined and explained below). To be consistent with our CIP’s ideal norm, fairness in discourse should be inclusive of both socio-economic input and scientific analysis. All should have the opportunity to participate in this discourse, but this poses some equity issues since participation can be difficult for people at a considerable distance even though they are affected by our environmental policies. We do have global involvements and agreements that attempt to overcome these difficulties (such as the Paris Accord), but we still have the equity issue concerning our effects on future generations since they cannot participate in our current discourse. There are ways of overcoming this moral conundrum such as using longlasting decision criteria that we therefore expect would be acceptable to future generations. Nevertheless, the equity problems remain and should

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not be avoided in our discourse just because of their difficulty. These are the problems also addressed in the latter chapters. 4.3

The Logic and Predominance of the Environmental Argument

The ending of a popular movie of almost five decades ago shows the protagonist posing the hypothesis that perhaps the reason for our complicated interpersonal relationships is that they help us to avoid thinking about the real problems that confront human existence, problems such as war, hunger, massive disease, and even environmental disaster.9 Perhaps what we should ask is, “Do our frequent emotional reactions to these problems keep us distracted from the hard work of logically forming solutions?” Do the emotions stirred by these great problems interfere with the hardness of logical analysis and solutions? In a similar vein, the author is old enough to remember the great and popular politically oriented singing group The Weavers (Pete Seeger, Ronnie Gilbert, Fred Hellerman, and Lee Hayes), and also to remember their Carnegie Hall folk revival concert of the late 1950s. The base of that group was Lee Hayes. His base voice started a song titled “Down by the River Side.” His initial lyric was “I’m going to lay down my sword and shield, down by the river side.” This concert took place in the post-WWII era, and the United Nations Building had recently been constructed along the East River of New York City. Much of the public still had hope that the UN would help avoid WWIII. In this Carnegie Hall concert, the crowd’s reaction was immediate and strong; they were the WWII generation, and the UN represented hope for peace during a “hard and bitter” cold war.10 The reaction was emotional as all immediately stood and joined enthusiastically in the remainder of the song. That elicited emotion was in response to a type of “clarion call to disarmament action.” Our emotions should be similar with respect to our environmental crisis, but do we still need a great “clarion call” to confront our society’s greatest problem? Today, our reasoned environmental analyses and actions pose our collective imperfect environmental duties —a conception explored below and in Chapter 4. These duties are manifested by our involvements in our relevant coalitions and advocacy organizations.

9 Woody Allen’s film Manhattan, 1973. 10 This phrase refers to JFK’s Inaugural Address, of January 1961.

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I argue here that understanding these collective duties is facilitated by reviewing the Rawlsian conceptions of competent judges and considered judgements. These concepts are explored next.

5

Considered Moral Environmental Judgments

In the sections above, we have used notions of “fair and reasoned” with reference to our environmental decisions. A more serious explanation of these terms is warranted. This section addresses this issue. It does so by reviewing the Rawlsian criteria for considered moral judgments. This describes a judgment process for how our environmental duties should be recognized, i.e., a set of criteria for what we mean by “considered” or “reasonable.” Part of this notion of being “considered” and “reasonable” requires that the judgment be “logical,” but that is difficult to establish. The Rawlsian criteria do so indirectly by specifying that the judgment must be capable of passing scrutiny by those who are presumed reasoned. Hence, below we call these “reasoned criteria.” This set of criteria, therefore, includes requiring decisions to be informed and stable across competent moral judges , which specifies indirectly what we mean by “logical.” It is argued that these criteria are relevant for our current environmental debate and decisions such as those examined in the latter chapters. In particular, the environmental equity problems of intergenerational equity and peoples at a distance also must meet certain Rawlsian conditions especially concerning the criteria for making decisions and the information required. The Rawlsian criteria, reviewed below, therefore assist in analyzing these moral problems. For an example of the need and use of these criteria (reviewed below), consider that recent (2017) EPA Administrator Scott Pruitt initiated rollbacks of more than 30 established environmental rules that he claimed stymied business development. These rollbacks included: • a weakening of the Obama Administration’s Clean Power Plan, • a weakening of established rules for curbing pollution in US waterways, • a weakening of established regulations to restrict leaks of methane associated with fossil-fuel extractions, • a weakening of established regulations of chemical plants aimed at preventing spills and explosions,

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• a weakening of established regulation of pesticides linked to damage of children’s nervous systems, and • the initiation of a withdrawal from the 196-nation Paris Agreement on Climate Change.11 Davenport (2017, p. A4) indicated that these regulatory rollbacks were without consultation with EPA’s extensive staff of scientists, but were composed after extensive consultation with industry lawyers and lobbyists, and also after $4.2 million in political contributions expended from energy-related business. The relevant question is “Were these rollbacks reasonable, meaning considered judgments in light of the Rawlsian criteria, and the public consensus concerning (1) the appropriate data to be considered, and (2) the appropriate decision criteria to apply?”12 (Note that the definition of a considered judgement is presented below.) Rawls (1951, p. 1) posed the relevant question for our analysis, “Does there exist a reasonable method for validating and invalidating given or proposed moral rules, and those decisions made on the basis of them?” Rawls’ purpose was to discern rules centered on inductive logic. He attempted to do so by elucidating two categories: competent moral judges , and considered moral judgments. He used the former as one condition for the latter.13 We can apply the latter to discern the rationality of our decisions, but this requires the former for defining what is termed the “stability criteria,” as explained below. Note that the use of “judge” can be replaced by “decision-maker” and “judgments” by “decisions.” The criteria presented can therefore be applied to our environmental decisionmakers (or even to the participants in our environmental debates) and their decisions.

11 On January 5, 2018, the Trump Administration also announced a rollback of restrictions on petroleum drilling in almost all offshore areas of the US. Most of these Trump Administration’s “rollbacks” have been rescinded under the early Biden Administration. 12 The rollbacks concerning methane gas emissions were overturned by a D.C. Circuit Appeals Court that found that Administrator Pruitt had not followed the “public notice and comments solicitation” requirements under the Administrative Procedure Act of 1946. See Bravin (2017, p. A4). If this decision is accurate, then the public’s discourse opportunity was truncated. 13 Note that in this analysis, Rawls essentially differentiates a virtue ethics approach (the criteria required to be a moral judge) from a deontology approach (the ex post criteria for a moral decision).

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Rawls’ competent moral judges is an expression of the ethics of virtue manifested in four characteristics: i. They have a requisite degree of intelligence required for analysis of the issues at hand. ii. They desire to be knowledgeable concerning the facts relevant for the analysis. iii. They have a predilection to use reason, i.e., they are open-minded, they use inductive logic, and they are knowledgeable about their own potential biases. This includes not applying a prior ideology to the analysis of the facts at hand. iv. They have the capacity and desire to consider all interests relevant to the considerations at hand. A predilection to exercise these four characteristics constitutes what Rawls terms intellectual virtue (ibid., p. 5). With respect to environmental concerns, we ask whether those engaged in the current environmental policy debate seek the relevant scientific knowledge, and whether they are open-minded and logical in their decisions or merely ideological? For example, with regard to our specific illustration above, we could ask “Was EPA Administrator Pruitt open minded and knowledgeable in ignoring the work of EPA scientists?” Did he have a predisposition to consider all relevant information without ideological bias? To answer these questions we should consider the above Rawlsian criteria. In addition to characterizing the criteria for competent moral judges , Rawls also characterizes considered moral judgments by a type of deontology manifesting four characteristics: i. The judge is disinterested, i.e., cannot benefit or be affected by the judgment (no conflict of interest). ii. The judge is familiar with the relevant facts. iii. All those affected have opportunities to present their arguments. iv. The judgment is stable across decisions by other competent moral judges . These criteria can be applied to evaluate ex post whether a particular decision is a reasoned one. For example, were the decisions of Administrator Pruitt to overturn the regulations cited above informed? If not,

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then Pruitt’s judgments might not fit the category of stable under other moral judges. With respect to this fourth condition, individual predilections may be counteracted when many judgments are made in a wide variety of roughly similar cases. The reasonableness of a decision criteria can be decided by the acceptance of those competent moral judges who have freely weighed the evidence after open discussion and criticism. This provides evidence that the decision can “hold its own.” These criteria can be applied to our society’s environmental decisions. For example (1) are these decisions made by those with conflicts of interests, or (2) were the relevant facts rationally considered, or were decisions made on an ad-hoc basis and out of step with logical analysis. (Some examples of unreasonable decisions are presented in the latter chapters.) The sets of criteria for competent moral judges and considered moral judgments can be used to evaluate the reasonableness of the intergenerational environmental decisions, as well as those addressing the effects of people at a distance. For example, conflicts of interests, and a prior ideology that interferes with either information gathering, or evaluation of data, both bias the objectivity of those decisions. In addition, it is apparent that being a moral judge does not necessarily result in a moral judgment in that, violations of the criteria above might not pass the reasonableness test. For purposes of clarity and convenience, we explicitly define this test here: A “reasonable decision” (or uncorrupted decision) is a “considered moral judgement ” that is “stable” across other competent moral judges according to the Rawlsian criteria.

These criteria, however, may appear to apply only to individuals and not for the overall societal decisions, but if a plurality of the unbiased and informed establishes environmental policy, then we should assume that the reasonable criteria apply to the results of our social discourse. Open and informed democratic discussion may be expected to result in considered moral decisions with respect to the environment and associated intergenerational problems, but this might not always result. The Rawlsian criteria assists in discerning those decisions that do not. As reviewed above, individuals have imperfect duties to be both informed and unbiased concerning these matters, criteria specified for both competent moral judges and considered moral judgments, but the public must also be wary

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of influences from those with conflicts of interest in exploiting the environment (as demonstrated by the examples reviewed in Chapters 10 and 11). There is, however, one requirement for being a competent moral judge that might be easily overlooked in this analysis. The criteria of having a predilection to use inductive logic, especially to envision potential impacts of our decisions, and also to gather the information necessary to assist in this envisioning and in analyzing it, should be emphasized as necessary for aiding our environmental discourse. For example, people in general, and perhaps particularly business people since they are already involved in the cooperative ventures we call business, or even environmental coalition activists since they are also involved in organizational settings, should have the capacity and inclination to envision the degree of “environmental good” achievable through cooperative endeavors. Along with this, they also should have the capacity and inclination to participate in the pursuit of environmentally conscious actions, and through this participation, they might develop community trust that perhaps leads to further actions, and further reinforcement. These actions may lead to overcoming the tragedy of the commons phenomena (explained in latter chapters), but for these to occur, certain biases must be overcome as indicated in Chapter 9. These are the biases that would disrupt logical analysis. 5.1

Collective Imperfect Duty

We recognize that our significant environmental problems such as global warming, acid rain, the problems generated by agricultural pollution, or the endemic problems caused by plastics throughout our biosphere, etcetera, generally require our collective actions that result from reasoned social discourse if we are to expect any acceptable resolution. To this end and as previously reviewed in this chapter, we have an imperfect duty to acquire and apply knowledge as it pertains to these problems. But how can the individuals who have acquired this knowledge, and who wish to apply it to the environmental problems we consider important, be effective in this pursuit? The answer is to contribute as a member to one or more of our many and effective EAOs and/or coalitions. To this end, we specify the following: Proposition of collective imperfect environmental duty: We have an imperfect duty to participatein the collective actions of those organizations we

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evaluate as effective (or potentially effective), and that aim to resolve our environmental problems.

Being an imperfect duty, we should evaluate the potential effectiveness of these environmental organizations and do so for the purpose of selecting those organization(s) we individually deem worthy of involvement, as well as the extent of our involvement. Our predilection will likely be for involvement in the organizations that we know something about, for which we have some expertise that might apply. While a detailed theory of imperfect collective duty is presented and examined in Chapter 4, the following section presents a relevant exploration of the criteria for fairness in the environmental decisions that we do attempt to influence through our collective efforts. 5.2

Considerations of “Fair and Reasoned”

The environmental involvements suggested in this chapter include attempts to reach a variety of local agreements such as those concerning: (i) resource reallocations, (ii) local restorations of assets such as degraded watersheds, (iii) the prevention of pollutions that migrate to other locales, and (iv) many similar agreements. These agreements often take place between various public coalitions or NGOs and various government agencies and institutions. These agreements also extend to international compacts such as the Paris Accord that are aimed at combating global warming, or combating other widespread global problems (e.g., widespread ocean pollution, or elimination of wildlife or sea life as examples). Whether these agreements exhibit flaws of unfairness can be judged by the Rawlsian criteria reviewed above. For the convenience of applications in the latter chapters, the Rawlsian criteria, reviewed above, are reduced to a set of fairness criteria summarized into four categories here: The informed criteria: All relevant information (both scientific and socioeconomic) is considered without ideological bias by those included, and is logically reflected in the negotiations. Criteria of inclusiveness : All affectedparties have representative access to the negotiations, and all have the “power to avoid coercion.” All affected also have access to relevant information and are represented in the negotiations. As a result, paternalism is not present.

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Corruption or integrity criteria: All of the agreement’s negotiations are without deception. and all negotiators are transparent with respect to their interests, i.e. they have no hidden conflicts of interest . The objective evidence and judgments indicate that all negotiating parties have reasonable expectations of being able to, and fully intending to, fulfill their commitments. Also, all negotiating parties exhibit “the noble nature” of voicing their ethical concerns in the relevant social settings. Logic and diligence criteria: Those involvedin negotiating and reaching the agreements must communicate and explore the options for resolution of the relevant environmental problems. They must demonstrate the creativity and inductive logic for developing the best solutions to these problems. In this sense, the agreement must be judged as logical according to the “Rawlsian stability criteria” explained above.

An agreement that exhibits these four conditions is consistent with the criteria for considered moral judgments. These four characteristics are hereafter termed the conditions for “fair and reasoned” environmental discourse and decisions . They are founded in the Rawlsian criteria for competent moral judges and considered moral judgments. If the four fair and reasoned characteristics listed above are met, then the Rawlsian criteria are also satisfied. For an example of application of these four sets of criteria, consider the Paris Accord, which is aimed at the mediation of global warming. This Accord is an example of inclusiveness in that 196 nations have signed this treaty; hence all nations can be included. It is also an example of diligence in that each nation develops their own options for reductions in carbonbased emissions. This encourages creative and logical solutions for global warming. It is lacking, however, in integrity at least for the US involvement in that having signed the Accord, and having previously developed effective strategies for reduction in carbon emissions via development of renewable energy, the Trump Administration decided to withdraw (a withdrawal since rescinded by the Biden Administration). Having made the commitment, the Trump Administration decided to renege. This questions whether the US will be judged as reliable in future treaties.14 The Trump Administration argued that the Accord would limit US business, and it questioned the existence of global warming and whether it 14 The Trump Administration also withdrew from other treaties involving trade and nuclear limitations.

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was human-caused. If it does limit business, then it should do so in other countries as well, but it is difficult to perceive how changes to alternative energy sources could be interpreted as limiting business in general. It might limit some businesses but encourage others. Withdrawal would have ignored the scientific evidence of the globe’s common problem; it would not be informed. The notion of pursuing an inclusive moral community, for example, one that addresses intergenerational environmental concerns, is possible, but as explained in latter chapters, “certain guidelines of inquiry and publicly recognized rules of assessing evidence” must be understood and followed. The biases reviewed in those chapters should be considered in the context of the Rawlsian criteria for competent moral judges and considered moral judgments specified above. The critical barriers to reaching any possible consensus among overlapping generations, barriers that potentially prevent the full-public-reason required of a rational “focus” on environmental issues, consist of these biases and violations of the Rawlsian criteria.

6

Habermas’ Discourse Theory

As previously reviewed, Kant’s description of our CI indicates it represents both our personal and our society’s normative guide for the reasoned social discourse that facilitates the formation of our practical moral maxims, i.e., our CIP. It poses a democratic deliberative process. Kant, however, lived and worked at the start of the democratic age, and in the autocratic Germany of the late eighteenth and early nineteenth centuries. He did not attempt to “flesh out” the norms for this “deliberative process.” John Rawls (2001) attempted this explanation within the Kantian framework. Also, the discourse ethics of the late twentieth and early twenty-first-century German philosopher Jurgen Habermas presents what is perhaps a more complete and coherent attempt at this necessary elucidation. This philosophy is briefly reviewed here. Habermas (2018) indicates that the validity of the claims upon which our social cooperation depends relies on their justification in the face of criticism, i.e., we must open our social claims to the challenges of reasoned social debate. This is the essential element of our CIP. But what are the normative elements that would make this debate “reasoned.” (This is the general subject of the first four chapters of this book.) Following Habermas, we can divide these normative elements into (i) the

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requirements of what we mean by the “pursuit of the good life” for our society, and (ii) the pragmatic technical means necessary for this “pursuit”—a subject that is highly germane for our environmental debate. These two elements determine what we envision as the normative structure of our public debate in that the latter might require a scientific investigation and argument, but the former requires a more philosophical and democratic engagement. For example, the forms of our natural preservations (public parks, wilderness areas, environmental restrictions of private property, and the like) would be the subjects for our preference discussions, but the requirements for preservation would largely depend on our scientific and engineering analyses. The norms for the practice of our public debate manifest three characteristics of note: • They seek to result in a logically strong conclusion. • They follow a socially necessary procedure such as with the scientific method, or the “rules of order” for formal discussion, or the processes for scientific peer review as illustrations. • They are part of an overall democratic process that we utilize for our important considerations. These debates consist of arguments and counterarguments, all subject to open critical discussions that (i) address the issues, (ii) respond to relevant challenges, and (iii) that meet specified burdens of proof. But all of this open debate must be: (1) inclusive of all cogent contributions, (2) allow all participants equal access to communicate, and (3) not involve deception or coercion. Habermas (1990, p. 91) argues that we can ex post judge the “reasonableness of our public argument” by examining whether we find exclusions, suppressions, manipulations, or deceptions. Note the similarity of this ex post examination to Rawls’ criteria for considered moral judgements as reviewed above. Habermas (ibid., p. 91) argues that a “reasoned argument” should be considered acceptable by any reasonable person, and therefore it would meet the Kantian demands for universality. Note also the similarity to Rawls’ stability criteria for reasoned logical argument.

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Having defined “reasonable” as above, our universality principle (as in Kant’s description) can therefore be restated in the explicit context of public discourse: A moral maxim (or principle for action) is valid only if all those affected could accept it in the context of reasonable discourse.15

The implication is that our moral statements are valid only if they result from our reasoned discourse. This conclusion is directly and logically Kantian, and Habermas’ discourse ethics describes the norms of our CIP, the purpose of which is to solicit the impartial dictates of practical reason that hold for any similarly situated reasonable person. (Note again the similarity with Rawls’ stability criteria as reviewed above.) Furthermore, Habermas’ statement of the principle of universality logically results in the Kantian expression of the pursuit of a moral community. (See Habermas, 1990, pp. 86–93.) How does this follow? Those principles that are maxims for action result from our reasoned debate, and therefore by the universality expressed above, they describe the afore mentioned pursuit. This is a pure Kantian argument. The implications of our discourse ethics for environmental considerations should be obvious. The norms for our reasoned public discourse should reveal both our preferences for environmental restorations and preservations, and within the normative structures of our scientific and formal debates. It also reveals the pragmatic means for achieving these aims. We should expect our public debate to be reasoned by our Rawlsian requirements for considered moral judgment and Habermas’ discourse ethics. It appears that the former implies the latter. The following of our norms for public discourse implies our pursuit of a moral community as motivation. The environmental restorations and preservations that might result would be in accordance.

7

Summary

The distinctions between perfect and imperfect duties are essential for the analysis of our environmental obligations. The obligations of gathering knowledge concerning our environmental impacts, of applying that

15 See Habermas (1990, pp. 66, 93; 1996, p. 107).

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knowledge, of engaging in reasoned discourse concerning our environmental problems, of the recognition of the predominance of this global problem that each individual affects, and of the criteria for contributing to collective actions for making moral environmental decisions, are all of “wide obligation.” They therefore all have perfect and imperfect duty dimensions where the imperfect duties constitute the particularly interesting and critical aspects. They involve our contributions to our environmental advocacy organizations and coalitions that present the evidence, analyses, and cogent arguments for our reasoned environmental decisions. These are the issues addressed in the latter chapters. This chapter also explored the requirements of discourse ethics since reasoned social discourse is required by our CIP. Rawls’ (1951) criteria for considered moral judgment —which are shown to also incorporate Habermas’ more recent specifications—articulate the demands of reasoned discourse. As a result, the demands for being informed, being inclusive, being uncorrupted, and being logical are specified, demands utilized for the explorations of the roles of our environmental organizations presented in the latter chapters. This chapter, therefore, introduced the conceptual tools used in the analyses of subsequent chapters. In particular, the notion of collective imperfect duty with its practical limits and tradeoffs while pursuing wide notions of obligation, is the critical concept of our environmental concerns and their potential solutions. Subsequent chapters present reviews of environmental advocacy organizations and coalitions that demonstrate applications of this collective imperfect environmental duties. The next chapter explores the environmental ethic as an application of these collective duties.

References Bravin, Jess. 2017. EPA Push on Emissions Standards Blocked. Wall Street Journal, Wednesday, July 5, A4. Davenport, Coral. 2017. Counseling by Industry, Not Staff: EPA Chief Is Dismantling an Environmental Legacy. New York Times, and reprinted in the Buffalo News, July 2, A4. Gillroy, John Martin. 2000. Justice and Nature. Washington, DC: Georgetown University Press. Habermas, Jürgen. 1990. Moral Consciousness and Communicative Action, trans. C. Lenhardt and S.W. Nicholsen. Cambridge, MA: MIT Press.

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Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg. Cambridge, MA: MIT Press. Habermas, Jürgen. 2002 [2018]. Philosophical Introduction. Medford, MA: Polity Press. Kant, Immanuel. 1793. Religion Within the Limits of Reason Alone. In Basic Writings of Kant, ed. Allen W. Wood, The Modern Library Classics. New York: The Modern Library. Kant, Immanuel. 1797. The Metaphysics of Morals, ed. Mary Gregor. Cambridge, UK: Cambridge University Press. Korsgaard, Christine M. 1996. Creating the Kingdom of Ends. New York, NY: Cambridge University Press. O’Neill, Onora. 1989 [1995]. Constructions of Reason: Explorations of Kant’s Practical Philosophy. New York, NY: Cambridge University Press. Rawls, John. 1951 [1999]. Outline of a Decision Procedure for Ethics. Philosophical Review 60 (2, April): 177–197. Reprinted in Collected Papers—John Rawls, ed. Samuel Freeman. Harvard University Press. Rawls, John. 2001. Justice as Fairness: A Restatement. Cambridge, MA: The Belknap Press of Harvard University Press. Robinson, Richard. 2012. The Philosophy of Evil and Business Code Abandonment. BRC Journal of Business 2 (1, March): 135–156. Sullivan, Roger. 1994. An Introduction to Kant’s Ethics. Cambridge, UK: Cambridge University Press.

CHAPTER 4

The Philosophy of Community and the Environmental Ethic

1

Considerations of Specialness and Community Discourse

As a ten-year-old, some boyhood friends and I had a habit of sneaking into our town’s high school football games. We waited for the playing of our National Anthem when we knew the police officers would not be looking, then snuck over the fence and immediately mingled with the crowd. We saved the admission price of $.10 (the children’s fee) and spent it on popcorn, or ice cream, or something. When my father discovered this hideous criminal behavior (he had good friends on the police force) he gently lectured me that the admission price helped pay for the maintenance of the field, the cleanup, the officials, and other amenities. The message was clear: “I was privileged to be a member of a community worthy of preservation and reinforcement. We must pay for that privilege.” My father and the WWII generation in general were civic minded. He and his fellow citizens went to the “town meetings” (the tradition of a small New England town); they organized and paid for the 4th of July festivities; they volunteered to build the playgrounds and ballfields; they kept our lake and town common clean; they paid their taxes; they were proud of the community they created, and wanted the next generation

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to also be proud and be similarly civic-minded.1 The reader should be able to extrapolate that this narrative is perhaps related to environmental ethics. The local environment was considered a community asset worthy of collective effort toward preservation and support. It had an “intrinsic value” to be preserved—or perhaps enhanced—for the next generation. As related to this community preservation issue, the philosopher Richard De George writes, There is no moral imperative that requires each generation to sacrifice so that the next generation may be better off than it is. Parents do not owe their children better lives than they had. They may wish their children to have better lives; but they do not owe it to them. (1981, p. 162)

There is no doubt that De George is correct; there is no absolute obligation owed, not even an obligation of sacrifice to try to better the next generation. There is no perfect duty to try to offer the next generation— whether in one’s own children or those of others—better or even similar opportunity to our own. But each generation appears to try to expand opportunities for the next one; at least that is the current political rhetoric. (Even in our cynical age, perhaps that rhetoric has substance.) How do we explain these attempts especially within the environmental sphere? I suggest they cannot be explained by theories of perfect duty, but perhaps by a theory of collective (or community) imperfect duty. This is the theory presented and explored in this chapter. 1.1

The Imperfect Collective Duties of Environmental Preservation

The environmental obligation that we sense we owe to future generations may be explained by the theory of collective imperfect duty, as presented here. It must be collective because we know that acting in isolation cannot hope to resolve the environmental problem. This “sense” is generated by the following: • We observe that the current environmental state is degraded and poor as compared to the past. 1 During my last visit to my boyhood town, I discussed the periodic “cleanup of the lake” with those of my generation. They belonged to the same civic organizations that were first organized by the WWII generation, and they pursued the same duties.

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• We sense a need to leave future generations better off than the current especially with respect to environmental amenities. • We also sense that this duty of environmental preservation and restoration is one of wide aim, i.e., an imperfect duty.2 Because this imperfect duty must be collective to be effective, it is manifested by our involvement in community organizations that aim to restore or preserve environmental amenities. We therefore act through coalitions and NGOs that are dedicated to these concerns. (Note that environmental organizations such as The Sierra Club, The Waterkeepers Associations , and the Wilderness Society are popular today for the reasons expressed here.) What motivates us to join and pursue these collective imperfect duties ? • We have sympathy for others who suffer deprivation due to environmental degradation. This includes the anticipated deprivations to be suffered by future generations.3 • We recognize the duty (imperfect duty) to respect the dignity of all including ourselves in the sense that we regard our moral self-worth as enhanced by our pursuit of this environmental duty of wide aim. • We recognize the value of our collective pursuit of a moral community, and we judge this pursuit as motivating our collective environmental efforts. From what or where do these three factors stem? They stem from our past character development expressed in our sense of virtue.4 This sense is reinforced by our virtuous community friendships and our desire to further pursue our own and our community’s virtuous development. This is essentially explained by Aristotle’s theory of virtuous friendships.5 It applies to our current communal organizations, and latter chapters illustrate this aspect of our environmental NGOs. Following Aristotle, we note that these “virtuous community friendships” are necessary for the pursuit of the flourishing life, and for 2 This notion of “wide aim” is well explored in the previous chapter. 3 “Sympathy for the suffering of others” is more Humean than Kantian. 4 Virtue ethics was partly explored in the previous chapter along with Kant’s (1797) exploration of “character.” 5 See Cooper (1980) and also Robinson (2018) for explorations of Aristotle’s theory.

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community cohesion. The essential idea is that friendships of virtue reinforce one another. We admire each other’s virtuous qualities, and this admiration motivates us to reinforce one another. Our sense of imperfect environmental duty then becomes a community dynamic through which our friendships reinforce our environmental concerns and pursuits. We should further recognize that our community, and our own person, must be sufficiently prosperous to be able to serve future generations. Prosperity is also necessary to produce community stability that facilitates the resolutions of environmental preservation. For example, consider the current wave of northward immigration of coffee bean farmers, and other farmers from Central America. These immigrations are caused by global warming and its agricultural disruptions. People in flight may be courageous and desperate, but they are not facilitators of environmental restorations. If these restorations are to be promoted, then they must be from a reasonably prosperous sense of community. Our collective environmental imperfect duty must have a foundation of a minimum necessary level of prosperity. 1.2

The Search for a Just Environmental Policy

Previous to my academic career, the author of this book spent several years gathering the necessary data and computing the cost–benefit analysis required for allocating water resources to irrigated agriculture, hydropower, household water use, industrial water use, and fish and other natural preservations, all from one of the United States’ more significant river basin systems, the Columbia River Basin. This occurred under the aegis of the US Army Corps of Engineers —the government institution trusted with the public authority allocated for this civic purpose. This governmental cost–benefit analysis has specified procedures for evaluating both costs and benefits, procedures prescribed by the US Water Resources Council —a supervisory group formed from the experts of various federal agencies and informed by academic and other scholars. The analysis is ostensibly designed to incorporate all relevant information including the market related dollar-designated values of the potential outcomes of the policies, which include the marketed goods that result from the water allocations, but also the recreational person-days (or reduction therein), and any other values that could be assigned as directly related to the allocations. For those effects for which monetary values cannot be assigned, the “Council” directs that other quantifications should be identified. All

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this information is to be used by policy decision-makers in their subjective judgements for the final decisions. For example, consider those effects for which values are difficult to define—such as the impacts on remotely located old-growth wilderness preservation for which few recreational days are anticipated. Economists have proposed methods for valuing these effects such as measuring “reservation demands” for which people are surveyed as to their valuations for the existence of the resource even though they do not anticipate a likely visitation. Preservations such as these certainly have value, but because they have no direct market for their attributes, dollar valuations are problematically difficult. This partly illustrates the problem posed by the market-valuation paradigm as it applies to our environmental policies. But the market-valuation paradigm has other problems than indicated above. Consider the tragedy of the commons environmental conundrum. As described by Hardin (1968), this “tragedy” is illustrated by the grazing problem where a lone farmer allows her stock to overgraze on a common area. She allows the overgrazing because she believes that if she does not, then others will and the resource will inevitably be depleted, so she may as well have her stock do the overgrazing. We ask, “Why not join with the other farmers to manage the resource?” This is the logical solution to overgrazing, but it also involves the transaction costs of finding the other farmers, persuading them to join, establishing a rational agreement, and effectively monitoring the agreement to prevent any free-rider violation.6 The point of the illustration is that people acting alone would place values on environmental assets and amenities that differ from acting effectively in consort. If they believe that the environmental asset could be preserved and managed effectively then it would have a higher value to them, and their behavior would change accordingly. The market-valuation paradigm, however, is naturally biased toward treating all valuations as made by the consumer as an individual, not as a member of a collective who might prefer that the asset be preserved. Why use the term “naturally biased?” Because since market purchases are relatively easy to observe, simple individual market-based transactions are easier to use in cost–benefit analysis. It is much more difficult to elicit the value of a natural asset as judged by society acting as a whole rather than a collection of individual consumers. There is no easily observed market for 6 Ostrom (1990) reviews examples of these agreements and the monitoring necessary to manage this grazing problem, and also of similar commons’ management arrangements.

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valuing society’s collective preservations and restoration. How much do you value a breath of fresh air, or the clear view of a mountain vista? You do value these, but they are difficult to solicit and consequently measure. Compare this sort of valuation problem to measuring how much you value a hamburger. The former is probably substantially valued but difficult to measure. The latter is probably small in value but easily measured; it is the price paid. In addition to these “in communal consent” versus “multi-isolated individuals” considerations, market transactions might have external effects (such as pollution) that are not included in the costs of production. As reviewed in the latter chapters, this results in overproduction of the marketed good, and a less than “optimal level” for the affected environmental amenity.7 Envisioning “what could be” for a clean environment, and then valuing this possibility in dollar measures, is a particularly difficult task. But in using this market paradigm for valuing economic activity and environmental amenities, all of these problems result in what Freeman (1993, p. 485) and Gillroy (2000, p. xxix) point out are (i) a lack of recognition of the moral integrity of the individual acting in consort with others and her community, and (ii) a lack of concern for the intrinsic value of the environment. “These problems” are difficult for the cost–benefit analyst, but we know the “intrinsic values” are likely to be enormous. In many cases—some cited in the chapters below—we suspect they significantly outweigh any value derived from commercial market exploitation. Gillroy (ibid.) particularly addresses the conundrum of environmental risk analysis as a public policy problem. Environmental risk concerns the significant threats to nature such as global warming, significant pollutions of water and air, genetic modifications of significant foods (wheat, rice, soy and the like), and species reductions. The market paradigm is obviously inadequate to address these threats to the broad—perhaps global— environment. As Gillroy states, “To establish an alternative approach to (evaluating) environmental risk we must move beyond a reliance on self-interested preferences …; we must concentrate on the ramifications of individual practical reason as this translates intellectual imperatives into human choices and physical actions involving the natural environment” (ibid., p. xxx, parentheses added). I argue that these translations 7 In the context used here, “optimal” is a term of economic efficiency as reviewed in Chapters 5 and 6.

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of “intellectual imperatives” into “physical actions” require the exercise of collective imperfect duties as briefly explored in Chapter 3, and also explored more extensively here and in the latter chapters. Gillroy (ibid.) contends that in cases of environmental risk, “the citizen’s use of practical reason” to evaluate and resolve this risk must rely “on the moral integrity of humanity and the functional integrity of the environment.” Furthermore, Gillroy argues that using our Kantian practical reason, then the “intellectual reflection and deliberation that moves the individual to action, includes more than mere instrumental rationality,”8 i.e., it must use more than the anthropocentric vision of the environment as a mere “instrument” for human use. This “reflection and deliberation” must pose the bridge between “ought and is, between intellect and action, between humanity’s duty to itself and to the environment,” and also between humanity’s “internal autonomy and its external moral agency.” But although all of this “bridging” refers to individual autonomy, to be effective it must be the result of reasoned social discourse, and it also must be manifested in collective action. But Gillroy further states that as a process, “The ends of policy (should no longer be) the (economic) welfare of the material person but the autonomy of the moral agent” (ibid., p. xxx, with parentheses added). How could our social policy support this “autonomy of the moral agent?” I argue that this could only occur by recognizing and supporting our collective efforts in ways illustrated in latter chapters. (The precedentsetting Storm King legal decision described in chapters below, and many other similar decisions, provide examples of public policy that supports “autonomy of the moral agent.”) This autonomy must be viewed as manifested in this collective environmental action, and this is the theory explored in this chapter. Gillroy (2000) poses a theory he titles Justice from Autonomy, an “autonomy” that integrates the individual into the community, where this integration into a “common life” exhibits neither the “dominance of social convention nor atomistic isolation.” This, he claims, is essentially Kantian in providing an ethical foundation for our society’s public choice that “focuses on the moral autonomy of practical reason as it finds voice in the policies of a just state” (ibid., p. xxxi). Gillroy argues that Kantian ethics, and the politics that result from our reasoned social 8 The term “Kantian practical reason” refers to The Critique of Practical Reason, Kant’s (1788) significant publication.

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discourse, should be sufficient “to provide specific content to political decisions that create the social conditions within which we live” (ibid.). The autonomous reasoning person, together with the natural environment, compose the Kantian Ecosystem, according to Gillroy. Kantian ethics is an anthropocentric theory (as in Enlightenment ethics) that creates our duty to nature as arriving from our duties to ourselves and others to facilitate our achievement of autonomy, to create happiness, and to pursue the Kantian Kingdom of Ends, i.e., the pursuit of a moral community. Gillroy terms this “Kantian conservationism” (ibid., p. xxxvi). Our public policies, therefore, manifest a process for managing nature in order to facilitate this pursuit of a moral community. Note that the last section of this chapter reviews some of the classic literature that essentially argues this linkage between environmental policies and our “pursuit.” I conclude from Gillroy’s arguments, and those of others, that personal autonomy must lead away from isolated concerns for our environment and into collective action, both because our society’s process requires reasoned social discourse and because our pursuit of a moral community logically requires these efforts. Our isolated efforts are less than likely to be effective, but the evidence documented in the latter chapters shows that our reasoned collective efforts have demonstrated effectiveness.

2

Relations of Virtue, the Moral Community, and Environmental Organizations9

Involvement in collective environmental action involves more than the pursuits of moral preservations and restorations. It involves the human interactions of virtuous friends with dedicated purpose. These friendships reinforce one another to form the pursuit of the moral community as manifested in their environmental actions. This is expressed in the ancient philosophies of Aristotle and virtue ethics. Aristotelian virtue ethics is founded on individual pursuit of “eudaimonia”—literally “having a guardian spirit,” but generally interpreted as pursuing a flourishing life. Its usual definition is “having an objectively desirable life, universally agreed by ancient philosophy to be the supreme good” (Taylor 1995, p. 252). This is not the modern philosophical concept of happiness as in a subjectively satisfying life. The objectively

9 This section relies on Robinson (2018).

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desirable life, i.e., the pursuit of the good, is the aim of virtue ethics where Socratic-Platonic and Stoic notions of virtue are posed as possibly sufficient for this objective.10 Using the classifications listed in Aristotle’s Nicomachean Ethics (NE) (1976), environmental organizations would be categorized under “civic” relationships, which are essential for human good (eudaimonia or flourishing life). All of these civic relations are classified under the rubric of friendships where there are three types listed (NE: 1156 a 7—1157 b 1): • friendships based on pleasure-seeking, such as those involving recreation of various sorts, • friendships based on mutual advantage, • friendships based on recognition of moral goodness, also termed “perfect friendships,” or “friendship of virtue,” or “friendships of character.”11 The second classification, “friendships based on mutual advantage,” might be applied to environmental organizations, but we should consider these Aristotelian categories as overlapping, although possibly exhibiting unequal benefits between the parties. An ideal is to have friendships based on “recognition of moral goodness,” exhibiting moral leadership and encouraging and reinforcing the moral character of the other. As specified in NE, friendship involves wishing for the good of the other party provided this is at least somewhat reciprocated (ibid., p. 304). Friendships of moral virtue may develop when two people, having spent time together to know one another’s character, use this knowledge to develop trust and love for one another because of their good human qualities.12 For our purposes, it is important to note that friendships of advantage can be based on mutual benefit which given time can also emerge into either of the other classifications or both. In particular, starting with a quote from Aristotle, Koehn (1998) observes:

10 Aristotle adds possible good fortune and external sustenance as necessary additional factors (ibid., p. 252). 11 See Cooper (1980, Chapter 17, p. 304). 12 See NE: 1156 b 25–29, and 1156 a 3–5, and 1156 b 12–17.

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“And virtue friendships begin in decency. The friendship of decent people is decent, and increases the more often they meet. And they seem to become still better from their activities and their mutual correction. For each molds the other in what they approve of.” (NE, 1172a 10-14) “If you treat me decently …, I am more likely to reciprocate and vice versa. We will both, as the saying goes, “rise to the occasion” and make each other better as a result. So friendships of utility (advantage) play an important role in teaching basic social skills, in building community and in preparing people for more challenging friendships.” (Koehn 1998, p. 1758)

Friendships of virtue rely on “love of the other for the other’s sake” (NE, 9.viii), and may well develop particularly within organizations devoted to environmental enhancement because of the common motivation, and also because of the intense and lasting cooperation and interactions required. A relevant question for our problem at hand is, “What is the value of having friends?” Aristotle’s answer is that the flourishing life involves and requires friends, and also requires service to them out of “unselfinterested goodwill” (NE 9.iv and 9.ix).13 A person’s friend is a “second self” (NE: 1213 a 10–26) “to live with and share in discussion and thought with – for this is what living together would seem to mean for human beings, (as contrasted with merely) feeding in the same place as with cattle.” (NE: 1170 b 10–14, parentheses added.) This “living with” can also be reinterpreted as “working with” since our civic organizations typically involve intense, ongoing, and purposeful interaction of the sort that can exceed the tenure and intensity of casual relations. These morality reinforcing relationships of virtue may be necessary for the pursuit of any semblance of a moral community of civic organization. If these relationships are not absolutely necessary for the pursuit of the moral community then surely they would assist in such a pursuit among those similarly attracted. Any organization we could envision as pursuing a moral community would likely exhibit at least some of these friendships, probably would exhibit widespread friendships of virtue, and would desire to encourage the development of these virtuous relations within it. This is evident in our environmental organizations as documented in the latter chapters.

13 Also see Cooper (1980, Chapter 17, p. 318).

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Organizational effectiveness requires (a) engaging those with a sufficient background of general knowledge necessary for a reasonable expectation of enabling it to succeed, (b) the investment of time and other resources in those so engaged so that they develop the specific knowledge required for this success, and (c) the encouragement of those engaged and invested in order to maintain long-term relations so that the organization is successful. Here “general knowledge” refers to the broader background that is necessary to motivate the individuals to attempt to solve the environmental problems at hand. “Specific knowledge” refers to the more technical aspects necessary for the solutions. Friendships of virtue are more valuable for our organizations than friendships of advantage both because of intrinsic reasons (explored immediately below) and for this category’s ability to encourage the long-lasting relations necessary to develop and apply the “specific knowledge” that is beneficial to success. For example, an effective environmental advocacy organization needs to include those who know who to contact in government regulatory bodies, and what information is necessary for persuasion, all of which entails “specific knowledge.” Aristotle’s idea of the development of friendships of virtue is germane to our exploration of the environmental community. It is one of a dynamic that reinforces and builds among moral friends. For friendship is a kind of partnership, and a man stands in the same relation to his friend as to himself, and since the consciousness of his own existence is desirable, the consciousness of his friend’s must be the same. They seem to become better men by exercising their friendship and improving each other; for the traits that they admire in each other get transferred to themselves. Hence from good comes goodness. (NE, 9.xii)

Another view of what Aristotle had in mind is that a “pleasant self awareness is only satisfactorily obtained through the awareness of a friend and his activities” (Cooper 1980, p. 319). Stewart (1892) eloquently describes this relation: He has a sympathetic consciousness of the actions of his friend – of actions which are still in a sense “his own” … In other words, it is in the consciousness of the existence of another that a man becomes truly conscious of himself. (p. 392)

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This might all appear to describe pleasant and relaxed relations between friendly philosophers, but it can also apply to the intense and active relations of our civic organizations. Awareness of the moral actions of fellow members helps to place one’s personal actions in context for judgment, self-reflection, and refinement. The essence of Aristotle’s analysis is that “the self sufficing (person) will require friendship in order to know oneself” (Cooper 1980, p. 320, parentheses added). Here, the notion of “self-sufficiency” implies personal characteristics so deeply ingrained as to be permanently present, and therefore will be exercised as a natural tendency. The development of this “self-sufficiency” is the purpose of virtue ethics.14 This is evident among those in the environmental movement in that the “cause” becomes a key and common life component among participants. They reinforce one another, and the common environmental ethic becomes “ingrained.” How is this position of requiring friends of virtue in order to know oneself justified? Aristotle’s argument begins with notions of eudaimonia, i.e., “the flourishing life consists essentially of morally and intellectually excellent activities” (ibid., p. 329). “A human being cannot have a flourishing life except by having intimate friends to whom he is attached precisely on account of their good qualities of character and who are similarly attached to him: it is only with such persons that he can share the moral activities that are most central to his life” (ibid., p. 330). This is the reason for the “second self” mentioned above. This Aristotelian notion goes beyond the judgment-development and refinement benefits of friendship. It involves notions of enhancing contentment and joy as supported and reinforced by the moral community of similar friends of virtue. This certainly describes the ideal of a civic organization, i.e., a union of intimate friends one can rely on because of their good qualities. Cooper continues, however: To know the goodness of one’s life, which he reasonably assumes to be a necessary condition of flourishing, one needs to have intimate friends whose lives are similarly good, since one is better able to reach a sound and secure estimate of the quality of life when it is not one’s own. This involves wanting the other to prosper, and to know the moral virtue of another, one must know them carefully over time. (ibid., p. 330)

14 Annas (1993) makes this point throughout her treatise.

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Full development of friendship, therefore, requires knowing “the moral virtue of another” as a reinforcement of one’s own moral virtue. The moral organization dedicated to some environmental goal(s) is by its nature an organization of dedicated moral friends. It is also important to note that besides the friendships described above, moral communities contain some degree of beneficent action among constituents. To pursue a moral community means to pursue this beneficence among other duties. Such pursuit can enhance the classical friendships described by Aristotle whether for advantage or virtue, and friendships are surely facilitated by these actions whether because potential friends are cooperating in this beneficence, or because one of the parties benefits from it, and so is drawn into the relationship. The true pursuit of happiness (eudaimonia) in the classical sense of Aristotle and the Stoics, is to pursue such relationships of which more is explored by Kant.15 Kant’s empirical anthropology, however, also analyzes humanity’s unsocial sociability, i.e., our tendency to resist and ultimately frustrate the efforts and intended ends of others.16 This might occur among individuals within an organization. This is a dark view of humanity’s nature, but Kant viewed this natural unsocial tendency as also having positive attributes of stimulating us to overcome our laziness by seeking honor. It also has the negative aspect of seeking domination and property status over others whom we might dislike, but still cannot leave alone due to our inherent nature. We compete for positions, engage in rent-seeking as a result of those positions, and may engage in the destruction of the creative efforts of others.17 The third formula of the categorical imperative (see Chapter 2), i.e., pursuit of a moral community, is aimed at redirecting our negative social passions (or inclinations) for gaining power over others for the purpose of using others as tools solely toward our own selfish ends, and not the ends of those so used. In particular, this unsocial power may be of a coercive nature, one that exploits the fear of others to make them pliable tools. Relations of virtue are therefore a necessary 15 The ancient philosophy, however, emphasized reflective revision and growth in virtue

over one’s life, a reflection and revision that ultimately leads to a happiness of contentment. See Annas (1993, p. 332). This requires, according to Aristotle, a “complete life with complete virtue” (NE, 1.x). 16 See Kant (1784, 8: 21), and Wood (1999, p. 213), and White (2011, p. 112). 17 “Rent seeking” in this context means seeking to receive compensation due to position

rather than effort.

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component of the pursuit of a moral community in order to facilitate the overcoming of these “negative social passions.” Kant also analyzed friendship in the context of morality. He perceived friendship as the only relationship based upon our natural needs that requires morality for its sustenance.18 (Note that Aristotle’s and Kant’s views on friendship are notably similar on this point.) This notion of friendship should be sufficiently broad to incorporate our civic relations. All of these relations are also based on our natural needs, and demand morality if they are to be sustained. Kant’s three forms of friendship, (1) need, (2) taste, and (3) disposition (a disposition to recognize our neighbors as friends) all apply to our civic relations. To be sustained, each of these categories • requires that we participate in the development and enjoyment of other’s wellbeing through our moral good will, • arises from our general need to overcome our unsocial nature because of our survival need for social interaction, and • usually involves certain actions of reciprocity since friendship thrives on (but does not absolutely require) differences in capacities and personalities so that we naturally contribute to one another.19 To Kant, moral friendship was not merely an ideal; he thought it exists, although rarely. Our “duty to oneself as well as to others is to not isolate oneself but to use one’s moral perfection in social intercourse.” (1797, 6: 472–473) This is also an Aristotelian concept presented in the form of an imperfect duty. The “byproducts” of these friendly actions are “to create a beautiful illusion resembling virtue that is not deceptive” since all understand the nature of these actions.20 Here Kant suggests that the illusion of the ideal is sufficient to be practical. Affability, sociability, courtesy, hospitality, and gentleness (in disagreeing without quarreling) are, indeed, only tokens; yet they promote the feeling of virtue itself by a striving to bring this illusion as near as possible to

18 See Kant (1797, 6: 471). 19 See Kant (1797, 6: 470–474). 20 I do not endorse the idea that these by products are only illusion. These by products

are definitely tangible.

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the truth. By all of these, which are merely the manners one is obliged to show in social intercourse, one binds others too; and so they still promote a virtuous disposition by at least making virtue fashionable. (ibid., 4: 474)

“By making virtue fashionable” we understand the role of these virtuous characteristics in our civic organizations where they can literally be advantageous. Clarity among all those engaged as to the maxims required for a united (or harmonious ) pursuit of a moral community, is a paramount concern of Kant’s third formula. In particular, this pursuit requires clarity as to the juridical (perfect duty) and other broad notions of morality (imperfect duty) applicable to organizations, and aimed at modifying the Kantian notion of our unsocial sociability referred to above. In fact, the very notion of forming a civic organization as a union of friends can be viewed as an attempt to overcome this unsocial nature. The formation of our notions of applicable duty is the purpose of our moral social processes, but its implementation relies upon relations of virtue. The above analysis partially indicates one purpose of the pursuit of a moral community and the aims of such a community, i.e., it incorporates friendships of both advantage and virtue, and presents an atmosphere where the latter can be developed from the former. It also aims at developing a community of collective imperfect duty. Today, our environmental organizations are expressions of this collective imperfect duty, and they are among our most important civic organizations.

3

The Specialness of Process

There are several attributes of our process for forming our environmental maxims which we should consider as absolutely required for any claim of “fairness.” These issues of fairness were addressed in Chapter 3, and are also addressed here.21 In addition, if as Kant claimed, the categorical imperative process (CIP) represents the common social understanding of how our moral maxims should be formed, then we might be justified in attributing some high degree of specialness, or perhaps even sacredness, to

21 Rawls (1980 and 2001) particularly explores issues of “fairness” in the CIP, and Habermas’s contributions are reviewed in Chapter 3.

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the attributes of this process.22 These considerations are also examined in detail in this chapter. These paramount, or sacred, attributes include the following: • All those affected must have equal access to the social-democratic discourse required to establish our moral maxims. This should be considered the epitome of our “fairness” consideration. • This discourse must be scientifically and socio-economically informed. All relevant and available information should be considered. • While equal access is a prior requirement for fair discourse, it is also rationality—that is the use of rational reflection and logic in argument concerning the moral issues at hand—that is required for this process of discourse to be ex post considered “fair.”23 These “attributes” are part of our “fair and reasoned discourse and decision processes” reviewed in Chapter 3. The requirements for our environmental reflections to be “rational” are examined here. According to Kant (1793, 6: 26; 1785, 4: 435–440) “rationality” is the defining characteristic of humans, a characteristic that makes life itself sacred. If this is true, then “rationality,” i.e., the ability and inclination to make logical and informed decisions that accompany reflection, is the attribute that must be applied to our environmental considerations as explored below. As an example of this “rationality,” consider to what extent may I pollute clean water or clean air? Can I even exist without being a polluting entity? The answers must involve the extent of the pollution, the intention (social or personal) embodied in this action, and the impacts and methods of the pollution. A more relevant question is to what extent does my pollution affect others, and should it be controlled in some legal way? Must the universal principle of justice (UPJ) be violated by our personal pollutions since we know others must be affected, and their freedom impinged in some way however small or large? These are 22 “Sacred” applies to more than religious considerations. It is commonly defined as “regarded with reverence,” or “secured from infringement by reverence or sense of right.” In this sense, the two Kantian attributes of the CIP cannot be infringed, and therefore are “sacred” for these reasons as juxtaposed against religious “sacredness.” 23 See Wood (1999, pp. 306–309), for a review of Kantian reasoned discourse.

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the social questions that should be considered by our reasoned public discourse. We know we cannot exist without generating pollution of some sort. We also know we must reach general agreements as to their controls. If we are alone in some vast wilderness, our personal pollution might be of little social concern, but polluting in a dense environment is another matter. Population density, however, potentially generates the economies of scale associated with pollution’s control. It can be ameliorated by large scale efforts. But in a dense city, personal pollution would also be perceived as more offensive by the many around us. For these reasons, we recognize that regulation is likely to be more strict. In a city, garbage is managed, and civic complaints are few provided it is managed. Today, however, even our small personal pollutions when aggregated across populations can contribute to severe diseconomies of scale that affect the whole globe. Our rivers, oceans, atmosphere, and food supply can all be affected. Hence massive social controls form the considerations of our discourse. “Alone in the wilderness,” we are not. The point is that our pollution, even our personal pollution, is now a global problem because of its global effects. Recognizing that this is a new era places our environmental considerations as paramount in our discourse. 3.1

Problems in Our Environmental Categorical Imperative Process (CIP)

Our formula of universal law, prohibits us from behaving by personal maxims that are applicable only to us, and that are designed only for our own convenience. This also applies to our environmental considerations. Universality requires knowledge of and participation in our social environmental discourse, but since future generations cannot be included in this discourse, we must fairly consider and currently represent their interests when considering environmental impacts. Similarly, our formula of respect for the dignity of persons would also be violated by ignoring the interests of future generations. Providing the future with an environment that is limiting as compared to the current one would constitute ignoring the as-yet-unborn. It would force them to accept an inferior status within our considerations, and that violates our ideal norm for our categorical imperative process (CIP). (See Chapter 2.) Our conundrum is, “How do we include and represent the interests of future generations

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in our discourse?” Perhaps our obligations are to assure our environmental amenities are not further degraded, and perhaps they must even be enhanced. For one generation to decide the interests of another would appear to be paternalistic. O’Neill (1995, p. 120) defines paternalism as using others without awareness of their desired ends, but by imposing ends that we judge as should be desired by them. In the consideration at hand, environmental paternalism with respect to future generations appears unavoidable, so we must logically suppose what future generations will desire, perhaps doing so by projecting the preferences of the current onto the future, or perhaps by also referring to those preferences desired by the previous generations in a search for consistent values. If a current generation enjoys a particular set of environmental characteristics (clean water, air, and green spaces as examples), then perhaps these are the minimums that should be bequeathed to the next generation. (These necessary minimums, however, may not be sufficient as explored in the next section where environmental restoration is considered.) As reviewed in Chapter 2, through our moral maxims, we must seek a kingdom of ends , and by this “kingdom,” Kant meant “the union of different rational beings in a system by common laws” or maxims (1785, 4: 433). Through the first two formulae of the categorical imperative, duties are derived and motivated by the pursuit of this kingdom of ends . The harmony referred to in the third formula, means that these rational beings pursue consistent and coordinated duties aimed ultimately at pursuing this kingdom of ends. This applies to all individuals in this ideal union. Moral actions are therefore those that are motivated by the pursuit of this ultimate good. They cannot be those that serve only the self at the expense of others in this “union of rational beings” (1785, 4: 430). They cannot, therefore, knowingly exploit future generations. Indeed, in the Fundamental Principles of the Metaphysics of Morals (1785, 4: 390), Kant argued that examination of motivation is the only basis for judging the morality of some action, and pursuit of the moral community provides the only justifiable moral motivation.24 Other possible motivations would be self-centered and selfish. Motivation to enhance the environment should not be self-centered, but it should broadly serve

24 Also see Sullivan (1994, p. 30).

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the pursuit of a moral community built upon the respect for the legitimate ends of all including those at distance and as-yet-unborn. If our discourse does not fairly confront these issues of equity, then it loses its claim to be moral in process and resolution. When it confronts these issues, however, it meets our aspirational standards for sacredness. This poses the foundational moral philosophy of environmental preservation and restoration.

4

Nature as Sacred

The categorical imperative process (CIP) is the product of Enlightenment philosophy, of which Kant’s contributions are essential components. Given the religious and quasi-religious character of our environmental sentiments, the Kantian approach might appear to be strictly contradictory to these “sentiments” since being Enlightenment philosophy, it is usually viewed as not amenable to religious considerations, even those that only bear “family resemblances” to religion. The argument presented below, however, explicitly addresses this dichotomy. It argues that to the extent the public accepts the quasi-religious logic concerning the sentiments generated by natural experiences, then these sentiments should be reflected in the reasoned democratic discourse of the CIP as described below. Nevertheless, Kant (1784, 1793) argued against the assertion of religious dogma for the purpose of exclusion of reasoned discourse. I have emphasized the main point of enlightenment, that is of man’s release from his self-incurred minority, primarily in matters of religion. (1784, 8: 41)

It is the dogmatic assertions that inhibit discourse, not the quasireligious rhetoric of “I am inspired by nature!” Individual autonomy is not breached by reasoned non-dogmatic but still religiously motivated discourse.25 As a result, notions of the instrumental benefits to humanity of the sort outlined below would presumably be included in this reasoned discourse.

25 This is also a point made by Habermas (2002).

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Gillroy (1998), however, argues that Kant’s notion of the autonomy of moral individuals implies the conception of conservation as an “essential component and prerequisite of the intrinsic autonomy” of these individuals.26 Gillroy further argues that, … preservation … places responsibility on humanity to harmonize moral agency with the functional integrity of natural systems. Here humanity and nature become the two unique and equally important components of what we might call the greater Kantian ecosystem.27

Gillroy points out that his conceptions of “Kantian conservation” and “Kantian preservation” provide the “sound moral basis for public policy arguments” that wish to take nature into account.28 To do so requires that decision-makers need to consider both humanity and nature as ends-in-themselves. Public policy then requires restrictions in our use of nature because of our pursuit of the moral community. This is the ethical approach utilized in the chapters below. The pursuit of the moral community motivates our ideal norms for fair and reasoned environmental discourse. There is, however, more to the American cultural perspective of the role of nature than directly addressed in Kantian philosophy. In particular, there is the perspective of “nature as inspiration,” although this approach does not contradict the Kantian philosophy as presented above. The ethical basis for the “specialness of nature” typically utilizes either (i) the metaphysics of nature’s sacredness (unique specialness) as a stand-alone entity, or (ii) the metaphysics of humanity’s transcendent spiritual-type interconnectedness with nature, or (iii) a hybrid philosophy that combines the above two.29 The expositions of these approaches fit Saler’s (1993) categorizations of “family resemblances” to traditional organized religion in that the environmental movement uses language similar to the religious canonical literature.30 If the traditional religious experience is 26 See Gillroy (1998, p. 131). 27 Ibid. 28 Ibid. 29 Schuler et al. (2017, p. 216) identifies the second of these arguments (humanity’s transcendent connectedness) as necessarily utilitarian. This is not the position developed below where a Kantian approach is presented. 30 See Taylor (2017, p. 248).

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centered on “an uncanny, awesome, or powerful manifestation of reality, full of ultimate significance,” as claimed by Chidester and Lilienthal (1995, “Introduction”), then interacting with nature also has this potential “significance,” i.e., it is capable of offering an epiphany similar to that experienced in traditional religion.31 As examples of this religious approach, Emerson (1836) and Thoreau (1854) provide early versions of the “transcendental inter-connectiveness” school. Concerning Thoreau’s philosophy, Taylor (2017, p. 250, parentheses added) observed, “What everyone needs is direct, visceral and sensory contact with nature; this was his (Thoreau’s) spiritual epistemology.” An intimate relationship with nature was the essence of Emerson’s and Thoreau’s transcendental epistemology.32 In My First Summer in the Sierra, Muir (1911) especially emphasized the transcendental religious aspects of contact with nature.33 The excerpts below indicate the deep spiritual aspects of his philosophy concerning the benefits of contact with nature. In his published diary, he used expressions such as, These blessed mountains are so compactly filled with God’s beauty, no petty personal hope or experience has room to be. (Muir 1911, Entry of July 20, 1869) … I gaze and sketch and bask, oftentimes settling down into dumb admiration without definite hope of ever learning much, yet with the longing, unresting effort that lies at the door of hope, humbly prostrate before the display of God’s power, … (Muir 1911, Entry of July 20, 1869) … Wherever we go in the mountains, or indeed in any of God’s wild fields, we find more than we seek…. (Muir 1911, Entry of August 4, 1869)

31 Wood (1998, pp. 192–204) argues that nature is a teleological system that serves humanity so that its preservation is a perfect duty as described below. O’Neil (1989) reinforces notions of this teleological perfect duty. 32 Thoreau (1849, 1862) offers additional explorations of the benefits of transcendental interactions with nature. 33 Muir’s diary was published as My First Summer in the Sierra (1911).

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Prior to Muir, Ralph Waldo Emerson (1803–1882) also emphasized the quasi-religious aspects of nature. He was a minister, philosopher, essayist, and lecturer. He was the leading member of Concord’s (Massachusetts) nineteenth-century intellectual and artistic movement that included Thoreau and Dickenson. He was born in Boston, graduated from Harvard in 1821, and subsequently abandoned the ministry over dogmatic disagreements. His seminal essays and lectures included “Nature,” and the “American Scholar,” the latter being a clarion call for the recognition of American intellectual and academic excellence. “Nature” began the American transcendental natural philosophy as emphasized and expanded by Thoreau, and reviewed below. Emerson’s dwelling was a sizeable Concord house overlooking a meadow, and with an expansive natural view. He described his experience in “Nature.” To go into solitude, a man needs to retire as much from his chamber as from society. I am not solitary whilst I read and write, though nobody is with me. But if a man would be alone, let him look to the stars. … Nature never wears a mean appearance. Neither does the wisest man extort her secret, and lose his curiosity by finding out all her perfection. Nature never became a toy to a wise spirit. (Chapter 1, pp. 1–2) The charming landscape which I saw this morning is indubitably made up of some twenty or thirty farms. Miller owns this field, Locke that, and Manning the woodland beyond. But none of them own the landscape. There is a property in the horizon which no man has but he whose eye can integrate all the parts, that is the poet. This is the best part of nature, of these men’s farms, yet to this their warranty-deeds give no title. (Chapter 1, p. 2)

Because the Socratic and Aristotelian philosophies sought to ground ethics as similar to the laws of nature, ethics and the natural law were perceived as equivalent, and studying nature could then lead one to discern the ethic of how to live. Emerson expanded on that philosophy in “Nature.” It has already been illustrated that every natural process is a version of a moral sentence. The moral law lies at the center of nature and radiates to the circumference. It is the pith and marrow of every substance, every relation, and every process. All things in which we deal preach to us. What

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is a farm but a mute gospel? The chaff and the wheat, weeds, weeds and plants, blight, rain, insects, sun, - it is a sacred emblem from the first furrow of spring to the last stack which the snow of winter overtakes in the fields. But the sailor, the shepherd, the miner, the merchant, in their several resorts, have each an experience precisely parallel, and leading to the same conclusion: because all organizations are radically alike. Nor can it be doubted that this moral sentiment which thus scents the air, grows in the grain, and impregnates the waters of the world, is caught by man and sinks into his soul. The moral influence of nature upon every individual is that amount of truth which it illustrates to him. (Chapter 5, p. 42)

Nature and humanity’s ethics were unified in Emerson’s transcendental view. Hence nature becomes the teacher, the sacred instructor. Henry David Thoreau (1817–1862) was an associate of Emerson, and also a Concord naturalist. His philosophy of “live a simple life” facilitated his year of living in a small cabin on the north side of Walden Pond, a mile or so South of Concord. His year at “Walden Woods,” and other New England adventures enabled his naturalist lifestyle. He grew up in borderline poverty and lived his life thus. He nonetheless graduated from Harvard in 1837. He published A Week on the Concord and Merrimack Rivers in 1849 and Walden in 1854. The following indicates his naturalist philosophy: I went to the woods because I wish to live deliberately, to confront only the essential facts of life, and see if I could not learn what it had to teach, and not, when I came to die, discover that I had not lived. I did not wish to live what was not life, living is so dear, nor did I wish to practice resignation, unless it was quite necessary. (Walden 1854, Chapter titled “Where I lived, and what I lived for.” p. 182) One attraction in coming to the woods to live was that I should have leisure and opportunity to see the spring come in. The ice in the pond at length begins to be honey-combed, and I can set my heel in it as I walk. Fogs and rains and warmed suns are gradually melting the snow; the days have become sensibly longer; and I see how I shall get through the winter without adding to my wood pile, for larger fires are no longer necessary. (Walden 1854, Chapter titled “Spring,” p. 342)

Thoreau was clearly inspired by his naturalist experiences at Walden, and also canoeing New England rivers. He perceived nature as “sacred” as humanity’s home, and that nature taught the lessons one should live by.

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The Supreme Court Justice William O. Douglas was a polio victim as a child. He was raised in Tacoma, Washington, close to national forests and wild areas. To strengthen his legs, he hiked the forests of the Pacific Northwest, and doing so, he became a passionate life-long advocate of “wilderness values.” With respect to wilderness’ transcendental values, Douglas (1965, Chapter 1, pp. 25–27) eloquently stated, Wilderness values may not appeal to all Americans. But they make up a passionate cause for millions. They are, indeed, so basic to our national well being that they must be honored by any free society that respects diversity. We deal not with transitory matters but with the very earth itself. We who come this way are merely short-term tenants. Our power in wilderness terms is only to destroy, not create. Those who oppose wilderness values today may have sons and daughters who will honor wilderness values tomorrow. Since one function of a free society is to protect minority rights, we need to guarantee that large areas of the original America will be preserved in perpetuity. Those who love the wildness of the land and who find exhilaration in backpacking and sleeping on the ground may be idiosyncratic; but they represent values important in a free society. Wilderness people are at the opposite end of the spectrum from any standardized product of the machine age; yet they represent basic values when they protest against automation for the wilderness and for their grandchildren.

“The preservation of wilderness values requires a Wilderness Bill of Rights, … and its preamble would read as follows:” We believe in the right of children to an understanding of their place in nature’s community, of which they are a part. We believe in their right to acquire skills for living in the out-of-doors as part of their heritage as descendants of pioneers, to swim, fish, to manage a canoe, to climb, to hike, to worship. We believe in their right of discovery and adventure in nature’s world, their right to pit their strength against the elements and in their right to a sense of achievement. We believe in their need of the healing found in the wilderness of nature.

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We believe in their unfolding response to the warm earth, the friendly stars, the music of streams, the unknown life in hidden places, great trees, sunsets and storms.

We believe that all these are pathways for them, and for us, to God, and that their language is universal.

Wilderness is a therapist – a physician, indeed a preeminent one. The noise of civilization is one of man’s worst enemies. Like a bacillus hostile to man, it produces disease - not directly but through the fatigue and weariness that it creates. Tension caused by noise is enervating. … Wilderness has noise as when great winds make treetops roar, setting up the cadence of pounding surf. Wilderness noise is also the murmur of brooks, the chatter of squirrels, the scolding of camp robbers. Wilderness noise is the sequence of bird calls just before dawn, the ecstatic music of the whippoorwill at dusk, and the deep quiet of a darkened forest. The noise of wilderness is varied; it has no monotony; it is the music of the earth of which man is an integral part whether he knows it or not. The healing effects of wilderness are well known. Cares slough off; the conscious and unconscious springs that create tension are relaxed …. (Douglas 1965, Chapter 2, pp. 33–34)

We need a new conservation ethic if we are to have sanctuaries of wilderness left commensurate with the need. This ethic was described by Leopold in A Sand County Almanac: A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise. (ibid., p. 37)

John Muir (1911) and Aldo Leopold (1949) both criticized anthropocentric theism—especially as initiated by Abrahamic religious extensions—as leading to nature’s destruction. As emphasized by Leopold (1966, pp. xvii–xix), Conservation is getting nowhere because it is incompatible with our Abrahamic concept of land. We abuse land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect. There is no other way for land to survive the impact of mechanized man, nor for us to reap from it the esthetic harvest it is capable, under science, of contributing to culture.

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… That land is a community is the basic concept of ecology, but that land is to be loved and respected is an extension of ethics. That land yields a cultural harvest is a fact long known, but lately often forgotten. (From “Forward.”)

Other religious sentiments, i.e., those that honor nature as independent of our dominance, are emphasized in Native American beliefs.34 Muir (1911), however, emphasized natural preservation for the purpose of human interaction, and termed its destruction as evil.35 Muir pointed out that today “we go to the woods” as a substitute for churches and temples.36 These philosophies contain a foundational motivation aimed at providing the metaphysical grounding for valuing nature either as sacred in itself, or sacred due to its spiritual contributions to humanity. If there is no spiritual basis for natural preservation or enhancement, “then one could argue that any valuing of nature expresses mere emotion. … without some sort of sacred ground for this (natural) experience, the accompanying feelings and values are at best transient, and at worst delusional” (Taylor 2017, pp. 256–257, parenthesis added). In reviewing the analysis below, we should recognize the concept of a natural sacredness, or perhaps a sort of unique specialness, as instrumental to the human experience. This claim is justified by the substantial literature that supports this traditional view. The important point is that our moral processes of reasoned discourse should have the ability to reflect this instrumental spiritual role of nature if this is society’s reasoned view. But the Kantian environmental philosophy is essentially “the other side of the coin” from the sacredness or specialness of nature argument. In Kantian philosophy, if nature is special, it is stems from its instrumentality to humanity. This instrumentality is due in part from nature’s inspirational influence, but also because the natural environment is humanity’s home, and separation from it is extraordinarily unsettling. These are issues explored in latter chapters.

34 See La Duke (1999). 35 See Taylor (2017, p. 252). 36 See Burroughs (2009, p. 246).

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The Collective and the Environment

Environmental preservation and restoration concern both wild areas and domesticated areas, the latter being a myriad of geographies as varied as urban dwellings, parks, and rivers and streams that flow through both densely populated and less-densely populated areas. It concerns rural areas, some with degraded environmental amenities, some with relatively healthy amenities. All of these need clean air, clean water, less noise, green areas with varied plants and trees, and more wild animals (as in nondomesticated animals). Humanity benefits by all of the improvements that produce a greater evocation of contact with the natural. Physical and mental health demand these evocations. A person acting alone, however, is not likely to contribute much in this direction; people acting in concert as a collective are able to exploit political economies of scale and will likely continue to impact these problems, assuming the problems don’t grow so fast as to overwhelm those so dedicated. The latter chapters of this book illustrate these “collective political economies of scale,” but also some cases that illustrate nature being quickly overwhelmed by industrialization. I have spent much of my life interacting with our natural environments throughout the US and also in sections of Canada and the Caribbean. But I have not experienced it all, and I am not likely to do so. I have not properly experienced Alaska, or British Columbia, and some other important areas, but I do not want to see these despoiled. I have reservation demands to see some, but I have no specific plans to see them as of yet. Perhaps this is the way we all act, that is with “reservation demands” but no specific plans.37 Even if I were to know I won’t visit some specific area, I still would pay to prevent it from being degraded. We have a sense of the need for preservation for the future. We want preservation on a global scale! We should be willing to sacrifice for this preservation full well knowing that it produces positive and intrinsic net-values for humanity. The remaining chapters of this book indicate the possible directions we might pursue, and in some cases directions we should avoid. They attempt to indicate when the relevant rhetoric is false, but also when it has moral truth. The rhetoric of “we must further degrade the environment or the economy suffers” is patently false; it purposely misrepresents 37 A reservation demand implies a willingness to bear some expense of preservation even though there is little likelihood of our personal use.

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“what is economic,” and “what strengthens the economy.” The rhetoric of “we should further degrade because it won’t hurt anybody,” is similarly false; we are all hurt by environmental degradation. The rhetoric of “we should further degrade because those who claim otherwise are all elites, with hollow interests that we need not respect,” is similarly false. In general, we and future generations benefit greatly from environmental preservation and restoration. There is intrinsic value to the natural environment, a value generated by its instrumental quasi-religious inspiration to humanity, and also by its provision of a healthy human home.

References Annas, Julia. 1993. The Morality of Happiness. New York, NY: Oxford University Press. Aristotle. 1976. The Ethics of Aristotle: Nicomachean Ethics. London, UK: J.H.K. Thomson Translator, Penguin Books. Burroughs, J. 1912, 2009. Time and Change. Amsterdam, The Netherlands: Fredonia Books. Chidester, D., and D. Lilenthal. 1995. Introduction. In American Sacred Space, ed. D. Chidester and D. Lilenthal. Bloomington, IN: Indiana University Press. Cooper, John M. 1980. Aristotle on Friendship. In Essays on Aristotle’s Ethics, ed. Amelie Rorty. Berkeley, CA: University of California Press. De George, Richard T. 1981. The Environment, Rights, and Future Generations. In Responsibilities to Future Generations, ed. Ernest Partridge. Buffalo, NY: Prometheus Books. Douglas, William O. 1965. A Wilderness Bill of Rights. Boston, MA: Little Brown. Emerson, Ralph Waldo. 1836. Nature. In The Collective Works of Ralph Waldo Emerson, ed. R. Spiller et al. Cambridge, MA: Harvard University Press. Freeman, Myrick A. 1993. The Measurement of Environmental and Resource Values: Theory and Method. Washington, DC: Resources for the Future. Gillroy, John Martin. 1998. Beyond Sustainability: Toward an Ecosystem Approach to Natural Systems Preservation in Environmental Policy. The American Political Science Association Annual Meetings. Boston, MA. Gillroy, John Martin. 2000. Justice and Nature. Washington, DC: Georgetown University Press. Habermas, Jürgen. 2002. Religion and Rationality: Essays on Reason, God, and Modernity, ed. E. Medieta. Cambridge, MA: MIT Press. Hardin, Garrett. 1968. The Tragedy of the Commons. Science 162: 1243–1247.

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Kant, Immanuel. 1784. What Is Enlightenment? In Basic Writings of Kant, ed. Allen W. Wood. New York: The Modern Library Classics, The Modern Library. Kant, Immanuel. 1785. Fundamental Principles of the Metaphysics of Morals. In Basic Writings of Kant, ed. Allen W. Wood. New York: The Modern Library Classics, The Modern Library. Kant, Immanuel. 1788. Critique of Practical Reason. In Basic Writings of Kant, ed. Allen W. Wood, The Modern Library Classics, The Modern Library (2001). New York, NY: Random House Inc. Kant, Immanuel. 1793. Religion Within the Limits of Reason Alone. In Basic Writings of Kant, ed. Allen W. Wood. New York: The Modern Library Classics, The Modern Library. Kant, Immanuel. 1797. The Metaphysics of Morals, ed. Mary Gregor. Cambridge, UK: Cambridge University Press. Koehn, Daryl. 1998. Can and Should Businesses Be Friends with One Another and With Their Stakeholders. Journal of Business Ethics 17 (15): 1755–1763. La Duke, W. 1999. All Our Relations: Native Struggles for Land and Life. Philadelphia, PA: South End Press. Leopold, Aldo. 1949. A Sand County Almanac. New York, NY: Tamarack Press and Oxford University Press. Leopold, Aldo. 1949, 1966. A Sand County Almanac With Essays on Conservation from Round River. New York, NY: Sierra Club and Ballantine Books. Muir, John. 1911, 1997. My First Summer in the Sierra. In Muir: Nature Writings, ed. W. Cronon. New York, NY: The Library of America. O’Neill, Onora. 1989, 1995. Constructions of Reason: Explorations of Kant’s Practical Philosophy. New York, NY: Cambridge University Press. Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. New York, NY: Cambridge University Press. Rawls, John. 1980. Kantian Constructivism in Moral Theory. Journal of Philosophy, 77, September, 515–572. Reprinted in Collected Papers—John Rawls, edited by Samuel Freeman, Harvard University Press, 1999. Rawls, John. 2001. Justice as Fairness: A Restatement. The Belknap Press of Harvard University Press. Robinson, Richard. 2018. Friendships of Virtue, Pursuit of the Moral Community, and the Ends of Business. Journal of Business Ethics 151: 85–100. Schuler, Douglas, Andreas Rasche, Dror Etzion, and Lisa Newton. 2017. Corporate Sustainability Management and Environmental Ethics. Business Ethics Quarterly 27:2 (April): 213–237. https://doi.org/10.1017/beq.2016.80. Stewart, J.A. 1892. Notes on the Nicomachean Ethics. Oxford, UK: Oxford University Press.

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Sullivan, Roger. 1994. An Introduction to Kant’s Ethics. Cambridge, UK: Cambridge University Press. Taylor, Bron. 2017. The Sacred, Reverence for Life, and Environmental Ethics in America. In The Oxford Handbook of Environmental Ethics, ed. Stephen M. Gardiner and Allen Thompson. New York, NY: Oxford University Press. Taylor, C.C.W. 1995. Eudaimonia. In The Oxford Companion to Philosophy, ed. T. Honderich, 252. Oxford, UK: Oxford University Press. Thoreau, Henry David. 1849. A Week on the Concord and Merrimac Rivers. New York, NY: Princeton University Press. https://archive.org/details/awe ekonconcorda00thorgoog/, reprinted in 2011. Thoreau, Henry David. 1854. Walden. http://etext.lib.virginia.edu/toc/mod eng/public/ThoWald.html. Thoreau, Henry David. 1862. Walking. https://www.org/wp-content/uploads/ 2016/03/Walking-1.pdf. White, Mark D. 2011. Kantian Ethics and Economics. Palo Alto, CA: Stanford University Press. Wood, Allen W. 1998. Kant on Duties Regarding Non-Rational Nature. Proceedings of the Aristotelian Society Supplement 72: 189–210. Wood, Allen W. 1999. Kant’s Ethical Thought. Cambridge, UK: Cambridge University Press.

CHAPTER 5

Reaching Unbiased and Stable Environmental Decisions Through Fair and Reasoned Discourse

1

Introduction

Elinor Ostrom (1933–2012) won the 2009 Nobel Prize in Economics for her work on the “new institutional economics,” specifically on the polycentric evolution of rules for governing common property resources (CPR), i.e., the commons. By “polycentric” we mean the centralized rings of authority that evolve for managing a CPR, with the inner ring being the closest to the resource users, and the outer ring being the central authority. Her work showed that the tragedy of the commons can be avoided, and often is avoided by the resource users naturally developing the institutions for governance without coercion from the higher-authority. These institutions, she showed, are best organized from the ground up by face-to-face communications, and that ultimately build a trustworthy agreement. Reasoned discourse is a foundation for this governance. The material of this chapter is particularly relevant. It is later applied, for example, to the examination of cross-border governmental agreements explored in Chapters 11 and 12. It is shown that environmental advocacy organizations (EAOs) can play critical roles in establishing the stability of these agreements by providing and assuring that “fair and reasoned” criteria apply to these agreements. These EAOs can apply the essential

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necessary information and monitoring required for stable environmental agreements. 1.1

The Institutions of Common Property Resource (CPR) Governance and Its Rhetoric

The tragedy of the commons is the principle problem of environmental analyses and discourse. This is a social-economic problem in that any CPR will be overused and under-maintained provided there are no appropriate governing arrangement established by its users.1 For example, a common grazing pasture (a “commons”) will be overgrazed without the users reaching such an institutional arrangement. Acting from their own self-interest, the users faced with the problem that any further grazing will deplete the resource beyond its capacity to regenerate, will reason that if they do not allow their livestock to graze, others will. They may as well be the one to cause the overgrazing. The commons will therefore be depleted. Olson (1965) argues, however, that those with common interests will act to manage these interests; they will seek to form a community for that purpose. The institutions for governance of a CPR should emerge from a community of users that will seek to place requirements on its members and that restrict the commons use. To be effective, coercion in the cases of misuse must be possible. This coercion usually takes the form of consequent exclusion. This manages the problem of the free riders , those who would avoid the obligations of community membership, but who would also use the resource without meeting those obligations. Exclusion must therefore be possible in order to avoid overuse of the CPR. What pre-conditions would lead users to form a CPR community and reach an agreement on its use? This is likely to occur when: (i) information is available and recognized as indicating that the CPR is dissipating; (ii) users realize that acting independently yields an expectation of lower net benefits than acting in coordination; and (iii) the difficulties and costs of communicating with fellow users are sufficiently low as to be potentially overcome with practical efforts.

1 In modern literature, Garrett Hardin (1968) first pointed out the problem.

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These three conditions all pose informational problems associated with initiating reasoned social discourse. Chapter 10 provides illustration of the formation of four environmental organizations under conditions that exhibit the three conditions listed above. These conditions apply for inducing users into the needed attempts at establishing agreements, and at modifying existing agreements when warranted. The agreements to be reached must specify: (i) the access and appropriate rights of the users; (ii) the monitoring arrangements; (iii) and the conditions and range of the adaptive management strategies for the resource, including possible contingent strategies. The “adaptive strategies” allow for variations in allowable harvest depending on the variation in the natural state of the CPR. For example, a renewable resource such as a fishery would need adaptive strategies that require variations in harvest depending on the available fish stock and the stock’s ability to regenerate. “Contingent strategies” consider broader changes in the resource, and allow for substantive changes in governance when warranted. For example, the monitoring system itself might need change if it is perceived as ineffective for applying exclusion rules. In Chapter 10, the adaptive and contingent strategies are illustrated through the four example cases of environmental organizations. Among these four examples, the Chesapeake Bay Foundation is a particular illustration of the development of the necessary metrics for monitoring the Bay through adaptive and contingent methods. A CPR agreement must create “working rules” (practical and effective rules) with credible commitments from users. It also requires realistic and effective monitoring arrangements.2 A possible problem with these agreements is that users may appear to commit in order to induce others into the agreement, all the while intending to violate the agreement. Each user, knowing that this is possible, and wanting to avoid being the “sucker” who is the last to actually keep the agreement, must be

2 See Bates (1988).

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suspicious of the effectiveness of the monitoring provision.3 Demonstrable effective and practical monitoring is therefore the key to these CPR governance commitments. Consider the grazing problem reviewed above. The common-sense solution is that the users reach a governance agreement for rationing the grazing rights. Ostrom pointed out that this grazing problem was solved by farmers in a Swiss village in part by their establishment of an agreement to limit grazing to the number of cattle that each farmer could care for during the winter months. Spontaneous, practical, and evolved rules for monitoring the rationing with possible exclusion as a threat, were reached and administered by the users. These rules, evolved over considerable time and as a result asserted the rational solution. Such arrangements spawn Ostrom’s law, “A resource use arrangement that works in practice can work in theory.” She explored case examples to illustrate that over time, rules could be established for CPR use that promote sustainability.4 These rules pose self-governance systems, and evolved from face-to-face communications, and were based on reciprocity and a polycentric approach. The four examples of environmental organizations examined in Chapter 10 illustrate these principles of communication. In examining the institutions of governance for CRP s, Elinor Ostrom studied common pasture lands in Switzerland and Japan, agricultural irrigation systems drawing from commonly shared rivers in Spain, and commonly shared irrigation systems in the Philippines. Each of these manifested institutional agreements among users that evolved over lengthy time periods. From these background observations, Ostrom derived and posed eight rules for managing a CPR5 : (i) The user group boundaries must be clearly defined. (ii) The rules governing CPRs should match local needs and conditions. (iii) Those affected by the CPR rules should be included in considering any modifications of those rules. (iv) The rules for governing CPR use should be respected by outside authorities. 3 See Elster (1989). 4 See Ostrom (1990). 5 See Ostrom (1990, p. 90).

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(v) The community of users should develop a monitoring system for CPR use. (vi) Graduated sanctions should be used for rule violations. (vii) Dispute resolutions should be of low cost and accessible. (viii) The responsibilities for governing CPRs should be nested into tiers from lowest to highest, with the lowest being closest to the users. All eight of these rules depend on meaningful reasoned discourse (whether face-to-face or otherwise) among the community of users. They also depend upon inclusivity among users and those affected in forming those rules. The rules for CPR use, however, should also meet some other standards of inclusivity concerning the information to be gathered and the otherwise fairness of the decision criteria (rules) to be used. All eight of these rules are examined in the context of the four examples of environmental organizations reviewed in Chapter 10. These “inclusivity” and “fairness” issues were reviewed in Chapter 3, and will be addressed again in this chapter. The CPRs that Ostrom cites, however, have the following characteristics: (i) The using groups are not significantly disparate in their uses. The users also tend to be relatively small in number. (ii) The agreements evolved over considerable time while adjusting as new problems and demands needed to be resolved. They did not emerge from significant and immediate crises. Among the four illustrative examples reviewed in Chapter 10, all illustrate these characteristics. Consider resolving three significant current problems: (a) the Brazilian rain-forest crisis, (b) the current ocean resource crisis, and (c) the current global warming crisis. Each of these significant environmental problems is global in both nature and consequences with significant numbers of various local and global users. All three face immediate crisis situations; there is no time for gradual adjustments of behaviors. Also the large numbers of users involved and the disparate nature of their uses make all of Ostrom’s eight rules problematic in application. The notion of “local

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needs and conditions” have unavoidably now become global. Nevertheless, we shall see in this chapter that these rules can offer some degree of guidance even for global-level crises. In Chapter 3, we posed the following hypothesis, i.e., the knowledge hypothesis : The greater our knowledge of the needs of fulfilling some wide moral purpose, the greater the extent of our imperfect dutytowards that end.

Resolving the three global problems indicated above are in pursuit of “wide moral purposes,” and therefore requires recognition of imperfect duty. Success depends on our knowledge of the scientific facts of each case, and of how to effectively meet these needs. Our knowledge of our environmental impacts in each case extends far beyond our immediate community and into our global community. Therefore our environmental duty is conceptually broader than other imperfect duties. Some of the problems faced may appear more local than global, but some are just obviously global. The proposition of environmental community presented in Chapter 3 and repeated below, therefore logically applies as argued in that chapter. Proposition of environmental community: Sinceour knowledge concerning our environmental impacts often indicates global implications even from apparently local problems, our environmental community has now become global.

In attempting to reach governance agreements concerning global CPRs, we should recognize that the interests involved are often varied and broad. Affecting a CPR, such as a local water resource, often has had broader regional impacts, but now it even has global repercussions. The stakeholders involved are often many and varied. As a result, agreements are difficult to reach. Stakeholders are, however, often represented by various NGO-type entities: EAOs and business coalitions in addition to government entities. Given these wide-ranging interests, explorations as to fairness in reaching these agreements, and the consequent stability of those agreements are addressed in sections below. But prior to this exploration, it is necessary to explore some of the biases that may affect environmental agreements. This is the task of the next section.

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Anthropology of Environmental Discourse: Irrational Biases6

Kant (1797, 6: 458–459, 6: 465–469) combined his ideal norm of the rational discourse necessary for our CIP with the anthropological observations of humanity’s antisocial biases.7 The ideal norms for the CIP potentially could overcome these biases at least in part. In this Kantian spirit, and in the context of environmental problems, some irrational biases that would interfere with the ideal of rational social discourse are explored here. Chapter 3 introduced the possibilities for informed and unbiased environmental group decisions, what Rawls termed considered moral judgments. Biases, such as those explored below, however, contradict the criteria for considered judgment. 2.1

Cooperation Versus Autonomy, and the Information Problem

Business exists in a world of limited resources; there are costs and possible benefits resulting from its decisions, and these costs and benefits include externalities. One principle externality results from the inhibitions against cooperative action, and in favor of atomistic competition.8 Consider, for example, the tragedy of the commons as illustrated by a fishery; any particular fishery, perhaps the Grand Banks cod-fishery as an example. This resource is now close to being completely eliminated through overfishing. At some point, the fish stock could reach levels below the critical level needed for a positive net-reproductive rate, and the fishery would then completely collapse.9 If the individual fishermen know this is occurring, and they believe that if they do not harvest cod others will, then they may as well harvest. Under this circumstance, overfishing will continue beyond the critical mass level. 6 This section utilizes material from Robinson and Shah (2019). 7 Kant’s stated biases include “arrogance, defamation, ridicule, envy, ingratitude, malice,

and desire for revenge.” Also see (1784, 8: 21) for Kant’s analysis of people’s tendency to “isolate” themselves rather than join cooperative endeavors. 8 This bias for atomistic competition and against cooperative action can be an expression against giving up control associated with the latter, and in favor of the individual entrepreneurial independence of the former. See Kant (1784, 8: 21) for a review of the tendency toward isolation. 9 For a history of this actual phenomenon involving the Grand Banks see Murawski (2017).

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For this destruction to occur, any one of three conditions might be causal assuming fishermen believe that the continuance of the fishery is desirable: 1. The fishermen are either not knowledgeable, or perhaps are in willful denial, about the effects of overfishing. 2. The possibility of reaching a cooperative agreement to limit harvests is considered remote, when perhaps it is not. 3. The discovery of the potential fishery collapse comes too late to save the fishery. In the third case, there is a timely knowledge problem, one that can be potentially solved through collective scientific action based upon information about the stock levels. Knowledge about optimal harvests is an economic problem, and in these tragedy of the commons cases, a solution generally requires collective action and cooperation. That is the rational economic solution, but knowledge about the willingness of other fishermen to join a cooperative may be lacking, i.e., what Gillroy (2000) terms the assurance problem. As explained in the section above, if it is known that others are willing to join, then it is more likely that each individual fisherman will also be willing to join. Rawls’ criteria for a competent moral judge includes a “desire to be knowledgeable,” and the criteria for a considered moral judgment includes “familiarity with the relevant facts.”10 This example illustrates one of many cases of the moral obligation to be rational and informed with respect to environmental concerns. This case is associated with cooperative action, but a lack of familiarity with the relevant facts stimulates a failure of this cooperation under the first two conditions listed above.11 This points out the linkage between the imperfect duty to develop relevant knowledge (the proposition of imperfect duty

10 See Chapter 3. 11 Clark’s (1976, Chapters 1–2) exploration of the fisheries problem demonstrates an

application of rational economic analysis to finding an optimal fish stock, and this example is worth keeping in mind as demonstrating “rationality.” In this solution, the “optimal” stock exceeds that necessary for “maximum sustainable yields” in that higher stocks lower the costs of harvesting and perhaps also decreases some other external costs as well. See also Bjorndal and Munro (2012) for reviews of the rational management of fisheries around the world.

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to develop knowledge as reviewed in Chapter 3), and reasoning solutions to environmental problems. Besides the possible knowledge problem illustrated above, there are four other inhibiting and destructive biases associated with environmental problems. These biases are caused by conflicts of interest, lack of open consideration, and other violations of the criteria for considered moral judgments. Avoidance of these biases is necessary to provide some logical rationality to environmental analyses, a rationality demanded of reasoned social discourse. These destructive biases are reviewed here. 2.2

The Bias Caused by Abundance

If some environmental resource is so abundant that we consider the cost of exploitation (harvesting) to be very low, then rational lower-cost alternatives (lower total costs to society after externalities are considered) are less likely to be explored. This will probably continue to be the case until a high degree of scarcity occurs. This is so because the initial social costs of developing alternatives, as broadly defined to include the external costs, will be higher than current narrowly measured exploitation costs actually paid.12 Incorporating the effects of externalities, however, especially the externalities imposed upon future generations, may remedy this bias. Scarcity likely causes higher costs for harvesting and involves possible future deprivation of the goods in question. Pricing the possible future scarcity so that later generations are considered is justified from the rational CIP view. This requires our rational public discourse to consider future scarcities, and adjust public environmental policies accordingly, i.e., restricting the use of the resource to levels that reflect the external costs imposed on society. A reasoned public discourse that is expected to lead to an unbiased public environmental policy must express and reflect familiarity with relevant facts of potential future scarcity. For example, consider harvesting old-growth timber in the rain forests of the US Pacific Northwest where this timber is likely found on steeply sloped higher-elevation mountainous terrain.13 Preserving the old-growth likely preserves the watershed below in that if the timber is

12 Note that “broadly defined” requires incorporating the costs of those disrupted due to having to change, plus any externality costs. 13 See Oregon Wild (2017a, 2017b).

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harvested, the soils are easily and quickly washed away down the steep slopes so that the topsoil is eroded. Replanting on steep slopes is difficult and therefore unlikely. The soil erosion, however, clogs streams and destroys their flow, and ruins fish-spawning beds. The future is deprived of the natural watershed, plus the sight and recreational values of the forested slopes, the clean running streams, and the fishery. This illustrates that current abundance does not necessarily mean that the resource is relatively inexpensive to harvest, not when future external effects are considered. A lack of these information considerations violates the Rawlsian criteria for a considered moral judgment. 2.3

The Bias Due to an Overly Narrow Vision

As illustrated by the timber-harvest problem reviewed above, an “overly narrow vision” leads to bias toward current natural resource exploitation when perhaps it would be rational to preserve the resource. For example, consider not envisioning the possible value of recreational use of hiking through old-growth forests, or not envisioning substitutes for the timber that would be harvested, substitutes such as particle board, or substitutes other than wood.14 This fits the description of “too narrow a vision,” but this also begs the question, “Who does the envisioning?”. The answer to the “envisioning” problem could be that business, and society in general, should be searching to develop substitutes, but this search might be truncated by too-narrow a vision. Once substitutes are posed, society may decide, “It is preferable to preserve an old-growth forest, and use a substitute!” The point is that business, with sufficient expertise, can pose alternatives to environmental exploitation and degradation. Business can lead society into broadening its vision for resource use so that alternatives can protect the environment. Examples of these alternatives are so numerous that publication space prevents a lengthy listing, but consider a partial listing of (1) development of environmentally safe insecticide and detergents, (2) grocery-chain provision of reusable shopping bags as substitutes for disposable plastic bags, (3)

14 Schuler, et al. (2017, p. 215) argues that finding “substitutes takes work and time” that cannot be justified to corporate shareholders. This position is overly pessimistic; the record of finding substitutes does not justify this pessimism. Research and development certainly may require investment of resources, but it is the development method that corporate business has routinely used.

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improvements in auto and truck emissions, and (4) the increase in renewable energy projects. Business potentially can help the public to satisfy the information criteria for a considered moral judgment by overcoming “overly narrow vision.” 2.4

The Bias Due to “It’s Gone!”

“Out of sight, out of mind!” “When its gone, its gone!” These adages may apply to those environmental resources that are either completely eliminated or so degraded as to not be recognizable as an environmental asset; yet like the steelhead runs that are completely eliminated by gillnetting, they can be restored through proper management although at sizable public expense.15 Rivers and watersheds provide numerous examples of tragedy of the commons phenomena, but they also provide numerous examples of environmental organizations and coalitions working to restore water-based resources. These water resources have often been severely degraded, but restoration coalitions, such as those of the Waterkeepers Associations , have organized to regenerate virtually every significant river in the US. The regeneration consists of (1) restoration of the ecology of riverbanks and drainage basins, (2) establishing and enforcing pollution-prevention laws, and (3) monitoring of environmentally safe development of river usage. Consider the Ipswich River as an example. It was in the past a picturesque trout stream in Northeastern Massachusetts. The river feeds a marshy coastal area that was once of considerable beauty. Sixty years previously it was an environmental asset; it was a meandering trout stream that added considerable sight value to the areas it flowed through, and it also provided a valuable shell-fish resource, a saltwater fish resource, and tourist attraction. Today it is largely a filled-in quagmire destroyed by real estate development, both home dwellings and commercial enterprises, although this degradation decreased the area’s land values below what they otherwise would be. This degradation occurred because developers acted in isolation rather than in consolidation where the resource, environmental amenities and therefore real estate values could be maintained.

15 For an example of this gillnetting-problem phenomenon, see https://www.youtube. com/watch?v=KmZ1ScAUxA0.

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The Ipswich River Basin now is an example of the tragedy of the commons phenomena. It occurred despite legal prohibitions as to destruction of the drainage and alteration of the river route, legal prohibitions that were ignored by the local governments responsible for their enforcement. Currently, however, the Ipswich River Watershed Association is attempting restoration by purchasing land along the river’s route to protect the ecology of the watershed, by controlling the polluting suburban water runoff, by restoring tributary drainage, and by restoring the legal river banks that have been filled in.16 The above mentioned Watershed Association is a coalition of business, private, and government interests as suggested below. Land-use planning agreements such as those reviewed in Sect. 1, could have been reached and sustained, but tragedy of the commons problems predominated. The Watershed Association’s task is to restore and maintain the resource. These environmental degradations would likely not have occurred if (i) participants had the necessary information to anticipate the ultimate effects of their isolated actions, (ii) all those who would be negatively affected were knowledgeable about these facts, and were given the opportunity to participate in the public discourse and decision making, and (iii) actions that degraded the environment, thereby imposing external costs on others, were prohibited. The first two of these fit the Rawlsian criteria for violations of considered moral judgments. Other rivers in Massachusetts, such as the Charles, Deerfield, Concord, and Shawsheen Rivers as examples, also have public restoration efforts to clean up considerable pollution. Environmental restoration is possible if the bias of “Its gone!” is overcome. Rivers such as the Merrimack, a significant New Hampshire and Massachusetts river, have restored fish runs by eliminating dams, and by restoring water quality. Unlike prior to these efforts, the Merrimack is now worthy of substantial non-polluting public usage.17 Its restoration depended on satisfying the criteria of considered moral judgments in so far as including the knowledge relevant to envision the impacts of improvements.

16 See www.ipswichriver.org. 17 See www.combat-fishing.com/massstipersmerrimackrvr.html for a review of striped

bass restoration in the Merrimack, and www.concordmonitor.com/fish-stocking-2127105 for a review of restoration of herring in the river.

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The Bias of not Having “broad Vision”

Each of the above bias categories is a subset of “not having a broad vision.” There may be other biases, but essentially an unbiased vision of sustainability and environmental restoration and/or enhancement can motivate rational decisions. The environment is humanity’s home. It provides sustenance necessary for life. It also provides the spiritual connections referred to in Chapter 4. Destroying the environment dims humanity’s future, and degrades lifestyle and enjoyment. This is irrational! Business bears much of the blame for environmental degradation, but enhancing humanity’s home and lifestyle is potentially also an essential business task, one demanded by society. Past profiteering from negative externalities might be corrected by actions that generate positive externalities.18 This poses opportunities for business people who have a proper “broad vision.” Business is a cooperative endeavor, and so is environmental enhancement. In addition, personal consumption need not cause environmental degradation; it can consist of non-degrading environmental enjoyment, and this can stimulate further efforts toward environmental enhancement. It is natural for business to acquire knowledge related to its current and potential future activities. It is natural, therefore, for business to apply this knowledge for the environmental tasks indicated above. If we consider the Ipswich River example reviewed above, the Ipswich clams that come from the marshy beds of its delta are a highly prized resource of considerable value.19 Knowing this, some businesses seek to harvest this renewable resource. They promote the Ipswich River Watershed Association (a public-business coalition of environmental interests), its activities, and the sustainability and restoration of this resource. In Kantian analysis, it is rational discourse that is of paramount importance, and this includes the discourse necessary for the public’s rational environmental considerations. The biases reviewed above interfere with this rationality. They should ultimately be identified as such in public

18 For example, promotion of environmental recreation via commercial means might generate the sort of public enjoyment that leads to further restoration. 19 See www.ipswichfishmarket.com/clams.aspx for an example of business involvement in restoration of this resource, and www.saveur.com/article/Kitchen/Ipswich-Clams for a review of this delicacy.

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discourse pertaining to environmental policy, and they can be modified through generated information. The public’s environmental decisions should be capable of being classified as considered moral judgments. 2.6

The Anti-Intellectual and Anti-Elite Bias

Lives and commerce are often affected by external forces whether exerted from macro or more personal factors. These forces can be indicated and manifested in scientific and/or political socio-economic information or analyses. In these cases, those affected Americans have demonstrated a tendency to criticize the “elites,” i.e., those with more intellectual background, or political authority who deliver the message of environmental degradation and its consequences. Since America is not conceptually a class stratified society such as Britain and some other nations, perhaps education has replaced class as the stratifying factor. Those of the scientific and political strata become classified by the blue-collar strata as “elite” who make biased judgements that act as external forces of unfairness.20 Perhaps the anti-elite claims are merely manifestations of the flight or flee syndrome; perhaps they are purposely mendacious attempts at self-serving personal resistance and avoidance of actions that if taken would be in society’s best interests. Consider the blue-collar jobs lost through recent environmental regulations: (i) coal miner positions, (ii) steel worker and associated coke manufacturing positions, and (iii) fishing boat positions. The first two are due to newer technology associated with environmental regulations, and the third is due to drastic species reduction and consequent restrictions. The blame asserted by the affected blue-collar workers has been placed on (a) the quality of the science supporting the need for change and (b) the perceived elite nature of the decision makers with authority. The evidence in each case, however, indicates the need for the regulatory changes that caused loss of employment.

20 See Nichols (2019, pp. 18–19).

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3 Reaching “Fair” Environmental Agreements Through Reasoned Discourse21 The criteria for fairness, reviewed in Chapter 3, pose practical ideal norms usable for comparison with actual environmental negotiations in order to perceive degrees of unfairness. As explored in Chapter 2, these practical moral maxims are socially derived from a generally accepted process, our categorical imperative process (CIP), and this applies to environmental maxims and principles as well as others. What is of particular interest here is that guides for fairness in negotiation, explored below, include those principles. The criteria for competent moral judges applies to those who would negotiate society’s environmental agreements, and the criteria for considered moral judgments apply to the actual resulting agreements. The critical idea is that like the dairy farmers in Ostrom’s Swiss village, the negotiating parties must have a predisposition to be “fair,” but this predisposition itself does not assure fairness. Practical norms can still be applied to the resulting process and proposed agreement. These practical guides must generally be consistent with our CIP, as posed in the following criteria22 : • The required characteristics of the negotiators, and the rules of the negotiations must apply to all participating parties (a universality requirement ). • All parties must be autonomously allowed to pursue their own ends in that they do not submit to paternalistic decree; there is no coercion; and all affected parties are equally free to participate (a requirement of respect for the dignity of those affected). • All negotiators pursue a final “harmonious and stable” settlement as defined here. This means that all affected by the agreement believe they have benefitted ultimately by a fair, moral process (a requirement of pursuit of a moral community). • All negotiators have a factual basis for fully intending to fulfill their agreements (a requirement of trust ).

21 This section relies on Robinson (2020, Chapter 8). 22 See Chapters 2 and 3 for a full description of the CIP, and the use of terms such

as universality, respect for the dignity, and the pursuit of the moral community. Note that Habermas (1996) also makes similar Kantian judgments about rational discourse.

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These conditions utilize the Kantian notion of “harmony.” When we apply this ideal notion of harmony to some abstract community, we mean an ideal state of all the community’s members cooperating in pursuing the moral maxims established. In this context, harmony in negotiation requires that each negotiating party respects the other’s pursuit of their own ends. This requirement applies even when negotiations occur among disparate constituents with varied community interests. We must assume that our social norm is that each party pursues Kant’s proposition of mutual dependence as presented in Chapter 3. But guides such as these are eminently practical. They reflect actual negotiations where parties use these criteria to assert, “That is not fair!” or “OK, that is fair!”. 3.1

Notions of Ethical Negotiators

Consider international environmental agreement such as The Paris Accord or the United Nations Convention for the Law of the Sea (UNCLOS). These treaties are negotiated between governments. In these cases, we must assume that representative negotiators are capable, but we must also assume that they might be subject to political pressures from perhaps biased narrow interests such as those pursuing only the commercial interests of the respective country. For our purposes, we should consider the negotiators as not being individuals, but rather governments or perhaps other entities acting as non-government organizations (NGOs). For the purpose of discerning when negotiating positions represent only narrow interests, or when the final agreements might be warped toward those interests, we can make comparisons with our norms of fairness as reviewed in Chapter 3. Toward this end, consider the following set of negotiator characteristics: (i) Logic requirement: The negotiating parties must act as having at least the average intelligence of applying inductive logic to reach an agreement. (ii) Knowledge requirement: The negotiating parties must demonstrate knowledge of the issues to be negotiated, and all the relevant evidence affecting those issues. This precludes an ideological approach for interpreting the evidence. (iii) Transparency requirement: The negotiating parties must be fully transparent concerning all the interests they represent.

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Attempts to find solutions to environmental problems may require creativity which would be lacking without applications of inductive logic as in (i). Avoiding the logical implication of the evidence, as in applying (ii), may reflect pursuit of some narrow interests rather than broader public interests. Also, with respect to (ii), the critical environmental evidence for these negotiations tends to be scientific and/or socio-economic. Without full and logical consideration, only the narrow political interests could be pursued, but broad political pressure placed on these negotiations requires that (iii) also be fulfilled. The latter two traits are those required to assure the pursuit of a moral community, which we must assume is the ideal philosophical purpose of the negotiations even if the observed result is found lacking.23 But if we are to list norms for these environmentally related negotiations, then perhaps they should also include: (iv) Noble nature: The negotiators must have the noble nature of voicing their reflective ethical reasoning among interested and affected parties. The negotiators must not be willing to negotiate for an unethical result. For example, the norms of the categorical imperative must not be violated. They are what we commonly believe are necessary to pursue our ideal. Without the noble nature being a characteristic of at least one of the negotiating parties, it is very possible to reach an agreement that violates the categorical imperative and therefore result in an agreement society would deem as immoral. This “noble nature” is therefore essential for the moral character of the negotiators. But in addition, we might also consider a non-Kantian characteristic: (v) Sympathy characteristic: The negotiators must have sympathy for the pain and misery of others. Perhaps this trait of “sympathy” really goes along with (iv). It might motivate the noble nature referred to above. It is more Hume than Kant.24 23 Habermas (1996) also makes this Kantian point. 24 The Scottish philosopher David Hume (1711–1776) emphasized the effects of

emotion (sympathy for the suffering of others) on ethical behavior. This is not a Kantian

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Habermas (1999) particularly argues that all parties must be capable of and exhibit empathy for each other’s situation in order to facilitate a moral result. In addition to these prior characteristics of negotiating parties, the negotiators must pursue objectives that are ethically appropriate for all constituent groups. These objectives of fair negotiations are explored next. 3.2

Objectives of Fair Negotiation of the Principle of Initial Position

Today, environmental negotiations are usually between government agencies and NGOs who represent the public’s interests, or NGOs who represent business’ interests, or all three. They often begin with the conception that, “You have been polluting, and this must stop!” The negotiations are either in court or in the political regulatory sphere where claims of “You are the polluter!” are countered by arguments that the pollution is necessary or economic activity will be destroyed. Both parties know that the current condition of pollution must change, but the question is “to what?” The parties are negotiating the final state, not the current unacceptable state. Why? By their nature, externalities are unfair impositions of the deprivation of property rights. The polluter knows that she/he is depriving others of their right to breath clean air, or drink and enjoy clean water, or to not be poisoned. Polluters recognize that they are depriving others of public goods. But what will be the final situation after negotiation? That is what the negotiation is ultimately about. The initial position of the negotiation should be focused on the expected final position. For example, consider the current negotiations over the South Florida wetlands we call the Everglades, an area that has been severely polluted by runoff from Big Sugar interests just north of the wetlands. As documented in Chapter 10, Big Sugar has been heavily subsidized through public water diversions, import restrictions, and agricultural price supports. Because of these, cane sugar production in Florida has been significantly large and severely polluting of this threatened and important natural area. The Everglades are necessary for the ecology of the South Florida area upon which its massive recreation and tourism industries depend. Big Sugar’s massive pollution will be either eliminated position where only reason should prevail, not emotion as a manipulator of reason. See Broakes (1995, pp. 377–381).

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or substantially altered, but what will the final result be? Big Sugar’s negotiation position is over what it can save in subsidies and/or expense in cleanup.25 In general, the objective of fair negotiations should be to reach a stable agreement (defined here) from which all affected parties expect to benefit as compared to not having the negotiation. But this “expect to benefit” should be judged by comparison with what is presumed the final result would be, not from a static current situation. Definition of stable environmental agreement A stable agreement is one that all parties accept and expect to leave them no worse off as compared to the most likely result without the agreement. In this sense it exhibits Pareto optimality in that all parties believe that nothing better could be achieved without at least one party being hurt as compared to the likely result without negotiation. This agreement is expected to persist until the relevant information and/or circumstances change.

A Pareto optimal solution is one for which any further bargained movements would likely leave at least one party worse off. To assure that Pareto optimality is obtained, the negotiators should have the five characteristics reviewed above. They must also desire to find this optimal result, and also have all affected parties represented in the negotiations. The idea is to ultimately reach a stable solution that leaves all affected satisfied, i.e., not wanting to overturn the result. To achieve any Pareto optimal position that is acceptable to the parties, three necessary conditions must be met: • there is no informational disadvantage for any of the parties, • there is no deception on the part of any negotiators, and • none of the negotiators exercise coercive power over the others. The agreement then is “negotiated,” not merely imposed. These necessary, but not sufficient conditions for stability are contained in the suggested rules presented in the next section. Coercive power, however, typically exists in government, but fairness in the final position allows some room for regulatory flexibility in the resulting requirements. For example, how much restoration must be enforced in a cleanup? 25 This observation is of Spring, 2020.

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3.3

Six Posed Rules of Fair Negotiations

Is it possible to articulate rules that would facilitate the achievement of a stable environmental agreement ? This section attempts to list some slightly obvious norms from which deviations will clearly indicate unfairness and promote instability. To establish rules of fair negotiations we can borrow some concepts from Rawls (1951, 1958, 2001) as reviewed in Chapter 3. (Applications of these rules will be illustrated by the examples reviewed in Chapters 10 and 11.) A system for these negotiations should involve: • competent moral negotiators as defined above and in Chapter 3, • reasonableness in that the negotiations would lead to similar results under similar circumstances involving other competent moral negotiators, and • negotiators who engage in sufficiently sociable conduct to reach a “reasonable” result. The objective is to reach stable agreements that are expected to benefit all the involved constituents. This combination of competent moral negotiators and guides for fair negotiations expresses the notion of “reasonable” as it is used here. This section suggests six rules of negotiation as derived from the three points presented immediately above. Their applicability to environmental negotiations are reviewed where the complexities resulting from factors such as the “power to negotiate,” and the “inclusion of all affected parties” are addressed. The six rules include the following. (i) There is no deception involved in the negotiation. It is clear that the rule prohibiting “deception” is required of Kant’s formula 2 of the categorical imperative (CI). Deception is essentially a lying promise which is one of the five maxims Kant (1785, 4: 421– 423) offered as examples of using the CI. In this context, deception is purposeful reneging on the fairness of the agreement. In any case, it certainly violates the CI. It therefore must form one of the rules of fairness. It poses a perfect duty. (ii) Each negotiating party is not disadvantaged due to any inequality of information access.

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Rawls (1958, 2001) terms this rule “the publicity requirement.” The rule for equality of information access is theoretically essential for fair negotiations, but for environmental negotiations this rule is often difficult. Even if all negotiating parties have equal access to the same information, some might still interpret the information in a biased manner. The rule, if followed, can only assure equal access to scientific information, not equally intelligent use. We can say, however, that this rule is necessitated by the universality requirement of the CI. No negotiating party would willingly accept an information disadvantage in negotiation. They therefore must accept a moral maxim that all be able to access relevant information. This rule is obviously also required by the formula for the respect for the dignity of others. We cannot keep to this formula while knowingly having important information that our negotiating counterparty does not have. Also, those who are serious in their motivation of pursuit of the moral community will reason that this pursuit is not possible from negotiations that do not begin with a level informational playing field. A stable agreement is not likely to be reached without this rule since the party without access is likely to feel cheated by the result, and upon discovering the unfairness will attempt to overturn the agreement. This rule appears at first to be a perfect duty, but situations might require limits when denial of information access is required for other ethical reasons. There may be situations when imperfect duty is required to offset these unavoidable consequences. These situations are addressed below in, “Compensation Criteria When Violations of Rules are Unavoidable.” (iii) The negotiating parties must have the power to negotiate. Power is the ability to control outcomes. With respect to negotiation, the only ethical outcome worthy of exercising power is fairness. Coercion in negotiation (forcing someone to accept an outcome imposed under threat of violence or some other onerous alternative) must be avoided given our fairness concept. To be fair in environmental agreements, all negotiating parties who do have potential coercive power must try to assure their counter parties that this power will not be used to force them beyond what is agreed to. This is an imperfect duty.

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(iv) The negotiating parties are free to negotiate; there are no legal or other encumbrances on their authority to negotiate and reach an agreement. As an example of “lack of authority to negotiate,” consider a government entity that might not be able to overcome all the domestic law relevant for resolving some environmental issue. It should not suggest that it might have this authority because that would be deception. All parties must be made aware of any legal restrictions on other negotiators. The negotiator cannot negotiate away property rights or compensations not under its control. It might be argued that such a situation could be subsumed under requirements (i) and (ii), but it is listed here for emphasis. (v) Every party that is affected by the negotiation is equally represented in the negotiation. There are no externalities resulting from the agreement. This fifth rule should stand alone although it is related to the fourth rule. It is certainly not fair that two parties negotiate a negative externality to be imposed on a third party such as “Let you and I agree to dump our garbage on the property of our neighbor.” At least, we cannot negotiate this without the neighbor fully participating in the negotiation and be compensated accordingly. All parties affected must have the opportunity to participate equally in the negotiation. Without this rule, we could hardly state that any of the three formulae of the categorical imperative would be followed. Note that this requirement poses equity difficulties with respect to future generations and those at distance, difficulties addressed in previous chapters. (vi) The counter parties communicate and explore various options for negotiations. Negotiators need to communicate possible Pareto movements (bargained outcomes that benefit all) in order to actually reach an agreement. Rawls (1951, 1958, 2001) requires this under the umbrella of being “reasonable and rational.” This actually follows, however, from the logic requirement for negotiations. Logic dictates that the negotiators communicate various possible solutions. This requirement, however, also eliminates laziness on

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the part of negotiators, i.e., they could be logical but lazy. As a result of this laziness, no Pareto movement occurs although some are possible but not discovered because of the lazy efforts of the negotiators. This requirement poses an imperfect duty since it is one of “how much effort to expend” to discover Pareto movements. 3.4

Definitions of Fair Agreement and Extent of Negotiations

There are some additional important and useful concepts for this environmental analysis. Consider two questions: 1. Once negotiations have begun, if the rules of fairness are maintained, must any bargaining agreement result in a Pareto move? 2. If negotiations continue under the rules of fairness, will a Pareto optimal position eventually be reached? It has been argued so far that the answer to both these questions is “yes!” This is one of the purposes of this exploration of the fairness issue: fairness facilitates both the continuance of negotiations and the ultimate achievement of a Pareto optimal position. Such a position, where all parties are better off and no additional bargaining would be beneficial to either, promotes a continuance of harmony and stability (defined above). As a result, the following definition is useful: Definition of fair agreement: A fair agreement is one agreed to by all affected parties, and that has been reached according to the rules of fair negotiations reviewed above.

It might be argued that the negotiating parties could start with some initial position, meet all rules of fair negotiations, and move to some position that is not strictly a Pareto move, one that leaves only one person better off, but the other no worse off. One must ask the question, however, “Why would the person who is not better off agree to the move?” Was coercion involved, or some other violation of fairness ? Perhaps some other side agreement was reached that left the negotiating party actually better off? This is a particular problem that involves what is termed the extent of the negotiation, and is explored here. The answer to both questions, however, must be “It is not possible!” If the rules of fairness are followed, then all parties will inevitably be better

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off, and therefore harmony must be facilitated assuming all understand what exactly is being settled. We mean by this that if stakeholders have an a priori disposition to pursue harmony, then following the rules of fairness, they should inevitably be left better off as a result of the negotiations. They should therefore not be left frustrated. Their disposition to pursue harmony should result in a stable agreement. The following definition concerning the extent of the negotiation is therefore relevant and applicable. As indicated above, negotiations are often multi-dimensional. Rather than simple negotiations over goods A and B, they may also be over C, D, and E, all simultaneously to be settled. For the purpose of avoiding misunderstanding and consequent frustration, it is therefore useful for us to define the range of outcomes subject to the negotiations. Definition of extent: The extent of the negotiations consists of all of both the positive and negative goods to be distributed by the negotiated agreement. (A “negative good” is one that is undesirable; a “positive good” is one that all negotiators desire.)

A principle problem occurs if there is no clear understanding as to this extent of the negotiations prior to reaching the agreement. This is a problem that frequently occurs; one that can lead to considerable frustration and anger, and therefore an unstable agreement. The problem has considerable potential to disrupt the community’s harmony. As an illustration, consider negotiating for restoration of a watershed via reductions in agricultural runoff. The reduction in runoff is successful, but this results in a land-use change from agricultural to suburban development. As a consequence, the land is developed with all the suburban water runoff. The negotiators may have thought they were achieving some sort of land set aside to be preserved without pollution, but this environmental goal is ultimately frustrated. The negotiation may be between an environmental coalition and government entities, but the extent of the negotiation is not understood. It should have included restrictions on the suburban water runoff as well as the agricultural runoff. With respect to the environmental regulations of this sort, the extent often concerns the regional borders within which the regulation applies. The examples explored in Chapters 10 and 11 illustrate the associated difficulties with negotiating the extent.

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Violations of Rules and Compensation

As reviewed in detail above, “fairness” requires an attempt to leave both parties better off as a result of the negotiations, where “better off” is in comparison to what is expected if society were to coerce a result without negotiation. Conducting “fair negotiations” with multiple counter parties, however, can be problematic when interests within one of the negotiating groups are divergent. How can one assure that some group is not being hurt while all others are better off? Consider a Waterkeepers Association negotiating to restore a local river. The constituents include local government entities and local landowners. Since positive externalities involving increased revenue from commercial interests, and increased real estate values, the community’s net tax revenues will increase. Assume, however, that some interests will likely be hurt—perhaps an auto repair shop that abuts the river at a crucial sight, and that must be relocated. This poses the issue of compensation in multiparty negotiations—winners might be able to compensate losers and still leave considerable net benefit increases for the winners. 4.1

Negotiations with Multiple Counter Parties

With group negotiations, we can revert to Rawlsian analysis to explore issues of representation within the group. Are some group members being coerced by other group members? Is information equally assessable to all? Are decision and voting rights equal within the group? To the extent that negotiators have any influence over these, or other fairness issues involving the group dynamics of the counterparties, negotiators should attempt to ameliorate these fairness issues, not by forceful decree, but by negotiation. It is important to remember that harmony within the counterparties is likely to be in the long-term interests of the community. It can be short-sighted indeed to try to exploit counterparty group dynamics in such a way as to prevent some group member from being better off. Why would this be the case? The answer is that conflict is likely to lead to disharmony within the organizations involved.26 Such settlements are

26 Hahn (2004) and Bosse et al. (2008) indicate reciprocal attacks on the efficiency of the firm when unfairness is perceived in business negotiations.

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therefore not stable. These issues often involve the development of what is termed countervailing power. Power abhors a vacuum, and this is especially true when negotiating power positions. Counter parties who perceive themselves as weak will certainly be dissatisfied with the outcome of any negotiation. Disharmony results when stakeholders have a psychological reaction to believing that they are weak. Even if the counterparty does negotiate a position that leaves them better off, the belief that they are weak is likely to solicit a response that they could have done better. This frustration manifests a desire to seek some sort of power leverage, either by banding with other counter parties, or by seeking some position prior to negotiation that all involved should respect. The Waterkeepers example immediately above (involving the relocation of the auto repair shop) might apply as an illustration. Notions of “This is my private property!” can cause those badly affected to lead community protests even though more than adequate compensation is provided. To obtain a team-like atmosphere where counter parties believe they have an interest in seeing the success of the negotiation, counter parties need a sense of power and ownership. To the extent that this power and ownership facilitates cooperation and therefore promotes the interests of all stakeholders, then it is obvious that negotiators should not resist this development of countervailing power. Examples of the development of countervailing power are presented in Chapters 9–12. As an example of this, consider negotiation with a business over possible tax breaks, transportation roads, or other amenities beneficial to the firm. Perhaps the community has considerable leverage over this business in that if the community withdraws its support, the business would be severely hurt. Negotiators, however, must keep in mind the political power the business might exert in the future. Using the community’s current political power in current negotiations could lead to a disgruntlement that manifests disharmony and attempts to hurt the environmental effort in the future. A negotiating team that attempts to intuit and decree a solution of what it perceives as “fair” need not ameliorate this disgruntlement. Claims of “The elite are dictating!” might result. Allowing the business to at least act as though they have power in negotiation, or perhaps allowing it to develop countervailing power so they can more properly represent their longer-term interests, is more likely to lead to an harmonious and therefore stable agreement. It should be readily perceived that this could be in the interests of all stakeholders.

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Issue of Trust in Negotiations

The notions of low-power versus high-power constituents are important for understanding “trust” in negotiations. Van Buren III (2001, p. 487) argues that the existence of power differentials necessitates stakeholder theory as we know it. Low-power constituents are those with limited ability to affect the result. High-powered constituents can affect the result in such a way that the community would strongly desire to fulfill any agreement reached with them less it would suffer substantial consequences. These high-power constituents need not worry about trusting the community’s intentions. The low-powered group, however, needs to worry. Also, low-power constituents often perceive themselves as having a lack of choice and are therefore more likely to consider themselves as being coerced into an agreement. Their consent is not entirely given freely due to this perception of lack of choice. Low-power constituents must rely on “organizational trust” since they do not perceive that they have the power to assure fulfillment. Communities have three characteristics that determine this trust: • The community must be perceived as having the ability to fulfill its agreements. • The community must be perceived as having the intentions to fulfill its agreements. • The community must be perceived as having a record of integrity in fulfilling their agreements so that its intentions are considered probable. These are the trust factors that might affect the ability of the negotiating parties to reach fairly negotiated agreements. Because of the perception of coercion issue, compensation criteria may apply to low-power constituents as reviewed below. Trust in negotiations is the basis for fair settlements. For example, parties are not likely to reasonably negotiate if they perceive that the rules of fairness are being violated. Agreements can only be Pareto and stable if based on trust. The rules can facilitate these agreements, but trust is the basis. Constituents will not accept an agreement if they do not trust the other parties.

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Compensation Criteria When Violation of Rules is Unavoidable

Consider cases when some of the rules of fair negotiations are unavoidably violated. Besides the various constituents merely accepting the default of government imposition, perhaps there are remedies available when fairness appears violated. As an example, these situations might apply to rules (ii) and (iii) as repeated below: The counter parties are not disadvantaged due to any inequality of information access. The counter parties communicate and explore various options for negotiations.

These might pose two fairness violations which we might typically expect to find. Consider the example of the Waterkeepers Association purchasing land along the riverbeds. If the Association is to purchase the necessary real estate parcels without a radical increase in price, it must do this quietly, one adjacent parcel at a time. Note that the increase in price might occur once the public becomes aware of the future improvement in environmental amenities. To make this problem more realistic and interesting, also allow the real estate where the planned expansion is located to be depressed due to the degraded environment, so that prices are very low. The real estate market does not realize that a change in environmental amenities is looming. We note that this situation violates the equality of information rule, and also the rule concerning exploration and communication of various options. These rules are violated due to the rational economic need for secrecy. Knowing that the negotiations cannot be entirely fair, what can the negotiators do? The answer lies in the compensation criteria. For any agreement where the two guides for negotiations indicated above must be violated, the negotiators must have a prior expectation that the following compensation rule will be met: Compensation guide for violation of rules of fairness: When the guides indicated above must be unavoidably violated, a fair agreement requires an expectation that ex post, compensation will be paid by those who benefit to those who lose. Only if both negotiating parties are expected to be better off after the compensation can the negotiation be deemed fair.

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For the watershed restoration example explored above, this compensation rule requires that negotiations must form an expectation of the real estate prices if the expansion plan was known by all. To attempt total fairness and stability, negotiators should expect that they can and will be able to further compensate the real estate sellers once the expansion is completed. Of course, the expansion project must be judged as worthy even with the compensation being paid in order to proceed. With the necessary compensation, the real estate sellers will not believe they are cheated. The community interests will not feel frustrated, and a harmony can continue. Given that the purpose of the norm posed by the guides of fair negotiation is to discern unfairness and to suggest its consequences, this real estate example perhaps illustrates that objective. A lack of harmony leads to the sort of frustration that disrupts cooperation among stakeholders. We must recognize, however, that there are instances when this pursuit is not possible. There are situations when low-power stakeholders believe they have no choice but to accept an agreement. They might believe they are coerced into accepting the terms. To establish stability, the compensation criteria applicable to this lowpower stakeholder problem should be considered as the fair action. It should be sufficient to provide a Pareto move given the community’s search for a stable agreement.

5 Fairness Issues for Environmental Negotiations The environmental involvements addressed in this chapter include attempts to reach a variety of local agreements concerning (i) resource reallocations, (ii) local restorations of assets such as degraded watersheds, (iii) the prevention of pollutions that migrate to other locales, and (iv) many similar agreements. These agreements often take place between various public-coalitions or NGOs and various government agencies and institutions. They also extend to international compacts such as the Paris Accord that are aimed at combating global warming, or combating other widespread global problems such as widespread ocean pollution, or the elimination of wildlife or sea life. Whether these agreements exhibit flaws of unfairness can be judged by the Rawlsian criteria reviewed in Chapter 3. For convenience of applications to latter chapters, these Rawlsian fairness criteria were summarized into four categories, which are repeated here:

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The informed criteria: All relevant information (both scientific and socioeconomic) is considered without ideological bias by those affected, and is logically reflected in the negotiations.

Criteria of inclusiveness : All affected parties have representative access to the negotiations, and all have the “power to avoid coercion.” All affected also have access to relevant information and are represented in the negotiations. As a result, paternalism is not present.

Corruption or integrity criteria: All of the agreement’s negotiations are without deception, and all negotiators are transparent with respect to their interests, i.e., they have no hidden conflicts of interest . The objective evidence and judgments indicate that all negotiating parties have reasonable expectations of being able to, and fully intending to, fulfill their commitments. Also, all negotiating parties exhibit “the noble nature” of voicing their ethical concerns in the relevant social settings.

Logic and diligence criteria: Those involvedin negotiating and reaching the agreements must communicate and explore the options for resolution of the relevant environmental problems. They must demonstrate the creativity and inductive logic for developing the best solutions to these problems. In this sense, the agreement must be judged as logical according to the “Rawlsian stability criteria” explained above.

These four characteristics are hereafter termed the criteria for “fair and reasoned” environmental discourse and decisions . They are grounded in the Rawlsian criteria for competent moral judges and considered moral judgments. If the four fair and reasoned characteristics listed above are met, then the Rawlsian criteria are also satisfied. Beyond the application of the fair and reasoned criteria to environmental negotiations, they also apply ex post to the environmental decisions of our government agencies (EPA, Army Corps of Engineers, and others). They implicitly require reasoned social discourse in that they are: • inclusive of all constituents, • informed of all relevant information, • logical in resolution according to the Rawlsian stability criteria, and

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• uncorrupted by conflicts of interest among decision makers, and • because of the above, not paternalistic. All of this “fair and reasoned criteria” as explored in this chapter are applied to the example cases examined in Chapters 9–12. For an example of application of these four sets of criteria, consider the Paris Accord, which is aimed at the mediation of global warming. This Accord is an example of inclusiveness in that 196 nations have signed this treaty; hence all willing nations can be included. It is also an example of reasonableness in that each nation develops their own options for reductions in carbon-based emissions. This encourages creative and logical solutions for global warming. In a particular sense, however, it may be lacking in integrity. Why? Having signed the Accord, the US developed strategies for reduction in carbon emissions via development of renewable energy, but recently the Trump Administration withdrew from the Accord. (The Biden Administration recently, however, rejoined the Accord.) Having made the commitment, the Trump Administration tried to renege. This questions whether the US will be judged as reliable in future treaties.27 The Trump Administration argued that the Accord limits US business and questioned the existence of global warming and human involvement. It ignores the scientific evidence of the global common problem and the importance of the Accord’s proposed solutions. 5.1

Guides of Fairness and the Six Biases Against Environmental Agreements

The biases that persuade against reaching environmental agreements were reviewed in Sect. 2. They include: • • • • • •

giving up autonomy, being fooled by the illusion of abundance, having an overly narrow vision, believing “Its gone!” and cannot be brought back, not having a sufficiently broad vision of restoration, and being anti-elite.

27 The Trump Administration has withdrawn from other treaties involving trade and also nuclear limitations.

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All of these biases are mitigated by the fair and reasoned criteria for negotiations as presented above. Inclusiveness mitigates the “autonomy” issue and the “anti-elite” bias. The informed criteria mitigates the “illusion of abundance” bias, and the “narrow vision” bias, and the “Its gone!” bias, and the bias from not having a “broad vision.” The integrity and diligence criteria mitigates all of these biases. In latter chapters, this fair and reasoned criteria allows us to judge the various claims of unfairness due to exclusion, or faulty evidence, or that an elite autocracy is dictating regulations. As a society, we need the confidence to be able to identify these faulty arguments from the legitimate arguments in order to evaluate fair and appropriate environmental agreements.

References Bates, R. H. 1988. Contra Contractarianism: Some Reflections of the New Institutionalism. Politics and Society 16: 387–401. Bjorndal, T., and G. Munro. 2012. The Economics and Management of World Fisheries. Oxford, UK: Oxford University Press. Bosse, D.A., R.A. Phillips, and J.S. Harrison. 2008. Stakeholders, Reciprocity, and Firm Performance. Strategic Management Journal 30: 447–456. Broakes, Justin. 1995. David Hume. Oxford Companion to Philosophy: Oxford University Press, New York, NY. Clark, Colin. 1976. Mathematical Bioeconomics: The Optimal Management of Renewable Resources. New York, NY: Wiley. Elster, J. 1989. The Cement of Society: A Study of Social Order. Cambridge, UK: Cambridge University Press. Gillroy, John Martin. 2000. Justice and Nature. Washington, DC: Georgetown University Press. Habermas, Jürgen. 1999. On the Pragmatics of Communication, Chapter 7 . Cambridge, MA: MIT Press. Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg. Cambridge, MA: MIT Press. Hahn, T. 2004. Why and When Companies Contribute to Societal Goals: The Effects of Reciprocal Stakeholder Behavior. In Proceedings of the Annual Meetings of the Academy of Management, D1–D6. Hardin, Garrett. 1968. The Tragedy of the Commons. Science 162: 1243–1247. Kant, Immanuel. 1797. The Metaphysics of Morals, ed. Mary Gregor. Cambridge, UK: Cambridge University Press.

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Kant, Immanuel. 1785. Fundamental Principles of the Metaphysics of Morals. In Basic Writings of Kant, ed. Allen W. Wood, The Modern Library Classics. New York, NY: The Modern Library. Kant, Immanuel. 1784. The Idea for a Universal History with Cosmopolitan Intent. In Basic Writings of Kant, ed. A.W. Wood, Modern Library Classics. New York, NY: Random House. Murawski, S.A. 2017. History of the New England Groundfish Fishery. www.nefse. noaa.gov/history/stories/groundfish/grndfshl.html. Nichols, Tom. 2019. The Death of Expertise: The Campaign Against Established Knowledge and Why it Matters. New York, NY: Oxford University Press. Olson, Mancur. 1965. The Logic of Collective Action: Public Goods and the Theory of Groups. Cambridge, MA: Harvard University Press. Oregon Wild. 2017a. What is an Old-Growth Forest? www.oregonwild.org/ore gon_forest/old_growth_protection/what-is-an-0ld-growth-forest. Oregon Wild. 2017b. Northwest Forest Plan. www.oregonwild.org/forests/for est-protection-and-restoration/nwfp. Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. New York, NY: Cambridge University Press. Rawls, John. 2001. Justice as Fairness: A Restatement. Cambridge, MA: The Belknap Press of Harvard University Press. Rawls, John. 1958. Justice As Fairness. Philosophical Review 64 (1): 3–32. Reprinted in Collected Papers - John Rawls, ed. Samuel Freeman, Harvard University Press, 1999. Rawls, John. 1951. Outline Of A Decision Procedure For Ethics. Philosophical Review 60 (2): 177–197. Reprinted in Collected Papers - John Rawls, ed. Samuel Freeman, Harvard University Press, 1999. Robinson, Richard. 2020. The Imperfect Duties of Management: The Ethical Norms of Managerial Decisions. Cham, Switzerland: Palgrave-Macmillan, Springer Nature. Robinson, Richard, and Nina Shah. 2019. Business Environmental Obligations and Reasoned Public Discourse: A Kantian Foundation for Analysis. Journal of Business Ethics 159: 1181–1198. Schuler, Douglas and Andreas Rasche, Dror Etzion, and Lisa Newton. 2017. Corporate Sustainability Management and Environmental Ethics. Business Ethics Quarterly, 27:2 (April): 213–237. https://doi.org/10.1017/beq.201 6.80. Van Buren III, H.J. 2001. If Fairness is the Problem, Is Consent the Solution? Business Ethics Quarterly 11 (3): 481–499.

CHAPTER 6

The Environment as an Input to Production and as a Provider of Amenities

1 Industrial Production and Environmental Amenities Perhaps the environment can be conceptually decomposed into all its natural attributes: our air, water, extractible mineral resources, renewable resources, animal life, etc.1 It appears obvious, however, that the natural environment is really a nebulous and abstract conception that is not easily measured or decomposed, but nonetheless this conception perhaps allows us to envision the environment as measured by some hypothetical index “E.” Perhaps this index can be envisioned as a weighted composite of other indexes such as our estimates of existing reserves of oil, natural gas, and other minerals, and indexes of air quality, fresh water availability and quality, renewable resource availability, species survival, etc. For purpose of a useful analysis, however, we need to momentarily conceptualize “Et ” as measurable at some point of time t. This measure might pose an unrealistic empirical task, but this theoretical notion assists with some useful analyses presented below, so the reader should temporarily indulge this conception. In a similar way to our measurement of “Et ,” allow “It ” to be a monetary measure of industrial production at time t, and allow the production 1 Gillroy (2000) argues effectively that nature is more than the sum of its parts.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. M. Robinson, Environmental Organizations and Reasoned Discourse, Environmental Politics and Theory, https://doi.org/10.1007/978-3-030-75606-2_6

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of “I” to require the change “E” as an input to this production, i.e., extractible and renewable resources are necessary inputs for production, including the resources of air and water. We allow this input to be E t = E t−1 −E t > 0. This sequence poses deterioration of the environmental index E in that E t −1 > E t . This reduction in E is necessary for production, and it represents environmental degradation. We can envision this as a usage of non-renewable resources, but also as a possible deterioration in water and/or air quality, or other negative impacts. Later we allow a corresponding enhancement of the environment and we also allow efficiencies in the productive use of E t . This poses a more optimistic analysis. But here we assert the “production function” of Fig. 1, which is concave from below due to diminishing marginal returns to the factor input E t . The appendix to this chapter provides the analysis of this function and its concavity. Improvements in either the efficiency of the production of I t from E t (i.e., increases in the marginal product), or in the enjoyment of the environmental amenity, might lower the public’s demand for degradation associated with production. (This is particularly the case with the possible positive externalities associated with levels of environmental amenities.) In addition, at some point society might find alternative sources of productive inputs such as renewable energy and alternatives to non-renewable mineral extractions, but also enjoyment of the environmental amenities might become so great that the public does not favor any further degradation; perhaps the public would demand restoration.

Fig. 1 Production possibilities frontier for I t and E t

It Production Function For I and ∆E

∆Et

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Welfare Analysis of Production and Environmental Amenities

Welfare economics ostensibly concerns the public’s preferred mix of production, distribution, subsidies for the disadvantaged, production of public goods, enjoyment of environmental amenities, and for our purpose the tradeoffs of industrial production versus environmental amenities. These public preferences are constrained by the actual production possibilities briefly reviewed above. Welfare economics is a subject that naturally stems from neoclassical economics, and was originally rooted in utilitarian philosophy which is very different from the Kantian deontology reviewed in Chapters 2 and 3.2 The rhetoric of hypothetical tradeoffs of environmental amenities versus industrial production include the nebulous conceptions and arguments of welfare efficiency. These claims are “nebulous” because the basic supposition of welfare economics is that we can envision a hypothetical social welfare function for society’s creation of such entities as our industrial production (I t ) versus environmental amenities (E t ). This social welfare function would presumably reveal society’s preferences for these goods. Such preferences, however, are extraordinarily difficult to measure. Figure 2 gives society’s production possibilities frontier (PPF) for these goods (where the appendix to this chapter analyzes its shape), but can we theoretically apply society’s preference function for one good versus the other and obtain a welfare maximizing production combination for I t and E t ? If we can theoretically do so we still have significant practical difficulties to overcome, and significant necessary assumptions in order for society to obtain this preferred combination. We will examine these difficulties and assumptions in this and latter chapters where our institutions in charge of our resources (such as the US EPA, Army Corps of Engineers, BLM, and other federal and local institutions) must grapple with these problems. Assume our society’s welfare function is just the sum of our individual utility functions (the individual preferences are formed in isolation from one another), and also assume that these individual utility functions exhibit the neoclassical characteristics of diminishing but positive marginal utility to both E and I . In this case, our social welfare has

2 For reviews of welfare economics, see Samuelson (1974, Chapter 8); Henderson and Quandt (1958, Chapter 7); and Ferguson (1972, Chapter 16).

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Et

Fig. 2 Production possibilities frontier for I t and E t

Et* PPF

a theoretical maximizing solution for the combination of It∗ and E t∗ .3 (See Fig. 2.) The problem then becomes, “How do we establish this welfare maximizing solution?” If we had markets for these environmental amenities, then in the absence of negative externalities and distributional problems in our economy, the free and competitive market might then generate this optimal solution. Our environmental amenities, alas, almost entirely consist of public goods, i.e., not subject to being packaged and sold on the market. As a result, the question remains, “How do we establish society’s preferred amount?” The answer lies in our societal decision process of fair and reasoned public discourse, especially as it involves our environmental advocacy organizations and coalitions. Prior to this further consideration, however, we need to examine in more detail the problems with market selections of “E” versus “I.” (Note that the appendix to this chapter presents an analysis of the concavity of the PPF presented in Fig. 2.) This conceptual measurement of E t∗ is not straightforward; it suffers from the following problems: (i) The index E is a nebulous measurement at best. We are very unlikely to ever be able to pin down a practical set of relative weights for its components. Also, for these environmental choices, we cannot envision any market-based solutions. Individual consumers presumably know their purchases of I , but not of E. People know what they purchase, but not the environmental costs, and they are not directly confronted with the valuation of “E.” (ii) The utilitarian concept of social welfare being just the additions of isolated individual utility functions is faulty when we have 3 See the references in footnote 2.

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interdependent utilities, i.e., when your welfare is my concern, and my welfare is your concern. (Note the Kantian interdependence proposition of Chapters 2 and 3.) In this case, only a group command decision can pose an optimal solution, but even that is subject to significant disagreement given the difficulty of measuring “E.” (iii) Distributional effects, especially across different geographic regions, make decisions about “E” difficult. For example, how much “E” do we provide for the US Pacific Northwest versus the industrial Northeast? People with lower demands for environmental amenities might locate in industrialized areas for the possible higher income, and people with higher demands for environmental amenities might locate away from these industries. These decisions are not easily amenable to neoclassical welfare analysis; yet while recognizing these problems, our Government agencies attempt to resolve these dilemmas through our standardized cost–benefit analyses. These brave and knowledgeable attempts are reviewed here and in latter chapters. As reviewed in the previous chapter, in support of our environmentally related regulatory, restoration, and preservation decisions, our government agencies solicit informed, inclusive, and uncorrupted information from our business interests, environmental organizations, and all other affected interests and relevant expertise. We expend our resources accordingly. This is the decision process reviewed in this and other chapters. To further advance this analysis, however, we need to review the impacts of these efforts on the very valuations of “I” and “E.”

2

Considerations of Valuation

As previously analyzed, allow us to theoretically measure an index “I” for the total value of industrial production, and an index “E” for the value of environmental amenities. The production possibility frontier (PPF) of PPF1 in Fig. 3, is shaped similar to that of Fig. 2 since we assume that the usual decreasing marginal productivity assumptions apply. In Fig. 3, we assume that PPF1 is our current tradeoff possibility, but PPF2 is what we typically and mistakenly think of as the result of social regulation of industry where we expand the possibilities for environmental amenities but restrict industrial production. PPF3, however, is the potential future

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Fig. 3 Production possibility frontiers with the environmental— technology dynamic: I is the index of industrial production and E is the index of environmental amenities

E PPF3

PPF2 PPF1 I

function when we correctly take our changing technology into consideration, together with the induced changing tastes for environmental amenities. For example, we have changed from the old blast-furnace cokerelated steel production to new technology that is much cleaner and more productive. We simultaneously improve our possibilities via more environmentally friendly production and greater delivery of amenities. In economic terms, we reduce negative externalities, but promote positive externalities associated with environmental enjoyment. The resulting PPF3 is therefore an outward expansion of both the value of industrial production (I ) and the value of environmental amenities (E). Note that we value the cleaner production greater than the polluting production. This appears to be a reasonable analysis. This is the natural result of people discovering and enjoying the improved environmental amenities. This situation of PPF3 is not merely that simultaneous industrial production is cleaner while environmental amenities improve, but that the former is directly generating the latter. This describes a positive externality associated with environmental improvement. When we begin with environmental degradation and then improve through cleaner technology or other changes, the populace will often begin to enjoy these amenities to a greater degree and then demand more.4 This is an environmental—technological dynamic. It is an essential dynamic associated with environmental restoration. 4 Increases in wealth is associated with technological advances for society. Wealthier people locate where environmental amenities are stronger, and they expend resources on enjoying these amenities.

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As an example of this dynamic, consider the pre-1980 degradation of Boston Harbor (Massachusetts Bay) by sewage. Improvements in sewer treatment technology began in the 1980s. The new sewage treatment system was completed in 2001 and the water quality of the Bay and area beaches dramatically improved. The use of the harbor for recreational fishing and boating increased. Early in the 2000s, however, the area noted that the construction had damaged the Bay’s natural eelgrasses that the crustaceans and other sea life relied on for habitat. Methods for the restorations of these grasses had been successfully researched in the previous decade, and these methods were then used in Boston Harbor during 2004–2007 by the Massachusetts Division of Marine Fisheries. The ecology of the system was restored, and the recreational usage currently continues to be significant.5 The initial environmental improvements led to the public demanding further improvements. Science and technological improvements advanced to provide the methods.

3

The Equity Considerations of Future Generations and Distant People

In our system of moral construction, society’s legal regulations should apply as perfect duties assuming our categorical imperative process (CIP) is followed for their formation. As reviewed in Chapter 2, the CIP assumes a high degree of reasoned social discussion that is open to all. Rawls (1980, 2001) reviewed the Kantian requirements necessary to assert that society’s regulations are fair, but Rawls’ analysis did not directly consider environmental issues, especially those involving intergenerational equity, and fairness to people at distance.6 This consideration is addressed below, however, by applying Rawls’ broad philosophical principles to these issues. It is shown here that the Rawlsian criteria for considered moral judgments are applicable to the formation of environmental policies.7 This set of objective criteria assists in clarifying the nature of “reasoning” in the

5 See www.mwra.state.ma.us/01news/bhpenvironmental/success/bhpenusuccess.html. 6 Rawls analysis primarily considered distributional issues, and not environmental issues,

but the philosophical principles of the former also apply to the latter. 7 See Rawls’ (1951), and Chapter 3 of this text for these criteria.

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context of reasoned public discourse. Reviews of the equity-related problems (the intergenerational and distant people problems) are presented in this next section. 3.1

The Intergenerational Problem

Rawls (1987) argued that any social conception of justice derived by the CIP should be sufficiently acceptable to the populace as to be stable from one generation to another, i.e., it should be built upon those lasting moral foundations that are acceptable to overlapping generations. With respect to these moral foundations, Rawls (ibid., p. 427) states, They are both general and comprehensive moral doctrines: general in that they apply to a wide range of subjects, and comprehensive in that they include conceptions of what is of value in human life, that is the ideals of personal virtue and character that are to inform our thought and conduct as a whole. Here I have in mind Kant’s ideal of autonomy and his connecting it with the values of the Enlightenment.

This notion of autonomy, as applied to the problem at hand, must counter any paternalism toward the needs of the future or for those at distance. The public’s current preferences for the myriad of environmental amenities we might enjoy versus the consumption of other goods must not be imposed on future generations as though they are mere reflections of ourselves. To do so would pose the ethical problem of paternalism, i.e., the imposition of a decision on another (or others) capable of making that reasoned decision for themselves. The essence of the intergenerational problem is the irreversibility of much of our current environmental decisions. What we decide now may not allow a remedy of reversal tomorrow as is illustrated by three broad categories of examples: (i) species extinction, (ii) depletion of non-renewable resources, and (iii) other significant environmental degradations that cannot be reversed without considerable expense. (We might term the latter as “the mess that’s left behind problem.”) Kant’s “axiom of autonomy” lies in the second formula of the categorical imperative.8 If autonomy poses one of those essential comprehensive and moral doctrines that we should use as guides for establishing our practical moral principles 8 See Chapter 2.

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(as in our categorical imperative process ), and it certainly must be, then with respect to our society’s environmental policy decisions, a practical principle of flexibility is implicitly demanded.9 Principle of flexibility: Given that many current environmental decisions have potential uncertain (unforeseen) negative impacts, options for reversal should have considerable value in our cost-benefit analyses.

This principle is best conceptualized through reflections on some current and significant environmental problems and decisions. Two of these are listed here for illustration: (i) the problem of the Florida Everglades and (ii) the problem of water resources in the Western US. We know from financial economics that real options have value.10 For example, the Ogalala Aquifer is the source of irrigation water for much of our Central and Northern Plains States. The proposed Excel Oil Pipeline is being constructed on top of the Ogalala.11 With respect to impacts on the Aquifer, rather than ignoring the potential catastrophic consequences of a breakage in the Excel Pipeline, we should measure the costs of (a) creating a system for which leakages would be immediately discovered and (b) having the pipeline immediately shutdown in case of leakage. Perhaps the costs of creating such systems would be prohibitive, but the costs of catastrophe to the Oglala would be extraordinarily high. These systems would create the option of reversibility in case of breakage so that the value of this option would be high. We should admit that the environmental needs of future generations should not be considered inferior to our own. In addition, our social conception of environmental justice must form “a fund of implicitly shared fundamental ideals and principles.” (Rawls, 1987, p. 427) Such a conception might then be seen as “a fair system of social cooperation” 9 This principle is consistent with Gillroy’s (2000) analysis of environmental risk, and Portney’s (2000, pp. 253–267) contingent analysis. 10 See Hanemann (2000, pp. 268–294), and Diamond and Hausman (2000, pp. 295– 318). 11 A permit for the pipeline was denied by the new Biden Administration, i.e., new as of January, 2021.

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(ibid., p. 428). “General and comprehensive moral doctrines” reached by reasoned social discourse are likely acceptable to each cohort of overlapping generations since logical analysis is easily communicated as compared to emotional declarations. This is true because emotional appeals are based on the current fashions of the sort that are time dependent to the particular age. The history of philosophy, however, illustrates logical arguments that have lasted centuries. Rational arguments are likely to be longer lasting than emotional ones. One problem posed, however, is that these fundamental ideals must include “certain guidelines of inquiry and publicly recognized rules of assessing evidence to govern applications” (ibid., p. 429). This notion robustly applies to environmental inquiry and judgment, especially with respect to intergenerational judgments as explored here. Consider the issue of “shared fundamental ideals and principles.” Who is doing this “sharing?” Presumably, this is answered by the Kantian notions of “everyone” as expressed in the CI. (This assumes Kant’s notion that the CI expresses the common sentiments of the populace.) This “everyone” answer means that we must be fair to both future generations and people of distant lands. The problem is that agreements concerning the “general and comprehensive moral doctrines reached by reasoned discourse,” and the agreement with respect to the scientific evidence relevant to judgments concerning environmental catastrophe, along with the resulting appropriate decision criteria, may be difficult to achieve within one generation, let alone for overlapping generations. Current evidence of this difficulty abounds, as illustrated below. Consider that recent (2017) EPA Administrator Scott Pruitt initiated a rollback of more than 30 recently established environmental rules that he claimed stymied business development. These rollbacks include the following: • a weakening of the Obama Administration’s Clean Power Plan, • a weakening of established rules for curbing pollution in US waterways, • a weakening of established regulations to restrict leaks of methane associated with fossil-fuel extractions, • a weakening of established regulations of chemical plants aimed at preventing spills and explosions, • a weakening of established regulation of pesticides linked to damage of children’s nervous systems, and

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• a withdrawal from the 196-nation Paris Agreement on Climate Change.12 Davenport (2017, p. A4) indicates that these regulatory rollbacks were without consultation with EPA’s staff of knowledgeable scientists, but were composed after extensive consultation with industry lawyers and lobbyists, and also after $4.2 million in political contributions expended from energy-related business. The relevant question is, “Were these rollbacks considered judgments in light of a public consensus concerning (1) the appropriate data to be considered, and (2) the appropriate decision criteria to apply?”13 (Note that the definition of a considered judgment was presented in Chapter 3.) Between generations an overlapping consensus must be formed with respect to what one generation owes the next, i.e., the degree of environmental degradation, preservation, or enhancement desired, allowed and owed. The universal principle of justice, referred to in Chapters 2 and 3, applies to this intergenerational conundrum in that the freedoms of future generations are affected when we make current environmental choices. If we treat the next generation cavalierly, without regard to the quality of its future, without reasonableness or fairness, then it will likely treat the following generation similarly. The environment will collapse from human destruction. To achieve the opposite requires the use of “full public reason,” according to Rawls (ibid., p. 442). “Full public reason” requires that logical public discourse and debate utilize the relevant scientific knowledge as to future environments. This is the focus of reasoned environmental discourse. It should also be noted, however, that one generation might decide that it was unfairly deprived of some environmental resources, and seek its restoration or enhancement, and as a result it bequeaths its conception of a better world to the next generation.

12 On January 5, 2018, the Trump Administration also announced a rollback of restrictions on petroleum drilling in almost all offshore areas of the US. These restrictions have been reinstated by the Biden Administration which also resigned the Paris Accord. 13 The rollbacks concerning methane gas emissions were overturned by a D.C. Circuit

Appeals Court that found that Administrator Pruitt had not followed the “public notice and comments solicitation” requirements under the Administrative Procedure Act of 1946. See Bravin (2017, p. A4). Assuming that this decision is accurate, then the public’s discourse opportunity was truncated. In addition, many of these “rollbacks” were rescinded by the new Biden Administration in January, 2021.

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In our ethical analysis, the pursuit of the moral community must not be generated from egoistic consequentialist motives in that the third formula of the CI provides the moral motive for actions of volition. (See Chapter 2.) Egoistic consequentialist motives are the sort expressed by neoclassical utilitarianism. In keeping with this notion, one generation must consider the impacts on future generations. The third formula does appear, however, to be linked to communitarian motives.14 Identifying with a community in pursuit of environmental initiatives inclusive of the future may provide a vision of oneself as a moral crusader along with a community of others who are similarly moral. This potentially provides a “friendship of virtue” reinforcement as in Aristotle’s Nicomachean Ethics.15 As such, it yields positive psychic benefits, but these psychic benefits are ancillary to the pursuit of the moral community motive, and not the basis of the motive. If it were otherwise, the motive would likely be weak and unreliable. 3.2

Distributional Effects on the Disadvantaged

Real estate values tend to be positively correlated with locally available environmental amenities, provided other confounding effects are statistically controlled. For example, Midwest rust belt locations are close to industrial facilities, such as Gary, Indiana, and its older steel production plants. These have lower real estate values as compared to Chicago’s “lakeshore area” with its parks and Lake Michigan beaches. Middle income and upper income populations pay to avoid water and air pollution, and also noise and congestion given that they still need to locate close to employment interests. But suburban and urban lower-income populations tend to locate close to industrial facilities, old-style energy generating plants, and significant transportation arteries. Rural populations of lower-income tend to locate closer to concentrated animal feeding operations (CAFOs) and those water resources affected by CAFO generated pollution. Areas with degraded environments exhibit lower real estate costs and are therefore more amenable to lower-income location. As a result, lower-income populations tend to be more negatively

14 This is especially expressed by de Shalit (1995) in the environmental context, and reviewed by Nolt (2017). 15 See Robinson (2018) and Cooper (1980) for reviews of this dynamic reinforcement.

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affected by environmental degradation, and higher-income populations tend to benefit more from environmental preservations and restorations. For these reasons, society’s concerns for environmental amenities could be perceived as serving elitist interests. But the cost–benefit analyses of environmentally related projects should be (and are) designed to take these lower-income distributional effects into account (see below). Note that the author’s family experienced an opposite effect in the 1950s. A significant portion of the family’s enjoyment was rendered from the use of the public beaches along the North Shore of Boston’s suburbs. When these beaches deteriorated due to public neglect, the lower-income families of that area suffered as a result. When those beaches again became clean and publicly supervised and controlled, lower-income families again benefitted. The positive correlation between location costs and environmental amenities is therefore somewhat complex. With respect to environmentally related projects (or those that otherwise have environmental impacts), the above observations beg three important questions: (i) Is it fair to expend Federal resources on projects that benefit only a local few? (ii) Might the Nation prefer placing greater weight on projects that positively impact poor under-developed or economically stricken areas even though it does not produce significant National Economic Development benefits (NED benefits)? (iii) Would the Nation wish to negatively affect already marginalized groups in order to generate significant NED benefits? These three questions essentially concern resource transfers or compensations to disadvantaged groups via environmentally related projects. The usual answers to these three questions are to separate the public benefits of resolving problems of the disadvantaged from the generation of positive NED benefits of public projects. Politically, however, these are not easily separable solutions? The answers to the first two questions above are generally “Yes!” The US Army Corps of Engineers identifies disparate impacts on the disadvantaged in analyses of all of its projects including those environmentally related. With particular relation to question (iii), the efficient answer is to generally undertake all projects with positive

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NED benefits, but to compensate those disadvantaged by those projects. (The explicit problems of compensation are addressed below.) The discourse problems posed by the issues reviewed above are: (i) clear identification of those groups impacted, (ii) as clear as possible identification of the disparate costs and benefits impacting these groups, and (iii) clear identification of the methods and amounts that could be used for compensation to those negatively affected. The information necessary to be provided to the decision makers in the political process in order to resolve these “difficulties” is substantial, but clarity in the above can potentially make this public discourse “reasoned.” Once these effects are identified, and the solicitation of public input is issued, the appropriate political discourse is facilitated. 3.3

The Problem of Equity for Distant People

As with the intergenerational problem, providing environmental equity for people at distance requires general inclusive agreements as to the relevant information to be considered, and the appropriate decision criteria to be applied. These are specific problems logically analyzed in the next section, but it should be sufficient here to point out that global warming is the environmental conundrum of our age, and it applies to both intergenerational problems and the problem of providing equity to those at a distance. Distant people cannot equally participate in our own social discourse, at least not without significant effort. The Paris Climate Accord, however, organized by the United Nations Framework Convention on Climate Change (UNFCCC) includes 196 signatories from five continents. The Accord was signed on December 12, 2015. It illustrates the possibilities of overcoming the problems of distance. The Accord seeks to limit greenhouse gas via having each signatory nation pursue its own goals through both expansion of clean renewable energy sources and energy efficiencies; both of which are business problems of great importance. For example, as part of the Accord, France plans to ban all petrol and diesel vehicles by 2040, and to discontinue coal production after 2022. Technical experts are to monitor progress with each signatory agreeing to transparency with respect to this monitoring.

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The ultimate stated goal is to limit average global temperature increases to a maximum of two degrees centigrade as compared to preindustrial revolution temperatures. The agreement does allow for carbon trading between countries to enable reaching their goals.16 The Paris Accord is an extension of the Kyoto Protocol of 1997, which was itself extended by the Doha Amendment of 2012. The former Protocol limited greenhouse gases between 2008 and 2012; the latter extended these limitations to 2015 when the Paris agreement came into effect. These agreements culminated a lengthy process of negotiation among almost 200 countries, but in June 2017, the Trump Administration indicated that it intends to withdraw from the Accord. The earliest possible date for withdrawal was November 4, 2020. This withdrawal attempt appears to be an example of a hard won but abandoned agreement among peoples at great distances, an accord that addresses the most significant environmental issue of our age. This “attempt,” however, was recently thwarted by the new Biden Administration that rejoined the Accord as of January 2021. Chapter 3 reviewed the Rawlsian criteria for considered moral judgments, and these criteria include requiring decisions to be informed and stable across competent moral judges . It is argued that these criteria are relevant to our recent environmental decisions such as those illustrated above. With respect to withdrawal from the Paris Accord, such a longnegotiated agreement among so many countries distant from one another does not appear to be a considered moral decision. Why claim this? Other (195) competent moral judges made the opposite decision.

4

Efficiency and the Coase Theorem

Chapter 3 argued that there is a role for environmental knowledge that is either passively acquired through typical interactions, or that could be acquired through a purposeful search with respect to our concerns. Businesses, however, have natural conflicts of interest with respect to environmental exploitation, namely, business may be able to profit through developing negative externalities associated with environmental exploitation, i.e., dumping costly byproducts on the environment 16 The US National Climate Assessment , a consensus report of scientists at US agencies and peer-reviewed by the National Academy of Sciences, recognizes global warming and assigns the causation to greenhouse gas.

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thereby externalizing them. Classical cases of these exploitations involve water, air, and various poison-type pollutions associated with industrial, agricultural, and suburban development. These business examples stem from the origins of the industrial revolution, but prior to those “origins,” society likely had problems of wastewater flowing past downstream neighbors. Negative externalities have always existed, and perhaps it has always been acceptable in some geographic areas to pollute rivers. Using rivers and streams as sewers for business generated pollutants such as the example of the textile industry’s dumping of industrial chemicals into the Chattahoochee River of North Georgia, or air pollutants from pulp mills as another example, therefore have long histories going back to the origins of the industrial revolution in the US.17 Developing landfills with chemical pollutants from business, such as Love Canal in Western NY, provides other examples.18 The point is that business has historically had conflicts of interest when involved with formation of the public’s environmental policy. These conflicts of interest imply that business’ input must be considered by the public as “biased” in its discourse efforts, but this does not imply that when business acts within the constraints of those fairly established public policies, it cannot contribute to environmental enhancement.19 Business overall may be destructive in its biased influence on public environmental policy, but this does not imply that individual businesses cannot positively affect environmental enhancement through its efforts.20 Preserving the latter while recognizing the problem with the former is required for our public discourse to be reasonable. The Nobel Laureate Ronald Coase contributed strongly to the literature and considerations of negative environmental externalities.21 One of his contributions is the Coase theorem, a version of which is presented 17 See Thoreau (1849) for observations of early-industrial revolution river pollution on the Concord and Merrimack Rivers. Also, see https://chattahoochee.org/water-quality/ for a review of the textile industry’s pollution of the Chattahoochee River. 18 For a review of the Love Canal environmental tragedy, see https://archive.epa.gov/ epa/aboutepa/love-canal-tragedy.html. 19 See Rawls (1951) for an analysis of the ethics of conflicts of interest and the notion of fairness in this association. 20 Cohen and Dienhart (2012, pp. 96–100) considers the moral problem of business’ influences on law formation as a type of corruption. 21 See Coase (1960). Coase won the Nobel Prize in Economics in 1991.

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below. This has been used to argue that negative environmental externalities are not as severe a public problem as often cited. The Coase theorem: (1) Under conditions of well-defined property rights, and (2) in the absence of transactions costs associated with negotiations over property rights, it may be socially efficient for those who exploit environmental resources to continue doing so provided they can sufficiently compensate those who suffer the negative externalities.22 The market can therefore be efficient even in the presence of negative externalities.

One problem with the Coase Theorem, and its implications for compensation, is that we most often do not have “well defined property rights” with respect to public resources such as breathable air or clean water. The public typically does not have the right to sell the quality of air or water to private interests. In addition, the incentives to exploit these resources via pollution also stimulate public corruption associated with the legalities necessary to control negative externalities, such as illustrated by the Ipswich River degradation problem cited in previous chapters. The tragedy of the commons phenomena always concerns public resources and their destruction, and not the destruction of private property rights. These public resources also have considerable positive externalities, as with the old-growth forest and watershed examples also reviewed above. Without public management that is uncorrupted by business, these positive externalities will also be destroyed. Compensation for these externalities is seldom feasible. With respect to the equity problem of degrading the environment for future generations, can we compensate for this degradation via provision of some other good, perhaps technological advances as an example? A public decision to degrade a future environment in exchange for some other non-environmental provision would be purposely paternalistic, as defined above. In this situation, the current generation would decide the compensation for the future generation. “We will take your environment, but as compensation, we will give you this technology that we like!” This is clearly paternalistic in its presumption, and would not occur if current public discourse ethically incorporates the interests of future generations. This is required of our current rhetoric and decision methods, i.e., the

22 By socially efficient, we mean from the standpoint of welfare economics.

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cost–benefit system reviewed below. But can this method resolve the moral problem of paternalism?

5

Cost–Benefit Analysis and Public Discourse

Although there are private good aspects of environmental amenities, these amenities should usually be considered as public goods. They typically exhibit the three characteristics of public goods: (i) they are capable of being used by all in their locale, (ii) they do not have “well defined property rights,” as is stated in the Coase Theorem of the previous section, and (iii) typically (but not always) they can only be controlled by a “public authority.” The theoretical problem posed by these characteristics concerns how, or even if, this “public authority” will be exercised. This exploration is briefly presented in this and the next sections. With respect to public projects that affect our water resources, there are four significant US Federal Government agencies: (i) the Army Corps of Engineers (Corps), (ii) the Interior Department’s Bureau of Land Management (BLM), (iii) The Department of Agriculture’s Natural Resources Conservation Service (NRCS), and (vi) the Tennessee Valley Authority (TVA). These agencies conduct standardized cost –benefit analyses (CBAs) that invite and include a wide range of public input. These CBAs are “standardized” by the Federal Water Resources Council (WRC), an agency first formed by the Water Resources Planning Act of 1965. Its latest set of requirements are specified in its Principles and Guidelines (P&G) of 1983, although these requirements have evolved under public input since that year. These guidelines are sufficiently broad as to allow considerations of our society’s demands for environmental and cultural resources, and also of changes in our preferences for these environmental amenities. These guidelines were formed with considerable public input from various NGOs, government agencies, academics, and individuals. Particular project analyses solicit and obtain input from environmental coalitions (such as the Nature Conservancy, The Audubon Society, and the Sierra Club), other NGOs (such as the American Society of Civil Engineers and the Southwest Power Resources Association), plus academic

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experts involved in relevant research, and other interested individuals and organizations. These analyses solicit and promote reasoned public discourse. They are designed to provide government decision makers with the best estimates of benefits and costs (monetary estimates if possible) for the purpose of ultimate decisions.23 The P&G used by the Army Corps of Engineers (the Corps ) specifies two major objectives: (i) to improve economic efficiency and (ii) to preserve, restore, or improve the quality of natural and cultural resources and ecological systems.24 To serve these objectives, the Corps’ BCAs specify the measurement of two accounts: (i) a National Economic Benefit Account (NED) and (ii) an Environmental Quality Account (EQ).25 These are broad analyses and measurements. They consider local and national environmental impacts. (Some particular cases are reviewed in Chapters 9 and 10.) To the extent that environmental impacts are not monetizable, then other possible metrics are provided. For the typical years of 2007–2008, the Corps had one-hundred projects, of which 46 specified ecosystem-related protections and or restorations. The purpose of the Corps’ current National Environmental Plan (circular 1150-1-404) is “to promote environmental sustainability” with respect to all civil projects.26 Its methodology for estimating the net benefits of environmental quality and restoration is still developing as it has been for many decades, but these analyses are not biased in their conceptional approach, i.e., they do not consider only one sort of benefit but not another, and they are broad in these conceptions of benefits and costs.

23 See Zerbe et al. (2009, p. 10). 24 See ibid., p. 12. 25 See ibid., p. 12. 26 See ibid., pp. 42–44.

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These Federal water-related projects are typical of our society’s attempts to positively affect our environmental amenities. The procedure specified by the WRC requires and solicits public input to decisions. This input includes scientific information and analyses, socio-economic information, and cultural information. They conceptually meet the “fair and reasoned” criteria reviewed in Chapter 3. All of this is part of the reasoned public discourse required by law for these impact decisions. The question begged by these analyses is, “To what extent are the interests of all affected considered?” 5.1

Measuring Impacts on Future Generations

In the cost–benefit analysis referred to above, the annual net benefits are projected over the expected life of the project. (The methods for calculating net benefits are examined below.) These annual net benefits are then discounted as in time-value of money calculations. Eq. (1) presents the “net present value,” or NPV, of the projected net benefits. NPV = −IC0 +

n  t=1

NBt (1 + r )t

(1)

where IC0 = the initial expense of establishing the project NBt = the expected monetary net benefits of the project for year t n = the expected life of the project r = the discount rate usually taken to be the rate on US government bonds with a maturity equal to n. Without consideration of other nonmonetary benefits that might be identified and also included in the analysis, the decision criteria is, “If NPV > 0 then the project should be undertaken.” If NPV = 0, then IC0 is the amount that could be placed in an investment account now at interest rate r, and the stream NBt , t = 1 to n, could be withdrawn from that investment in sequence with nothing left after the last withdrawal. The first relevant question here is, “Do we have moral authority to discount these expected future benefits to be accrued for future generations?” As an example, consider the potential restoration of the Florida Everglades. The Everglades is a large wetlands park area in South Florida. It serves as the nesting aviary for a large number of bird species. It also serves as the spawning and feeding grounds for a large number of fish species. It was a grassy and marshy freshwater area with the water

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source flowing through the large Okeechobee Lake of Central Florida. (Chapter 10 examines some attempts by EAOs and coalitions to address the Everglades’ problem.) The Everglades are currently under threat from encroachment of saltwater into the freshwater marsh. Note that the saltwater sea life is also threatened by the decline in food source from the freshwater life. The reason for these substantial threats is that over a period of several decades, agricultural demands and suburban water demands have substantially limited the freshwater flow into the marsh. This decline was facilitated by the Corps and other State authorities diverting the fresh water through dikes and dams to meet the agricultural and suburban demands. The diversions are so large that widespread wildfires in the “wetlands” are now common during the dry winter-spring seasons. Everglades restoration is currently being studied and is, to a limited extent, underway. But near full restoration will take decades. Freshwater will need to be rationed in South Florida. Consider, however, that discounting these net annual benefits, which are projected to arrive in the distant future, decreases their current measurement of present value as in Eq. (1), i.e., the future is considered of less value than the current. Is it morally fair to decrease the valuation of these environmental benefits of future generations as compared to the present? The answer is that there is no ethical justification for such a procedure. Given that future generations cannot participate in our reasoned social discourse concerning Everglades restoration, should we also further discount their interests? But our current society’s methods for cost–benefit analysis do not recognize this moral obligation. As briefly reviewed above, in the post WW II era, the Army Corps of Engineers replumbed the natural water flows of the Everglades. The aim was to provide fresh water to suburban interests and to agriculture—namely, the sugar plantations of South-Central Florida, which as a group is called “Big Sugar.” As a result of these agricultural interests, the Everglades became a large heavily polluted swamp, the pollution being the fertilizer-filled discharged waters that destroy this fresh water resource. The channeling and pumping of fresh water to suburban growth also substantially degraded the environmental condition of the resource. Currently, the Corps of Engineers and government entities are reexamining the destruction of this environmental asset, e.g., the potential effects on Florida’s recreation and its desirability as a living location. This rethinking is largely spurred by a broad coalition of environmental NGOs

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under the organizational leadership of the Friends of the Everglades . (See Chapter 10 for a more detailed examination of these efforts.) Consider the problem of deciding if the Everglades should be converted back fully as an environmental asset, or to what extent this conversion should occur? Consider making this judgment based on cost– benefit analysis expressed by Eq. (1). The value of the Everglades for growing sugar cane and for providing fresh water to suburban development can be measured from (i) the market values of sugar cane (the total expenditures on cane sugar) plus (ii) the total expenditures on water through the various municipal providers. But how do we measure the values of the Everglades as a natural environmental asset? Typically, we would measure recreational usage by the projected hours spent on recreation multiplied by a hypothetical monetary value of the opportunity wage lost by spending time on this recreation, plus any expenditures on ancillaries (boats, equipment, etc.). The point is that the market valuation of agricultural usage is relatively easy to measure, but the valuations of environmental assets are complex and conceptually more difficult to measure. Also, and perhaps far more important, the total value society would place on the natural asset as judged collectively is not the same as the sum of the individuals’ valuations (their expenditures on time and equipment) as separate persons. Why would this assertion be true? There are two interrelated reasons: (i) The collective cooperative vision for the future environmental asset is not the same as those of individuals in isolation. (ii) The information necessary to form this collective vision is not available to individuals in isolation. With respect to the first of these reasons, it should be easily understood that collective action is necessary to ultimately restore the asset to a natural state, but as a consequence, collective action is also necessary to pose the vision of what the restored potentials might be, and also of what the costs of restoration might be. With respect to the second stated reason above, resolving the first problem requires the information that only the collective can gather. For these two reasons, society needs the impetus provided by various environmental NGOs and coalitions to both pose the vision of what could be, and the paths and potential costs of getting there. For these reasons, we have the collective efforts of the Friends of

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the Everglades and their coalition who actively organize these “What could be?” and “How do we get there?” scenarios and efforts.27 Latter chapters describe the efforts of various environmental organizations for resolving the two points posed above, e.g., the collective vision and the necessary information. Some of these efforts are particularly successful, but others are less so. It appears observable, however, that the collective impetus is necessary and is provided by these collective citizen efforts. Why not rely on the various government agencies to provide the impetus for restoration, regulation, or preservation? The problem appears to be the institution of advocacy. Development interests always have their advocates in the public debate; the environment also has theirs. As shown in latter chapters, both sides are organized. The government agencies usually play the role of judge in these debates.28 Political pressure placed on these agencies is always attempted by the well-organized development interests. The environmental advocacy groups then attempt to provide the countervailing political pressure.

6 Our Reasoned Social Discourse Concerning Equity and Efficiency The above section indicated the important roles that our environmental organizations play in our discourse and decision process. Our environmental discourse currently considers the intertwined issues of equity, distribution, and efficiency. Efficiency considerations concern both narrow notions and broader measures of social welfare. The latter considers the distributional effects of our policies and projects to assure those with lower wealth and income do not suffer disparate effects as compared to the more advantaged population. To this effect, this discourse concerns the control of negative externalities via regulations, and encouragement of positive externalities via public projects. Decisions concerning preservation and restoration of environmental resources and 27 Gillroy (2000) argues that a role of government is to facilitate an establishment of this collective vision. Our government agencies, as listed above, do attempt to facilitate this collective vision. 28 Note the Rawlsian terminology of competent moral judge and considered moral judgement as reviewed in Chapter 3. The word “judge” can be replaced by “decision maker” in the governmental political process.

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amenities are made through the cost–benefit analysis cited above. But all of this depends on the rhetoric of “fair and reasoned discourse.” As indicated above, much of our society’s reasoned discourse takes place within the public’s considerations of cost–benefit analyses as conducted by various US Federal Government agencies, but also by state and local agencies. The Federal agencies include the US Army Corps of Engineers who we trust with the authority to manage and enhance our significant water resources (rivers, lakes, aquifers, ports, and bays), the Department of the Interior, the US Department of Agriculture, and other agencies. All follow the Congressionally mandated Water Resources Council’s standardized requirements for cost–benefit analysis (CBA). These requirements were formed with considerable input from environmental coalitions (The Nature Conservancy, The Audubon Society, and The Sierra Club as examples of many who have provided expert information). Industry NGOs such as The American Society of Civil Engineers , academics with research expertise, representatives of state and local governments, representatives of cultural preservation interests, and other public representatives also provided input to the Water Resources Council . These requirements utilize the efficiency and equity responses demanded of appropriate public welfare analyses. The extent of our fulfillment of these “demands” is the subject of subsequent chapters. The information incorporated into these regulatory and public project analyses include scientific information, cultural, and sociological information. All these analyses are required to be solicited by our decision methodologies so we can conclude that it is fully informed, and therefore have the potential to be logical in conclusions. Public criticisms that the policy analyses are not inclusive appear unreasonable when all such information is invited, but we suspect that some recent exclusions, as documented in Chapters 9 and 10, should be reviewed as in violation of our society’s standards for reasoned debate.

Appendix The Production Possibility Frontier for the Environment A1 The Production Function Allow a production function of “F” to be given by (A1), where ∂ I /∂E t > 0, and ∂ 2 I /∂E 2 < 0, i.e., we have positive but diminishing marginal returns to production of I t from the input resource use E t .

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The sequencing generated by (A1) is that the production I t requires the expenditure of resources E t in the form of degradation. The sequencing of E t−1 = E t + E t (or E t = E t−1 − E t ), where E t > 0 admits a deterioration of the environmental index. Figure 1 presents the production function for I t and E t . It is shown as concave from below due to diminishing marginal returns from the factor input E to the production of I . It = F(E t−1 )

(A1)

Since E t = E t−1 −E t > 0, then ∂E t /∂ E t = −1. Equations (A2) and (A3) follow. ∂ It ∂ F ∂E ∂F · < 0 = =− ∂ Et ∂E ∂ E t ∂E

(A2)

∂ 2 It ∂2 F = < 0 ∂E 2 ∂ E t2

(A3)

Figure 2 follows where E t∗ and It∗ indicate a hypothetical welfare optimality.

References Bravin, Jess. 2017. EPA Push on Emissions Standards Blocked. Wall Street Journal, p. A4, Wednesday, July 5, 2017. Coase, Ronald. 1960. The Problem of Social Cost. Journal of Law and Economics, October 1960, pp. 1–44. Cohen, Marc A., and John W. Dienhart. 2012. Citizens, Kant, and Corporate Responsibility for the Environment. In Kantian Business Ethics: Critical Perspectives, ed. G.Denis Arnold and Jared D. Harris. Northampton, MA: Edward Elgar. Cooper, John M. 1980. Aristotle on Friendship. In Essays on Aristotle’s Ethics, ed. Amelie Rorty. Berkeley, CA: University of California Press. Davenport, Coral. 2017. Counseling by Industry, Not Staff: EPA Chief Is Dismantling an Environmental Legacy. New York Times, and reprinted in the Buffalo News, July 2, p. A4. De Shalit, A. 1995. Why Posterity Matters: Environmental Policies and Future Generations. London, UK: Routledge. Diamond, Peter A., and Jerry A. Hausman. 2000. Contingent Valuation: Is Some Number Better Than No Number. In Economics of the Environment: Selected Readings, 4th ed., ed. Robert Stavins. New York, NY: W. W. Norton.

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Ferguson, C.E. 1966/1969/1972. Microeconomic Theory. Homewood, IL: Richard D. Irwin. Gillroy, John Martin. 2000. Justice and Nature. Washington, DC: Georgetown University Press. Hanemann, W. Michael. 2000. Valuing the Environment Through Contingent Valuation. In Economics of the Environment: Selected Readings, 4th ed., ed. Robert Stavins. New York, NY: W. W. Norton. Henderson, James M., and Richard E. Quandt. 1958. Microeconomic Theory: A Mathematical Approach. New York, NY: McGraw-Hill. Nolt, John. 2017. Future generations in environmental ethics. In The oxford handbook of environmental ethics, ed. Stephen M. Gardiner and Allen Thompson, 344–354. New York, NY: Oxford University Press. Portney, Paul R. 2000. The Contingent Valuation Debate: Why Economists Should Care. In Economics of the Environment: Selected Readings, 4th ed., ed. Robert Stavins. New York, NY: W. W. Norton. Rawls, John. 1951. Outline of a Decision Procedure for Ethics. Philosophical Review 60 (2, April): 177–197. Reprinted in Collected Papers—John Rawls, ed. Samuel Freeman. Harvard University Press, 1999. Rawls, John. 1980. Kantian Constructivism in Moral Theory. Journal of Philosophy 77 (September): 515–572. Reprinted in Collected Papers—John Rawls, ed. Samuel Freeman. Harvard University Press, 1999. Rawls, John. 1987. Idea of an Overlapping Consensus. In Oxford Journal of Legal Studies 7: 1–25. Reprinted in John Rawls: Collected Papers, ed. Samuel Freeman. Harvard University Press, 1999. Rawls, John. 2001. Collected Papers, ed. Samuel Freeman. Cambridge, MA: Harvard University Press. Robinson, Richard. 2018. Friendships of Virtue, Pursuit of the Moral Community, and the Ends of Business. Journal of Business Ethics 151: 85–100. Samuelson, Paul Anthony. 1947/1974. Foundations of Economic Analysis. New York, NY: Atheneum. Thoreau, Henry David. 1849. A Week on the Concord and Merrimac Rivers. https://archive.org/details/aweekonconcorda00thorgoog/. Reprinted in 2011. New York, NY: Princeton University Press. Zerbe, Richard O., and Joseph Cook, et al. 2009. Principles and Guidelines for Evaluating Federal Water Projects: US Army Corps of Engineers Planning and the Use of Benefit Cost Analysis. Seattle, WA: Evans School of Public Falls, University of Washington.

CHAPTER 7

Some Rhetoric of Environmental Equity and Economic Efficiency

1 Notions of Equity, Efficiency, and Externalities in Our Environmental Discourse Envision a single individual burning a wooden log in a home fireplace. Unless this is a very isolated dwelling, this generation of heat is likely to produce smoke and soot that drifts from the chimney onto the dwellings of neighbors. Recognizing the health irritants caused by such emissions, society would ask if this externality should be regulated in the interests of public welfare? If the dwelling is located in a dense neighborhood with geographic features that do not facilitate this smoke being carried away by winds, then it is likely that regulation will at least be publicly considered. But in these considerations, notions of freedom will be asserted along with notions of harm to the public’s health. These sorts of social welfare considerations in the context of our public discourse are the subjects of this chapter. Our society’s discourse about its efforts at environmental regulation, preservation, and restoration has now become sufficiently developed to be described as largely institutionalized. It follows standardized formats; it solicits scientific, economic, cultural, and sociological information and analyses. We attempt to apply this information to long-established decision criteria to decide which regulations and projects we should pursue, although these criteria are not strictly formulaic in that the decision © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. M. Robinson, Environmental Organizations and Reasoned Discourse, Environmental Politics and Theory, https://doi.org/10.1007/978-3-030-75606-2_7

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makers have some discretion after the information is analyzed. These standardized solicitations of information and channels-of-rhetoric are examined in this chapter. It reviews the significant strengths and weaknesses of these institutionalized considerations. To accomplish the tasks of this chapter, the basic concepts of economic efficiency and equity analysis must be reviewed. This review must assume that the reader has a level of economic knowledge equivalent to that of a college-level introductory economics course. This material might be skipped by those who have an aversion to economics, or who have an aversion to remembering their college-level courses, but an understanding of these important efficiency concepts and equity effects will likely suffer. This chapter examines our society’s considerations of the interrelated issues of negative environmental externalities (pollution), positive externalities, the equitable distribution of the costs and benefits of each, and our social welfare-type notions of efficiency with respect to environmental preservation and restoration. It particularly concerns the problems of distortions in economic efficiency and public welfare that result from environmental degradation. These issues are at the core of environmental discourse and considerations as we show here. Prior to serious analyses of these problems, however, we need brief reviews of the basic economic concepts of how an economy decides what to produce, and how it distributes its production including the distribution of environmental amenities. To do so, we recognize the concepts of externalities with respect to production, i.e., both negative and positive externalities with the latter being addressed and considered toward the end of this chapter. It should be understood that negative externalities have strong equity implications. An applicable definition is presented here: A negative externality occurs when an economic exchange or other social interaction imposes unwanted effects or costs (measured monetarily or by other metrics) on otherwise uninvolved third parties.

For example, when in the 1920s through the 1970s the Ford Motor Company dumped pollution into the River Rouge in Michigan, it externalized costs onto society in the form of pollution. It conceptually could have fully internalized all costs generated by the production process, i.e., it could have paid the costs of cleaning whatever constituted this pollution, and done so to the extent that the external society would not have

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had to bear the consequences. When this sort of pollution is externally imposed, society bears the costs of being deprived of a clean environmental amenity. The public also bears the medical costs of any diseases generated, as well as the opportunity costs of being deprived of using the amenity for other purposes. At some point, society will likely have to bear the costs of cleanup. Negative externalities also have strong equity implications. Others must bear the costs of the pollution rather than those who wish to purchase the Ford autos and who ultimately pay what is only a narrow measure (lower level) of the costs of production, narrow because it does not consider the external costs. The price of the product does not cover the higher costs of a clean production process. This is the essential link between economic notions of efficiency and the equity problems generated by negative externalities (pollution). Economic efficiency involves the delivery of the goods society wants, and at the lowest costs in resources expended. Envision an economy where all of the costs of production are internalized to the entities producing the goods; all potential pollution is cleaned by the companies generating it, and all the associated costs of these cleanups are paid by the firms involved. If the prices society is willing to pay for the goods in question are sufficiently high so that abnormal profits result, then society’s resources (labor, capital, extracted resources, and managerial expertise) will shift to producing more of these desired goods.1 If there are economies of scale to be exploited, then the average costs of production will decrease through the expansion in production. Ultimately competition will force the price to decrease to reflect this lower production cost. This describes the process of the neoclassical economic model of perfect competition. When all costs are internalized, competition theoretically leads to a result of producing the amounts of the goods society wants at the minimum average costs of production, and at the lowest feasible prices to the consumer. This process is, however, disrupted by negative externalities where the costs of production become artificially low. As a result of these lower direct costs to the consumer, we overproduce and distribute the good that causes the externalized costs, and this 1 If there are unused resources such as unemployed workers, then this economic slack will be used, but we should not envision this resource as “free.” They still have the opportunity costs of possibly being used efficiently elsewhere.

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disrupts society through the negative effects of pollution. With this negative externality, we also suffer equity problems in that those who likely suffer the consequences of the pollution need not be those who enjoy the good, or who benefit from the production. All of this implies that the rhetoric of the considerable benefits derived from the free market is conceptually incomplete and biased in the presence of negative externalities. This rhetoric over-estimates the net benefits derived from market transactions.

2 The Competitive Market and the Pursuit of the Moral Community Is the competitive free market—with its profit motive—antithetical to ethical consideration, especially the considerations that emerge from our categorical imperative process (CIP)? One can effectively argue that the profit motive and ethics are not necessarily antithetical, but a sufficient exploration of this issue must begin with a review of the very foundation of neoclassical economic analysis. The motive for this exploration is that classical and neoclassical economics constitute much of the rhetoric of government regulation. The neoclassical notion of “efficiency” constitutes a strong component of this rhetoric, so a review here is appropriate. Proper (complete) notions of efficiency should be essential ingredients for our environmental analysis. Any review of classical economics begins with Adam Smith, the eighteenth-century Scottish “Professor of Moral Philosophy” at the University of Glasgow. His Theory of Moral Sentiments (1759) argued that ethical considerations stemmed from our natural sense of empathy in that we have a tendency to place ourselves in the position of others to envision the pain they might experience from the consequences of our actions. He argued that this “empathy” motivates our moral sense and self-imposed ethical restraints. Smith accepted that ethical motivation must not be egoistic, but rather it must stem from our sense of responsibility to others and our overall society as in Kant’s notion of the pursuit of the moral community. Adam Smith is also generally recognized for his five-volume magnum opus, An Inquiry into the Nature and Causes of the Wealth of Nations (1776), where he suggested that people’s motives are generally very different from the pursuit of the kingdom of ends. In this revolutionary work, Smith argued that people might act from egoistic motivation (not

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that they should act this way), but nevertheless this motivation can lead to a sort of “efficient” social result. Consider his argument for the economic motivation of producers: “It is not from the benevolence of the butcher, the brewer, or the baker that we can expect our dinner, but from their regard to their own interest.” (Smith, 1776, Book I, Chapter 2, paragraph 2.)

Also consider Smith’s argument for the working of the invisible hand of the market : “By directing that industry in such a manner as its produce may be of greatest value, he intends only his own gain, and he is in this, as in many cases, led by an invisible hand to promote an end which was no part of his intention.” (ibid., Book IV, Chapter 2, paragraph 9.)

Smith’s argument is that when producers act from the egoistic profit motive, they serve the public’s interest as well as their own. Knowledge of this allows producers and consumers to both be motivated by their egoistic pursuits while still believing they serve the broader social goals of society, at least under ethical constraints as partly explored in this book. It is with this Smithian argument that we must remember that the imperfect duties derived from real-world moral maxims must have practical limitations. These practicalities result because business must seek a competitive survival. After paying for their employee payroll and other input costs, business must provide for their owner-entrepreneurs; hence the existence of the profit motive, a motive that stems from serving the public through providing goods and services. This public service, however, requires that business must stay within ethical constraints, or we cannot claim that the public actually benefits. These constraints involve ethical maxims that are derived from and consistent with our categorical imperative process (CIP). Some of these constraints stem from socially imposed controls on broad classifications of externalities. This realization is the heart of the argument here, i.e., that self-interest and the market economy need not generate social conflict and disharmony, but rather under certain circumstances which include constraints on externalities, it might be uniquely capable of generating the harmony explored previously in Chapters 2 and 3. This is particularly true since free markets are necessary for generating freedom in general as

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in “freedom to pursue both our individual and society’s happiness.” This “freedom,” however, must be constrained by Kant’s universal principle of justice, as explored in Chapter 2. This implies that our actions should be constrained by consideration of negative effects on others. This chapter, and this monograph in general, explores some of these constraints, i.e., the environmental-related constraints. For an example of non-environmental constraints, consider Smith’s warning that business people seldom meet without forming some price-rigging conspiracy. We have antitrust laws against these pricing conspiracies; they are judged by our society as unethical. In addition, there are a myriad of other ethical constraints on the actions of businesses in the market place such as generating the negative externalities reviewed above. Still, the ethic of the market, that is the ethic of fair competition aimed at satisfying consumers, and also of fairly competing for factor inputs so as to generate the goods the consuming public wants—a competition that must be constrained by ethical considerations to be deemed as “fair”—and therefore can serve the pursuit of the moral community. It is argued by our reasoned environmental discourse, however, that this pursuit cannot occur under conditions of severe environmental degradation. This comprises the material of this book. Our “reasoned social discourse” must reflect this connection: the pursuit of the moral community requires avoiding severe environmental degradation.2

3

The Classical and Neoclassical Models of Competition

The purpose of the development of the neoclassical economic model was to analyze the benefits of a market economy, an analysis that typically avoids considerations of environmental amenities. For example, free markets ration goods by the price mechanism, but this price effect is not typically part of the analysis of environmental considerations. The marketplace is the domain of privately produced goods, not common property public goods. The latter is the domain of environmental amenities. Yet as shown below, this “price effect” is essential and important to explain the

2 Gillroy (2000) emphasizes the social discourse and decision making that concerns severe environmental risk.

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existence and location of these amenities. This “price effect” explanation is the expositional challenge for this chapter. The classical and neoclassical economic views are that free markets essentially provide a democratic voting mechanism that indicates society’s sense of what is valuable but costly to produce, and how to produce it. Under certain controllable circumstances, explored in this chapter, free markets allocate resources so as to theoretically yield the “maximum social welfare,” although this very notion of “welfare” demands investigation. The classical economic model of Adam Smith (1776) established that the motive force of competition acts through the “invisible hand of the market” to decide what is produced, how resources are to be allocated to that production, how this production is distributed through society, the prices charged, and the returns to that production. Smith showed the superiority of the marketplace for making these decisions as compared to the “mercantile system” of his age, i.e., a system of government charters granting the right to produce (frequently monopoly rights) and to sell to the public. Smith posed the theory that the competitive marketplace responds to consumer demands by producing what is wanted and at a price equal to the minimum average cost of production. In addition, Smith also envisioned that through a free market, producers and consumers have the freedom to move to the area of production they wish. There would be no legal impediments to their movement. Recall that in 1776, mercantilist and imperialist governments generally required government grants or charters in order to produce in various locales. Also large segments of the population were restricted by either serfdom, slavery, or indentured servitude. Freedom was a paramount aspect of this newly envisioned market-driven economy. The neoclassical economic model—developed during the first half of the twentieth century—is the completion of Smith’s classical model. It envisions atomistic producers who earn only a competitive profit. Juxtaposed against this competitive model is the opposite extreme of monopoly, where the monopolist charges higher prices while producing less than a competitive industry. Hence consumers are less well off (enjoy a lower state of welfare) under monopoly. In particular, the neoclassical model of competition points out three strong ethical implications for society, each of which is reviewed in this and some of the next chapters:

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• A high level of competition has strong implications for notions of fairness in income distribution to entrepreneurs, management, and other factor inputs. • By responding to consumer preferences, the competitive free marketplace of atomistic producers innovates to provide the goods society wants, and at the minimum possible prices and costs of production. • In the competitive market, the impersonal forces of supply and demand allocate resources and establish prices that in the absence of externalities, and with the appropriate subsidies to the disadvantaged, maximizes societal welfare. These ethical implications are often asserted and discussed in our environmental social discourse, but they are also often ignored by those who perceive only the negative aspects of a market-oriented economy. The examination of this neoclassical economic model is also beneficial for reviewing the effects of real-world deviations from the model’s underlying assumptions. These include. • The ethical and economic efficiency implications of firm’s establishing what we term “market power.” • The ethical and economic efficiency implications of firm’s generating negative externalities such as pollution. • The ethical and economic efficiency implications of societal response to those so disadvantaged that they cannot sufficiently compete in the market. The importance of the implications that result from this vision of highly competitive atomistic producers is somewhat declared by society through trade regulatory laws such as the Sherman Antitrust Act and the Clayton Act. The resulting ethical implications for externalities are also strong. In addition to the laws that seek to enforce competition, we also have societal laws and controls applicable to negative externalities—laws such as the Refuse Act of 1899—and we also have social programs to assist the disadvantaged. This is of particular interest below. Although we must assume that the reader has some knowledge of the role of supply and demand in establishing market-clearing prices, and of the effects of government interference in markets, and of the role of markets in satisfying consumer demands and innovation in productive

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technology, some degree of reinforcement of these concepts is warranted and presented below. But our real task here is to further penetrate the discourse about markets under conditions of externalities so as to explore the implicit underlying ethical assumptions and implications especially as they pertain to environmental concerns. Our task is also to enable the exploration of the public’s demand for environmental amenities as public goods. For this purpose, the following section provides a brief review of supply and demand that is sufficient to enable these explorations.

4

A Brief Review of the Forces of Supply and Demand and Societal Implications

Although we assume the reader is familiar with the elements of supply and demand, perhaps it is beneficial to briefly review this subject here, at least for the purpose of reinforcement in the context of both externalities and the demand for environmental amenities. To facilitate this exploration, the reader should at least possess the knowledge of a good introductory economics course. For example, the reader should fully understand the elements of supply and demand as the determinants of market prices. These forces are illustrated by Fig. 1. The market supply function is Price P

P1

Surplus

Supply

Pe

P2

Shortage Demand Quantity Q Qe

Fig. 1

Market supply and demand with equilibrium price Pe and quantity Qe

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shown as positively sloped, and the demand function is shown as negatively sloped. Although the reader should already understand the reason for these slopes, this is briefly reinforced here. The positive slope of the supply function indicates that as prices rise, the quantity supplied to the market increases. For example, we could consider the market for wheat in that as prices rise, more land is converted to wheat production so that the quantity of wheat on the market increases. In a similar, but opposite way, as the price of wheat increases, the quantity of wheat demanded decreases as consumers seek substitute goods (perhaps barely or rice) and economize on their consumption of bread, pasta, or other wheat products. We should recall that when we say “the quantity of wheat demanded or supplied varies” we are moving along a static supply or demand function. When we say “the demand or supply has changed” we are stating either the entire demand or the entire supply function has shifted. We should recall that the demand function depends upon the consumers’ preferences for wheat versus other products, and also the incomes and wealth of the consumers. The supply function, as shown below, depends upon the underlying costs of production. We assume that the greater the quantity produced, the greater the per unit cost of production, and that this occurs due to diminishing returns in the marginally productive resources that must be utilized.3 As shown in Fig. 1, as the price of wheat changes, the quantity of wheat demanded changes as we move along the static demand function. Similarly, as the price of wheat changes, the quantity supplied changes as we move along the static supply function. If the underlying costs of inputs to production change, the supply function shifts its position. If costs decrease then the supply function shifts right, i.e., more is supplied at each price. If preferences for wheat consumption change, the demand function shifts its position. If for any reason consumers increase their preferences for wheat products, then the demand function shifts right, i.e., the quantity demanded increases at each price. In either of these cases of shifting functions, a new equilibrium price and quantity traded emerges.

3 For example, allow the quantity produced to be Q and allow the production function

to be. Q = f(K,L) where K is capital and L is labor. We also assume ∂Q/∂K > 0, ∂Q/∂L > 0, and ∂ 2 Q/∂K2 < 0, ∂ 2 Q/∂L2 < 0. The second derivatives express the property of “diminishing marginal returns,” the first derivative expresses positive but diminishing marginal product.

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As shown in Fig. 1, if the price of wheat is above the equilibrium of Pe , say at P1, then there is a surplus of wheat on markets, i.e., the quantity supplied is greater than the quantity demanded. As a result, prices fall toward Pe in order to clear the market. In a similar way, if the price of wheat is below the equilibrium, say at P2, then there is a shortage where the quantity demanded exceeds the quantity supplied, and as a result the price rises toward Pe . At the equilibrium price Pe , the quantity supplied equals the quantity demanded so that there is no pressure to push the price either up or down, hence the use of the term “equilibrium price.” (We must assume that readers recall the “why and how” of these price pressures functioning.) Suppose governments legally impose a price below equilibrium, i.e., a price control. The quantity demanded exceeds the quantity supplied. There is excess demand, or in other terms “a shortage.” In this case, the quantity supplied must be rationed by some means other than the price mechanism, perhaps by queues or government-imposed rationing by demographic characteristics, such as being old, or being a child, or the like. In these cases of government regulatory imposition, often black markets emerge to circumvent the government price ceiling. Queues were an often-used method for rationing basic goods in socialist countries during the 1930s through 1980s, goods such as bread and apartment homes. For basic foods, families often had elderly grandparents waiting in long lines for many hours to obtain bread or cooking oils or the like. For apartment homes, making families wait for years allowed corrupt officials to grant shorter waits for those who paid bribes. The point is, there is always a market-clearing price, although not always a monetary price; it might be a waiting time or other rationing method. Suppose government imposes a price floor above equilibrium. In these cases, there is an excess supply, and in order to maintain the higher equilibrium price, government must purchase this surplus to remove it from the market or the price will decrease. Otherwise a black market emerges where sellers charge prices below this government-imposed price ceiling. Government-imposed price controls always have consequences such as surpluses or shortages, consequences that must be managed by government, such as the control of emerging black markets. One of the beauties of allowing the free market to set the prices and quantities traded is that the forces of supply and demand appear impersonal like the forces of chemistry or gravity. Assuming there is no price conspiracy by producers or consumers, the equilibrium price appears fair, i.e., not manipulated by

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those self-interested in the result. In this sense, the price is generally more socially acceptable. For examples of the opposite of free market prices, consider the situations of rent controls in New York City, or of agricultural price supports for a multitude of crops such as wheat or corn to be converted to ethanol. In the former case, landlords leave their properties less than developed and maintained, and there are tenant queues waiting for these rent-controlled properties. There is also a lack of affordable real estate developed in the City because the incentive for that development is weakened with price controls. In the case of agricultural price supports, we have surpluses that are purchased by government (out of general tax revenues that could be spent on other government services) that are usually sold overseas at lower prices, but with government subsidies. As a result, there is more land and resources devoted to the production of the price-controlled good than if the market was without government interference. Also, this implies US taxpayer-subsidies for foreign consumers. These cases illustrate what we often call “distortions” that result from government interference in free markets. 4.1

Demand and Supply of Environmental Amenities

A wide variety of environmental amenities are demanded by the public: clean air and water, parks, wilderness areas, sea and ocean resources, and many others. In their fundamental aspects, the demand and supply of environmental amenities are similar to the demands and supplies of other consumer goods, except that unlike some other goods, the quantities of these amenities cannot be changed quickly in response to disequilibrium. For example, consider the demand and supply of wilderness enjoyment (hiking or backpacking) such as depicted in Fig. 2. The supply is fixed over any particular time period as depicted by Qfixed in Fig. 2. The equilibrium price is at Pe, which would be the theoretical price society might charge for entry. But as is typical of the popular federal wilderness areas in the Western US, regulators ration the usage by hikers, backpackers, and other users by requiring permits that charge a low user fee (indicated by P user fee ) that is below Pe . This generates an excess demand—or “shortage”—and this shortage requires rationing by government permits (usually issued by the Forest Service for a particular time period) so that

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Price P

Fixed Supply

Pe

Shortage

P user fee

Demand Quantity Q Qfixed

Fig. 2 Fixed supply and demand with disequilibrium price (Puser fee ) and fixed quantity

by limiting the number of users over any time period, the true wilderness experience can be preserved. Rationing could be by price, but that would imply some income distribution problems in that poorer uses could be priced out of this environmental amenity. The “rationing” generally occurs through a waiting list for permits. People apply for permits months ahead of their intended experience. Over time, however, larger portions of National Forests could be carved out and preserved as wilderness. In the longer run, the quantity supplied is somewhat elastic given the time to adjust. This is also the case with urban parklands where areas can be cleared for new parks or for expansion of older parks.4 Figure 3 depicts the longer run situation where the cost of providing the resource is the cost of land clearing. The supply can adjust through greater public provision over time. Here, Pe provides the equilibrium price paid by the public through government-imposed conversion and park provision. In Fig. 3, the long-run equilibrium would

4 Some beaches along Cape Ann in Massachusetts, for example, are also rationed by permits in similar ways to Western wilderness trips.

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Price P

Long Run Supply

Pe

Demand Quantity Q QTemporary

Qe

Fig. 3 Longer-run supply and demand with equilibrium price Pe and quantity Qe

presumably be estimated by the governmental provider, and the equilibrium governmental expenditures would be allocated; the equilibrium Qe would result if the demand is correctly forecast. Consider, however, the difference between urban areas as compared to undeveloped areas. In urban areas, the land necessary for a new park is likely to come under “eminent domain” appropriation. In the case of wilderness set asides, land might be removed from potential logging. In either case, private interests (urban land owners or rural logging companies) are likely to complain about the imposition of government action. In either case, the assertions of violations of freedom and fairness, certainly the perceived characteristics of so-called free markets, are likely to occur. Perhaps it is an illusion, but in free markets people can move into or out of that particular production as they desire without what they might perceive as “the heavy hand of government.” Such is the perception of the socalled “free market.” Also if your product does not sell because consumers prefer alternatives, we all interpret this as “fair market forces.” Producers take their chances, and should do so without attempting to manipulate government to favor them over others by either subsidies or price controls. Of course, this “free market” perception is partially flawed in

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that there are government institutions, such as legal courts, law enforcement, and many other arrangements that are required for markets to function efficiently. In addition, the disadvantaged (the elderly, the handicapped, etc.) may need subsidies in order for society to fulfill its sense of what is “fair.” Our notions of “fairness,” however, are more complex than simple consumer-selection availability in free markets, and this complexity is more fully examined in later chapters, but public goods of various sorts are important to most people. They are legitimate goods that are unlikely to be provided by the private marketplace. Environmental amenities fit this category. The complaints of “heavy government” are typical when governments provide public goods, but these complaints do not negate their justification for their provision. Parks, beaches, boating areas, wilderness areas, and the like are popular, and are essential components of the common wealth.5 There are, however, some issues associated with public goods that should be addressed for our analysis. These are investigated below.

5 Market Allocation of Resources and Environmental Amenities: The Collective as Provider of Public Goods Through collective action, government provides and/or ensures environmental amenities. It provides parks, and through regulations it attempts to provide amenities such as clean air, water, and other environmental resources. As such, it does suffer from typical monopoly behavioral defects such as a lack of innovation. But more important than this problem, however, is government’s perceived passivity toward creativity in regulations and environmental provision. In this and latter chapters, this tendency is termed passive political stasis, a problem introduced here. Prior to this, however, the neoclassical notions of monopoly and imperfect competition are explored.

5 Hayward (2017) examines an interesting philosophy of ecological spaces that addresses some of this concern.

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5.1

Monopoly

A monopoly is a single provider of a good or service, an entity that faces the entire demand for that particular good, service, or amenity. In the private sector, monopolies usually occur when the economies of scale in production are such that a single firm can serve the entire market while producing at lower per-unit cost than can occur with multiple firms. As such, monopolies are usually regulated by state commissions who set the price of the product and regulate other aspects such as controls of pollution. In many cases, the regulators are captured by the regulated, and consequently the regulated are treated rather generously in their allowed price or activity. In other cases, the regulations may be relaxed with respect to matters such as pollution controls. Also in some cases, such as the provision of public goods, the collective (government) acts as the monopoly provider. A public good is one the public generally prefers be provided by the government under collective control. These consist of goods such as environmental amenities that include public parks, water supplies, sea and ocean access, and the like.6 Because monopolies do not face competition, they have less incentive to innovate as compared to competitive industries. With respect to private goods, monopolies also produce lower output, and as a result charge higher prices (a consequence of a negative sloped demand function) than would occur if the good were produced by a competitive industry. For private goods, consumers are therefore less well off under a monopoly. Since it does not appear that prices and production amounts are set by impersonal market forces, society often questions the fairness of the monopoly’s practices. In addition, since the monopolist is not under the competitive pressure as the firms in competitive industries, it has less incentive to respond to consumer dissatisfaction over its ethical practice as might be the case if the competitive firms were polluting or otherwise acting unethically.7 Government providers of public goods can also suffer from a lack of innovation and/or a lack of response to public dissatisfaction. Politically ,

6 Ibid. 7 See the Storm King case reviewed in Chapter 10.

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the dissatisfaction often needs to be expressed by external environmental NGOs such as the Sierra Club or the Audubon Society. These external expressions have a substantial history some of which are reviewed in latter chapters. 5.2

Imperfect Competition

Between the abstract extremes of perfect competition and monopoly lies the often observed case of imperfect competition. This case applies to various environmental amenities as shown here. In the private sector, imperfect competition applies to industries that consist of a few providers who differentiate their products so as to establish some monopoly power (or “market power” as it is often called) as indicated by the definition below. (Recall that with perfect competition, the produced good is homogeneous, i.e., not differentiated. Winter wheat is an example of an homogeneous good.) Definition: Market power, generated by imperfect competition, is the ability of a provider to differentiate its product so that an increase in price does not result in losing all of its quantity demanded.

The conceptions of imperfect competition and market power also applies to the providers of public goods such as environmental amenities that have some differentiation such as due to location, or some quality differences. Recall that perfectly competitive firms must be price takers since any attempt to raise their price above the market level results in an inability to sell any product. In the markets that exhibit perfect competition, the product is homogeneous. In markets that exhibit imperfect competition, the products or amenities are differentiated. The providers can raise prices and not lose all demand. This is exhibited by Fig. 4 where the horizontal demand function faced by the competitive firm with homogeneous product is shown as rotated to have a negative slope as a result of product differentiation. Cigarette companies, for example, differentiate a largely homogeneous product by branding via promoting some particular consumer attribute, i.e., the rugged man, or the sophisticated lady should buy our product. Environmental amenities, however, are not entirely homogeneous. Location is an important differentiation where the consumer locates where the amenities fit their demand. Urban areas provide one set of

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P

Demand Function with Market Power

Demand Function for Price Taker Q

Fig. 4 Establishing market power by rotating demand function to have negative slope

environmental—perhaps inferior—amenities, but also perhaps a higher income. Rural areas provide a different experience and income level. For example, consider the case of converting a section of national forest from logging to a wilderness preserve. The public value of the forest as a logging source would consist of the net-value of the timber minus the costs of cutting and bringing the timber to market. The value of the forest as a wilderness preserve would be generated by the demand for backpacking and hiking plus ancillary value as a water preserve and/or preserve for fish spawning and the like. Wilderness areas differ by their accessibility due to location and/or the differences in their natural character in that one could be alpine-like with mountain peaks and glaciers, and another could be thick old-growth low-land forests. The public would have differing demands depending on their preferences and ease of access. They locate their homes according to their preferences. Local collective governments therefore have some market power where taxes per dollar of income are adjusted to provide a package of amenities (environmental and other sorts such as education and services) that appeals to particular groups. Consider the wilderness conversion example as presented in Fig. 5. For illustration purpose, Fig. 5 shows three groups of users for this hypothetical wilderness: 100 annual users willing to pay $300 each for this particular wilderness experience; another 100 annual users willing to pay $200 each; and 100 willing to pay $100 each. For simplification purpose, we only have these three groups. If $100 is the fee charged, then there will be 300 annual uses of this wilderness. If the fee charged is $200 per

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P Demand Function with Market Power

$300 $200 $100

Q of Annual Usage 100

Fig. 5

200

300

Negative sloped demand function for wilderness annual usage

use, then 200 annual uses will occur. If $100 per use is charged, then 300 annual uses will occur. Consider only charging $100 per use. There will be 300 uses, but 100 of these users were willing to pay $200, and 100 were willing to pay $300. The public therefore places a total value of $30,000 + $20,000 + $10,000 = $60,000. This is the public’s willing to pay dollar valuation even though only $30,000 in revenue is raised. (Note that there is much more to the story than indicated by this simple example.) For a larger number of possible users at a full spectrum of “willing to pay,” the area under the demand function expresses the value of the wilderness, at least in annual uses. We should also consider, however, the aforementioned additional values such as the watershed preserve and other amenities. We should also consider the discounted present value of the stream of these annual uses to capture the total value of the wilderness, and perhaps we should not discount future uses at all, but just sum without discounting. Also, the consideration of any forest, wilderness, or other natural resource should be made in the context of the overall global ecosystem in that depletion of one resource might substantially enhance or affect the value of others.8 This analysis suggests the complexities of estimating the public’s valuation of environmental amenities, but there is also the reservation demands to be considered. This considers what people are willing to pay just in case they wish to use the resource even though they have no intention

8 Gillroy (2000, p. 141) argues for our collective preservation consideration of a broad human natural ecosystem.

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to use it soon, or perhaps they value its existence even though they never intend to use it directly, that is they are considering future generational use of the “sacredness of nature” argument. (See Chapter 4 for a review of this “sacredness” issue.) We also need, as suggested in latter chapters, to consider the possible differences in preferences of future generations, plus the myriad of other values generated by wilderness such as specie preservation, and potential future substitutes for lumber that might be developed. The public demands a wide array of environmental amenities, and achieves this “array” through collective actions as stimulated by the rhetoric of our environmental NGOs and coalitions. Reviews of this discourse are explored in latter chapters. Prior to this, however, considerations of externalities and the costs of production for privately produced goods should be examined.

6 The Market Allocation of Resources: The Competitive Economy and Negative Externalities In product markets, firms try to develop market power so that they can raise price above marginal cost and as a result, increase total profit. This increase in total profit does not always happen, especially if there are substitutes for the firm’s product. Market power is not an easy thing to develop. To do so, producers must differentiate their product. Often this is attempted through advertising, but the perceived differences can be illusory. For example, the cigarette industry has long advertised that one cigarette fits or establishes one image for the smoker, and another creates a different image. A price increase by one of these brands will not eliminate all sales for that product, as occurs with a perfectly competitive industry. Some customers stay with their old product rather than shift to the new. As a result, for the imperfect competitor, there is some slope to the firm’s demand function. Price will be above marginal cost, at least by some small amount. This is illustrated by Fig. 4 where the imperfect competitor attempts to rotate its perfectly competitive horizontal demand function to one with some negative slope. In effect, this firm obtains its own market by differentiating its product through advertising or other means. Profit increases for firms that successfully establish some degree of market power.

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Establishing market power is generally the objective of the business subject of strategy. As we shall examine below, there are ethical implications to establishing market power in any industry, but in particular with increased concentration and associated profit, we observe industries successfully organizing political representation aimed at lowering regulatory burden. But this reduction in regulatory burden might ultimately facilitate pollution. Neoclassical economics demonstrates that under certain conditions that include an absence of externalities, highly competitive markets should allocate economic resources so that society obtains the goods it prefers, and at prices that reflects the minimum average cost of production.9 In this sense, competitive markets can be said to be efficient. The key and rather abstract conditions of this competitive model are as follows: • Firms are price takers: The competitive industry at question consists of a large number of small firms called price takers who produce a homogenous good. This means that within each industry there is no difference between the product of one producer and another. This also means that individual producers are incapable of affecting the market-clearing price of the good, i.e., these small firms could double or triple their production without sufficiently affecting the total market supply so that prices would drop as a result. For example, we might consider wheat or corn farmers as perfect competitors in that even if any single farmer radically expanded production, they could not so affect the total supply of wheat or corn sufficiently that the world market-clearing price would change. Note, for example, that we assume there is no difference between the “hard red winter wheat” produced by one farmer as compared to another. • Diminishing returns in production: The increment in costs per unit of expansion of output increases with an expansion of output. • Profit maximization: Producers are profit maximizers. If they do not seek to maximize profit they will be driven from the industry by those who successfully do.

9 Robinson (2019a, b) challenges this neoclassical notion of efficiency by pointing out the importance of broad notions of imperfect managerial duty not considered in the narrow economic model.

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• No price conspiracies: The firms in this industry compete rather than collude. If these conditions are met, then theoretically the consequences are strait forward: i. Consumers allocate their budgets so as to obtain the goods they desire. ii. Via competition, producers provide consumers with those goods they desire at a price that reflects the minimum average costs of production provided all costs are internalized to the production process. Overall, consumers benefit by selecting the goods they want, receiving them at the lowest possible cost, and maximizing their overall individual satisfaction (utility). Note that acting collectively rather than in isolation might yield higher utility levels. iii. The power to affect society is dispersed among many consumers and producers so that the individuals are free to devote their economic lives where they wish (whichever area of production they wish) within their own and society’s resource constraints. iv. Note that in this competitive model, the goods referred to above can be taken broadly in that any negative effects associated with production, such as unethical behavior, can be discouraged by consumers refusing to purchase that company’s production (boycotts), or refusing to be employed by that company. This of course requires that the public knows of this unethical conduct. As explained above, however, negative externalities—such as pollution—impose costs on society that are not internalized into the individual producer’s costs of production. The price of the product does not reflect these external costs. At each and every quantity supplied, the costs of production are lower for the firm than for society. Figure 6 illustrates this situation where S1 is the supply function for the firm with some costs externalized, and S2 is the supply function with all costs internalized, i.e., a lower quantity is supplied at each price level because the marginal costs at each production level is higher. With externalities, S2 represents society’s complete costs of production, but S1 represents only the internalized

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Fig. 6 S1 has externalized costs, S2 has all costs internalized

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Price S2 S1

D Q Q2

Q1

costs to the firm, not the external costs.10 As a result, with pollution the market-clearing quantity supplied is greater, and society allocates too much of its resources to the production of that good; the good is overproduced. This is not an optimal allocation, i.e., not efficient. Society either pays for these externalized costs via pollution cleanup, or it suffers the health-related medical costs and the deterioration of environmental amenities as explored in greater detail in other chapters of this book. In the absence of negative externalities, however, then given society’s limited resources, the prices it pays for its production are impersonal and appear fair, at least to the extent that this competitive economy exists. In addition, innovation is part of this competition. The firm that can innovate by producing better goods, or by producing at lower costs, can drive others from the industry if they do not adapt. But it is the profit motive that guides this process. Monopolies (one firm in the particular industry), or oligopolies (only a few firms producing in the particular industry), or even monopolistic competition (a small number of firms producing, but more than a few), would not have as much motive to innovate or to be as efficient, or to reduce negative externalities. Business strategy concerns adopting the policies that create market power for the firm. This later term involves becoming as monopolistic as

10 The costs referred to are marginal costs. This follows from the profit maximization condition for the competitive firm.

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possible in pursuit of greater profit. If successful, it leads the competitive industry to become less competitive, i.e., the industry becomes imperfectly competitive, or perhaps even oligopolistic. This in essence means the industry is more concentrated, i.e., the industry has fewer producers. This might result in the industry’s increased profit being partly spent on more political power that is brought to bear on regulation so that problems are exacerbated. The industry’s strategy is therefore to lower those production costs internalized to the firm by generating externalities in the form of pollution as illustrated by a movement from S2 to S1 in Fig. 6. For example, consider the current poultry industry’s move from having a large number of small producers to concentrated animal feeding operations (CAFOs) where there are fewer but larger producers. These are large-scale animal feeding facilities that are currently proliferating in the Mississippi River Basin. They are designed to lower production costs per animal by. • exploiting economies of scale in production and ultimately distribution, and • externalizing costs through draining the animal wastes into the tributaries and body of the Mississippi River. The river basin and Gulf of Mexico are considerably polluted as a result of these operations. This situation of large-scale pollution is examined extensively in a latter chapter, but it is sufficient here to point out that it is facilitated by the political influence of this lucrative concentrated industry, i.e., its ability to fund the politics that lower its regulatory burden.11 Efficiency means that the goods society desires are produced at minimum cost and price, and in the quantities wanted, but this assumes that there are no external costs that society suffers. By having negative externalities, society’s resources are over allocated to the production of the goods in question. The negative externalities also mean we would also be producing and imposing a side good (the uncleaned pollution) that society does not want, but that it must suffer. Economic efficiency is sacrificed and fairness in equity is certainly disturbed.12

11 As reviewed in a latter chapter, this CAFO industry is represented politically by the Federation of Farm Bureaus. 12 More detailed notions of “fairness” were considered in Chapter 3.

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The neoclassical economic model was developed over the first half of the previous century. Beginning in the 1930s, however, broader notions of economic welfare were explored to form a more advanced theory of economic efficiency. In the 1950s and 1960s, a neoclassical economic welfare model was developed for the purpose of exploring the effects of various market distortions such as externalities and income inequalities. This neoclassical welfare analysis was based upon the following: i. The economy exhibits perfect competition, i.e., production of each good is atomized among a large number of homogeneously similar producers. ii. Producers are motivated by profit maximization, and production exhibits diminishing marginal costs over lower levels, and then increasing marginal costs over higher output levels. iii. There are no externalities in that all costs of production are internalized to the firms producing the goods in question. iv. Buyers of the final products do not purchase sufficient quantities so as to exhibit the market power of affecting the price. v. There are no appreciable income or wealth inequalities. vi. Individual buyers are each isolated utility maximizers with utility functions that exhibit diminishing marginal utility. vii. The social welfare is merely the sum of all individuals’ utilities. Under these conditions, it can be shown that social welfare (as defined in vii) is maximized by free market exchange. It can also be shown that negative externalities distort the economy, cause inefficient allocation of resources, and cause a general welfare inefficiency, i.e., a lower overall welfare than otherwise. In addition, rather than being isolated utility maximizers, collective actions by individuals can enhance society’s welfare even when measured by the sum of individual utilities. The next relevant consideration, however, concerns positive externalities . These effects are defined in the next section below, but they concern the positive impacts that the environment has on society and economic activities. For example, the provisions of environmental amenities such as parks often increase real estate values in surrounding areas. The provision of clean water and air increases the affected areas demand for location of both clean businesses and population. These are positive externalities as analyzed in the next section. Social welfare is also enhanced by these

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effects, and these are typically provided not by the free market (although sometimes this occurs) but by the collective government.

7

Positive Environmental Externalities

Positive externalities generated by environmental amenities have significant effects on social welfare. They are particularly relevant for environmental considerations of economic efficiency and equity. A positive externality occurs when an economic exchange or other social interaction generates positively valued effects (measured monetarily or by other metrics) for an otherwise uninvolved third party.

Consider environmental restoration and its generation of positive externalities. For example, consider the Waterkeepers environmental coalition’s efforts to clean the Ipswich River in Massachusetts. Seventy years ago, the Ipswich was a clean picturesque trout stream in Northeastern Massachusetts. It flowed through small New England towns and meadows and into a picturesque bay on Cape Ann. During the latter half of the last century, real estate interests generated a tragedy of the commons phenomenon where riverbanks were illegally filled in (illegal under Massachusetts law) and water pollution became widespread along its entire length and its tributaries. In the past two decades, the Ipswich River Keepers (later called the Waterkeepers when the National umbrella organization changed its name) began purchasing and restoring riverbanks, and also began mitigating the sources of pollution along its lengths. This partly restored the Ipswich Bay as an attractive and usable resource; recreation (the use of kayaks, canoes, and rowboats) returned to the Bay and River. Restaurants overlooking the bay returned. In general, this water resource again became a positive natural resource. All of these uses became the positive externalities generated from the restoration efforts of a few environmental activists. We observed these positive externalities generated by perhaps all of our environmental restorations because people value and actively enjoy natural areas. People congregate there; they find active ways to enjoy environmental amenities, and these natural resources also provide considerable amenities beyond recreation. These include enhanced real estate values, the facilitation of the business firms that directly serve those involved with environmental recreation, and also facilitation of those who provide other

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ancillaries that prosper close to environmentally clean areas. Civic organizations have historically attempted to provide natural park-like areas because they generate positive externalities and/or recreation and associated commerce.13 The important point is that the opportunities of producing private goods may come at the cost of those natural public goods associated with positive externalities of environmental settings. As in the case of the real estate development along the Ipswich River, the positive externalities of the public good could outweigh the benefits of private development. Restoration may considerably enhance the public’s welfare. Environmental destruction is often caused by the negative externalities of market-oriented private production. In a similar way, environmental preservation and restoration often generates positive externalities of considerable value. Conceptually we should be able to value these potential positive externalities in order to judge when environmental preservation and/or restoration is warranted as in the public’s interest. These environmental amenities are not, however, provided by the market, but by the public via government actions. In fact, government agencies do “cost–benefit analyses” (CBA) of prospective environmental efforts, and these efforts are often justified by these analyses. (For example, consider the “National Environmental Plan” of the US Army Corps of Engineers which is aimed at providing environmental sustainability for US water resources.) They tend to solicit, consider and include public input. They require reasoned social discourse to be qualified as considered. These issues are explored in detail in latter chapters, but here it should be recognized that avoiding preservation and restoration has the equity implication of depriving the public of future environmental resources. That is what the cost–benefit analyses conducted by government entities should be aimed at, i.e., the estimates of future net benefits derived from enhancements, preservations and restorations.14 These analyses play a critical role in our reasoned social discourse; they form the future, and to be rational, they must consider the interests of future generations. The next chapter attempts to elucidate these analyses. 13 Eco tourism is currently a significant area of commercial interest. 14 Note that there is considerable complaint about CBA due to its apparent reliance on

market-based valuation which many perceive as deeply flawed in not properly reflecting nature’s “intrinsic value.” See O’Neill (2017), Sagoff (2008), and Gillroy (1998) as examples.

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8

Conclusion

The public rhetoric concerning environmental issues is often dominated by economic references. A book that concerns reasoned environmental discourse should therefore address this common rhetoric. To that end, this chapter reviews the economic notions of negative externalities as generated by market forces, and also the positive externalities generated by society’s collective action for environmental preservation and restoration. It also briefly reviews the notions of cost–benefit analysis for the projects that might generate these publicly supported positive externalities from environmental amenities. As indicated, the rhetoric of the benefits of the competitive market is deeply flawed without these considerations. These amenities have considerable value even though not provided by the traditional marketplace, but rather by the public sector. The rhetoric of environmental regulation, restoration, and preservation argues that these valuations justify collective actions of environmental enhancement.

References Gillroy, John Martin. 2000. Justice and Nature. Washington, DC: Georgetown University Press. Gillroy, John Martin. 1998. Beyond Sustainability: Toward an Ecosystem Approach to Natural Systems Preservation in Environmental Policy. In The American Political Science Association Annual Meetings. Boston, MA. Hayward, Tim. 2017. Ecological Space: The Concept and Its Ethical Significance. In The Oxford Handbook of Environmental Ethics. Oxford, UK: Oxford University Press. O’Neill, John. 2017. Markets, Ethics, and the Environment. In The Oxford Handbook of Environmental Ethics. Oxford, UK: Oxford University Press. Robinson, Richard. 2019. Imperfect Duties of Management: The Ethical Norm of Managerial Decisions. Cham, Switzerland: Palgrave Macmillan. Robinson, Richard. 2019. The Management Nexus of Imperfect Duty: Kantian Views of Friendship, Discourse and Due Diligence. Journal of Business Ethics 157: 119–136. Sagoff, M. 2008. The Economy of the Earth, 2nd ed. Cambridge, UK: Cambridge University Press. Smith, Adam. 1776. An Inquiry into the Nature and Causes of the Wealth of Nations. Oxford, UK: Oxford University Press. Smith, Adam. 1759. The Theory of Moral Sentiments. Oxford, UK: Oxford University Press.

CHAPTER 8

Duty, Environmental Advocacy Organizations, and the Commons

1

Introduction

Consider the creation of the commons.1 To begin this consideration, allow the use of the philosophical construct of the “original state of nature” as in Hobbes (1651) and Locke (1690). People who newly discover and enter such an original state would presumably and initially perceive this world as all common property at least until they have the opportunity to form the institutions of private property, that is the citizenry of this natural original state might initiate the concept and legal specifications for private property within their locale. Forming these specifications requires effort on the part of the citizenry, efforts described here as collective imperfect duty. For the sake of convenience of illustration, allow a natural harbor to also exist in this “locale.” This newly formed “citizenry” might also initiate the concepts and specifications for the commons, that is the common property resource (CPR) that promotes a degree of efficiency in certain usage such as that associated with the afore mentioned “natural harbor.” Who can use this harbor, and when can they use it? What should be the extent of this usage? Should there be a collective fee for this usage? How will these restrictions be enforced? The important point here is that reaching the general agreements concerning these specifications requires 1 This might be termed a common property resource (CPR) as in Ostrom (1990).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. M. Robinson, Environmental Organizations and Reasoned Discourse, Environmental Politics and Theory, https://doi.org/10.1007/978-3-030-75606-2_8

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some degree of collective imperfect duty among the citizenry, a notion explored below. Note that the agreements concerning private property versus public property (the commons ) specifies perfect duties that bind the behavior of individual citizens, but the formation, monitoring, and perhaps governance requires diligent collective imperfect duties on the part of at least some of the citizens, a group termed here as the activists. They initiate and conduct the knowledge acquisition that in turn initiates the public discourse that results in the various resolutions required for regulating CPRs. It is argued in this chapter that this type of collective duty among activists requires knowledge in order to be effective in forming and governing the commons resource. The acquisition and analysis of this information is the collective imperfect duty of activists that form the bedrock of the governance of commons. Among the citizenry, there might be other activists who argue that there are other resources such as natural paths for transportation, or clean freshwater sources, and that these should also become public property. To be persuasive, these arguments also need knowledge of the relevant facts and proposed engineering. All this gathering of relevant facts, and formation of persuasive arguments, are also imperfect duties. In order to ultimately be persuasive, a sufficient level of collective imperfect duty is required and these tend to be performed by coalitions of activists. Today we recognize these as environmental advocacy organizations and associated coalitions. Exploration of the nature of these entities and their activities is the purpose of this chapter. This chapter argues that (i) the establishment and management of the commons depends upon the collective exercise of imperfect duty at least on the part of some knowledgeable organized activists, and consequently (ii) the tragedy-of -the-commons results from a failure of the communal exercise of this imperfect duty. Note that as stated above, the exercise of collective imperfect duty ultimately defines the perfect duties necessary for avoidance of these failures. Note also that these failures of imperfect duty could occur either because of the establishment of inappropriate governance of the commons, or because of weakness in enforcement of the established perfect obligations perhaps due to weakness in monitoring compliance. As a result, this examination of collective imperfect duty provides insight into the causes of the tragedies-of -the-commons as conceptualized by Hardin (1968). Previously the problem has been analyzed as only

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lapses of perfect duty when the norms applicable to the common property resources are violated. It is pointed out here, however, that since the resource in question must be defined and managed through collective imperfect duty, then its failure is essentially a failure of this type of communal effort. Exercises of collective imperfect duty can result in badly designed governance of the sort that leads to lack of enforcement. This theme is developed here.

2

The Logic of the Commons

If reason is the defining characteristic of humanity,2 then the tragedy-of the-commons poses a conundrum, namely, “Is it a problem embedded in the reasoning capability of people, or perhaps some other human characteristic?” This question is begged because collective reason appears to be the basis of socially acceptable management of common property resources, and yet the “tragedies” continue to exist. Possible explanations include the following: • Human reason may be a central capacity, but exercise of rational and unselfish judgment may not be ubiquitous because of individual laziness, or possibly because of conflicts of interest. For example, some people might selfishly manipulate the management of the commons for their own narrow purpose rather than serving a broader public interest. • The individual’s visioning of the common property resource may not be consistent with society’s vision for reasons unrelated to self-interest. For example, one person’s common parkland may be another’s preferred private property. Yet another may want a pure wilderness area rather than a park-like setting. Hence within the collection of judgments of the individuals’ visions, there may be wide differences. Disputes among these individuals may lead to inattention to management and ultimate destruction of the resource. This problem might result from a lack of social discourse and reasoning as compared to reasoning in isolation.

2 See Besley (1995, p. 748) for this “defining characteristic.” Also see Arendt (1978, p. 47).

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• Social discourse and reasoning may be much more difficult than reasoning in isolation. For example, there may be various inhibitions to communal reasoning and its resulting judgment because of the need for each separate individual’s vision being aired in public. This might be the core of the problem, i.e., artificial inhibitions and biases that cause misunderstandings of the others’ vision which, if overcome, could lead to resolution of the conundrum. The last of these explanations is of particular interest here. It begs two questions: • What is the nature, definition, and subsequently implied society’s view of optimal governance of “the commons?” • What in general is the potential for undertaking any collective human action based on communal reason and judgment? It is argued here that any logical answer to these questions concerns the examination of imperfect duty with its practical limits, especially in the collective. This examination poses particularly interesting insights into the causes of our age’s environmental degradation and attempts at restoration. Consider Hardin’s (1968) classic grazing problem that purports to explain the basis of the tragedy.3 Hypothetically allow a farmer with grazing cattle to consider overgrazing a village common. If she allows the overgrazing, then the common will lose its regenerative ability. The farmer, however, believes that if she prevents her animals from grazing, then others will continue grazing their cattle so that the tragedy-of-thecommons will occur independently of her decision. Given that others believe the same, then all (or at least some) continue grazing and the tragedy is assured. The alternative is that through collective agreement, all can restrict grazing by collectively establishing some “limited rights to graze” in order to avoid the tragedy. Establishing the “limited right” creates the perfect duty to not violate the restriction, but the formulation of these restrictions depends upon collective imperfect duty. This essentially describes Ostrom’s (1990) Swiss village solution to grazing as reviewed 3 Dawes (1973, 1975) expands Hardin’s analysis into a prisoner’s dilemma analysis.

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in Chapter 5. To fully explain this, however, requires clarity as to the meanings of both types of duty, as presented in Chapter 3 and reviewed below.

3 Notions of Duties and Their Establishment with Respect to the Commons The distinction between perfect and imperfect duty is essentially Kantian as reviewed in Chapter 3. It derives from the Kant’s description of our categorical imperative process 4 (CIP) as built upon three interrelated formulae, each derivable from the other, and that as a group poses both (i) a personal process for forming individual moral maxims, and (ii) a social discourse process for forming societal maxims whether expressed by law, or expressed by non-legal but nonetheless ethical norms. Kant argued that his descriptions of our three interrelated formulae of the categorical imperative (CI) express the way the common populace thinks about how our moral maxims should be formed. This would include our maxims with respect to the establishment and governance of the commons. Kant’s first description (1785, 4: 402) of the CI is, “Act only on maxims you would have everyone act on.”5 With respect to this, Kant argued, “The common reason of men in its practical judgments perfectly coincides with this, and always has …” (ibid). Since the three specifications of the CI are interrelated, this “common reason of men” argument applies to all three by extension. (Chapter 2 reviews this interrelation.) This first formulation of the CI particularly applies to the tragedy-of the-commons as illustrated by the grazing problem reviewed above. One must ask of the farmer, “Would you have all of the other farmers behave by overgrazing?” If the farmer would have others establish a personal maxim of restraint, then would she not also behave accordingly? If so, would she not discuss the issue with the other farmers with an end in mind of a general agreement of commons’ management? This appears to be a logical consequence of a general acceptance of Kant’s first specification of our CI.

4 See Chapter 2, and also Sullivan (1989), Rawls (2001, Chapter 16), and Robinson and Shah (2019) for descriptions of this process. 5 Maxims are the moral principles of action (or inaction). See Allison (1995, p. 436).

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Kant’s second description of the CI is, “Act so that you treat humanity, whether in your own purpose or in that of any other, always as an end and never as a means only” (1785, 4: 429). O’Neill (1995, pp. 114– 115), terms the second formula “the formula of the ends-in-itself,” and emphasizes its use as the foundation for perfect and imperfect duty. (The differences in these duty classifications were presented in Chapter 3.) This second specification is generally interpreted as requiring a degree of volitional-based beneficent actions (specified below as imperfect duty), aimed at broad goals such as, “Be civically involved!” These should include duties applying to environmental preservation or restoration. Because the specification of this formula requires treating both oneself and others as ends, and not only as means, and therefore not deceiving or forcing others into serving only one’s own personal ends, then imperfect duty naturally requires practical limits that Kant found in individual “circumstance and inclination” (Kant 1797, 6: 454). Without such practical limits, one could sacrifice any ability to serve one’s own ends. This implies a tradeoff approach that is relevant to our environmental actions; there is much to preserve and/or restore. Where do we place our efforts and resources? What are the tradeoffs? What are the practical limits? Consider the farmer’s grazing choice as reviewed above. Concern for the ends of others, particularly the future grazing of the cattle of both others and self, should generate a duty to attempt to organize a coalition of farmers to restrict at-will gazing by all. This duty serves the community and the self. It is volitional and has a practical limit in that organizing a coalition can be exhausting and expensive. The farmer also has other obligations. This duty is therefore imperfect. Kant’s third description of the CI is, “All maxims that proceed from our own making of law ought to harmonize with a possible kingdom of ends .”6 This harmonizing with a kingdom of ends is generally interpreted as the pursuit of a moral community, that is the pursuit of a union of self-legislating individuals pursuing the moral laws and duties they create. This should be viewed as the motivational formula of the CI in that this pursuit of a moral community should motivate our perfect and imperfect duties.7 With respect to our farmer’s grazing problem, pursuit of a moral

6 See Kant (1785, 4: 433–439) and also see Chapter 2. Also see Wood (1999, pp. 17– 18). 7 See Robinson (2018) for this motivational interpretation.

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community implies the attempt at forming the coalitions that benefit that community including the preservation of the useful-for-grazing managed commons. The three descriptions of the CI are guides for the process of forming both personal and societal maxims and duties. But there are two additional elements that are usually incorporated into the CIP, and both are germane to the problems of defining and governing the commons. The first additional element is that the “process” must be based upon rational social discourse that incorporates both individual logical reflection and reasoning in common. This discourse acts as a filter for proposed maxims so that those accepted have logical content and reflect society’s preferences after logical discussion. The second additional element is that this discussion should be further guided by Kant’s universal principle of justice (UPJ), a principle that naturally follows from the second CI formula: Behave in such a way that your choices are compatible with the greatest amount of external freedom for everyone.8 (Kant 1797, 6: 230)

One might mistakenly argue that the greatest amount of external freedom implies open grazing without restriction by the common’s governance. This overgrazing, however, destroys the ability of others to graze the commons. Any maxim of restriction is similar to maxims against theft, fraud, or violence. One’s personal freedom must be restricted to the nonimpingement of the freedom of others. One expects our personal freedom to be subject to the UPJ. It applies to our farmer’s restricted grazing. It also applies to saving this resource for future generations.

8 Sullivan’s (1994, p. 12) interpretation is used here. In modern terminology, Kant’s use of right is generally interpreted as justice, hence UPJ.

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4 Applicability of Imperfect Duty to the Community and the Commons9 It is argued in this chapter that the conception and governance of the commons depends upon collective imperfect duty, which in turn creates perfect duties that follow from that governance. These fundamental notions of duties were introduced, defined, and explored in Chapters 2 and 3. It is necessary to define collective imperfect duty, but prior to exploring this notion we need an appropriate exploration of the community interdependence of its members. This requires an exploration of the very notion of community. We should view communities as expressions of the mutual dependence of their participants, who we assume aim at fulfilling their own needs, and those of others. Mutual respect, however, requires that these agents treat each other not merely as the means to their own ends, but must also enable others to pursue their ends, i.e., conditions specified under the second formula of the CI. This Kantian notion motivates the following proposition which is a statement of Kant’s “maxim of common interest” (ibid., 6: 446) as explored in Chapter 3. It declares an aspirational community norm, and not necessarily a positive observation of some community. Proposition of mutual dependence: The norm of mutual communityrespect requires that members not only pursue their own ends but are also interested in enabling other community members to achieve their ends, i.e. “we make ourselves an end of others” and “through our will we make others our ends as well. The happiness of others is therefore an end that is also a duty.” (Kant 1797, 6: 393) The term “others” implies the potential for “community.”

Given this proposition of mutual dependence, then collective imperfect duty may be particularly justified in the sense that it serves the ends of others, and perhaps our own ends as well. This type of duty is defined here. Collective imperfect duties are volitional for the community’s individuals but are coordinated and aimed at a common purpose. They are volitional in detail and extent, but are required in the broadest sense of purpose, i.e.

9 This section borrows from Robinson (2019).

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be of use to your community. In this sense, the extent and involvement of each member is a matter of individuals’ choice free of coercion.

For example, the broad-duty notion of the civic involvement of individuals allows specific activities to be subject to individual choice. Illustrations of collective environmental imperfect duties include such civically involved actions as restoration of a river, or the cleaning of a refuse dump, or restoration of a park, etc. These specific involvements often follow the popularity generated by community reinforcement and emerge as manifesting collective imperfect duty. These involvements exhibit communal aims with a common purpose, for example the organization of civic celebrations, or the organization and governance of common property resources. Resources of specific geographic areas—clean and/or noiseless areas, clean water sources, areas with sight values, etc.—might be privately or publicly owned. The citizens of the areas that envelope these resources generally decide the extent of public or private domination or ownership.10 Collective imperfect duty provides the key ingredient for establishing public ownership or domination through regulation. The common property resource (the commons ) may be publicly owned or privately owned but extensively regulated. It is established and governed by those societies with a sufficiently strong sense of exercising collective imperfect duty that democratically persuades the broader populace. The following definition then emerges so that preservation or extensive regulation is justified. “The commons” is a resource that democratically and legally emerges from the efforts of communally-oriented collective imperfect duty, efforts that are sufficiently strong to be democratically persuasive. It might establish public ownership and governance, or public regulation of an otherwise private resource. Governance and regulation are expressed as perfect duties.

The purpose of linking this definition of the commons with collective imperfect duty is presented and explored in the next section where the rationale and potential efficiency of this process of the establishment

10 By “domination” we mean private ownership but heavily regulated and restricted in development. Various historical properties and buildings, as an example, can be privately owned but restricted in style of refurbishment.

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of the commons is examined. Note that this definition is linked to the concepts of “democratic and legal” establishment. This certainly applies to resources such as the New England town commons or Swiss Village commons, but it does not apply to common resources such as our oceans and global atmosphere where clear jurisdiction is lacking. These problems are explored in Chapter 12. This jurisdictional difficulty is at the root of the problem of the tragedy of the global commons.

5 Knowledge, Collective Imperfect Duty, and the Commons Imperfect duties, especially of the collective sort, are necessary for promoting the interests of all. This includes the imperfect duties that apply to establishing and governing the commons. In the analysis below, the closer the community’s relationships, the stronger the encouragement is of collective duty of an imperfect sort. The characteristic of close therefore influences the practical limits upon which imperfect duties rely.11 This interpretation is examined here. As reviewed above, both perfect and imperfect duties stem from our respect for the dignity of persons and should be motivated by our pursuit of a moral community. But which community do we refer to, a larger or a smaller more immediate community? Perhaps the closer the community, the greater the likelihood of actions aimed at the pursuit of wide moral goals, and also perhaps the more effective we would expect these actions to be. This is a reasonable claim because we expect that perhaps the more immediate the relation, the more the activists will likely know the community’s needs and the most effective way to provide this duty. This immediacy (or closeness ) is therefore of interest for our investigation of the commons in that every commons has a recognized community behind its establishment and governance. Those communities of closeness are more likely to be involved with, and perhaps more effective in providing the relevant duty. This proposition is explored in this section. O’Neill (1995, p. 130) points out that, “Kant defines duty not (as would be typical today) as an outward performance of a certain sort, but as action that embodies a good will , that is action on a maxim of

11 See Kant (1797, 6: 454).

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a certain sort.”12 Kant famously pointed out, “It is impossible to think of anything at all in the world … that could be considered good without limitation except a good will .” (1797, 4: 393) O’Neill responds to this, however, by linking “reason’s function” to the production of this good will. (See O’Neill 1995, p. 74.) Logical reason can produce good will which forms the maxims for the exercise of this reason. Since logical reason places good will on the exercise of maxims derived from the CIP, and therefore consistent with the CI, then good will acts as a filter for these maxims, i.e., good will is manifested by the exercise of this logic. Good will distinguishes those maxims that are logically moral. Since our duties are manifested in our maxims, then our duties should stem from good will , and therefore must have a logical factual rationale. As argued below, this factual rationale applies to our establishment and governance of the commons. Therefore, the community that governs the commons must do so from those good wills that have knowledgeable and logical impetus. Using this “factual rationale,” we can hypothesize that our beneficent efforts might be more effective in smaller more immediate (or intimate) groups. This immediacy might heighten our knowledge of what the community might desire from our efforts, and also what action would be the most effective in meeting the community’s needs. This describes a “logical analysis” for how we should pursue our imperfect duty. In a cost– benefit analysis, the cost of obtaining this “factual” information might be lower the greater the degree of intimacy or closeness of the community. In fact, we could use the degree to which we have this knowledge to define our degree of community, i.e., those at greater physical distance could still be those whom we have the most information as-to-need as well as the potential effectiveness of our efforts, both of which are necessary for our informed choice. Those closest by distance might still be those about whom we have little information about need or potential effectiveness. The interesting and relevant question then remains, “What do we mean by close; what do we mean by a close community?” The answers to these questions lead us to explorations of collective imperfect duty, the principle concept behind defining and governing the commons. Hence the following proposition is posed. It is an extension of the proposition of environmental knowledge presented in Chapter 3.

12 Also see Kant (1785, 4: 397).

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Proposition of knowledge and imperfect duty: The greater the member’s knowledge of the requirements of the community, the greater the obligation of imperfect duty, ceteris paribus. To the extent that community closeness generates members’ knowledge concerning the needs of the community, the greater the obligation of collective imperfect duty without consideration of resource constraints.

Is this member’s knowledge (i) passively obtained, or (ii) developed by the community members efforts? The former surely exists in that we might passively obtain knowledge about the needs of our community just by our passive and casual observations, but the latter poses an imperfect duty of virtue (character) to actively seek the relevant knowledge. This poses an additional proposition that also extends from the presentations of Chapter 3. Proposition of imperfect duty to develop community knowledge: We have an imperfect duty to develop knowledge about the needs of our communities, and while this duty has practical limits, it is stronger among closer communities.

Why should this imperfect duty be directly related to closeness ? There are two possible reasons: (1) the closer the community is, the easier the effort to obtain relevant knowledge of its needs; (2) the closer the community, the more likely it is for collective imperfect duty to be effective (as in actions among a community of friends), hence the cost of obtaining the knowledge is more likely to be borne. It is the very nature of community intimacy to assist one another from benevolent motives, and also to express a degree of affability that should be characterized as beneficence, i.e., “to do or facilitate good.”13 It is this “benevolent motive,” not just a self-interest motive, that the community’s collective imperfect duty relies. If we are to develop knowledge about the needs of our communities, and if we are to act on those needs, then additional virtuous relations are more likely to develop. If a person benefits by admiring the dutiful community action of another, and thereby her commitment to imperfect duty is strengthened, then the dynamic of virtuous community relations

13 Note that Blum (1980) argues that imperfect duty is generated from the emotions of sympathy for the suffering of others. This is essentially Humean but not a Kantian argument.

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develops. This is the Aristotelian process of virtuous relations,14 and it is partly founded on the three propositions presented above, and partly on love of one’s friends as moral community members. The relations of virtue (Aristotle’s “friendships of virtue”) develops the community and feeds the performance of collective imperfect duties. Chapter 4 also explored this foundation of “friendships of virtue” as related to the reinforcement of our community efforts. The effectiveness of this process in serving the community’s needs depends on its collective imperfect duty to develop relevant knowledge.

6 The Establishment and Governance of the Commons The previous sections indicate that the commons, however broadly or narrowly defined, is inextricably linked to the community that establishes and governs it. The linkage is the expanded collective imperfect duty to create and regulate through policies that reflect the relevant knowledge. A narrow definition of commons could be restricted to geographically local entities; a broader definition might extend well beyond a single locality, and might be established by a broader community of dispersed activists concerned with a very broad resource such as the Great Lakes, or clean air that flows from a distance, or even our oceans. Whatever the community, it must possess and apply sufficient knowledge that motivates the activists to persuade the democratic majority. It is possible that the more remote and/or broad the resource, the greater the difficulty in persuasion. Today, environmental advocacy organizations (EAOs) and coalitions play the role of gathering the necessary data and developing and rationally presenting the analyses that declare and persuade our society as to what our common property resources should consist of and how they should be managed. These organizations and coalitions express our collective imperfect environmental duty. The material below reviews the history of the establishment and activities of some of our more significant EAOs. This history shows that along with a few governmental entities such as the EPA, the Interior Department, and the Corps of Engineers, these EAOs express society’s

14 See Cooper (1980, pp. 301–340) and Robinson (2018) for a review of Aristotle’s “relations of virtue.”

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expertise with respect to the scientific and socio-economic analyses we require for the management of our CPRs. Today, however, they also play the role of initiating revelations of significant problems with respect to these CPRs, problems such as the extent of environmental degradations resulting from concentrated animal feeding operations (CAFOs), or the forest destructions caused by acid rain, or the rapid declines of our marine life caused by acidification of our oceans, or the effects of pollution from plastic wastes, or the many other environmental crises humanity must now confront. For political reasons, our government agencies often appear unwilling to initially publicize environmental problems of significance. It is natural, however, that the expertise expressed by our EAOs and their coalitions do publicize and propose remedies for these significant problems. They often initiate and propel our social environmental discourse in a reasoned fashion. Some examples are presented in Chapters 10 and 11. These NGOs and coalitions are essential and most important for a cohesive and reasoned resolution of today’s severe environmental problems. Prior to the explorations of the organizations reviewed below (The Sierra Club, The Wilderness Society, and The Environmental Defense Fund), we need to establish the basic rationale underlaying their role, i.e., that they are an expression of the most relevant expertise of society as it pertains to environmental issues. This rationale is that these environmental organizations are society’s natural expression of the two propositions of knowledge presented above, as well as Kant’s proposition of mutual dependence. 6.1

The Existence and Role of Environmental Advocacy Organizations (EAOs)

Our environmental organizations and coalitions are composed of individuals pursuing imperfect duties aimed at the wide goals of preservation and restoration. The collection of these individual but coordinated pursuits compose the actions of our environmental organizations, i.e., the collective imperfect duties. These express coordinated expertise concerning environmental issues: what needs preservation, what needs restoration, and how these actions should be undertaken. These are founded on the knowledge propositions reviewed above in that many of those involved have the background expertise to apply to the environmental problems addressed by

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the organizations. In fact we should consider these organizations as the tools for the expression of the coordinated expertise and knowledge. As reviewed above, the pursuits of these imperfect duties depend on the existence and pursuit of relevant knowledge. Given the tradeoffs and practical limits that apply to these duties, the degree of applicable knowledge establishes the degrees of pursuit, i.e., the restoration of this rather than that resource. (Note that this poses an essential point when we consider the problems associated with our global commons, i.e., where do we find the necessary knowledge to tackle this most significant problem of our age?) Therefore, our EAOs tend to express the relevant scientific and socio-economic information and analyses. Indeed, because our government institutions tend to be constrained by political forces, but our EAOs and their coalitions are not, the emerging environmental issues are typically first brought to the public’s attention by organizations such as The Wilderness Society, The Sierra Club, and The Environmental Defense Fund, and other well established or newly formed coalitions. The histories of some of these coalitions and their involvements in significant issues are reviewed below. 6.2

The Wilderness Society

The Wilderness Society was founded in April of 1937. It is an American nonprofit conservation organization dedicated to protecting natural areas, especially on federal public lands. They advocate for establishments of “federal wilderness areas”—a status of protection from development and uses many other than the wilderness experience—and other protective designations such as for “national monuments.” The Society has been particularly involved in federal-agency lands such as national parks, national forests, national wildlife refuges, and the managed lands under the domain of the Bureau of Land Management (BLM). The Society specializes in creating coalitions of environmental groups and representatives of sportsmen, ranchers, scientists, and business owners. Its charter states that it bases its work on the science and economic analysis that strengthens the argument for land protection by documenting the potential scientific and economic benefits so derived. The Society was instrumental in the passage of the 1964 Wilderness Act that led to the National Wilderness Protection System of 109 million preserved acres of US public lands. As an indication of the individual expertise involved in this Society, consider the eight founders:

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• Bob Marshall was “Chief of Recreation and Lands” for the US Forest Service. • Aldo Leopold was a noted wildlife ecologist and author of the highly influential A San County Almanac (see Chapter 4). • Robert Sterling Yard was the publicist for the US National Park Service. • Benton MacKaye is known as the “father of the Appalachian Trail.” • Ernest Oberholtzer is known as the “father of the Quetico-Superior Wilderness Area.” • Harvey Broome is considered the “father of the Great Smokey Mountains National Park.” • Bernard Frank was the leader in creating the Rock Creek Watershed Association and the Chesapeake and Ohio Canal National Historic Park. • Harold Anderson was the leader in creating the Potomac Appalachian Trail. In addition to these founders, some other notable associates include: • Olaus Murie was a wildlife biologist who joined the organization’s governing council in 1937, and became president of the Society in 1950. Under his leadership, the Society was the instrumental lobbying force preventing large federal dams near Glacier National Park and Dinosaur National Monument. • Celia Hunter was the founder of the Alaska Conservation Society and the first woman president of the Wilderness Society in 1976. • Howard Zahniser is the author of The Wilderness Act of 1964, and served as Society’s executive director and as the editor of the Society’s magazine The Living Wilderness. • Mardy Murie was a conservationist and governing council member. She was instrumental in the designation of the Alaska National Wildlife Refuge as a federally protected wilderness area. • US Senator Gaylord Nelson of Wisconsin was the founder of “Earth Day,” and was counselor to the Society. • Deanna Archuleta was the “Southwest Regional Director” of the Society, and “Deputy Assistant Secretary for Water and Science” at the US Department of the Interior.

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• Stewart Brandborg was “Executive Director” of the Society from 1964 to 1976. During this time more than 70 wilderness areas in 31 states were established under the 1964 Wilderness Act . The Wilderness Society played a major role in passage of the following: • • • • • • • •

The Wilderness Act of 1964. The Wild and Scenic Rivers Act. The National Trails System Act of 1968. The National Forest Management Act of 1976. The Tongas Timber Reform Act of 1990. The California Desert Protection Act of 1994. The National Wildlife Refuge System Improvement Act of 1997 . The Public Lands Omnibus Act of 2009 which added wilderness areas in nine states to the wilderness system.

Some other significant accomplishments of the Society include: • The Society developed the first maps that indicated the decline of old-growth forests in the Pacific Northwest. These maps provide the factual basis for a campaign to preserve these ancient forests. • The Society helped gain appropriations from the Land and Water Conservation Fund to add millions of acres of wildlands to local, state, and federal parks, forests, and refuges. • The Society produced the first scientifically valid assessment of the status of Pacific salmon stocks in California, Oregon, Washington, and Idaho. This contributed to our current significant salmon conservation movement. • The Society played the significant role establishing the priority of forest conservation in New England and helped organize the Northern Forest Alliance of more than 40 organizations working to preserve these forests. • The Society led the movement for reforms in oil and gas lease procedures of the BLM especially with respect to Southeast Utah protected areas.

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Through the Society’s efforts, there are currently 750 wildernessdesignated areas distributed through all 50 states. Recent additions include: • • • • •

The Boulder White Clouds Wilderness in Idaho (2015). The Hermosa Creek Wilderness in Colorado (2014). The Columbine Hondo Wilderness in New Mexico (2014). The Alpine Lakes Wilderness Expansions in Washington (2014). Wovoka Wilderness in Nevada (2014).

The Society works with local communities to protect their unique historical sites, cultural areas, and wildlands as National Monuments. Recently, it has assisted in establishing the following Monuments: • Katahdin Woods and Waters National Monument in Maine (2016). • Mojave Trails, Sand to Snow and Castle Mountains National Monuments in California (2016). • Browns Canyon National Monument in Colorado (2015). • Berryessa Snow Mountain National Monument in California (2015). • Basin and Range National Monument in Nevada (2015). • San Gabriel Mountains National Monument in California (2014). • California Coastal National Monument Expansion in California (2014). • Rio Grande del Norte National Monument in New Mexico (2013). • San Juan Islands in Washington (2013). Given the record presented above, we can recognize that The Wilderness Society is one of the more significant and effective institutions providing persuasive and reasoned discourse for environmental preservation and restoration concerns. 6.3

The Sierra Club

The Sierra Club was founded in May of 1892 by the Scottish-American preservationist John Muir. (See Chapter 4.) He was its first president. The Club acts primarily in the US, but it does have a Canadian affiliate, and also acts on coal issues in Europe. (See Chapter 10 for an exploration of the Club’s involvement in the Beyond Coal initiative.) The Club’s stated

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mission is, “To explore, enjoy, and protect the wild places of the earth; to practice and promote the responsible use of the earth’s ecosystem and resources; to educate and enlist humanity to protect and restore the quality of the natural and human environment; and to use all lawful means to carry out these objectives.” Richard Skinner of the Brookings Institution described the Club as one of the US’ “leading environmental organizations.”15 The journalist Robert Underwood Johnson worked with the preservationist John Muir on the successful campaign to create a large Yosemite National Park to surround the much smaller California State park established in 1864. This campaign succeeded in 1890, but before that success, Johnson encouraged Muir to form an advocacy society dedicated to the protection of the Sierra Nevada from development. In May of 1892, a group of University of California and Stanford University faculty helped Muir to start the new organization as modeled on the Appalachian Mountain Club. The Club’s first goals were to help establish Glacier and Mount Rainier National Parks, to convince the California Legislature to convert Yosemite Valley into a National Park, and to preserve California’s coastal redwood forests. Muir escorted President Theodore Roosevelt through Yosemite in 1903. Two years later, the California Legislature ceded Yosemite Valley and Mariposa Grove to federal lands. The Club won its first lobbying victory when Yosemite became the second US National Park. Hetch Hetchy is a dammed canyon within the Northwest corner of the Yosemite National Park. In the early 1900s, the Sierra Club opposed the creation of a reservoir via damming the Tuolemne River for the purpose of providing a municipal water supply for San Francisco. The Club lost this battle, its first significant lost campaign, and a section of the beautiful Yosemite Valley was submerged. In response, the Club lobbied for the removal of the national parks from the domain and supervision of the US Forest Service, and the creation of the National Park Service in 1916. A Club member, Stephen Mather, who opposed the Hetch Hetchy Dam, became the Service’s first “Director.” Between the world wars, the Sierra Club’s several years of lobbying succeeded in the establishment of the Sequoia National Park (1926), and the establishment of Kings Canyon National Park (1940). The Club’s

15 See Skinner (2007, pp. 57–58).

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reputation further developed in the 1950s when it successfully opposed the BLM’s Echo Park Dam within Utah’s Dinosaur National Monument. This dam was deleted from the Colorado River Project plan in 1955. In 1964, the Club joined with the Wilderness Society’s successful campaign to pass the Wilderness Act in 1964. In the 1960s, the Club’s lobbying efforts also prevented The US Bureau of Reclamation from building two dams within the Grand Canyon. It also helped establish the Redwoods National Park, and the North Cascades National Park. In the 1970s, the Club successfully lobbied for passage of the Toxic Substances Control Act of 1976, the Clean Air Act Amendments, and the Surface Mining Control and Reclamation Act of 1977 . Its significant actions after 2000 included its campaign for ecologically safe consumer products, and its lobbying against the Keystone XL Tar Sands Pipeline, an effort that is still underway.16 Another particularly significant effort is the Club’s “Beyond Coal” campaign. The Club set a goal to close all coal plants. In 2011, Michael Bloomberg donated $50 million to this campaign, and an additional $30 million in 2015. Since 2010, almost 200 coal plants have closed in the US. The Club also continues to support the removal of dams in the Sierra Mountains and on the Colorado River. For over 100 years, The Sierra Club is one of the strongest lobbying forces for environmental preservation and restoration. Its membership is over 750,000 and its budget is almost $100 million. It consistently presents strong evidence to our reasoned discourse concerning environmental causes. 6.4

The Environmental Defense Fund

The Environmental Defense Fund (EDF) was formed in 1967 for the purpose of applying science, economics, and the law to practical resolutions of environmental problems, especially the problems of global warming and ecosystems restoration. In 1991, The Economist called EDF “America’s most economically literate green campaigners.”17 The EDF

16 In January 2021, the new Biden Administration refused the permit necessary for the pipeline’s completion. 17 The Economist, August 31, 1991. www.edf.org/content/cool-it.

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was ranked first among environmental advocacy groups in the 2007 Financial Times review of 850 similar organizations.18 The EDF was originally formed as a Long Island-based environmental group responding to the DDT problem of the early 1960s.19 It successfully established a ban on DDT usage in Suffolk County Long Island, and then statewide in New York. The EDF then became a national advocate for DDT restrictions.20 The EDF also conducted a statistical study that linked organic Mississippi River contaminates to cancer in New Orleans. EPA officials cite this study as instrumental in the passage of the Safe Drinking Water Act of 1974.21 More recently, the EDF is planning a satellite to identify methane emissions from the 50 major oil and gas regions suspected of being responsible for eighty percent of current methane emissions. The assembled point-source data will be made public so as to reduce this greenhouse gas. (Note that methane is ten times as potent as carbon dioxide in generating the greenhouse effect that causes global warming.) Some of the EDF’s record of accomplishments include: • The EDF’s efforts were instrumental in banning DDT usage in 1972. • Based on the EPA’s analytical studies, the EDF’s report on Mississippi River water was instrumental in obtaining the “Safe Drinking Water Act of 1974.” • In 1985, the EDF contributed to the EPA’s enforcement of lead reductions in gasoline so as to reduce lead poisoning. • In 1986, the EDF persuaded McDonald’s to switch to biodegradable food containers. • In 1987, the EDF led the effort to phase out CFCs in order to protect the earth’s ozone layer. 18 Financial Times, “Trend to partnerships is positive,” July 5, 2007, p. 14. 19 Rachel Carson’s book Silent Spring was published in 1962. It highlighted the effects

of DDT on bird populations. The book is generally recognized as an initiating factor in the environmental movement. 20 See Wurster (2015), Dunlop (1981), and “Fostering Clean Air through Environmental Law,” The New York Times, May 14, 1995. 21 See EPA Alumni Association, “Senior EPA officials discuss early implementation of the Safe Water Drinking Act of 1974.” www.epaalumni.org/history/video/interview.cfm? id=13.

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• In 1990, the EDF designed “Title IV of the Clean Air Act” to incorporate market-based methods to reduce acid rain. The measure dramatically reduced sulfur dioxide pollution. • In 1995, the EDF designed the “Safe Harbor Plan” that gives landowners new incentives to help endangered species on their property. • In 2000, the EDF persuaded seven of the world’s largest corporations to join it in a partnership to reduce their greenhouse gas emissions. • In 2002, the EDF initiated the campaign to remove O’Shaughnessey Dam in Hetch Hetchy Valley of Yosemite National Park. • In 2004, the EDF established a partnership with FedEx to develop and deploy hybrid electric trucks. • In 2006, the EDF co-authored the “California Global Warming Solutions Act.” • In 2007, the EDF co-founded the US Climate Action Partnership, a coalition of major corporations (GE, DuPont, Duke Energy, and others) and environmental groups that support actions on global warming, including a market-based carbon emissions cap. • In 2011, the EDF led the coalition to defeat “Proposition 23,” an industry-backed initiative to block the “California Global Warming Solutions Act.” More recently, the EDF has led the effort to convert energy production from coal to natural gas, a much cleaner fuel but one that still produces carbon dioxide. The intention is that natural gas will relatively soon be replaced by renewable energy.22 The EDF has been an effective environmental public-advocacy group. It began with the environmental movement of the 1960s. It is active in global warming remediation, and in wildlife preservation. It has promulgated the evidence necessary for informed environmental policy decisions. It has also been effective in forming coalitions with business in pursuit of environmental preservation goals.

22 See EDF, 2013, “Why natural gas in important.” www.edf.org/climate/why-naturalgas-important.

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Western Energy Alliance

In addition to the numerous EAOs and their coalitions, we also have numerous industry advocacy coalitions. One of the current significant industry coalitions is the Western Energy Alliance, a coalition of numerous oil and natural gas drilling companies. Their stated purpose is to “promote demand for oil and natural gas,” and also to “protect supply at the regional and federal levels.”23 The Alliance was organized in 1974. On its webpage it claims that petroleum development (oil and natural gas) is the most heavily regulated industry in the US. It lists the following as relevant regulatory acts restricting petroleum development: • • • • • • • • • • •

The Clean Air Act, The Clean Water Act, The Safe Drinking Water Act, The Endangered Species Act, The National Environmental Policy Act, The Comprehensive Environmental Response Compensation and Liability Act, The Resource Conservation and Recovery Act, The Emergency Planning and Community Right-to-Know Act, The Occupational Health and safety Act, National Historic Preservation Act, Various state and local laws.

On its webpage, the Alliance further states that “federal agencies continually institute more regulations that are often redundant while delivering little environmental benefit when compared to societal cost.” The “Alliance” has recently been involved in the “Master Leasing Plan” (MLP) controversy, particularly with respect to the Uintah Valley of Utah. MLPs allow local interests (recreation, local tourist businesses, local health interests, etc.) to have their say in forming oil and gas explorations and drilling on public lands. Note that in the Western US, most lands are public and federally managed. The Alliance states that local regulators are generally more knowledgeable about oil and gas regulations, and therefore deserve to be dominant over federal regulators even though the lands utilized are federal. Indeed, the federal MLPs are designed to accomplish 23 See www.westernenergyalliance.org.

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this, but the Alliance also argues against this approach in favor of lower regulations overall. The Alliance argues that federal regulators are too far removed from the exploration areas (especially in Utah) to make the most effective decisions. The Trump Administration recently eliminated MLPs since these plans reflect those local environmental interests that seek to refom and restricted the oil and gas leasing process.24 Another significant controversy involving oil and gas drilling in Western lands concerns the “flaring” of the natural gas at the wellhead. This method burns the gas rather than releasing it into the earth’s atmosphere. It would be better to capture the gas, but the glut of natural gas has driven prices down to levels that do not support its marketing. Hence it is “flared.” In the Uintah Valley of Utah, this process has produced ozone pollution. This “flaring,” however, is rationalized by the Alliance as just being temporary since a pipeline will eventually be built once rightof-ways are obtained. In the meantime, this important public resource is “flared.” The Western Energy Alliance contributes to public discourse, but its contributions are not “uninterested” according to our fairness criteria. (See Chapter 3.) Since it is financially supported by the oil and gas industry, it has a conflict of interest in these public discourse debates. The environmental coalitions cited above, however, have no such conflicts. Further reviews of controversies involving the Alliance are presented in detail in Chapter 10.

7 Environmental NGOs, Coalitions, and Our Public Debate This chapter reviews our aspirations for our public environmental discourse from which our environmental policies emerge. We understand that participation in these debates stems from our collective imperfect duties as typically manifested in our environmental advocacy organizations such as The Sierra Club, The Environmental Defense Fund, and The Wilderness Society. These three are just examples since there are currently hundreds of environmental organizations with histories of advocacy in the public arena. (Some others are reviewed in Chapters 10–12.) They bring

24 In January, 2021, the new Biden Administration reestablished the MLPs. Chapter 10 explores this controversy in detail.

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to our discourse the scientific and socio-economic information necessary for reasoned resolutions to the most significant problems of our age. Industries are also represented in these debates by their coalitions that, although not clean of conflicts of interest, still need to be heard from. Their conflicts should be clearly understood, and their potential contributions also clearly considered after examination. As an illustration, the makeup and contributions of the Western Energy Alliance is reviewed above. If our social discourse concerning environmental issues is logically clear, fully informed, fully inclusive, and devoid of corruption (the conditions for fair and reasoned discourse presented in Chapters 3 and 4), then our resolutions will be stable across time assuming the absence of new and important information that justifies alteration. Our citizenry will not be cynical about our reaching solutions; they will resist the obfuscations of those narrowly self-interested in exploiting the public welfare for only their own good. The reasoning of all these discourse contributions will be recognized as appropriate for our public policy formations. In this light, the next chapter examines our public reasoning process to assess whether the degree that these fair and reasoned characteristics are manifested.

References Allison, Henry A. 1995. Kant. In The Oxford Companion to Philosophy, ed. Ted Honderich, 434–438. Oxford, UK: Oxford University Press. Arendt, Hannah. 1978. The Life of the Mind. Orlando, FL: Harcourt Inc. Besley, Andrew. 1995. Reason. In The Oxford Companion to Philosophy, ed. Ted Honderich. New York, NY: Oxford University Press. Blum, Lawrence A. 1980. Friendship, Altruism and Morality. Boston, MA: Routledge & Kegan Paul Publishers. Carson, Rachel. 1962. Silent Spring. New York, NY: Houghton Mifflin. Cooper, John M. 1980. Aristotle on Friendship. In Essays on Aristotle’s Ethics, ed. Amelie Rorty. Berkeley, CA: University of California Press. Dawes, R.M. 1973. The Commons Dilemma Game: An N-Person Mixed-Motive Game with a Dominating Strategy for Defection. ORI Research Bulletin 13: 1–12. Dawes, R.M. 1975. Formal Models of Dilemmas in Social Decision Making. In Human Judgment and Decision Processes: Formal and Mathematical Approached, ed. M.F. Kaplan and S. Schwartz, pp. 87–108. New York, NY: Academic Press.

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Dunlop, Thomas. 1981. DDT: Scientists, Citizens, and Public Policy. Princeton, NJ: Princeton University Press. Hardin, Garrett. 1968. The Tragedy of the Commons. Science 162: 1243–1247. Hobbes, Thomas. 1651/2012. Leviathan or the Matter, Forme and Power of a Common Wealth Ecclesiaticall or Civil, ed. Noel Malcolm. Oxford, UK: Oxford University Press. Kant, Immanuel. 1785. Fundamental Principles of the Metaphysics of Morals. In Basic Writings of Kant, ed. Allen W. Wood. The Modern Library Classics. New York: The Modern Library. Kant, Immanuel. 1797. The Metaphysics of Morals, ed. Mary Gregor. Cambridge, UK: Cambridge University Press. Locke, John. 1690. Two Treatises on Government, “Second Treatise”, ed. Thomas Hollis. London, UK: A. Millar. O’Neill, Onora. 1989/1995. Constructions of Reason: Explorations of Kant’s Practical Philosophy. New York, NY: Cambridge University Press. Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. New York, NY: Cambridge University Press. Rawls, John. 2001. Collected Papers, ed. Samuel Freeman. Cambridge, MA: Harvard University Press. Robinson, Richard. 2018. Friendships of Virtue, Pursuit of the Moral Community, and the Ends of Business. Journal of Business Ethics 151: 85–100. Robinson, Richard. 2019. Imperfect Duties of Management: The Ethical Norm of Managerial Decisions. Cham, Switzerland: Palgrave Macmillan. Robinson, Richard, and Nina Shah. 2019. Business Environmental Obligations and Reasoned Public Discourse: A Kantian Foundation for Analysis. Journal of Business Ethics 159: 1181–1198. Skinner, Richard. 2007. More Then Money: Interest Group Action in Congressional Elections. Rowan and Littlefield. Sullivan, Roger. 1989. Immanuel Kant’s Moral Theory. Cambridge, UK: Cambridge University Press. Sullivan, Roger. 1994. An Introduction to Kant’s Ethics. Cambridge, UK: Cambridge University Press. Wood, Allen W. 1999. Kant’s Ethical Thought. Cambridge, UK: Cambridge University Press. Wurster, Charles F. 2015. DDT Wars: Rescuing Our National Bird, Preventing Cancer, and Creating the Environmental Defense Fund. New York, NY: Oxford University Press.

CHAPTER 9

The Current State of Environmental Discourse: Is It “Fair” or Otherwise?

1

Introduction

A theme of this monograph is that society must maintain clarity with respect to the ethical norms that should apply to our environmental discourse. This clarity enables judgment of the fairness and reasonableness of our environmental decisions. This discourse is currently led by coalitions of our nongovernment environmental advocacy organizations (EAOs), and also by representatives of industry and their trade-groups, and also government entities. Decisions for preservation, restoration, or resource development result from this discourse. Obfuscations do, however, obscure whether these resolutions are fair: whether they result from informed deliberations; whether they result from inclusive discourse or merely represent elitist and paternalistic dictates; whether they represent logical conclusions; or whether they meet various equity criteria. In previous chapters the framework of Kantian constructionwas presented as a useful organizational device for describing our democratic society’s notions of informed, inclusive, equitable, and reasoned social discourse. It is a framework for helping us to judge whether our notions of criteria for fairness are met, or whether our resolutions are merely paternalistic assertions or perhaps exhibit some other deviancy. In this light, this chapter reviews four examples of our environmental

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social discourse and associated decisions. They are examined for the purpose of judging our conformance to the fairness and reasonableness criteria of Chapter 3, or whether obfuscations have dominated. These four examinations include: • • • •

“clean coal” and associated “acid rain” abatement efforts, agricultural-based water pollution abatement efforts, gas and oil drilling on public lands, and “species preservation” efforts and reactionary obfuscations.

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Clean Coal and Acid Rain 2.1

Coal and Its Effects

Beyond Coal is the name for the Sierra Club’s campaign to promote the closings of coal-fired power generation plants and to replace them with renewable energy sources. Since 2010, the US has closed 270 coalfired energy plants, which is more than half of the plants existing at the initiation of the campaign. As an indication of the popularity of this endeavor, Michael Bloomberg has given $80 million to Sierra Club’s efforts. In addition, with the Sierra Club’s assistance, a Europe Beyond Coal campaign began in 2017. The latter campaign has already helped prevent a coal plant being built in Kosovo. Prior to 2010, 100 million tons of toxic airborne solid waste— including mercury, uranium, and arsenic—were produced annually in the US by coal plants.1 In 2008, the World Health Organization (WHO) estimated that perhaps worldwide as many as a million lives were previously lost annually due to the health effects of coal; as many as 24,000 lives were possibly lost annually in the US. The WHO also estimated that compared to using natural gas as a fuel, coal is 10–100 times more toxic depending upon the type of coal. As part of greenhouse gas emissions, burning coal is the largest single contributor of any fossil fuel. A 2001 European Union Study found that when health externalities were considered, the cost of coal-based power was actually twice the market value of the energy generated, and these costs were from 1 to 2 percent of Europe’s GDP. Among these adverse externalities are asthma, lung 1 US Department of Energy, October 13, 2010, “Where Greenhouse Gases Come From—Energy Explained.”

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cancer, other respiratory diseases, cardiovascular disease, and birth defects. In addition, the sulfuric acid from coal has been the major contributor to acid rain and its effects on infrastructure, forests, and water resources. The coal and power generation industries have offered the potentials of clean coal technology as a remedy for the negative aspects of dirty coal. These proposed technologies include gasification of coal, chemical washing of coal, and “carbon capture” for the gas emissions. These technologies are not currently economically viable in that natural gas and renewable energy are cleaner and are also substantially lower-cost sources of energy than clean coal .2 Concerning the potential of clean coal, Robert Murray, CEO of Murray Energy—the largest privately owned coal-mining company in the US—stated, “It is neither practical nor economic, CCS (carbon capture storage) is just cover for the politicians, both Republicans and Democrats that say, ‘Look what I did for coal!’ knowing all the time that it doesn’t help coal at all.” (Parentheses added.)3 Robert Murray is a member of the American Coalition for Clean Coal Electricity, which has spent millions of dollars to persuade the public that clean coal is the solution to global warming. Other “front organizations” that give the appearance of being unconnected to the coal industry, but that are actually funded by the industry, include America’s Power Army, Families to Represent the Coal Economy, and Kansas for Affordable Energy. These organizations were essentially formed to market the industry’s vision of “clean coal.” For example, in 2010, America’s Power Army launched a “Clean Coal Technology: It Works” campaign aimed at “educating people” at state fairs, festivals, sporting events, college campuses, and town squares through mobile classrooms and other presentations. The goal was to educate the public about the role of clean coal technology in “providing affordable, reliable electricity, well-paying jobs, and cleaner environment.” These efforts supposedly instruct the public about reduced emissions of sulfur dioxide, nitrogen oxide, particulate matter, mercury, and carbon.4

2 See “The True Cost of Coal,” Greenpeace, 12–23-2008 and “Time to Bury the Clean Coal Myth,” Fred Pearce, The Guardian, London, UK, 10–30-2008. 3 “Coal CEO admits that “clean coal” is a myth.” July 6, 2017. Think Progress, at www.thinkprogress/clean-coal-isnt-real-edqu3e2841060/. Note that Robert Murray died in 2020, and Murray Energy is now in bankruptcy proceedings. 4 See www.sourcewatch.org/index.php/clean_coal.

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Carbon capture storage (CCS) requires liquifying the CO2 from captured coal emissions and injecting it into a stable underground reservoir. In response to these efforts, Prof. Michael Economides, University of Wyoming, indicated that these reservoirs require 5–20 times greater volume than previously estimated, and this renders the storage option not feasible. Capturing and compressing CO2 raises costs by 30–60% above other energy sources such as natural gas and renewable sources.5 There are, however, two new US power plants that use some version of clean coal technology—Petra Nova and Kemper. The former is located close to Houston and the latter is located in Mississippi. Petra Nova attempts to liquify CO2 and pumps it into oil fields to render additional oil. The Department of Energy’s subsidy for this plant was $290 million. Kemper gasifies the coal in order to attempt cleaner burning. The Department of Energy’s subsidy for Kemper was over $100 million. (As of July 1, 2017, there were 1600 new coal plants planned in 62 countries.) Neither gasification nor CCS substantially “cleans” the coal. Much of the social discourse concerning clean coal has occurred in the context of presidential politics. At his State of the Union address of 2010, President Obama called for rapid adoption of the clean coal technology in order to “overcome barriers to the widespread cost-effective deployment of CCS within ten years, with the goal of bringing 5 to 10 commercial demonstration projects online by 2016.” Federal Government stimulus subsidies of $3.8 billion were authorized in 2009 for “clean coal development.”6 On September 20, 2012, the US House passed the “Stop the War on Coal Act,” by a vote of 233–175. This would have eliminated the EPA’s ability to regulate coal-fired power. The Act did not pass the Senate, but on June 19, 2019, President Trump issued his “Affordable Clean Energy Rule” that allowed regulation of carbon emissions from power plants to be the responsibility of states rather than the federal government. This overturned the Obama Administration’s climate initiatives for federally regulating these plants.7 President Trump has frequently mentioned “clean coal,” but while apparently generating public skepticism with respect to his understanding 5 “CO

2 Sequestration Isn’t practical,” Casper Star-Tribune, February 20, 2010. 6 See David Sassoon, Inside Climate News, February 10, 2010.www.insideclimatenews.

org/news/20100210/Obama-making-clean-coal-president. 7 See “EPA roles back Obama-era plan limiting coal-fired power plant emissions,” by Ellie Kaufman, CNN, June 19, 2019. www.cnn.com/06/2019/politics/.

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of the technology. This has been noted by various commentators, i.e., he spoke of “clean coal,” or “beautiful coal” as a campaign-rally slogan in locations where coal mining and its power generation are important to the local economies.8 (A partial list of these rallies with these slogans can be found on YouTube for the dates of February 29, 2016; March 1, 2016; April 20, 2016; October 4, 2016; October 16, 2016; and August 22, 2017.) In 1985, seven states—New York, Connecticut, Minnesota, Rhode Island, New Hampshire, Vermont, and Massachusetts—plus four environmental advocacy groups, sued the EPA over acid rain generated from nineteen coal-fired power plants in Pennsylvania, Ohio, West Virginia, and Kentucky. The “good neighbor” provision of the Clean Air Act’s (CAA) 1999 amendment requires the EPA and the states to assure that air pollution in home states do not affect downwind states.9 Acid rain is a downwind precipitation containing carbonic acid, sulfuric acid, and nitrogen oxide. The “good neighbor” provision of the CAA was designed to control this downwind phenomenon; i.e., downwind pollution that crosses state boundaries was to be regulated by the EPA. This CAA amendment (Title IV) requires large cuts in acid emissions from power plants. This was manifested in EPA’s “Clean Air Interstate Rule.” Because of these regulations, between 2000 and 2006, SO2 emissions declined by 54 percent, and by 85 percent between 1980 and 2012.10 A 2011 EPA report by its “Office of Science and Technology Policy” estimated that the direct human-health annual benefits from the EPA’s regulation of acid rain was $170 billion. The nonhuman effects of acid rain include forest destruction (especially the New England red spruce), the acidification of water bodies and its associated effects on aquatic life, plus acidic degradation of the organic nutrients in soils.11 The forest destruction occurs in part through soil degradation that weakens the 8 See “What Trump has said about “clean coal” and what it is.” By Meaghan Keneally of ABC News, August 23, 2017. 9 This provision requires EPA and the states to address interstate downwind pollution that produced effects in violation of the National Ambient Air Quality Standards. 10 The source is US EPA National Acidic Precipitation Assessment Program (NAPAP), 2013. 11 See Henry Graber, Shutterstock, “50 Years After Its Discovery: Acid Rain has Lessons for Climate Change,” September 10, 2013.

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trees. After this weakening, the red spruce forests were subsequently attacked by the “swift moth” which ultimately killed much of these forests.12 2.2

Coal and “Reasoned” Discourse

Can we claim that the social discourse of “clean coal” is reasoned? The evidence is a bit mixed. We note that the industry’s obfuscations have been refuted by EPA reports and other government agencies, and by the arguments of environmental NGOs such as the Sierra Club and Greenpeace. These obfuscations stemmed from two categories. We should first recognize that much of the propaganda comes from the coal industry which masks its proponents in the form of supposedly non-industry related civic organizations such as Families to Represent the Coal Economy. These organizations have conflicts of interest in being funded by the industry, but these conflicts have now been unmasked. We should also note, however, that the expense in terms of government subsidies and negative externalities, especially health effects, are somewhat hidden from the view of the general public. In the US, renewable energy sources receive little if any subsidies, but their costs are substantially lower than that of a complete cleaning of coal that is sufficient enough to make it as clean as the renewable energy. The policy conclusions that follow from the biased arguments of the coal industry are therefore not logical. The evidence indicates that subsidies for clean coal are not warranted, that expansion of the less expensive renewable energy sources are warranted, especially when negative externalities are considered. Furthermore, since pollution crosses artificial political boundaries, regulation must be sufficiently regional in geographic breadth (i.e., multi state) so as to capture the externalities. Should one impose non-compensated negative externalitieson another? Equity suggests otherwise. This “crossing of political boundaries,” however, is definitely exhibited by the problem of “acid rain,” but it is also exhibited by the problem of agricultural pollution examined below.

12 Note that industry supported dissenters such as cfact.org argued that the “swift moth” is the isolated cause of this deforestation. This ignores the linkage between the weakened forest and the subsequent moth onslaught. See www.cfact.org/2018/05/24/ the-moth-of-dangerous-acid-rain/, May 24, 2018.

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The Dead Zone

States’ Rights, and State Pollution Responsibilities

Every summer, nutrients from agricultural runoff drain into the Mississippi River and its tributaries. These nutrients then drain into the Gulf of Mexico fueling algae blooms that starve the water of oxygen thereby killing marine life.13 These nutrients are from crop fertilizers (including on-sight animal wastes), and from concentrated animal feeding operations (CAFOs). The latter include industrialized swine, poultry, and dairy operations all of which have rapidly spread throughout the Mississippi Basin. (These operations are also prevalent in other Southern US states.) Every summer, at the mouth of the Mississippi a dead zone of oxygen-starved seawater is created in the Gulf of Mexico. This year (2019), because of the heavy rainfall in the watershed, the dead zone is expected to reach a record size of 7829 square miles (approximately the size of the state of Massachusetts).14 The “Pure Farms, Pure Waters” campaign of the environmental advocacy coalition Waterkeepers is an attempt to promote regulations of CAFOs.15 Over the last 50 years, these industrialized animal feeding operations have been a growing phenomenon. They involve large concentrations of animals for feeding, and associated large concentrations of untreated animal wastes which are either stored in “lagoons” or are spread in excessive amounts on feeder-crop fields. Subsequent rainfall causes the “lagoons” to overflow, and the overly manured fields to drain. Like the large dump-truck driving fast down the highway with an uncovered bed filled with fall-leaf cleanup, these lagoons and excessively manured fields intentionally dissipate the waste into negative externalities. This appears to be intended by the design of this concentrated industrial process, i.e., the design of the waste systems of these CAFOs necessitates that the rainfall creates a sewer of untreated animal wastes that eventually drains into the Mississippi Basin. In 2017, the Environmental Protection Administration (EPA) reported that only 30 percent of the CAFOs had the

13 For a review, see The Wall Street Journal, Wednesday July 3, 2019, p. A6. 14 Ibid. 15 The Water Keepers Alliance began in 1999 as a coalition of the many local Riverkeepers and similar NGOs (over 200 organizations in 2019). The original Riverkeepers was organized in 1983 for the purpose of restoring the Hudson River.

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permits required by the Federal Clean Water Act (CWA, 1972).16 The enforcement of permits, however, was left to the states. In 2005, the EPA initiated its National Aquatic Resource Surveys (NARS) for the purpose of identifying nitrogen and phosphorus pollution in American waters. It found that in the Upper Mississippi Basin where 61 percent of the land is agricultural, 50 percent of streams had unacceptably high levels of nitrogen and phosphorus. In the Lower Basin, the pollution levels were higher. In response, The Mississippi River Coalition (MRC)—a coalition of environmental NGOs—was formed for the purpose of seeking stronger EPA oversight of the state-controlled permitting processes for CAFOs. Under the Clean Water Act (CWA), however, the states were to take the initiative in setting standards for, and the regulation of non-point agricultural pollution.17 The CWA’s authorization of state regulations resulted in legal conflicts. The MRC sued the EPA asking it to regulate this pollution. The National Pork Producers Council , the American Farm Bureau Federation (AFBF), and a coalition of 44 other states and agricultural coalitions joined in defending the “states rights” decision, and challenged the MRC’s suit by pointing out that the states were assigned the pollution control under the CWA. Note that the FDA had previously reached a precedent-setting consent decree for “total maximum daily loads” of agricultural non-point pollution in the Chesapeake Bay area, and the AFBF feared this sort of consent decree might be established for the Mississippi River Basin. These sorts of maximum limits on the total pollution from geographic areas would force the states to regulate under the supervision of the EPA, a practice the AFBF resisted because it considered the EPA to be a stricter regulator than the states acting alone. This sort of area wide regulation under EPA supervision was not, however, the court’s decision. In December, 2016, the court found in favor of allowing states to lead in these regulations. The AFBF argued that, “States are working on the issue; they are performing their role and it would be bad policy to overstep states at this time.” The AFBF general counsel stated, “The time may come when the EPA may no longer

16 See “NPDES CAFO Permitting State Reports” at www.epa.gov/sites/production/ files/2017-04/documents/tracksum_endyear2016_v2.pdf. 17 “Point-source” water pollution originates from an identifiable spot such as a discharge pipe. “Non-point” pollution refers to runoffs such as from streets or agricultural fields.

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reasonably let states remain in the lead. The AFBF and all these organizations will need to redouble their efforts to help generate programs and assistance for farmers to do the good work they want to do and get those right practices in place to see those improvements.”18 In the meantime (2019), the dead zone is reaching record size. 3.2

CAFOs and “Reasoned Discourse”

The problem with CFOs is that like the downwind pollution from acid rain (reviewed above), downstream pollution is a negative externality forced by upstream producers onto others. The AFBF and other agricultural coalitions have clear conflicts of interest in arguing for the dumping of external costs onto those who are downstream. The science is, however, established concerning the dead zone. The external costs are clear, and are also clearly the result of intentional design, i.e., not by accident. The regulation and supervision must be regional; in this case it must be by a regional body such as the EPA that has authority and intent to regulate the entire Mississippi Basin as an entity. In addition, the political pressure that the agricultural industry places on one state to allow its pollution to flow to another is extreme and corrupting. States are not “performing their role,” and have no incentive to effectively regulate the externalities imposed on other states. The social discourse concerning the dead zone problem appears to be reasoned, but the law is cumbersome in expecting states to regulate their own externality. You should not ask a polluting company to regulate itself, and likewise that should not be asked of a state that pollutes its neighbor. (Pollution of this sort is not consistent with the “good will” referred to in previous chapters.) The Waterkeepers associations, and the Mississippi River Coalition have led the discourse concerning this “dead zone” pollution, but this reasoning has not yet led to the resolution of regional EPA supervised regulation. If the individual states do not respond with regulations—and they likely will not—then the time of ultimate resolution is delayed at best.

18 See “NPDES CAFO Permitting State Reports” at www.epa.gov/sites/production/ files/2017-04/documents/tracksum_endyear2016_v2.pdf.

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Permit Processes and the Natural Gas Glut 4.1

The BLM’s “Resource Management Plans”

The Bureau of Land Management (BLM) is a division within the US Department of the Interior. This Bureau manages federal lands (largely in the West) such as parks and monuments and other lands that are primarily leased for grazing rights, but are also leased for oil, natural gas, and mineral extractions. The Bureau is a highly bureaucratic institution that largely operates via “plans,” both long-term plans for various large regions, and shorter-term adjustment plans as local conflicts and conditions warrant. The longer-term plans are called resource management plans, which articulate twenty-to-thirty year visions for the various possible commercial leases or other recreational usage in the areas in question, i.e., they are to be revised every twenty to thirty years. But the up-to-date shorter-term adjustments to these plans are also used for the Bureau’s management of current local conflicts and other needed revisions. In effect, these shorter-term adjustments often become the real management plans applied to large areas of the Western US. This short-term planning process began in 2010 as a new approach by the Bureau for managing the oil and gas activity on locally sensitive landscapes. Before leasing areas for gas, oil, or mineral extractions, the Bureau tries to identify and resolve conflicts with local entities such as municipal watersheds, and cultural preservation areas that are important to indigenous native tribes. The Bureau tries to accomplish this through robust engagement with public interests and various stakeholders, and might use a variety of activity restrictions to manage these conflicts.19 Whereas the longer-term plans typically specify that large areas of the Western US are open to the extraction industries, the shorter-term adjustment plans are typically formed without the presumption that there is a prior preference for gas and oil leasing as compared to other uses. By applying these “adjustments” to small locales, the conflicts between drilling, farming, recreation, and other local interests can be resolved particularly by capping the amounts of surface disturbance allowed. These plans can also be more responsive to local demands for controlling access roads and other infrastructures that might disrupt scenic landscapes. For these reasons, environmental coalitions heralded the initiation of these

19 This material utilizes Earthworks at https://earthworks.org/isues/blm_mlp/.

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“adjustments” to the long-term plans as providing the opportunity for analyses of issues specifically posed by oil and gas leasing. As an example of the applicability of these “adjustments,” in Southwest Colorado the long-term plan allowed gas drilling rigs within a small ski resort, but these site obstructions were eliminated after local objections. 4.2

The “Fracking” Glut

“Fracking” combined with horizontal drilling has produced a glut of natural gas production in the US, and also a radical increase in oil production. For example, the surging oil production in the Permian Basin of Texas, which resulted from the fracking technology, has caused gas production associated with oil pumping to become so large that drillers are paying to have the gas transported off site, or are just “flaring” (burning) the gas at the wellhead.20 Other producers are reinjecting the natural gas down wells to further pump oil.21 Despite the glut, the Trump Administration has radically increased issuing gas-exploration leases and drilling permits. The Bureau of Land Management has the “permit” authority for these leases. It increased the drilling permits from 2887 in 2017 to 3991 in 2018.22 In 2018, the BLM cut the time for processing permits from 120 to 63 days. Katheleen Sgamma, Western Energy Alliance (WEA) President—WEA being an energy industry trade group—stated about the permit process, The improvement in automation (for the permit process) started under President Obama, but having an Administration which wants to move forward is even more important. (Parenthesis were added.)23

Environmentalists claim that the increased speed of the permit process has come at the expense of soliciting and including public input concerning the drilling applications.24 The applications are posted on the permit web 20 See Naureen Malik (June 7, 2019), “Texas Gas Glut,” Bloomberg. 21 Ibid. 22 The BLM obtains its authority over leasing federal lands from the Mineral Leasing Act of 1920, and the Federal Land Policy and Management Act of 1976. 23 See Nicholas Groom (April 12, 2019), “Under Trump, US drilling permits on federal lands soar,” Reuters, at www.reuters.com. 24 Environmentalists such as Kelly Fuller of the Western Watersheds Project.

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page for 30 days and then withdrawn. This process now only allows a ten-day window for public comments on the permit. At the end of the last Bush Administration, the Bureau leased 77 tracts for oil and gas extraction in Southeast Utah. These leases generally followed the Green River and also clustered at the edges of the Arches and Canyonlands National Parks and Dinosaur National Monument. The sizeable tourist interests indicated their concerns with the potential sight disruptions, and a barrage of lawsuits followed that resulted in court decisions that the process for granting the leases failed to follow the federal law. The Bureau canceled the leases. The new Obama Administration sought to avoid confrontations with environmentalists by developing an advanced planning process that would pose possible compromises among the competing interests. The idea was to anticipate the conflicting demands and to be proactive in seeking resolutions prior to legal proceedings. This was the genesis of the BLM’s “short-term adjustments” to the long-term plans. For the public lands posed for lease consideration, the Obama Administration allowed local Bureau agents to form Master Lease Plans (MLPs)—the “adjustments” to the long-term plans that are referred to above—that considered the input from hunters, anglers, and groups hoping to preserve cultural artifacts. Eight MLPs were finalized across three Western states. They covered lands that bordered national parks and monuments that contained popular hunting and fishing grounds, and that sheltered cultural artifacts. The Trump Administration responded to the oil and gas industry’s push-back reaction to these “adjustments.” It eliminated the MLPs along with their solicitation of public input. Kathleen Sgamma, president of the Western Energy Alliance—an industry trade group—said that the MLPs just added additional layers of review to the permit process; that the MLPs added time-consuming processes and duplicative environmental reviews.25 Assessing contested lands before the leasing fights began, however, gave the BLM a chance to forge consensus among litigious stakeholders who could agree to protect some areas for conservation while selecting others for development. Mike Freeman, lawyer for the

25 See

plans.

www.west.standford.edu/news/blogs/and-the-west-blog/2018/master-leasing-

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EAC Earth Justice stated with reference to these MLP negotiations “If they (the BLM) strike a reasonable balance, they’re a lot less likely to be sued. There’s always going to be some conflict, but this goes a long way towards reducing it.” The evidence for this claim is that the number of lease challenges dropped significantly (by one half) after the MLP process was initiated.26 It rose again after the MLPs were eliminated. The Moab Area Master Leasing Plan was the first MLP implemented in 2016.27 This region is Southeast Utah’s tourist mecca. It occupies Arches and Canyonlands National Parks and is bisected by the Colorado River. But it has also been the site of oil, gas, and potash extractions. It is the site of significant archeological finds; and it was the site of numerous classic Hollywood westerns and other films. The change from Obama to the Trump Administration, however, eliminated the MLP process. Despite the glut in natural gas, on December 12, 2017, a lease sale in Utah’s Green River Area offered 74 new parcels, more than a 300% increase since the previous year. The shift in priorities was clear; the conservation community was shut out of the process. The new expedited process was applied to 2017’s radical reduction in area protections for the Bears Ears Monument and Grand Staircase Escalante Monument, both in Southern Utah. Stephen Bloch of the Southern Utah Wilderness Alliance called this a “lease first, think later” policy that is “fundamentally inconsistent with federal laws that demand agencies think before they act and consider a full range of impacts from selling oil and gas leases.”28 Michael Saul, Senior Attorney for the Center for Biological Diversity, stated that it is “deeply disturbing that the Trump Administration wants to give fossil fuel companies free rein over public land without community input or disclosing environmental harms.”29 Senator Maria Cantwell (D-WA), the ranking member of the US Senate’s Committee on Energy and Natural Resources, said,

26 Ibid. 27 There were eight in total: three in Wyoming, four in Colorado, and one in Utah. 28 See Darryl Fears (February 1, 2018), “Trump administration tears down regulations

to speed drilling on public land,” The Washington Post. 29 Ibid.

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The fact that the Trump Administration places no value on the booming recreation economy that generates over $887 billion annually is no surprise to those of us who have been watching their shameful record of exploiting our public lands over the last two years.30

Of particular concern is the potential for further environmental degradations to local areas from the elimination of the MLPs. For an example, consider the small town of Vernal, Utah. The Bureau’s local office has a strong reputation for processing the most drilling permits of any Bureau office.31 Vernal is located in the Uinta Basin where there are currently 11,000 oil and gas wells, with thousands more permits already approved.32 The air quality in the once pristine Vernal area has suffered greatly from the energy development where winter temperatureinversions trap pollutants in a haze that contains ozone levels above those of major cities. The Utah Physicians for a Healthy Environment contend that if the Bureau’s plans for development are completed, the ozone levels could double.33 Tom Elder is a retired science teacher and guide at nearby Dinosaur National Monument. He states that on some winter days, Vernal is covered by photochemical smog; “It looks like L.A.” The Bureau’s MLPs were designed to take these local characteristics into consideration, and manage the drilling process so as to avoid problems such as those found at Vernal. The Department of the Interior abandoned MLPs for the expressed purpose of expanding drilling on these public lands.34 Vernal is close to Dinosaur National Monument where 300,000 tourists visit per year. This generates millions in revenue from recreation and tourism per year, but this depends upon the Vernal area remaining environmentally pristine.

30 E.A. Crunden (July 23, 2018), “Accidentally-released documents show Interior agency prioritized industry over public lands,” at http://thinkprogress.org/. 31 See Adam Freeman (December 8, 2017), “This is How the Trump Administration Gives Big Oil the Keys to Public Lands,” The Nation, at www.thenation.com/article/thisis-how-the-trump-administration-gives-big-oil-the-keys-to-public-lands. 32 As of August, 2019. 33 Ibid. 34 Ibid. Under the new Biden Administration, this policy is being reconsidered as of February, 2021.

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For another example, consider that recently the Tonapah-Nevada BLM field office has been ordered to no longer limit drilling in critical habitat areas.35 The Bureau of Land Management is required by law to consult with the Federal Fish and Wildlife Service (FWS) when considering a drilling permit. The FWS can either issue a letter of concurrence that agrees with the Bureau’s preliminary environmental analysis or conduct its own review. The consultation between agencies is a pillar of the Endangered Species Act and is one of the few checks on the Bureau’s authority to lease. An October, 2017, report by the Department of the Interior concerning the barriers to energy development stated that the costs associated with these Bureau and FWS consultations were “unnecessarily burdensome,” and ordered the FWS to streamline their efforts.36 In 2019, environmental groups tried to halt a plan to lease over 4000 acres for oil and gas exploration near the Petrified Forest National Park of Arizona. A suit filed on July 15, 2019, in the US District Court in Phoenix contends that the BLM failed to look at the environmental impacts and effects on water quality resulting from these leases.37 These land parcels are located on each side of the Park which is over the Coconino Aquifer, the most important and productive aquifer in Northern Arizona for providing a dependable water supply. The oil and gas drilling in this area will use the “fracking” technology. Waters from the Coconino Aquifer will be mixed with environmentally contaminating fracking chemicals and reinjected into the wells. The potentials for contaminating the aquifer, and through spills also contaminating the near by Little Colorado River and ultimately the Colorado River is considerable. Elizabeth Potter is an attorney for the environmental law group Advocates for the West, and represents the parties to the suit referred to above: The Center for Biological Diversity, The Sierra Club, and Wild Earth Guardians. Potter states in her suit, “Millions of downstream water users rely on the Little Colorado River, which flows into the Grand Canyon and

35 Ibid. 36 Ibid. 37 Howard Fischer (July 16, 2019), “Environmental groups challenge plan to lease public lands for oil, gas exploration,” Capital Media Services, at www.azcapitoltimes. com/news/2019/o7/16/environmental-groups-challenge-plan-to-lease-public-lands-foroil-gas-exploration.

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feeds the Colorado River.” She calls the “reasonably foreseeable impacts” of the oil and gas development as “staggering.” Such development will divert millions of gallons of water from limited local supplies, produce significant quantities of air and water pollution, destroy and degrade landscape and wildlife habitat, and industrialize this quiet, rural area.38

This lawsuit gives the federal courts the opportunity to determine if the Trump Administration’s policies can override environmental law and other laws concerning mineral development. 4.3

Oil Leasing and a Rational Decision Process

In this case of the Bureau of Land Management’s granting of drilling permits, it appears its recent policies are exclusive rather than inclusive of scientific information. Those potentially affected, such as the downriver interests for the Little Colorado River, were not consulted. With respect to environmental concerns, such as those in Vernal Utah, the plans for managing the local drilling pollution were also discarded. More particularly, since the process for evaluating drilling permits were recently (2017) accelerated, those defending environmental interests have insufficient time for input and consideration. It appears the Department of the Interior’s policies are of exclusion, not inclusion, and are also thereby designed to limit scientific input. The Department’s policy is not fair nor reasonable since (i) it purposely is exclusive of relevant input from local interests, (ii) it is not fully informed especially scientifically informed, and (iii) it is therefore not equitable to these various interests.

5

Species Preservation

In the US, our political movement for wildlife preservation began in the late 1800s. At the century’s turning, the Western frontier had closed with all that its disappearing implied for American culture. The age of electrification was looming with all of its implications. Railroad transportation and telegraph communication linked a culturally coherent continental US. Politically active big agriculture and big industry may have appeared to 38 Ibid.

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dominate the Country, but their cultural and political reaction generated the progressive era’s Sherman Act with its Standard Oil decision. We were taking from the land all that we could: oil, coal, lumber, and the tilling of our great prairies. We also depleted the wild bison and our great bird flocks. We drove the passenger pigeon to extinction, and the bison, bald eagle, and whooping crane to near extinction. The politics ripened for preservation. 5.1

The Audubon Society and Aviary Protection

Outrage over the slaughter of millions of water birds for the millenary business (primarily women’s hats), particularly egrets and other waders, led to the formation of the Massachusetts Audubon Society in 1896. This facilitated cultural-political changes related to the Audubon Society’s activities as indicated here: • Between 1896 and 1898, following the formation of the Massachusetts chapter, sixteen other state Audubon Societies were formed. • In 1901, these state-level Societies joined in a loose national-level organization to help establish the first National Wildlife Refuge— Pelican Island in Florida in 1903—and facilitated the engagement of wardens to protect breeding areas in several states. • In 1905, the National Audubon Society was formed with the stated priority of protecting water birds of various sorts: gulls, terns, egrets, herons, and others. • In 1910, New York State enacted the “Audubon Plumage Law” which prohibited the sale or possession of feathers from protected bird species. Since New York City was the center of the US fashion industry, this substantially changed the women’s fashion trend away from feathered hats. • In 1918, the Migratory Bird Treaty Act was passed and signed. It remains one of the strongest laws protecting wild North American Birds. • In 1923–24, the Audubon Society established its first system of water-bird sanctuaries in seven Eastern Coast states, and also Rainey Sanctuary in Louisiana and the Theodore Roosevelt Sanctuary on Long Island. This initiated large-scale scientifically based bird conservation efforts.

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• The Migratory Bird Conservation Act of 1937, plus the Bald and Golden Eagle Protection Act of 1940 were passed under Audubon’s impetus. • In 1945, the Audubon magazine first warned about the hazards of DDT. • In 1960, the Audubon Society began to document the decline of bird species, including the bald eagle, due to DDT. With Audubon’s engagement, Rachel Carson’s Silent Spring was published in September, 1962. • In 1972, The Audubon Society and the Environmental Defense Fund successfully campaigned for the EPA to ban DDT. • In 1973, the Endangered Species Act was passed which helped to protect hundreds of threatened and endangered species. • In 1980, 79.5 million acres was preserved in the Arctic National Wildlife Refuge. • In 1987, the last wild California Condor was placed in Audubon’s captive breeding program with other survivors. In 1988, the first condor chick was born in captivity. • In 1994, The Bald Eagle was down-listed to “threatened.” • In 1998, Audubon held its first “Great Backyard Bird Count,” 14,000 people participated. In 1999, 50,000 participated in the “100th Christmas Bird Count.” • In 2000, The Everglades Protection and Restoration Act was passed which committed $7.8 billion to repurchase the polluting farms controlled by Big Sugar. The Everglades is the Country’s most significant threatened aviary. (See Chapter 11 for a review of this problem.) • In 2002, more than 40 California Condors were released back into the wild. • In 2004, Audubon’s scientists released the first “State of the Birds Report,” the best data available since Silent Spring for documenting our Country’s aviary health. • In 2014, Audubon released its “Watershed Climate Report.” This was based on decades of data gathered by Audubon’s scientists. The report predicts that by 2080, 314 species will be threatened, endangered, or possibly extinct due to habitat loss related to climate change.

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By 1941, only sixteen whooping cranes remained in the wild. By 1963, only 487 nesting pairs of bald eagles remained. Loss of habitat, DDT poisoning, and hunting were our aviary’s enemies. Rachel Carson’s Silent Spring , published in 1962, emphasized these issues, and reignited the environmental movement. 5.2

Silent Spring and Its Noisy Opponents

Rachel Carson was an employee of the US Federal Fish and Wildlife Service. In the mid-1940s she became concerned about the use of synthetic pesticides which were developed from military funding after WWII. The Department of Agriculture’s 1957 “fire ant eradication program” involved aerial spraying of DDT and other pesticides which were mixed with oil and aerially sprayed over public and private lands. Observers noted the associated effects on wild birds.39 The Audubon Society actively opposed these chemical spraying programs, and hired Carson to publicize the federal government’s spraying practices. In 1959, the Department of Agriculture’s “Research Service” responded to Carson’s criticism with a public service film Fire Ants on Trial. Carson called it “flagrant propaganda” that ignored the dangers of spraying pesticides to humans and wildlife. She publicly blamed the 1950s’ significant decline in bird populations on spraying pesticides. At that time, the nation’s 1959 crop of cranberries was withdrawn from the market due to high levels of herbicide. Also in 1959, the FDA held a meeting on revising pesticide regulations which Carson attended. She noted the aggressive approach of the pesticide industry’s representatives who presented supposed expert testimony that was entirely contradicted by the scientific literature that Carson was studying. During this time, the research at the National Institutes of Health and the National Cancer Institute led to many pesticides being classified as carcinogens. Rachel Carson published Silent Spring in 1962.40 Her main argument was that pesticides have detrimental effects on the environment; that they should more properly be called “biocides” because their effects 39 A letter published by The Boston Herald in January, 1958, and also sent to Carson, listed these observations. This was the impetus behind Silent Spring . 40 Previously, Carson published The Sea Around Us in July, 1951. This volume concerned marine ecology.

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go way beyond the targeted pests. DDT is a prime example, but many other synthetic pesticides are subject to bio-accumulation. Carson accused the chemical industry of intentionally spreading disinformation, and also of public officials of being uncritical of the pesticide industry’s claims. Although most of Silent Spring concerns the effects of overuse of pesticides on the ecology, much of it also concerns the human effects of these carcinogens. At that time, DDT had been linked to liver cancer. In addition, the overuse of aerial sprays of pesticides created insect resistance, and therefore failed to kill the target population. Prior to its publication in September 1962, Silent Spring was peer reviewed by independent scientists who possessed the necessary relevant expertise. The publisher, Houghton Mifflin, was concerned because Carson was about to undergo chemotherapy for cancer, and consequently would not be capable of defending the book through a publicity tour. Before publication, proof copies were distributed to knowledgeable reviewers. Carson also sent a copy to her long-term friend Associate Justice William O. Douglas, an environmental advocate, who provided Carson with some of the material included in her chapter on herbicides. The reception of the book was generally very positive. The publisher was confident that the book was entirely defensible. The book was serialized in The New Yorker, and was selected as a “Book-of-the-Month” for October, 1962. It received a positive review in The New York Times, and excerpts were published in Audubon Magazine. In the weeks before the book’s publication, the chemical industry voiced strong opposition. The general claim was that Carson was attacking all pesticide use, but this was particularly obfuscating since she was careful to argue that the evidence was against overuse, and it demonstrated lack of awareness of the particular chemical’s impact on ecosystems. She concluded Silent Spring’s section on DDT with the advice to spray as little as possible to limit the development of resistance. American Cyanamid biochemist Robert White-Stevens was among the most aggressive critics of Carson. He said, “If man were to follow the teachings of Miss Carson, we would return to the Dark Ages, and the insects and diseases and vermin would once again inherit the earth.”41 Others tried to attack Carson’s personal character and scientific credentials. She was a biologist, not a biochemist. Former Secretary 41 See Dorothy McLaughlin (2010), “Fooling with Nature: Silent Spring Revisited,” a Frontline documentary, PBS, originally broadcast March 10, 2010.

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of Agriculture Ezra Taft Benson in a letter to former President Eisenhower stated that, “… because she was unmarried despite being physically attractive, she was probably a ‘communist.’”42 Monsanto published 5000 copies of a parody called “The Desolate Year” (1962), which projected a world of famine and disease caused by banning pesticides. The academic community largely supported Carson’s claims. Public opinion was very supportive. A CBS Reports television documentary “The Silent Spring of Rachel Carson,” April 3, 1963, included segments of Carson reading from Silent Spring , and interviews with other experts were largely well received except the interview with White-Stevens. Carson’s biographer Linda Lear stated, “… in juxtaposition to the wild-eyed loudvoiced Dr. Robert White-Stevens in a white lab coat, Carson appeared anything but the hysterical alarmist that her critics contended.”43 The 10–15 million people audience reacted positively to her presentation. The documentary spurred a Congressional review of the hazards of pesticides, and this review was also positive to Carson. Within a year of publication, criticism was little. In late 1963, she received “The Audubon Medal” from the National Audubon Society, and the “Cullum Geographical Medal” from the American Geographical Society. 5.3

Impacts of Silent Spring

Silent Spring inspired the “boomer” generation to pay attention to serious environmental science, and in many cases, to personally engage in environmental science. In June of 1968, on the day after Robert Kennedy’s assassination, I was approached by one of the more brilliant young men who worked at Associated Press in Boston, where I also worked at that time. The year before, he graduated from Harvard and was admitted to Columbia University Law School for the Fall term. He had already asked, however, for a year’s delay in admission so he could work for Kennedy’s campaign. Now, with the King and Kennedy assassinations, his idealism had been shattered. He just wanted to ask what I might have thought about “what to do now?” We, and so many others, were emotionally and physically shattered by the events of that Spring, with both Martin Luther King’s and Kennedy’s assassinations within a few

42 See Lear (1997, pp. 429–430). 43 Ibid, p. 449.

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months of each other, plus the buildup in the Vietnam war. Working long hours motivated by a sense of idealism seemed a fool’s errand. How do I respond to my friend? I didn’t really reflect on an answer; this I couldn’t do since it would be too crushing. I only gently asked, “Can Columbia prepare you in environmental law? That might be worthwhile. You could actually do something meaningful!” To that question, he appeared to straighten up and brightened up a bit. The environmental movement seemed a decent way to spend one’s life. It wasn’t cynical; it was a sort of “Come on, be of use to the world!” Perhaps one could still contribute despite all the troubles around us. The Nation needed to change from its post WW II era. It needed to change from the Vietnam era. It needed to change from the “hippie heavy-rock drug culture.” The environmental movement offered a different perspective, one that was emotionally and mentally engaging and healthy for those individual’s involved, and for the world around us. This was the most significant impact of Silent Spring , and Rachel Carson was a foundation stone of that movement. The Carson scholar Patricia Hynes stated, “Silent Spring altered the balance of power in the world. No one since would be able to sell pollution as the necessary underside of progress so easily or uncritically.”44 She was, in the words of Mark Lytle, “The Gentle Subversive.”45 Carson’s most immediate contribution, however, was the banning of DDT. In 1967, the Environmental Defense Fund was organized as motivated by this issue, and its first significant task was banning DDT. In 1972, the Fund along with the Audubon Society and other organizations succeeded in phasing out DDT from American use. This also was a significant result of Silent Spring . The third significant impact of Carson’s work was the creation of the Environmental Protection Agency (EPA). Carson saw the conflict of interest that the Department of Agriculture had in being responsible for environmental matters related to farm policy, and wrote about this in Silent Spring . The EPA was created in 1970 to handle environmental matters including the phaseout of DDT. Rachel Carson’s Silent Spring played a large role in articulating ecology as a disrupting force opposed to both commercial materialism and the

44 Hynes (1989, pp. 8–9). 45 See Lytle (2007).

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technological engineering of nature. Silent Spring was perhaps the first popular presentation of rational scientific discourse concerning environmental matters. It set a standard for environmental discourse. It was stimulated by the Audubon Society and it directly led to a strong environmental movement spawned during the 1960s. It had a significant impact on the chemical industry, and in 1970 it was the impetus for the creation of a new environmentally oriented federal Agency, the EPA. It substantially led to our current reasoned environmental decision processes.

6

Endangered Species Act of 1973

In 1972, President Nixon declared that the current species conservation effort was inadequate. Congress responded, and the “Endangered Species Act” (ESA) was signed at the end of December, 1973. As part of this Act, Congress authorized the Secretary of the Interior to acquire habitat lands necessary for the conservation of threatened or endangered species. The purpose of the Act is to not only protect the species, but also the ecosystem upon which they depend. ESA is administered by the Fish and Wildlife Service and the National Marine Fisheries Service. The significant provisions of the Act include: • The federal government must determine whether a species is endangered or threatened. If so, it must list the species for protection as either “threatened or endangered.” • If it can be determined, the critical habitat must be designated for the listed species. • Federal agencies must use their authority to conserve all threatened and endangered species so listed. For a species to be listed as either threatened or endangered, it usually means that its habitat is itself being endangered, i.e., the habitat is the thing to be preserved. Therefore the habitat also poses the point of confrontation with so called economic interests. The ESA was written and worded so as to not take so called economic opportunity costs associated with habitat preservation into consideration, but only the existence of the species. The ESA, therefore, poses a program that supports a general and natural preservation.

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A 1978 amendment, however, had Congress adding the words “… taking into consideration the economic impact …” in the Act’s provision concerning critical habitat designation. This 1978 amendment, however, linked the listing procedure with the critical habitat designation and its economic considerations. This almost completely halted new listings, with almost 2000 species being withdrawn from consideration following the amendment’s passage. The habitat in question might have had other valuable commercial value, but the reservation demand (explained in Chapter 6) for preservation was not considered under this 1978 amendment. Preserving habitat, however, not only means preservation for the particular species, but also preserving areas in a wild state for other species and for the human visitor who does not disturb the habitat. This poses likely reservation demands and the benefits from ecotourism. A 1982 ESA amendment, however, added the word “solely” to specify that only the biological status of the species should be considered, not the economic impact that the habitat preservation might pose. The ESA and its amendments also require that for any listing, the EPA must solicit comments from the public, and that one or more public hearings must be held for this purpose. Since being placed on the endangered species list, the following have increased in population size as of January 2019: • The Bald Eagle increased from 417 to 11,040 pairs between 1963 and 2007. It was removed from the endangered list in 2007. • The Whooping Crane increased from 54 to 436 birds between 1971 and 2003. • Kirtland’s Warbler increased from 210 to 1415 pairs between 1971 and 2005. • The Peregrine Falcon increased from 324 to 1700 pairs between 1975 and 2000, and was removed from the list in 1999. • The Gray Wolf populations increased dramatically in the Northern Rockies and Western Great Lakes States. • The Mexican Wolf increased to its minimum population of 109 wolves in 2014. • The Red Wolf increased from 17 in 1980 to 257 in 2003. • The Gray Whale increased from 13,095 to 26,635 whales between 1968 and 1998, and it was removed from the endangered list. • The Grizzly Bear increased from 271 to 580 in the Yellowstone area between 1975 and 2005.

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• California’s Southern Sea Otter increased from 1789 to 2735 between 1976 and 2005. • The San Clemente Indian Paint Brush increased from 500 plants to 3500 between 1979 and 1997. • Florida’s Key Deer increased from 200 to 750 between 1971 and 2001. • Texas’ Big Bend Gambusia increased from 24 to over 50,000. • The Hawaiian Goose increased from 400 to 1275 between 1980 and 2003. • Virginia’s Big-Eared Bat increased from 3500 to 18,442 between 1979 and 2004. • The Black-Footed Ferret increased from 18 to 600 between 1986 and 2006. Eleven other species have become extinct since the 1973 Act was passed. In general, however, the ESA has been somewhat effective for the preservations of both species and natural habitats. 6.1

Habitat Preservation and a Reasoned Process

At the end of the nineteenth century and in the early years of the twentieth century, the US had dramatic loss of species and also suffered the threats of still more losses of nationally significant species such as the bison and the Bald Eagle. During the early twentieth century’s speciepreservation movement, the US was able to preserve these two nationally significant symbols, but it lost others. Preserving species currently, however, requires preserving habitat, and that is a point often obfuscated by development interests. The habitat is wanted for development, and therefore the particular species (for example the small fish known as the “snail darter”) is belittled as unimportant. It is, however, the habitat that is particularly important. It represents the environmental preservation. Reasoned discourse requires a public understanding of this habitat preservation issue.

7

Conclusion

In this chapter, 22 environmental coalitions (NGOs) were mentioned, all of which provided scientific evidence to the social discourse that is supposed to lead to informed policy decisions. There were also 6 industry

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trade-groups mentioned that also provided input. Of course, there are many more of each type of organization providing information to environmental decisions than those listed, but there are also many more decisions than those reviewed here. The public environmental coalitions mentioned in this chapter include: 1. The Sierra Club, 2. The World Health Organization, 3. Greenpeace, 4. Mississippi River Collaborative, 5. Waterkeepers Alliance, 6. Western Energy Alliance, 7. National Academies of Science, 8. American Geophysical Union, 9. American Physical Society, 10. European Academy of Sciences, 11. European Science Foundation, 12. American Association for the Advancement of Science, 13. Western Watersheds Project, 14. Southern Utah Wilderness Alliance, 15. Center for Biological Diversity, 16. Physicians for a Healthy Environment, 17. Wild Earth Guardians, 18. National Research Council, 19. Intergovernmental Panel on Climate Change, 20. Union of Concerned Scientists, 21. National Academy of Sciences, 22. US Climate Alliance. The industry-related coalitions and representatives include: 1. American Coalition for Clean Coal Electricity, 2. American Power Army, 3. Families to represent the Coal Economy, 4. Kansas for Affordable Energy, 5. National Pork Producers Council , 6. American Farm Bureau Federation.

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Environmental matters pose key “wedge issues” for our political process, issues upon which political fundraising depends. The social discourse related to these issues are therefore often contentious. Environmental groups, for example, often use wedge issues as the keys for fundraising. Industry, however, appears forever capable of buying the result it prefers. Since the onset of the industrial revolution, our popular environmental rhetoric has often been ignored, less often in the twenty-first century than in the nineteenth. It appears that industry still has the political clout to sometimes limit scientific input to the policy process and thereby bias the fairness and reasonableness of decisions. This is evidenced by the policies toward “acid rain,” the “dead zone” generation due to agricultural runoff, the policies toward gas and oil drilling on public lands, but not the chemical spraying policies thwarted by Carson’s Silent Spring . These have all been reviewed above. The criteria applied to reach these decisions should include the ethical norms of fairness and reasonableness for these processes, i.e., that the discourse be scientifically informed, inclusive of all affected, and therefore not paternalistic, logical in its deliberations and decisions, and ultimately uncorrupted. The evidence indicates, however, that industry can still buy the political process so as to inhibit logical criteria in actual application. Note that Scott Pruitt, former recent EPA Administrator, and Ryan Zinke, former Secretary of the Interior, were both formerly consultants for the energy industry, and therefore their conflicts of interest should have posed questions for their fitness as competent moral judges , one of the criteria for considered moral judgements in environmental matters.46 (See Chapter 3.) The ethical norms that we understand and believe in were therefore violated, but when we have clarity about these norms, perhaps the process will have a higher probability of fully using them. This is the meaning of pursuit of the moral community within the environmental context. Carson’s example is still encouraging. Her arguments have become part of our fair and reasoned discourse.

46 Both Pruitt and Zinke resigned their positions under pressure for ethics violations, Pruitt in 2018 and Zinke in 2019. Pruitt was a climate denier. See Jay Michaelson (December 20, 2017), “The Ten Worst Things Scott Pruitt has Already Done,” The Daily Beast.

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References Carson, Rachel. 1962. Silent Spring. New York, NY: Houghton Mifflin. Carson, Rachel. 1951. The Sea Around Us. Oxford, UK: Oxford University Press. Hynes, H. Patricia. 1989. The Recurring Silent Spring. New York, NY: Pergamon Press—Athene Series. Lear, Linda. 1997. Rachel Carson: Witness for Nature. New York, NY: Henry Holt and Company. Lytle, Mark Hamilton. 2007. The Gentle Subversive: Rachel Carson, Silent Spring, and the Rise of the Environmental Movement. New York, NY: Oxford University Press.

CHAPTER 10

Some Environmental Organizations and Their “Fair and Reasoned” Contributions

1 Introduction: The Public Input and the Engineering of Our Environment In the Spring of 1927, the US experienced the worst flood in its history to date. For several months, heavy rains fell in various large sections of the Mississippi River Basin. This culminated in the overflow and destruction of levees throughout the lower basin. The Nation discovered the lesson that building large levees upriver only pipes the water downriver where higher levees must now be constructed—the more levees built upriver the higher they must be downriver. The solution requires that we establish large floodplains at various points along the River’s length that enable the releasing of the flood water where populations are not domiciled. Otherwise we pit one locality against another in a sort of competition of “You must flood your town so that ours is protected!”. This upriver versus downriver competition turned violent in 1927 with both racial conflict and violence between towns. As a result of all this disaster, the US Army Corps of Engineers was given the responsibility of managing flood control (as well as other civil engineering tasks) throughout the Basin, and subsequently throughout all the basins of the US’ rivers. Managing this Mississippi River problem continues to today. The Corps is one of the significant government institutions that affects our environment. It does this through an open-to-the-public decision © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. M. Robinson, Environmental Organizations and Reasoned Discourse, Environmental Politics and Theory, https://doi.org/10.1007/978-3-030-75606-2_10

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process of cost–benefit evaluations, one that solicits scientific and socioeconomic information thereby opening the door to fair and reasoned considerations. Also in the 1920s, hurricanes in South Florida caused massive flooding. The Corps of Engineers responded by constructing dikes, canals, levees, and pumps to manage the fresh water of the vast wetlands we call The Everglades. This reengineering has not worked well. The area’s floods are managed, but the environment that attracts people to South Florida has been severely and negatively affected. Significant environmental amenities are disappearing. Currently, the public is demanding that the problems be remedied. In response, large environmental NGOs and coalitions have formed that are politically active and persuasive in government circles. Political pressure is currently sufficiently strong so that one of the Nation’s natural treasures, The Everglades, is likely to be partly restored to environmental health. Agricultural interests oppose these efforts. Their fertilizer pollution largely caused the problem. The political battle is documented in this chapter as an illustration of fair and reasoned environmental discourse and its power to facilitate change. The Friends of the Everglades is the first of four examples examined in this chapter. In the early 1980s, proposed development in the spectacular scenic area, The Columbia River Gorge, led to the formation of a politically powerful environmental NGO, The Friends of the Gorge. Their political acumen led to the establishment of the Columbia River National Scenic Area, and also of a “Land Trust” dedicated to preserving the natural environment and scenic value of the Gorge. Energy and other development interests have opposed the efforts of the Friends, but through the land-use planning institution of the “Columbia River Gorge Commission”—a compact between the States of Washington and Oregon that was also created as the result of the political efforts of the Friends —these commercial interests have been thwarted and the environment and scenic value of the Gorge preserved. To date, the Friends watch over this natural treasure to avoid obnoxious development within the Scenic Area, and also to develop the “Land Trust” to permanently preserve this natural wonder. The Friends are also establishing a 200-mile hiking loop that connects the towns and facilities on both sides of the Gorge (Washington and Oregon sides). This is an example of a successful environmental group with sufficient political power so as to assure that the decision process related to this valuable resource is fair and reasoned. Their efforts are documented as the second example examined below.

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In the late 1960s, concerns over the deterioration of the Chesapeake Bay led a group of businessmen with political connections to form the Chesapeake Bay Foundation. To date this Foundation has spurred new regulations and effective enforcements that have been restoring and preserving the Bay. The Foundation’s efforts are documented here as the third illustration of our society’s need for our environmental advocacy organizations (EAOs) to facilitate fair and reasoned decisions. In the 1960s, The Riverkeepers were formed to restore the Hudson River of New York, a task viewed by many knowledgeable analysts as being nearly impossible. Nevertheless, the Riverkeepers efforts were considerably successful so that offshoots, called Waterkeepers , have now proliferated across the Country. For almost every polluted US river, we now have a Waterkeepers Association spearheading its environmental restoration. Without these organizations, those interests vested in pollution externalities would continue to degrade our rivers. This is the fourth example examined here. The four cases reviewed above illustrate the necessity of our public organizations (nongovernment environmental advocacy organizations (EAOs) to assure that our decision processes are fair and reasoned. Without these organizations, our environmental decisions would be made by business interests with obvious conflicts of interest; they would not be appropriately grounded in scientific and socio-economic facts; they would not be open to considerations of all relevant interests; and we would not be assured that their conclusions would be logical in pursuing our public’s interests. Our environmental policy decisions would be “corrupted.” 1.1

The Pre-conditions That Lead to the Formation of Environmental Organizations

Chapter 5 reviewed the pre-conditions that lead users to form a common property resource (CPR) community, and that attempt to reach an agreement on its use. This is likely to occur when: (1) information is available and recognized as indicating that the CPR is dissipating; (2) users realize that acting independently yields an expectation of lower net benefits than acting in coordination; (3) the difficulties and costs of communicating with fellow users are sufficiently low as to be potentially overcome with practical efforts.

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These three conditions are all information problems associated with initiating reasoned social discourse. The four illustrations of the formation of EAOs presented here exhibit the three conditions listed above. The agreements to be reached had to specify: (i) the access and appropriation rights of the users; (ii) the monitoring system necessary to assure the preservation of the resource, and (iii) the conditions and range of the adaptive management strategies for the resource, including possible contingent strategies. The “adaptive strategies” allow for variations in allowable usage depending on the variation in the natural state of the CPR. For example, a renewable resource such as a fishery needs adaptive strategies that require variations in harvest depending on the available fish stock. “Contingent strategies” consider broader changes in the resource so as to allow for substantive changes in its governance. This requires monitoring and a planned flexibility in arrangements so that changes in conditions can be adaptively met. For example, the monitoring system itself might need change if it is perceived as ineffective for applying exclusion rules for violators. The Chesapeake Bay Foundation, the Hudson Riverkeepers , and the Friends of the Columbia River Gorge all have illustrated this adaptability. The Friends of the Everglades are too new to illustrate these principles, but among these four examples, the Chesapeake Bay Foundation is a particular illustration of the development of the necessary metrics for monitoring the Bay so that adaptability has become “built into” the regulations. This is demonstrated below. A CPR agreement must create “working rules” (practical and effective rules) with credible commitments from users. It also requires realistic and effective monitoring arrangements.1 A possible problem with these agreements is that users may appear to commit in order to induce others into the agreement, all the while intending to violate the agreement. Each user, knowing that this is possible, and wanting to avoid being the “sucker” who is the last to actually keep the agreement, must be suspicious of the effectiveness of the monitoring provision.2 Effective 1 See Bates (1988). 2 See Elster (1989).

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and convincing practical monitoring, therefore, is the key to these CPR governance commitments. Consider the grazing problem reviewed above. The common-sense solution is that the users reach a governance agreement for rationing the grazing rights. Elinor Ostrom (1990) pointed out that this grazing problem was solved by farmers in a Swiss village in part by establishing an agreement to limit grazing to the number of cattle that each farmer could care for during the winter months. Spontaneous, practical, and evolved rules for monitoring the rationing with possible exclusion as a threat, were reached and administered by the users. These rules evolved over considerable time and as a result asserted the rational solution. Such arrangements spawn Ostrom’s law, “A resource use arrangement that works in practice can work in theory.” She explored case examples to illustrate that over time, rules could be established for CPR use that promote sustainability.3 These rules pose self-governance systems, and evolved from face-to-face communications, and were based on reciprocity and a polycentric approach. The four examples of environmental organizations examined here illustrate these principles of communication. As reviewed in previous chapters, Ostrom derived and posed eight rules for managing a CPR: (1) The user group boundaries must be clearly defined. (2) The rules governing CPRs should match local needs and conditions. (3) Those affected by the CPR rules should be included in any modifications of those rules. (4) The rules for governing CPR use should be respected by outside authorities. (5) The community of users should develop a monitoring system for CPR use. (6) Graduated sanctions should be used for rule violations. (7) Dispute resolutions should be of low cost and accessible. (8) The responsibilities for governing CPRs should be nested into tiers from lowest to highest, with the lowest being closest to the users, i.e., the “polucentric approach.”

3 See Ostrom (1990).

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All eight of these rules depend on meaningful reasoned discourse (whether face-to-face or otherwise) among the community of users. They also depend upon inclusivity among users and those affected in forming those rules. The rules for CPR use, however, should also meet some other standards of inclusivity concerning the scientific and socio-economic information to be gathered, otherwise the fairness and reasonableness of the decision criteria (rules) could be weakened. All eight of these rules are examined in the context of the four examples of environmental organizations reviewed here. These fairness and reasonableness requirements as established in Chapter 3 are also addressed here. The CPRs that Ostrom cites have the following characteristics: (a) The using groups are not significantly disparate in their uses. The users also tend to be relatively small in number. (b) The agreements evolved over considerable time while adjusting as new problems and demands needed to be resolved. They did not emerge from significant and immediate crises. These two characteristics are not present in the four examples presented here. All four of these examples illustrate response to crises. They involve disparate users and uses, and also involve large numbers of users. The effectiveness of the agreements reached question the applicability of her observations. 1.2

The Everglades and Its Defending Organizations

On January 9, 2020, the “35th Annual Everglades Coalition Conference” began. This “Coalition” consists of over 60 environmental organizations, mostly non-governmental organizations (NGOs) but with some government input as well. These organizations include EAOs such as Audubon Florida, The Everglades Foundation, The Everglades Trust , Friends of the Everglades , Southern Alliance for Clean Energy, and The National Wildlife Federation. The “Conference” lasted three days. It resembled a typical academic conference with sessions dedicated to a variety of topics such as “Removing Barriers to Sending Water South,” and “Seagrass: The Regrowth of Florida’s Natural Infrastructure.” Sessions consisted of panels of experts with a moderator who directed the discussion and

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presentations. This “Coalition” is an expression of the public’s desire to fix a gigantic mistake of trying to engineer nature, namely the attempt to control the freshwater flow of the lower one-third of the Florida Peninsula, the area we call The Everglades. In attempting to control the floods of the 1920s, the US Army Corps of Engineers replumbed South Florida. This provided fresh water for the population growth of this area, but it severely and adversely affected one of the main attractions for why the population growth occurred, i.e., the environmental amenities of the area. A redo of this “replumbing” is now underway. With the public’s “Coalition” input, the expertise involved might be sufficient to restore this natural treasure of environmental amenities. The Everglades is a vast freshwater wetland that covers the lower onethird of the Florida peninsula. It is home to a large number of aviary species, and is also the spawning grounds of large numbers of fish species and other aquatic life. It extends from Orlando in Central Florida through Lake Okeechobee to Florida Bay, i.e., the shallow bay north and west of the islands of the Florida Keys. This area is essential for the fishing and ecotourism industries of South Florida. Their life depends upon the Everglades. In 1976, The Everglades National Park was declared an International Biosphere Reserve, and also a World Heritage Site by UNESCO. But this area has been under increasing threat during the entire post WW II era. It has been encroached upon by suburban and agricultural development and their demands for the freshwater upon which the Everglades depends. 1.3

The Development of the Problem

In the 1920s, significant hurricanes flooded wide areas in South Florida. The US Army Corps of Engineers responded by constructing a fourstory dike around Lake Okeechobee in South-Central Florida. This dike cutoff a large portion of the freshwater supply to the Everglades. Then in response to the flooding caused by the hurricanes of 1947, the Central and South Florida Flood Control Project (C&SF) was created to reconstruct the area of the Everglades through canals and levees; 1400 miles were constructed during the 1950s and 1960s. The C&SF established “Water Conservation Areas” in more than a third of the original area of the Everglades. These “areas” acted as reservoirs for the fresh-water supplies to South Florida cities. But the C&SF also established the “Everglades Agricultural Area” which grows the majority of sugarcane in the

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US. This “area” encompassed over one-fourth of the original Everglades. The remaining portion of the original Everglades is protected by the Everglades National Park, but this area is dependent for its health on the C&SF’s provision of fresh water. The metropolitan areas of South Florida began to impede the Park area in the 1960s. Insufficient freshwater threw the ecosystems into retreat, and fertilizers from the cane areas began to alter the soils and hydrology of the area. As a result, the Everglades became the subject of environmental conservation concerns. Between 1940 and 1980, the populations of Dade, Broward, and Palm Beach Counties—all of which lie directly on the Eastern border of the Everglades —expanded by a factor of 8.3, i.e., up to 3.2 million people. This rapid population growth converted the eastern 12 percent of the Everglades into other than natural wetlands. The World Wildlife Fund estimates that no more than 2 percent of the original ecosystem remains intact, but about 30 percent remains in an altered state that could be restored with proper management. 1.4

The Politics of Pollution

One of the fundamental factors that have been destroying The Everglades is the pollution produced by, and the irrigation water demanded by the “Big Sugar” industry of South Florida. This agricultural industry is located south of Lake Okeechobee. It heavily uses the fresh water from the Lake, and discharges the fertilized water back into The Everglades. The fertilizer produces algae that degrades the natural environment. These wetlands need unpolluted fresh water to thrive and this is interrupted. On March 30, 2018, the Everglades Trust joined eleven other environmental groups in sending a letter of support for the “Sugar Policy Modernization Act” to various Congressional representatives who sponsored the “Act.” The letter reads, The sugar industry has used this windfall to fund political candidates, campaigns, consultants, law firms and lobbying efforts in Tallahassee and Washington to monopolize water and drainage in the Everglades Agricultural Area, and to force taxpayers to bear the costs of cleaning up its pollution. The political power this program has given to sugarcane producers continues to wreak havoc on our state’s tourism, fishing and real

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estate economies that depend on clean water, which is blocked, diverted and muddied by the practices and stranglehold on policymakers.4

Kemberly Mitchell, Executive Director of Everglades Trust , stated that, “Loosening the stranglehold Big Sugar has had on our political system for decades, bolstered by the archaic corporate welfare scheme, is the single greatest thing we could do to ensure the survival of America’s Everglades.”5 This political problem of pollution has a lengthy history. The US Sugar Program began in 1934. It offers subsidized loans to sugar growers, plus import quotas and tariffs to support the industry. Sugar is an internationally traded commodity with a worldwide price established by the twin forces of supply and demand as with other goods such as oil, or capital flows. But in the US, it is produced by those with considerable political influence due to their large political contributions to politicians across the political spectrum. The Fanjul family, for example, were successful cane growers in Cuba prior to Castro’s revolution in 1958. They fled to South Florida in 1959, and reestablished their cane fields in The Everglades; 200,000 acres of cane. The family owns American Sugar Refining, and Florida Crystals. Domino Sugar is one of their brands. The Fanjul family’s companies benefit from the subsidies and import restrictions, they hold the dominant position in the US market.6 Grunwald (2006) documents the Fanjul family’s pollution of The Everglades. David Guest, an attorney with the environmental law firm Earthjustice argues that the sugar industry’s expertise is not growing sugar, but in soliciting federal subsidies. Virginia Chamlee writes, Guest says that Big Sugar operates differently than most agricultural industries – trading cash in the form of campaign donations for political favors in the form of subsidies. If the companies gain enough legislative support, they can ensure that legislation is written to their specifications, keeping sugar prices and subsidies high.7

4 See “Press Release,” Everglades Trust , March 30, 2018, at www.evergladestrust.org. 5 Ibid. 6 See the September 19, 2016, report by Guy Rolnik in Pro Market of the Stigler Center at the University of Chicago Booth School of Business. 7 Chamlee, Virginia (2011), “How Big Sugar Gets What It Wants From Congress,” The Colorado Independent, September, 2011.

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During the presidential election campaigns of 2016, the Fanjul family hosted fundraising events for both Donald Trump and Hillary Clinton.8 1.5

Issues of Restoration

There are currently 800 square miles of sugar cane lands in the Everglades Agricultural Area (EAA). As reviewed above, these lands have been dammed, drained, and ditched for the sake of development, and now the water cannot flow south through The Everglades. In 2000, The Comprehensive Everglades Restoration Plan (CERP) was authorized by Congress to “restore, preserve, and protect South Florida’s ecosystem.” This “plan” seeks to purchase cane-growing lands (and end cane-growing leases of public lands) that are south of Lake Okeechobee to allow fresh water to flow into and through The Everglades and into Florida Bay. The 800 square miles of cane blocks the flow of water south through The Everglades, and this poses the biggest problem facing restoration. To protect these miles of cane from annual flooding when Lake Okeechobee fills, the Army Corps of Engineers channels billions of gallons of phosphorous filled water to Florida’s east and west coasts. This feeds the algae blooms in the coastal estuaries, which has been a very significant problem in recent years. In response to this problem, the CERP seeks to purchase lands from sugar growers south of the Lake, and to use these lands as a reservoir during flood times, and to allow the continued flow of fresh water south during the dry periods of the year. The Miami Herald hosted the 2019 day-long conference, the “Florida Priorities Summit,” which focused on the issues affecting the State: the economy, education, the environment, health care, and transportation. The fifty top “thought leaders” of the state—including Miami Beach Mayor Dan Gelber, Eric Eikeenberg of the Everglades Foundation, and Julie Wraithmell of Audubon Florida—indicated that the environment was the paramount issue, and that establishing the reservoir south of Lake Okeechobee was the top priority of these environmental issues. With respect to this reservoir, Kimberly Mitchell, the Executive Director of The Everglades Trust, stated,

8 See Iannelli, Jerry, (2016), “Big Sugar’s Fanjul Family Hosting Miami Fundraising for Both Clinton and Trump This Year,” Miami New Times, August 2016.

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After agreeing to it in 2000, the sugar cartel has fought it at every turn, dragging out the process to their benefit while the Everglades and Florida Bay deteriorate more each year from a lack of freshwater and both coasts of Florida are tortured by toxic, polluted water discharges.9

She also stated, We’re thankful for progress. This year brought the end of one of sugar’s leases (from State lands). Building filtration marshes and the reservoir in the EAA is now the top priority. We are hopeful for shovels in the ground before year end. The bridging of Tamiami Trail and the removal of the roadbed is in its last phase, and for the first time in 100 years, water can flow south under the trail into the southern part of the system. (Parentheses were added.)10

In October of 2019, Florida Crystals notified the “South Florida Water Management District” that it would agree to terminate its lease on the land that is crucial to establishing the EAA reservoir. The lease extension was granted by the prior Governor Rick Scott in a gift to Big Sugar (the Fanjul family) just before the new Governor DeSantis could be sworn in. Instead of allowing the land to return to its rightful owner—the State— the former governor placed another roadblock to restoration by extending this lease. The “35th Annual Everglades Coalition Conference,” reviewed above, was organized around the Everglades restoration issues. The session topics included among others: • “Water Quality: From Crisis to Action,” Moderator Rae Ann Wessel of the Sanibel-Captiva Conservation Foundation. • “Restoration Ready: Removing Barriers to Sending Water South,” Moderator Celeste DePalma of Audubon Florida. • “Lake Okeechobee Management: The Big Water,” Moderator Mark Perry of the Florida Oceanographic Society. • “Acronym Soup: The ABC’s of Everglades Restoration,” Moderator Doug Gaston of Audubon Florida.

9 A “press release” from the Everglades Trust, February 13, 2020. 10 A “press release” from the Everglades Trust, December 3, 2019.

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• “Clean Water Connection: Everglades Restoration and Marine Health,” Moderator Caroline McLaughlin of the National Parks Conservation Association. • “Protecting the Everglades Headwaters (Multi Agency Conservation Efforts),” Moderator Jon Andrew of the Theodore Roosevelt Conservation Partnership. • “National Wildlife Refuges: 800,000 Acres in Support of Everglades Restoration,” Moderator Dr. Jim Metzler of the Darling Wildlife Society. • “Funding and Leadership to Expedite Restoration,” Moderator Jessie Ritter of the National Wildlife Federation. • “The Road to Everglades Restoration is … Not Paved: How Oil, Residential, and Toll Road Development Threaten the Western Everglades,” Moderator Alison Kelly of the Natural Resources Defense Council. The other issues addressed by this conference include (i) how to rally the small businesses that depend upon a healthy Everglades for their income (fishing, touring, hotels, and restaurants), (ii) how to fight the invasive plants and animals that are changing the ecology of the Everglades, and (iii) regenerative agriculture and climate change and their effects on the Everglades. All of the above issues have EAOs supporting their cause, and coalition representation at the State Government, at federal agencies, and at Congress. Sixty-four of these EAOs participated in this conference.

2

The Columbia River Gorge and Its Defenders

The Columbia is one of North America’s major rivers. It rises in the Canadian Rocky Mountains (in British Columbia) and flows into Washington State past the Richland-Pasco-Kennewick area. East of Umatilla Oregon, it turns west to provide most of the border between Oregon and Washington States. On its east-to-west stretch between these states, it carves The Gorge as it passes through the Cascade and North Cascade Mountains (a range of peaks of up to 14,000 feet). The Gorge is approximately 4000 feet deep and 80 miles in length. The Columbia River Gorge National Scenic Area is one of the Country’s scenic treasures. It covers 292,500 acres; 70 percent of which is in private hands. It begins roughly twenty miles east of The Dalles, Oregon, and extends to approximately fifteen

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miles east of Vancouver, Washington. This Scenic Area has high mountain vistas, numerous spectacular waterfalls of great height, and high mesa views of great distance east and west along the River. It has many hiking trails of spectacular rain forest scenery on its west side, and dry grasslands on its east side. 2.1

Response to a Threat

In response to the increasing threat of development in the Gorge, the Friends of the Columbia River Gorge was formed in 1980. Its initial goal was to achieve passage of the “Columbia River Gorge National Scenic Area Act.” This was established in November of 1986. This protected the Gorge across six counties and two states. Since then, the Friends has continued its active Gorge-related member-driven conservation work. This has involved: • Land conservation: The Friends has brought 41,000 privately owned acres of Gorge land into public ownership. • Land Trust: The Friends established the Columbia Gorge Land Trust that has purchased over 1000 sensitive acres of land for permanent protection. It removes non-native species, replanted native vegetation, and protected fragile resources on land-trust owned properties. • Monitors Gorge development: Each year, the Friends reviews approximately 250 applications submitted to county planning offices in order to assure sensitive ecological development. • Court challenges to development: The Friends has defeated numerous attempts at large-scale development incompatible with the protections mandated by the Scenic Area Act, including a large Casino. • Public education: For educational purposes, the Friends leads more than 100 guided Columbia Gorge hikes annually. • Ecological development: In 2011, the Friends launched “Towns to Trails,” a long-term vision for a comprehensive trail network that connects Gorge communities and that strengthens local economies. The Mission of the Friends is:

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Friends of the Columbia Gorge shall vigorously protect the scenic, natural, cultural, and recreational resources of the Columbia River Gorge. We fulfill this mission by ensuring strict implementation of the Columbia River National Scenic Area Act and other laws protecting the region of the Columbia River Gorge; promoting responsible stewardship of Gorge land, air, and waters; encouraging public ownership of sensitive areas; educating the public about the unique natural values of the Columbia River Gorge and the importance of preserving those values; and working with groups and individuals to accomplish mutual preservation goals.

The six bullet points listed above fulfill this “Mission.” The “Land Trust” is a subsidiary of the Friends. It acquires Gorge properties that. • preserve the scenic beauty and cultural heritage of the Gorge, • preserve or restore the natural habitat for wildlife, and that • create recreational opportunities and trail connections. In 2017–2018, the “Land Trust” paid approximately $52,000 in local property taxes. The “Trust” emphasizes the control of non-native plants, the maintenance of trails, and the restoration of the natural environment. The “Trust” places signage on hiking trails that explains how to not spread invasive species. In order to protect the Gorge from subdivision development and uses opposed to public enjoyment of the area, the founder of the Friends, Nancy Russell, personally purchased the original 30 properties that became the “Trust.” She also lobbied for federal funds for Forest Service purchases in the Gorge. She helped establish Oregon’s “Trust for Public Lands,” which eventually purchased 30,000 acres of Gorge lands for preservation. In proximity to Portland on the Oregon side of the Columbia River, the famed “Waterfall Alley” attracts most of the Gorge’s visitors, sometimes in crowds harmful to the area’s ecology. To spread this usage beyond the “waterfall corridor,” the Friends and its “Trust” are developing hiking trails and vista lookouts on both the Washington side of the Columbia, and in other locations in the Scenic Area. In the Friends’ “Preserve the Wonder Campaign” of $5.5 million in land acquisitions, completed in 2018, seven Washington State properties were added to the “Trust,” including the “Cape Horn Vista.” This does not complete the

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Friends ’ “Towns to Trails” 200-mile hiking loop through the Gorge, but the trail is substantially close to completion. 2.2

The Fossil Fuel Highway

On June 3, 2016, a Union Pacific oil-tanker train derailed within the Scenic area. Sixteen tanker cars leaked 42,000 gallons of oil into the town of Mosier’s sewage draining system and into the Columbia River. The volatile oil ignited. It took 14 hours to extinguish the blaze. The 2012 production boom caused by the new fracking technology in the Bakken Oil Fields of North Dakota resulted in oil-train traffic increasing from zero to 60 million gallons per week through the Gorge. Multiple proposals to build oil terminals in the Pacific Northwest, including what would have been the Country’s largest terminal at Vancouver Washington (on the Columbia River), would have resulted in an additional 100-plus oil trains rolling through the Columbia Gorge weekly. This would have yielded 15 million gallons of crude traveling through the Gorge per day. These have been defeated through statepermit denials, but only due to the efforts of concerned environmental groups such as the Friends. In May of 2018, numerous permits for the proposed “Millennium Coal Terminal” in Longview, Washington, were denied by Washington State agencies. The historic campaign conducted by the Friends and other environmental groups in the “Power Past Coal Coalition” made this denial possible. If approved, the “Millennium Terminal” would have been the largest coal export facility in the US. The coal would have been shipped to Asia. Forty-four million tons of coal per year would have been shipped through the Gorge in open-topped cars. From an original seven proposals to build coal export terminals in the Pacific Northwest, only a single relatively small one in Vancouver, BC, has been approved. The proposals of significance all involve shipping coal by rail in open-topped cars through the Gorge. The coal comes from the “Powder River Basin in Wyoming and Montana,” and is destined for Asian markets. If these plans were to go through, dozens of additional coal trains, each over a mile long, would go through the Gorge every day. Each open-topped coal car loses one pound of coal dust per mile. Coal debris now litters the Columbia River shoreline, its parks, vineyards, and sensitive habitat. This threatens the plant, animal, and human health in the area.

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The analyses associated with these “fossil fuel highway plans” indicate that since the Columbia Gorge’s rail capacity is near its limit, to accommodate the significant increase in rail traffic for coal, new tracks would have to be constructed in environmentally sensitive areas. River access would effectively be cutoff at many sites due to the increased traffic, and the accompanying delays would hurt business and delay emergency vehicles. The coal would be burned in Asia, but westerly winds carry toxic mercury pollution across the Pacific. Twenty percent of airborne mercury pollution in the Northwest comes from Asian power plants. The Friends of the Gorge brings these sorts of analyses to our governmental decision makers. 2.3

The “Columbia River Gorge Commission” and Land-Use Issues

The “Columbia River Gorge Commission” was created in 1987 by the “Columbia River Gorge Compact” between the states of Washington and Oregon. It consists of 12 voting commissioners, six appointed by each state, and a thirteenth non-voting member appointed to represent federal interests. The Commission serves as the land-use regulatory body for the Scenic Area. The issues confronted largely concern extensions and variations of the thirteen urban-area boundaries within the Gorge: their expansions, their land use within the boundaries, the preservation of agricultural lands within the Scenic Area, and the preservation of the recreational and cultural resources of the Scenic Area. The significant land-use planning issues include: • The counties with lands included within the Scenic Area are large in acreage, but they mostly consist of county lands outside the Scenic Area. Urban boundary extensions associated with suburbanization can occur outside the Scenic Area so that the scenic nature of the Gorge can be maintained without restricting housing growth. • The thirteen urban areas within the greater Scenic Area, need to coordinate their regional services. As examples, not all need hospitals or new hotels. The land-use planning can be comprehensive across the region rather than aimed at self sufficiency for each local entity. • Urban areas can plan for greater density of housing than rural areas. Planning larger lot sizes should not be used to justify extensions of the urban boundary.

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• With global warming, wildfires have increased within the Gorge. Forests and grasslands are drier during summer months as compared to previous decades. Planning can facilitate the natural settings that help limit wildfire spreading. 2.4

The “Strategic Plan” of the “Friends of the Columbia River Gorge”

The Friends of the Columbia River Gorge have a “2018-2022 Strategic Plan.” Their first broad goal is, of course, “Protect and Enhance the Columbia Gorge.” Under this goal, some of their more interesting specific objectives include: 1. Under land use and development objectives, it lists: • Stop energy production, transport, and terminal proposals that would harm the Gorge. • Prevent urban sprawl by limiting urban expansion. • Discourage inappropriate land use and residential, commercial, and industrial development. 2. Under improve protection laws, it lists: • Improve the National Scenic Area Management Plan, including climate adaption. • Advocate for government agency funding to support protection. • Oppose legislation that weakens Gorge protection. 3. Under land acquisitions, it lists: • Review holdings for appropriate long-term ownership and priority stewardship for Friend’s held lands. • Transfer three or four “Preserve the Wonder” properties to appropriate agencies. • Control invasive growth onto “Trust lands.” 4. Under the establishment of the “Gorge Towns to Trails” initiative, it lists: • Build three or four new trail segments.

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• Hold a series of “Town to Trails” meetings to build a coalition of local government officials in support of this initiative. Under the broad goal of “Building Public Support for Lasting Gorge Protection,” some of the more interesting objectives include: 5. Under the “Deepen Membership, Activist, and Volunteers,” it specifies: • Ensure membership remains above the current 7000 members. • Recruiting 200 new activists, 50 mid-level activists, and 7 highlevel activists. • Increase the volunteer ratio of three actions per every volunteer. • Generate 1000 volunteer hours annually to steward Gorge lands. 6. Under educate and engage the public, it specifies: • Ensure 20 percent or more of those attending guided hikes become new members. • Undertake a new communication and branding process. 7. Under deepen and broaden the Friends’ network, it specifies: • Work with public education partners to reach new audiences. • Build and collaborate with environmental coalitions to further Gorge conservation. 8. Under “Increase the Financial Stability and Organizational Effectiveness,” some of the more interesting objectives include: • Generate $1.2 million for land acquisitions, and $800,000 for a stewardship endowment. • Increase planned giving by 50 percent. The Friends’ past successes, and strategic plan for future successes, indicate the likely continuing contributions of this environmental organization. It has obtained a reputation for accomplishment and political power in its region. It has been inclusive in its scientific analysis and in its socio-economic input, and it has provided these analyses to the public’s discourse thereby enabling decisions to be more fair and reasoned.

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The Chesapeake Bay Foundation

The Chesapeake Bay is one of North America’s largest estuaries. It lies within the states of Maryland and Virginia. The rivers of six states— New York, Pennsylvania, Maryland, Virginia, and West Virginia plus the District of Columbia—drain into the Bay. Since WWII, the Bay has deteriorated environmentally with reductions in its sea life, plus reductions in its bordering wetlands and forests, and also the growth of algae blooms that have been fed by agricultural non-point pollutions and sewage discharges. The algae blooms have led to oxygen-starved “dead zones” for aquatic life. Recently, efforts begun in the 1980s have shown some environmental restoration benefits. These efforts were largely driven by the Chesapeake Bay Foundation, an EAO that monitors Bay health and lobbies for environmental regulations. The Foundation educates the public concerning the Bay’s health; it exercises considerable political influence with government authorities; and it has successfully challenged some of our federal and state governments’ environmental decisions in court. The Chesapeake Bay Foundation began in 1964 by a consortium of Baltimore businessmen who saw environmental problems looming over the Chesapeake: more boats in the Bay, more people visiting the Bay, a greater density of housing along the shore, poor sewerage treatment, and more industrial pollution. Congressman Rogers Morton of Maryland’s Eastern Shore stated, “There is a great need for a private sector organization that can represent the best interests of Chesapeake Bay. It should build public concern, then encourage government and private citizens to deal with these problems together.” In 1967, that group of businessmen formed and chartered the Chesapeake Bay Foundation (CBF) to be that private sector voice. They recruited a “Board of Trustees” that represented a variety of interests that depended on the watershed, and adopted the slogan “Save the Bay!”. In the 1970s, the CBF helped spur Maryland’s and Virginia’s Tidal Wetlands Protection Acts. In hearings that determined the granting of permits for wetland development, the CBF’s staff of biologists pressured for strict enforcement of Maryland’s Act, which was designed to help strengthen the state government’s ability to halt wetland loss. For example, in 1977 the CBF’s “Bay Care” campaign successfully defeated the development of an oil refinement facility for Elizabeth River in the Bay, thus preventing more wetland loss. In addition, and of considerable importance, in 1976 the political influence of CBF initiated a seven-year

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EPA “Chesapeake Bay Study.” The CBF Staff’s 42-foot research workboat was a significant resources for the EPA in conducting this research. In 1983, the EPA reported the results of its seven-year study which indicated that there were several accumulated causes for the Bay’s decline. These interrelated causes are reviewed here. For example, this research led to the CBF’s “Resource Protection Program,” which monitors and reports violations of the wastewater-discharge permit compliance by industries and sewage treatment plants in Virginia and Maryland. This research also led to significant other developments reviewed below. In December of 1983, as a result of the CBF’s lobbying and political pressure, the Chesapeake Bay Agreement was signed by the Governors of Virginia, Maryland, and Pennsylvania and the Mayor of the District of Columbia. This “agreement” set goals for Bay restoration, and the CBF spurred effective funding for this initiative. It greatly expanded public education and set goals of 40 percent reductions in the runoff flows of agricultural fertilizers and other runoffs into the Bay. It also set goals for elimination of other toxins into the Bay. In the 1990s, the Bay showed some improvements in various environmental indicators. Underwater grasses returned to areas where they had disappeared, striped bass had returned after a fishing moratorium in the 1980s, but oyster stocks had continued to decline. The provisions of the “Clean Water Act” for point source sewage treatment plant discharge and other industrial waste began to be enforced, but this was largely motivated by CBF monitoring. In the late 1990s, the monitoring shifted to non-point source pollution, that is the runoff from urban and suburban areas, and from farms. In 1996, the CBF began a long-term monitoring and planning process that established nine indicators and benchmarks: 1. the 2. the 3. the 4. the 5. the 6. the 7. the 8. the 9. the

extent of healthy wetlands in the Bay area, restoration of underwater grass areas, extent of forested stream buffers, health of migratory fish stocks, health of oyster beds in the Bay, discharge of toxins into the Bay, extent of dissolved oxygen in Bay waters, clarity of Bay water, and erosion of lands along the Bay.

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To achieve the established goals for each of these indicators and benchmarks, the CBF emphasized constituent development, and the expansion of those engaged into cleanup activities. Working in coalition with other environmental groups such as Ducks Unlimited, by 2005 the CBF had helped restore 20,000 acres of healthy wetlands in the Bay area. But a new threat to the Bay began from agricultural wastes generated from “concentrated animal feeding operations” (CAFOs). Wastes from concentrated hog farms and chicken farms washed into the Bay, and destroyed fish and caused illnesses in fishermen and monitoring workers.11 The material below examines this and other current problems. In 2004, CBF lobbied for and helped to write Virginia’s Non-Tidal Wetlands Protection Act. Virginia had lost over 40 percent of its natural wetlands through landfills and dredging. Wetlands act as filters to provide natural water improvements. They also provide flood protection, recreation, and natural environmental amenities. Virginia’s current goal is to lose no additional wetlands through alterations of natural lands. Virginia has 144 of these named wetlands, and the Protection Act allows the State in conjunction with federal authorities, to deny permits for further dredging or filling in of these natural areas. In 2004, the CBF also worked with Maryland to establish its Bay Restoration Fund to combat the decline in the Bay’s water quality due to (1) its effluent from sewage and wastewater treatment plants, (2) its urban and suburban runoffs, and (3) from agricultural runoffs. The Fund is established through fees on sewage treatment plants, and sceptic system users. Over $127 million is raised annually from these fees. These funds are used to modernize the older waste treatment technologies, and to develop cover crops for sensitive areas so that nutrients do not flow into the Bay. The CBF lobbied for Maryland’s establishment of this Fund, and also for changes in regulations related to these effluents. Agricultural runoff, and other stormwater runoff, is emphasized in the CBF led Chesapeake Bay Watershed Program, which was established in 2015 by the Chesapeake Bay Commission, i.e., the six governors of the bordering states plus the Mayor of DC. This Program followed from the CBF’s successful suit against the EPA for its failure to enforce the “Clean Water Act” with respect to agricultural pollution from CAFOs

11 The problems of CAFOs in the Mississippi River Basin is also examined in Chapter 9.

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in the BayArea.12 The resulting EPA “consent decree” enforced limits for waste discharge specified in the EPA’s “Clean Water Blueprint.” This plan established two-year monitoring schedules. The “Blueprint” further specifies the consequential fines that result from failures to meet these limits. The CBF also sued to prevent several large developments in the Bay Area such as the “King William Reservoir,” and an “unnecessary wetland reservoir” that would have destroyed 430 acres of wetlands in the York River’s headwaters. This would have been the single largest wetlands loss in the history of the Clean Water Act. Also, as spurred by the CBF, Maryland regulators blocked the “Cross Country Connector” highway project in Charles County. This would have facilitated suburban development in a largely forested area. This development would have polluted one of the Bay’s most productive fish-breeding grounds. 3.1

The Chesapeake Bay Foundation and Six Current Significant Interrelated Issues

Since its inception, the CBF has worked on six significant but interrelated issues: • • • •

the elimination of “dead zones” in the Bay, the restoration of the fish and other sea life to the Bay, wetlands preservation and restoration along the Bay, the prevention of agricultural and suburban runoffs, and also industrial and sewage effluents into the Bay, • the prevention of Bay contamination from chemical pollutants, including air pollutants, and • the control of land use permits for developments that would negatively affect the health of the Bay. The plans and resulting improvements in the Bay’s environmental quality were all precipitated by the CBF’s political influence to initiate the EPA’s seven-year “Chesapeake Bay Study,” which started in 1976. This research was considerably aided by CBF associated scientists and resources. It 12 Chapter 9 reviews this CAFO problem associated with storage of animal wastes in “lagoons” so designed as to overflow into watershed streams, thus causing high levels of pollution that feeds “dead zones” of algae bloom.

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enabled the CBF to facilitate the formation of the Chesapeake Bay Commission for monitoring the “Agreement” with the established goals and metrics listed above. More recently, the CBF advocates for farming projects that limit the polluting runoff via establishing stream buffers, cover crops, rotational grazing, and other “best practices.”13 CBF associated scientists estimate that two-thirds of the nitrogen and phosphorous reductions necessary to restore the Bay can be achieved through these practices. The CBF’s public education initiatives have been a priority since its beginning. Over the last decade, the CBF has emphasized the destructive nature of the algae “dead zones” that starve other aquatic life of oxygen. These “zones” have extended more than 30 miles between Mathias Point and Nomini Bay at the Virginia–Maryland Border. As indicated above, the cause is the discharge of wastewater effluent and agricultural and other runoffs that provide nutrients for the algae. The CBF campaign against these contaminations continues.14 Fisheries management is comprised of two functions: (1) conserving the available fish and shellfish, and (2) determining who gets to harvest these resources. The second function is the rationing of harvests among licensed fishermen. The CBF focuses, however, on the first function, i.e., conservation. To be successful, conservation should be based on the best available scientific information, and this is what the CBF has sought to assure through its associated scientists and studies.15 The rainwater that runs off streets and lawns picks up pet waste, pesticides, fertilizer, motor oil, and other contaminants. This pollution is usually not filtered by wastewater treatment plants. If the runoff is not filtered through natural buffers, then the pollution flows into creeks, rivers, and ultimately bays such as the Chesapeake. Soil erosion also comes with rain runoff, and the soils destroy spawning grounds for fish and other aquatic habitat such as oyster beds. Also, in the Bay Area, the State of Maryland cautions people to not swim in Bay waters after heavy rains because of the poisons, and also because the agricultural runoff breeds bacteria. In addition, wildlife is also poisoned by this runoff. With global

13 See www.cbf.org/issues/agricultural/best-management-practices.html. 14 See www.cbf.org/issues/dead-zones/algal-blooms.html. 15 See www.cbf.org/issues/fisheries.html.

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warming we are likely to have more frequent intense storms so that the problem will be exacerbated. None of the six states within the Bay Watershed are currently meeting its Chesapeake Clean Water Blueprint goals for polluted runoff.16 Suburban sprawl is the culprit in that it is built upon the green areas that would naturally filter this runoff. The CBF promotes a “green filter approach” of building drainage areas that act as filters. The CBF also shows local jurisdictions how to finance these “filters.”17 Traditional sewage treatment plants reduce bacteria, but not the nitrogen and phosphorus that plant effluent discharges into the Bay, and that therefore cause the “dead zone” problems reviewed above. Upgrades in technology to these older treatment plants, however, have steeply reduced these nutrient pollutions. This has been spurred by the CBF. The “Chesapeake Clean Water Blueprint” was established in 2010. It established nutrient reduction goals which were exceeded in 2018. The Bay already meets its 2025 goal. In Maryland, in 2004 the CBF helped pass the Bay Restoration Fund to upgrade Maryland’s aged treatment plants, and also its separate sceptic systems. In Virginia, however, the CBF continues to advocate for sufficient funding for upgrades to existing plants so as to meet its Blueprint goals by 2025. More importantly, the CBF has filed suits to force the EPA to require “permit enforcements” on nitrogen and phosphorous pollutions in the states in the Bay Area. The CBF continues to track these permit issuances and pollution levels.18 In 2015, the EPA finalized the “Clean Water of the United States Program,” and did so in a way that provided clarity about what types of wetlands should require “Clean Water Act” permits. These wetlands are essential for Bay restoration. In response to a Donald Trump executive order titled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule,” the EPA and Army Corps of Engineers initiated a “repeal and replace” of the “Clean Water Act” by redefining the waters requiring permits. This “repeal and replace” was completed on January 23, 2020. The new rule narrows the definition of wetlands, and also leaves out wetlands that cross state 16 See www.cbf.org/how-we-save-thebay/chesapeake-clean-water-blueprint/pollutionlimits.html. 17 See www.cbf.org/how-we-save-thebay/programs-initiatives/environmental-impactbonds.html. 18 See www.cbf.org/how-we-save-thebay/in-the-courtroom.html.

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borders. Upon this repeal, the CBF Vice President for Environmental Protection and Restoration Lisa Feldt stated, These actions continue the (Trump) Administration’s assault on clean water. The repeal ignores the EPA’s own science and lengthy and inclusive process that was used to develop the 2015 rule. Maintaining the health of these waterways and wetlands is crucial to protecting downstream waters. (Parentheses were added.)19

The Chesapeake Bay Foundation continues to (i) educate the public about Bay problems, (ii) provide political pressure to enact effective environmental regulation, (iii) monitor the enforcement of these regulations, and (iv) when necessary bring court cases to ensure enforcement of those regulations. When the CBF was formed, the Chesapeake Bay was already degraded and in the process of further deterioration. The Foundation’s efforts substantially brought about the restorations in Bay Waters, border wetlands, and aquatic life. Without these efforts, the process of commercial and industrial exploitation would have continued. The CBF initiated the countervailing power necessary to facilitate “fair and reasoned environmental decisions” with respect to the Chesapeake.

4 Riverkeepers: “Not Radical, but American in Disposition”20 The Hudson Riverkeepers did not seek to change our environmental policies, but rather to enforce existing environmental law. In doing this, however, they brought the existing laws to life through citizen empowerment. In many cases, they instilled the notions of “fair and reasoned” into the law’s intent. They brought faith in the applicability of this slogan to environmental restoration. The origination of the Riverkeepers is linked to the journalist and fishing enthusiast Robert Boyle who published articles critical of those

19 See www.cbf.org/news-media/newsroom/2019/fderal/cbf-opposes-wotus-actions. html and also www.cbf.org/news-media/newsroom/2019/federal/cbf-files-commentsoppossing-replacement-of-the-wotus-rule.html. 20 Richie Garret, President of the Hudson River Fishermen’s Association in testimony before a Congressional Committee.

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who did not recognize the environmental knowledge of his fellow fishermen. The precipitating event behind the Riverkeepers formation was the electric utility Consolidated Edison’s attempt to build a hydropower facility on Storm King Mountain in the Hudson Highlands. Local environmentalists, led by the Hudson River Fishermen’s Association (HRFA) responded by forming the Scenic Hudson Preservation Conference, which challenged the Federal Power Commission’s (FPC) decision to grant a permit for this utility’s location.21 Consolidated Edison hired a biologist to claim that the location’s surrounding waters were not critical for fish, but Robert Boyle exposed this “paid for science” as fraudulent; that actually the area was a crucial striped-bass spawning ground. In December of 1965, the US Second Circuit Court of Appeals reversed the original FPC decision that the environmentalists should not be given standing in the permit process. The Court held “that injury to aesthetic or recreational values was sufficient to provide an aggrieved party with constitutional standing.” This “Storm King Doctrine” was a precedent. For the first time environmentalists were given standing to object to scenic or recreational injury without showing tangible and personal economic harm. The newly formed HRFA, founded by Boyle, also persuaded the Atomic Energy Commission to consider fish kills in relicensing Consolidated Edison’s existing Indian Point Nuclear Plant.22 Knowing that because of the “Storm King precedent,” fish kills would now be an issue in future litigation, Consolidated Edison cancelled the offending expansion. “The Storm King Doctrine” then became coded into environmental law through the “National Environmental Policy Act” of 1970. The efforts of the Hudson Riverkeepers changed our national environmental policy. Why was such precedent law needed? Did we not have other environmental laws for the control of pollution? The US actually had old laws that were applicable, but they had not been enforced. The Refuse Act of 1899 assigned fines of $500–$2500 for pollutant discharges into navigable waters. This law also allowed individual citizens to enforce it by showing evidence in court that a violation occurred. The HRFA took note. By the early 1970s, it was an organization of working-class environmentalists who locally sought redress for environmental degradations, the first of which was the Penn Central Railroad’s pollution. It had been

21 Scenic Hudson Preservation vs. Federal Power Commission. 22 The “fish kills” resulted from the heating of the River’s water.

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releasing petroleum products into the Croton River, a tributary of the Hudson. Suit was brought by the HRFA. It won, and this brought the first fines transferred to a private organization since the Act was passed in 1899. A subsequent case involved Anaconda Wire and Cable Company’s release of oil and solvents directly into the Hudson. One-hundred counts of violation of the Refuse Act were successfully brought by HRFA against Anaconda. In the 1980s, HRFA evolved into the Riverkeepers. This organization created a “riverkeeper” position of someone who would monitor violations of the existing environmental law. John Cronin, who already had some involvement in the Hudson River monitoring, became the Riverkeeper.23 The State Police warned Cronin that Exxon was discharging petroleum products into the River. In his Riverkeeper assignment, Cronin was able to document seventy-seven Exxon tanker violations. Cronin’s proof was so substantial that Exxon settled, and paid $1.5 million in fines with some of this going to the Riverkeepers . Riverkeepers have also pursued two other categories of “local causes:” • Riverkeepers have pursued issues of “environmental justice.” It successfully sued to assure that those in poorer city neighborhoods have similar transit capabilities to reach the Hudson River and area parks than those in wealthier neighborhoods. They have also successfully sued to assure the availability of clean water in cities such as Newburgh where the children of poorer neighborhoods were being poisoned by their public water supply. • The Riverkeepers have successfully sued New York City’s lackluster enforcement agencies to assure that its water sources (reservoirs and streams) are clean. In 1992, under the direction and leadership of the Hudson Riverkeepers , the National Alliance of Riverkeepers was formed. This now includes over 300 organizations working on the Nation’s waterbodies. It shares resources and accredits new programs. Their grassroot local enforcements and activism are different from organizations that focus more on national policy. But all of the environmental organizations essentially

23 Cronin was involved with Pete Seeger’s Clearwater Sloop program for raising awareness of pollution problems along the Hudson.

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come down to involvement in local issues: local preservations, affecting local environmental responses, and locally enforcing national regulations. The advantage of having grassroots environmental movements, however, is that by involving many local activist with broad backgrounds, it further popularizes the environmental movement. It gives an appearance that is “less elite.” It demonstrates that environmental amenities are essentially a significant portion of every individual’s wealth. In this sense, the National Alliance is a substantial advance in the environmental movement.

5 5.1

Environmental Organizations and the Process of Decisions Applying Ostrom’s Institutional Analysis

Elinor Ostrom’s institutional analysis (reviewed in Chapter 5, and in section “1” above) indicated the pre-conditions that lead to the formation of CPRs. These three conditions are: (i) information is available and recognized as indicating that the CPR is dissipating; (ii) users realize that acting independently yields an expectation of lower net benefits than acting in coordination; (iii) the difficulties and costs of communicating with fellow users are sufficiently low as to be potentially overcome with practical efforts. Given the four organizational examples reviewed above, it is clear that all four (The Friends of the Everglades, The Friends of the Columbia River Gorge, The Chesapeake Bay Foundation, and the Riverkeepers) exhibit these characteristics. According to Ostrom, the CPR agreements underlying the environmental organization should specify: (i) the access and appropriation rights of the users, (ii) the monitoring system necessary for the resource’s maintenance, and (iii) the conditions and range of the adaptive management strategies for the resource, including possible contingent strategies.

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These aspects of agreements are apparent in the “Columbia River Gorge Compact” and the two-state regional “Commission” that now governs the land use within the “Scenic Area.” These political entities and agreements were also directly organized by the Friends of the Gorge. In addition, The Chesapeake Bay Foundation provided the impetus behind the myriad of multi-state agreements administered by the multi-state and multi-jurisdictional entities, and the monitoring necessary for their enforcements. The Hudson Riverkeepers also monitor the relevant environmental agreements for restoration and preservation of the Hudson. These agreements exhibit Ostrom’s specifications for being effective. The Friends of the Everglades are currently attempting to organize agreements with these specifications. To facilitate the organization’s formation, Ostrom cites the following two CPR characteristics: (v) The using groups are not significantly disparate in their uses. The users also tend to be relatively small in number. (vi) The agreements evolved over considerable time while adjusting as new problems and demands needed to be resolved. They did not emerge from significant and immediate crises. Heterogeneous uses of the Chesapeake Bay, the Columbia River, the Everglades, and the Hudson River, are apparent. Nevertheless, the Chesapeake Bay Foundation, The Friends of the Columbia River Gorge, and the Hudson Riverkeepers have been successful in formation and effectiveness. The Friends of the Everglades are, however, too new to be judged for their effectiveness. All four of these organizations, however, emerged from perceived crises involving user demands that would destroy the resources in question. It does not appear that Ostrom’s “crisis” theory is applicable. 5.2

The Political Power of Environmental Organizations

Two of the four organizational examples examined above (Chesapeake Bay Foundation and the Friends of the Gorge) were originally formed for the purpose of exerting strong political influence. They quickly demonstrated their political power. A third organization (Hudson Riverkeepers ) used existing legal institutions and laws to successfully assert political power.

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The fourth organization (Friends of the Everglades ) is trying to form the political power that will be capable of opposing that of Big Sugar. Consider that Ostrom’s eight rules for managing an environmental organization include: (i) The user group boundaries must be clearly defined. (ii) The rules governing CPRs should match local needs and conditions. (iii) Those affected by the CPR rules should be included in any modifications of those rules. (iv) The rules for governing CPR use should be respected by outside authorities. (v) The community of users should develop a monitoring system for CPR use. (vi) Graduated sanctions should be used for rule violations. (vii) Dispute resolutions should be of low cost and accessible. (viii) The responsibilities for governing CPRs should be nested into tiers from lowest to highest, with the lowest being closest to the users. These conditions do not directly address the issue of political power. It appears, however, that unlike rule (viii), this political power organized at a significant upper-level is the key to success. This was (or is in the example of Friends of the Everglades ) the impetus behind the formation of each of these organizations. Because political influence was the aim in forming these organizations, they succeeded. Note that for all four of the cases reviewed above, the governing responsibilities are at the local level, but the political power of enforcement is not only at the local level, but is reinforced at the higher state and federal levels. Two of the four environmental organizations reviewed above—the Friends of the Gorge, and the Chesapeake Bay Foundation—sought from the outset of their creation to influence the political processes of environmental decisions in their particular areas—the Columbia River Gorge and the Chesapeake Bay, respectively. Both succeeded in establishing the local monitoring and land-use planning necessary for environmental preservation and restoration of their areas. The coalition we call The Friends of the Everglades was created relatively late in the environmental movement (2018). It seeks to oppose Big

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Sugar in its political domination of the Everglades. Big Sugar’s subsidies and trade protections facilitate the pollution of one of our most important wetlands. The Friends seek to halt these protections in order to restore the Everglades to health. It is a coalition of more than 60 other environmental groups with the common purpose of Everglades protection. The Friends of the Everglades now seeks the political influence capable of opposing the considerable influence of Big Sugar. The Hudson Riverkeepers did not set out to establish new environmental law, but to enforce the existing law for the purpose of establishing environmental justice. They did, however, establish new precedent law for enforcing the 1899 Refuse Act, an environmental law long ignored in the Hudson Valley until the Riverkeepers utilized it. In addition, through the Storm King Doctrine, the environmental groups who had no previous standing under federal law for enforcement of the Clean Water Act , obtained that “standing.” The Riverkeepers established that “standing” through the Storm King Doctrine. All four of these environmental organizations have common characteristics: • They are all citizen organizations created in response to a lack of government environmental action. • They all provide the countervailing power to industry and real estate sprawl that is necessary to restore the environment. This countervailing power stems from their organization and presentation of the science and socio-economic information that the environmental decision process must require to be “fair and reasoned.” • They all facilitate uncorrupted (free of conflicts of interest) and logically inferred environmental decisions. (Note the HRFA’s revealing of the conflicts of interest in the Storm King Decision by the FPC as reviewed above.) • They all represent and bring to the public consciousness the common benefits of our environmental amenities. If environmental organizations of the sort examined here had not developed in our society, then we would not be able to envision having “fair and reasoned” environmental decisions according to the generally accepted criteria reviewed by this monograph in Chapter 3. These organizations represent the countervailing power to industrial and other

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development interests. They redirect “development” toward environmental amenities, and they do this in the public’s interest and at its demand.

References Bates, R. H. 1988. Contra Contractarianism: Some Reflections of the New Institutionalism. Politics and Society 16: 387–401. Elster, J. 1989. The Cement of Society: A Study of Social Order. Cambridge, UK: Cambridge University Press. Grunwald, Michael. 2006. The Swamp. New York, NY: Simon and Schuster. Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. New York, NY: Cambridge University Press.

CHAPTER 11

Cross Border Governmental Organizations and Tragedies of the Commons

1

Introduction

Every nongovernmental environmental advocacy organization (EAO) originated as a response to some particular perceived crisis, although once it was organized, it might have adopted other environmental causes. For example, the Audubon Society was organized in response to the North American aviary crisis of the late nineteenth century. In roughly the same era, The Sierra Club was organized in response to threats to California’s mountainous domains. In the 1960s, the Environmental Defense Fund was first organized to combat the overuse of pesticides in Long Island. But all three of these EAO continued to effectively pursue broader environmental goals beyond their original cause of preservation. Even though every effective EAO has an original cause, it does not follow that every substantive cause has an effective EAO pursuing its preservation or restoration. This has been the case for some of our more important global water resources as documented here. For these instances, cross-border government organizations were created to manage various significant water-resource crises in North America. In three of the four instances documented here, rapid industrialization overwhelmed their preservation movements. In some instances, as we would anticipate of government organizations, some degree of bureaucratization sets in. The impetus for collective imperfect duty might motivate an EAO to lead in reform efforts, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. M. Robinson, Environmental Organizations and Reasoned Discourse, Environmental Politics and Theory, https://doi.org/10.1007/978-3-030-75606-2_11

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but this energy might also dissipate among the activists who patiently wait for the government organization to handle the problem. This might be the case with cross-border regulatory organizations where activists patiently wish for the government regulatory organization to succeed. But as with all regulatory bodies, there is a tendency for the regulated commercial or industrial interests to capture (overly influence) the regulating body. For this reason, activists need an EAO as a monitoring vehicle, especially for cross-border problems since they tend to be more remote from these “activists.” Cross-border government organizations have an interesting history of attempting to prevent tragedies of the commons. The government organizations examined here all faced cross-border crises. In all four of the examples examined, these government organizations were not sufficiently strong to entirely halt the interests of exploitation and degradation. They have histories of supporting development interests. Perhaps as a result, in three of the four cases reviewed they have not prevented some versions of tragedies-of-the-commons. These cases include organizations that (i) attempt to regulate the Northwest Atlantic fisheries, (ii) attempt to regulate the Columbia River fisheries, (iii) attempt to allocate Colorado River water among Southwestern US states, and (iv) that attempt to manage the Great Lakes of the US and Canada. In the first three of these four cases, the cross-border regulatory organizations had difficulties in soliciting sufficient political support to enable full environmental preservation. Commercial development interests appear to have had sway over their regulatory efforts.

2

The Mismanagement of Two North American Fisheries

The fisheries of the Northwest Atlantic (Grand Banks and Georges Bank) and of the Columbia River Basin have survived, and will likely continue to survive in some significantly weakened state. But both have been devastated by industrialization, factory trawlers in the first case, and hydro dams in the second. Cross-border government entities held the responsibilities of management for each, but they failed in both cases. Nonetheless, advocacy organizations continue to push the efforts of government regulators to find ways to preserve the environmental resources’ existence even if in diminished condition.

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The Grand Banks and Georges Bank

The Grand Banks are a group of underwater plateaus southeast of Newfoundland but on the North American continental shelf. These plateaus are 50–300 feet below the ocean’s surface. Here, the cold Labrador current mixes with the warm Gulf Stream to bring nutrients to the surface and create what previously was perhaps the richest fishing grounds in the world, particularly for cod, swordfish, haddock, halibut, flounder, capelin, and shellfish such as scallops and lobster. In the late twentieth century, overfishing caused the collapse of several of these important and once abundant fish populations—especially cod—forcing Canada’s Department of Fisheries and Oceans (DFO) to close the Grand Banks to fishing in 1992. Prior to the collapse of the Grand Banks, the Georges Bank was closed to ground-fishing, i.e., fishing for cod, haddock, flounder, and halibut. The Georges Bank is west of the Grand Banks, between Cape Cod and Nova Scotia. This plateau is more easily accessible to fishing than the Grand Banks, and it is responsible for the rise of New England fishing ports such as Gloucester, Massachusetts, and Yarmouth, Nova Scotia. Because the rise of foreign factory trawlers severely depleted the groundfish of both the Georges Bank and the Grand Banks, in 1972 both Canada and the US declared “exclusive economic zones” (EEZs) of 200 miles offshore in order to assert exclusive jurisdictions to benefit their own domestic fishing industries. These Canadian and US jurisdictions overlapped in the Georges Bank. In 1984, the International Court of Justice in the Hague split the maritime boundary in the Gulf of Maine between both nations. Management of this important natural resource became the responsibility of both nations. The management problem stems from the technology of fishing trawlers. These are large factory ships that drag-net the bottom surface and then freeze their catch. The first of these was the British Fairtry that fished the Grand Banks in 1951. It was 280 feet, four times the size of previous trawlers. Below deck was an onboard processing plant with automated fileting machines, a fish meal rendering factory, and an enormous freezing capacity. The Fairtry fished twenty-four hours a day for weeks at a time on the Grand Banks. It used electronic fish finders to pinpoint and capture whole schools of fish. By the 1970s, the Soviet Union had 400 similar factory trawlers; Spain had 75; West Germany had 50; France and Britain had 40. They mostly fished the Grand Banks and Georges Bank

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for cod. In response to fish depletion, in 1977 Canada followed Iceland in unilaterally extending its territorial waters from 12 to 200 miles offshore (its EEZ), and Canada eliminated the factory trawlers from the Grand Banks. This decision was popular in the Atlantic Provinces of Canada, but in a remarkable display of faulty analysis and foresight, Canada then built a deep-trawler fleet of its own. Further depletion of multiple fish stocks on the Grand Banks and Georges Bank continued. The drag-netting technology of large trawlers uses large weights to keep the net on the bottom as the trawler moves along the plateau. This disturbs and levels the sea floor of the areas where small fish hide and feed on crustaceans. The technique threatens, captures, and kills the entire ecology that supports the fish stock. One might think that the resulting destruction to the resource would be obvious, and that this technology would be immediately outlawed. It was not! The destruction occurred. In 1988, the scientific evidence indicated that the fishing quota should be no more than half the existing stock. Nevertheless, the Grand Banks’ quota was set well above this portion by Canada’s DOF. The estimates are that more than 60 percent of the stock was removed for several years prior to 1988. In 1992, scientists estimated that the stock of cod was 1.1 percent of the level of the early 1960s. Canada finally closed the Grand Banks to allow recovery. The Georges Bank was similarly closed by both the US and Canada in 1994. The scientific evidence indicates that the factory trawlers not only captured all the fish stock, they also destroyed the sea bottom ecology that supports the stock.1 The collapse may now be permanent. As of 2020, the “closings” continue. The Grand Banks of Newfoundland provided a stable livelihood to island residents for five centuries, and made Canada one of the world’s leading fishing economies. But by the end of the twentieth century, the great schools of cod had disappeared. The July 1992, moratorium on cod fishing led to the single largest layoff in Canadian history, affecting not only the fishermen and women, but processing plant employees, and those in the retail and wholesale trade, and those in other infrastructure industries. Newfoundland communities shrank considerably. But as cod declined, scallop, crab, and lobster flourished, and have partly replaced the cod as a basis of livelihoods. Between 1992 and 2007, the value of the Grand Banks catch rose from Can $275 million to Can $470 million. 1 See “A Run on the Banks,” The Environmental Magazine, July 20, 2004. https:// emagazine.coma/a-run-on-the-banks/.

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After adjusting for inflation, the catch was 20 percent higher in value. But this increase in the value of the catch does not reflect the tragedy of losing some overwhelmingly significant global resource stocks—cod, haddock, and others. They were depleted because collective regulation was slow to adjust. Industrial factory technology overran sustainable methods that kept the resource replenished. 2.2

The Salmon Fishery of the Pacific Northwest

The salmon of the Pacific Northwest are anadromous (spawn in fresh water, migrate to ocean water where they mature, and then return to spawn in the same stream where they were spawned). Salmon provided native peoples of the Northwest with their main source of protein. This species includes the Chinook, pink (or silver), coho, and sockeye salmon. Steelhead trout are also anadromous and include rainbow trout that migrate to the ocean and cutthroat trout that migrate to the ocean’s bays. These anadromous fish were large (Chinook would routinely grow to over 60 lbs) and were readily caught by spears, baskets, and nets at central locations where the rivers and tributaries formed falls.2 As the primary food source of indigenous tribes, salmon also posed spiritual aspects in that salmon were envisioned as one of nature’s essential gifts to be preserved and not abused by humanity.3 Native tribes envision themselves as an integrated component of nature in a tribal religious sense. The salmon was also an integrated component, a not to be abused gift from nature to the indigenous people. Up to the mid-nineteenth century, salmon and trout were extremely abundant in the Pacific Northwest, but post 1880 the Columbia River salmon canneries were constructed. There were 38 canneries constructed on the lower Columbia with 22 in Astoria, Oregon—close to the mouth of the Columbia. In 1884, these canners formed the “Oregon and Washington Fish Propagation Company” to market the product. The fishermen organized the “Columbia River Fishermen’s Protective Union” in 2 See “Salmon for All: History,” at www.salmonforall.org/hstory/ and Joseph E. Taylor, “Salmon,” at www.oregonencyclopedia.org/articles/#.YBCU0-SmUK. 3 See the various quotes from Okanagan tribal members in “Historic Agreement Reached Between Columbia River Basin Indigenous Nations, Canada and British Columbia to Collaborate on Salmon Re-introduction,” Sylix Okanagan Nation Alliance, July 29, 2019. Also see Michaelsen (1995).

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1884, an organization that still exists (affiliated with the American Federation of Labor). Prior to the turn of the century, the Union, together with local native tribes, and the cannery industry called for the formation of fish commissions and state actions to regulate the diminishing harvests. Between 1900 and 1930, more than 100 dams were constructed in the Columbia River Basin, the most significant at Willamette Falls (1888), Bull Run (1895), Swan Falls (1902), and Spokane Falls (1920). These were constructed to serve flood control and agricultural irrigation interests. The larger hydro-electric dams at Rock Island (1931), Bonneville (1937), and Grand Coulee (1941) followed. (See Fig. 1 for a partial depiction of significant dam locations.) In addition to power generation, these hydropower dams were also designed for flood control, and to serve agricultural irrigation interests. As early as the 1870s, the states of Oregon and Washington attempted to regulate the commercial salmon industry, and in 1915, these two states Canada

Pend Oreille River

Grand Coulee Dam

Montana

Washington Spokane

Chief Joseph Dam

PACIFIC OCEAN

SeaƩle

Columbia River The Dalles Dam

Boise McNary Dam John Day Dam

Bonneville Dam

Portland

John Day River

Idaho Snake River

Oregon WillameƩe River

Fig. 1

The Columbia River Basin and the most significant HydroPower Dams

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formed the cross-border Columbia River Compact which Congress then recognized as the regulative agency for all the River’s fisheries. After the dam constructions of the 1920s, 30s, and 40s, the salmon and steelhead stocks greatly diminished because the fish could not return to their spawning grounds. Native tribes, recreational fishing groups, and the commercial salmon industry called for fish ladders that would allow salmon to bypass the dams in attempting to reach their spawning grounds. These ladders were constructed, but only had partial success in restoring the fish runs. Why? The overall management of this salmon and steelhead fishery did not utilize proper scientific-engineering information in constructing dams along the Columbia. The dams were overly large in height, designed to generate hydropower, and not designed for fish passage. For example, long fish-diversion canals of gradual slope could have been constructed, but building ladders on US Dams would have added construction expense and weakened the flow through the hydropower generators.4 As the management institution for the River’s fisheries, the Columbia River Compact now includes the Joint Management Staff of the Oregon and Washington Departments of Fish & Wildlife. It consults with NOAA—The National Oceanographi and Atmospheric Administration, and also the US Fish & Wildlife Service, the Idaho Fish & Game Agency, and the “Columbia River Intertribal Fish Commission.” As a result, this salmon fishery is now highly regulated particularly due to attempts to comply with the standards of the Endangered Species Act (ESA), and also comply with the US vs. Oregon (1968) court decision that adjudicates the treaty fishing rights of the four tribes included in the “Treatise of 1855.” But as explored below, these attempts at compliance were only slightly successful in meeting the demands of the “Intertribal Fish Commission,” or of the ESA. Why? The industrialization of the Pacific Northwest has continuously threatened degradation of the Columbia Basin. This twentieth Century development jeopardized the salmon fishery through dams, mining, logging, agricultural irrigation diversions, pulp-mill pollution, urban and suburban pollution, nuclear waste pollution, and the overall degradation and loss of salmon spawning streams.

4 See John Waldman, “Blocked Migration: Fish Ladders on US Dams Are Not Effective,” Yale Environment 360, April 4, 2013. Also see Rebecca Kessler, “Mimicking Nature, New Designs Ease Fish Passage Around Dams,” Yale Environment 360, May 6, 2014.

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Salmon and trout spawn only in clean sandy-gravel beds, and then only in clean water. Silting and pollution from mining, logging, and urbansuburbanization destroys these spawning beds. In addition, between 1900 and 1930, more than 100 dams were erected in the Columbia River Basin, mostly for flood control and irrigation. But the 1930s saw the “New Deal” and the establishment of the “Columbia River Federal Power System” when construction of the Bonneville Dam begun in 1933. Originally, this hydro-electric dam was to be constructed without fish ladders. The political influence of the “Fishermen’s Protective Union” and the cannery industry forced the establishment of fish ladders in 1938. Construction of the over 500 foot high Grand Coulee Dam on the upper Columbia, however, was too high for fish ladders to effectively function. This cut off the upper third of the Columbia from the salmon (and steelhead trout) reaching their spawning grounds. This prevention of the anadromous fish from returning to their spawning grounds started the era of fish hatcheries for developing the young fish. These young fish were then transported back to the lower Columbia for facilitating their travel to the Pacific Ocean. Upon return for spawning, they (or their fertilized eggs) were netted and returned to the spawning tributaries. This mechanized transport, however, provided only slight success. Whereas prior to industrialization, it is estimated that 15 million fish were spawned and returned per year along the Columbia, the dams eliminated 50 percent of spawning grounds in the Basin.5 Since 1938, fish runs on the ladders of the Bonneville dams have varied from 3.2 million to 0.9 million. As a result, more than 75 percent of these anadromous fish now must be hatchery bred.6 Since 2000, all Columbia salmon have been listed as endangered species and federal and state efforts at reestablishment have been initiated. Success has been limited because the hatchery program has had difficulties as explained below. In response to the decline in the environmental health of the Columbia Basin, Congress passed the “Northwest Power Act” in 1980 which specified a goal “to treat fish and wildlife as co-equal partners with other uses in the management and operation of the hydro projects of this region.” This legislation also created the Northwest Power Conservation Council to conduct studies and advise agencies about how to meet the goals of the

5 Ibid. 6 See ibid.

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Northwest Power Act. As indicated below, attempts to find and initiate solutions for saving the anadromous fish have only resulted in very limited success given the significant number of dams throughout the Basin. Since the 1970s, however, suits in federal courts have upheld the native tribes’ rights under the 1855 treaty (represented by the “Columbia River Inter-Tribal Fish Commission” formed by these tribes) to half of the allowed total harvest. These legal disputes continue to the current period where the “Power Conservation Council” continues to attempt to reach consensus plans that will satisfy its competing constituents.7 As indicated above, the establishment of fish hatcheries was the response to the numerous dams’ effects on the anadromous fish populations. It should be emphasized that the hatchery movement has not been entirely successful. Breeding hatchery salmon has been criticized for narrowing the gene pool and thereby producing inferior fish that do not survive in the wild. Starting in the 1980s, the response has been to move to smaller “hatch-boxes” planted along tributary streams, and to establishing “acclimation ponds” that rear juvenile fish under more natural conditions, and also that pay particular attention to genetic variants for breeding in hatcheries. Despite these efforts, in the 1990s, the EPA listed most of the salmon species as threatened under the 1973 Endangered Species Act. (The supermarket purchased salmon we consume now are mostly Atlantic salmon that are farm-raised in large sea-pens.) The National Marine Fisheries Service—a division of the US Department of Commerce—indicated in its 2015 “Biological Opinion” that the distress caused to salmon and steelhead by the increasingly warmer waters of the Columbia Basin is a highly significant threat. Following the recommendations of the “Fisheries Service,” the EPA issued its “Columbia River Cold Water Refuges Plan,” which calls for restoration of the 12 primary tributaries of the Columbia that normally provide colder water to the River.8 Warm waters kill the younger salmon and steelhead, but global warming has changed the timing and extents of snowmelt in the Northwest’s mountains. This affects the amount of water flow, and the temperature of that flow, especially during the critical Spring and Summer periods when fish migrate. Therefore, the anadromous fish are 7 See William L. Lang, “Columbia River,” Oregon Encyclopedia, at www.oregonencycl opedia.org/articles/columbia_river/#YBCNq0-SmUK. 8 See “News Release from Region 10,” at https://www.epa.gov/newsrelease/newly-rel eased-epa-plan-will-aid-salmon-survival-columbia-river.

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not migrating to sea or returning to spawn. For protecting native tribe’s fish-harvesting rights, in 2017 a US District Court ruled that more water must flow over the hydro dams within the upper Basin in order to allow juvenile salmon and steelhead to migrate between April and June. But the snowpack has not been as great as in previous decades, and the Spring melt has not been as large. Court decisions and management intentions cannot counteract the effects of global warming. In October 2020, the Governors of Washington, Oregon, Idaho, and Montana committed to a “unified public process” in order to find solutions to key issues for recovering the imperiled fish. This Columbia Basin Partnership Task Force, facilitated by NOAA in 2017, has set goals for two dozen different stocks of salmon and steelhead (each from different tributaries). The stated goal is to “identify the actions and investments needed to recover harvestable salmon and steelhead populations, conserve fish and wildlife, honor and protect tribal needs and way of life, and strengthen the electricity and agricultural service that communities rely on.”9 The potential conflicts in these stated goals should be apparent: power generation and agricultural irrigation have been in conflict with the health and survival of the anadromous fish since the first dams were built in the Columbia Basin over a century ago. Up to this point, these conflicts have always been settled on the side of industrial development and agricultural irrigation. The “good will” of the “Task Force” need not be sufficient to change this. What lessons can be concluded from the history of this important resource? The Pacific Northwest salmon fishery will certainly not be restored to its pre-industrial condition. The socio-economic information has been gathered through the “Inter-tribal Council,” and various recreational and commercial fishing interests. The necessary scientific information has been provided through the US Fish and Wildlife Service and through NOAA. But the hydro dams and agricultural irrigation interests and other demands are overly strong, and are not likely to allow for the elimination of the numerous large dams in the Columbia Basin. In addition, despite the scientifically proper efforts to restore the fishery through modern hatchery efforts, global warming threatens the destruction of these anadromous fish. Perhaps this fishery represents an

9 See Samayoa (2020, p. 2), https://www.opb.org/article/2020/10/10/salmon-steelh ead-columbia-river-basin-partnership.

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environmental resource that had its future destroyed prior to the possibility that non-industrial environmental advocacy organizations would influence the outcomes. The industrialization of the Basin occurred early in the twentieth century, and this has permanently altered the Northwest’s environment. But other means (enhanced hatchery and transport programs for these fish) to facilitate the survival of this fish is being pursued. As an example of what could be the future of the Basin’s salmon ecosystem, consider that in August 2019, in a tribal cultural event, sixty hatchery-bred chinook salmon were released above the Grand Coulee and Chief Joseph dams. In September 2020, Colville tribal biologists counted 36 spawning nests along an eight mile stretch of the Sanpoil River, an upper tributary of the Columbia.10 This is the first spawning of Chinook in the upper Columbia in 80 years. It generated significant hope for an ecological and perhaps spiritual regeneration. The problem remains, however, as to whether the juvenile Chinook will travel entirely on their own past the dams to reach the Pacific, or whether some degree of mechanical transportation will be necessary, or whether they will remain landlocked. Whatever the result, if these regenerations can be successful, the native tribes’ reintroduction of salmon to the upper Basin is underway, and this includes attempts in the Upper Snake River—the Columbia’s most significant tributary. Hopeful regeneration efforts are, therefore, underway as led by citizen advocacy groups—indigenous tribal groups in these instances. 2.3

Lessons from Two Fisheries

Industrialization overran both of the fisheries examined here—the Northwest Atlantic cod and haddock fisheries of the Grand Banks and the Georges Bank, and the Columbia River’s salmon and steelhead fishery. Only remnants remain of these significant resources, but efforts to continue their limited survival persist and show some possibilities for success. These “remnants” are what the environmental movement today embraces and supports.

10 See Eli Francovich, “Salmon Spawning in Upper Columbia River for the First Time in 80 Years,” The Spokesman Review, December 17, 2020, at www.wenatcheeworld.com/ news/.

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3 Saving Two of North America’s Significant Fresh Water Resources? In this section, two of North America’s more significant freshwater resources are examined—the Colorado River System and the five Great Lakes that border Canada and the US. The latter resource is significantly important because collectively they contain the largest volume of freshwater on the globe’s surface. The former resource is not one of North America’s significant rivers because of the volume of its freshwater flow. In flow volume, it is only the seventh largest river in North America, but its water is in truly great demand since the Colorado flows through the US Southwestern desert. That area has an insatiable thirst for the water that feeds its population growth and that feeds its politically powerful agricultural and suburban interests. The interesting question is, “Why does the US need to expensively cultivate its deserts?”11 As explored below, this insatiable demand for freshwater has posed a type of tragedy of the commons, namely overallocation of this resource among the seven competing states it serves. The Great Lakes, however, has been managed to date so as to avoid this tragedy. Both resources are managed through cross-border “Compacts,” one with fierce competing jealousies among its constituents, the other with seemingly patient cooperation. 3.1

The Colorado River and Its Water Allocations

The Colorado is the “River of the West.” It provides essential municipal water, agricultural irrigation, and hydropower throughout the Southwestern US. Interstate planning for water extractions began in 1917 when the seven Western States (California, Nevada, Arizona, Wyoming, Colorado, Utah and New Mexico) formed the “League of the Southwest” to promote development along the River. Congress authorized the states to enter a compact for allocation of the River’s water, and in 1922, the Colorado River Compact was signed by these seven states. The “Compact” divided the states into the “Upper Basin” (Colorado, Utah, 11 Marc Reisner (1986) effectively examines the folly of this desert agricultural effort.

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Wyoming, and New Mexico) and the Lower Basin (California, Nevada, and Arizona). At the time of the Compact’s formation, it was estimated that on average the Colorado River’s flow was 17 million acre feet (maf) per year. The Upper Basin agreed to guarantee a flow of at least 7.5 maf to the Lower Basin. Each Basin then allocated to its constituent states with the exception that at least 1.5 maf was to be allowed to flow to Mexico. (See Fig. 2.) Subsequent tree-ring studies, however, concluded that the long-term average water flow of the Colorado is significantly less than 17 maf, which was estimated during the unusually high precipitation period of 1905–1922. The true normal average was considerably less, by perhaps as much as one-third, i.e., it is actually about 13.5 maf. The current “drought” has lasted 21 years, but the evidence indicates that this drought flow is actually a more normal average. The realization of the lower-level of water flows led to significant reductions in commitments to Lower Basin states. The current commitments are now contingent upon the water level at Lake Mead. (See Fig. 2.) These agreed-upon adaptive allocations are: • Light Shortage: When the surface elevation of Lake Mead is 1075– 1050 ft. above sea level, the Lower Basin states are to receive only 7.2 maf per year, with 4.4 maf allocated to California, 2.5 maf to Arizona, and 0.2 maf to Nevada. • Heavy Shortage: When the surface elevation of Lake Mead is 1,050– 1,025 ft. above sea level, the Lower Basin states are to receive only 7.0 maf per year, with 4.4 maf allocated to California, 2.4 maf to Arizona, and 0.2 maf to Nevada. • Extreme shortage: When the surface elevation of Lake Mead is below 1,025 ft. above sea level, the Lower Basin states are to receive less than 7.0 maf per year, with 4.0 maf allocated to California, 2.3 maf to Arizona, and 0.2 maf to Nevada. The political struggles in reaching and adjusting these allocations were significant, and largely involve conflicts between California and Arizona, the two faster-growing states in the post-WW II period. The current drought is now classified as more severe than “extreme shortage.”

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Green River

Wyoming Nevada Lake Mead

Denver

Utah

Colorado River

Lake Powell

Colorado Las Vegas

Glen Canyon Dam

Hoover Dam

California Imperial Aqueduct

Colorado River

River Parker Dam

Arizona

San Juan River Santa Fe

New Mexico

Central Arizona Project Los Angeles

Colorado River

Mexico Gulf of Mexico

Fig. 2

Colorado River Basin

The important background context of the Compact’s negotiations includes the June 1922 (prior to the interstate agreement) US Supreme Court decision that “the rule of prior appropriation” applies to Colorado River extractions regardless of state law. At this time, this meant that the fast-growing Southern California, with its early claims to extractions, might dominate the future claims of the rest of the Basin. When this decision was rendered, however, interstate compacts had not been tested, but given the Court’s precedent-setting decision, the states that were to form the Colorado River Compact were paranoid about federal government power and actions. They did not want “the law of prior appropriation” to apply, but rather the “Compact’s” agreed-upon allocations. In particular, the at-that-time proposed Boulder Dam was close to California, and was thought to likely facilitate greater diversions to

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Southern California unless the “Compact” could control them. In addition, the Federal Bureau of Reclamation planned (and completed) the eighty mile “All-American Canal” in Southeastern California, which originates at the Bureau’s “Imperial Dam,” just north of Yuma, and diverts water from the Colorado into California’s Imperial Valley and then ultimately to Los Angeles. It would be the only significant water source for the Valley with its enormous agricultural irrigation demands. For Arizona to fully utilize its allocation of Colorado River water, it needed a diversion project similar to California’s “Imperial Valley.” Since Arizona was not utilizing its allocation, and has not since, the excess above its allocations flowed to California which extracted this excess under the “law of prior appropriation.” Arizona developed the Central Arizona Project (CAP) for the expressed purpose of reclaiming its share from California. In 1963, even given the “Compact’s” allocations, in Arizona vs. California, the US Supreme Court settled the issue using the “law of prior appropriation” with California being allocated 4.4 maf, Arizona 2.8 maf, and Nevada 0.3 maf. Federal resources, however, were allocated for the CAP’s construction in 1968, and construction began in 1973. It was substantially completed in the 1990s. But Arizona vs. California empowered the Secretary of the Interior (Bruce Babbitt at the time) to act as the water master for the Lower Basin with the authority to apportion future surpluses and shortages among the states. Note that this settlement violated Ostrom’s principle of avoiding the tragedy of the commons via reaching an agreement among the lowest level of users possible. Note also that as of 2020, Arizona has still not fully utilized its 2.8 maf. It has only used 2.5 maf, but California and Nevada have over extracted their allocations. The multi-state “Compact,” therefore, has not resolved or managed the allocation problem, but has demonstrated a type of tragedy of the commons: “We want our water so we will develop projects that will maximize our share, and even do this in the context of existing in a thirsty desert.”12 Given our observations of Lower Basin water usage, perhaps Ostrom’s observation that crisis resource management does not lead to efficient decisions applies. The Upper Basin has not experienced the growth-stress of the Lower Basin. It allocates its water according to a percentage system agreed to in 1948: 51.75 percent to Colorado, 23 percent to Utah, 14

12 This is essentially the point argued by Reisner (1986).

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percent to Wyoming, and 11.25 percent to New Mexico. The states of the Upper Basin anticipate (or forecasts) the total supply-flow from the River and allocate according to these percentages. The Lower Basin, however, lies in a desert with insatiable thirst associated with great development potential if only the water is available. Its attitude is “us versus them.” The current severe drought is thought to possibly be the worst in the last 1250 years. Coupled with evaporation due to global warming, this has meant overallocation of extractions. The level of Lake Mead is down 40 percent as compared to the early 1990s; the level of Lake Powell is down 48 percent. The USGS estimates that by 2050, the Colorado’s water flow will be one-quarter less than it currently is.13 The effects of global warming include lower snowpacks in the Rocky Mountains, and greater evaporation.14 The Colorado is therefore over allocated, but still has almost insatiable demands from the Lower Basin. There have been 29 dams built along the Colorado and its tributaries, and numerous diversion projects that feed municipal and agricultural demands. The resulting silting is substantial, and so is the increase in water temperatures and evaporation. The consequential environmental degradation follows. The Colorado River is not managed for environmental protection, but for development. It can be judged as an environmental tragedy, one resulting not from a lack of governmental supervision, but from purposeful governmental alteration from the River’s natural state, and conversion of it into a resource that attempts to serve only development interests. In recent years, the growth in Arizona and Nevada reduced the amount of unused water for California. The Upper Basin states, however, have still not used their full entitlement, and therefore have allowed California to use more than its allocation. In August 2000, all the “Compact” states, including California, agreed to a fifteen-year phase out of overuse of the Colorado, particularly by California. Within this “phase out period,” California was to eventually reduce its usage to its allocation of 4.4 maf. This should allow the 1.5 maf flow to the Gulf of California’s Colorado River Delta in Mexico, and this will facilitate the environmental restoration of 13 Lake Mead is now down 59 percent as of March 10, 2021. See the Wall Street Journal, March 9, p. 3. 14 See Haley Demircan, “Colorado River: Lifeline of the Southwest,” CASSE, October 1, 2020, at www.steadystate.org/colorado-river-lifeline-of-the-southwest-effectsof-economic-growth-and-climate-change/.

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the delta.15 Environmentalists have argued that the US has an obligation to provide more water to the Delta to assist endangered species that reside in this wetland. US officials contend, however, that the “Endangered Species Act” ends at the Mexican border.16 Note that Southern California has yet to reduce its extractions. In the meantime, global warming means greater evaporation of Colorado River water. 3.2

The Great Lakes and the Great Lakes Compact and Commission

There are five Great Lakes that lie on or close to the border of the US with Canada: Lake Superior, Lake Michigan, Lake Huron, Lake Erie, and Lake Ontario. Whereas Lake Michigan lies entirely within the borders of the US, the other four lakes have the Province of Ontario, Canada on their northern sides, and the US states of New York, Pennsylvania, Ohio, Michigan, Indiana, Illinois, Wisconsin, and Minnesota on their southern sides. The Great Lakes hold 21 percent of all the freshwater on the globe, and 84 percent of all freshwater in North America. They are connected. Shipping can move through Superior, to Michigan, and then to Huron, to Erie, then down the Niagara River (around Niagara Falls via a canal) into Lake Ontario, and then to the Atlantic via the St. Lawrence Seaway. The Erie Canal, built during the 1820s, connected the Hudson River and New York City to Lake Erie. It opened the Midwest of the US and Canada to the port of New York City via the canal networks that developed in the 1830s. It opened these areas to exporting agricultural goods and resource extraction goods. Manufactured goods came on the return legs. The significant cities along the Great Lakes include Buffalo NY, Erie PA, Cleveland OH, Toledo OH, Detroit MI, Chicago IL, Milwaukee WI, Green Bay WI, and Duluth MI. Montreal and Quebec City are along the St. Lawrence Seaway that connects the Lakes to the Atlantic. The economies of all these localities depend on the commercial health of the Great Lakes. The original source of water in the Great Lakes was the melting glaciers that carved them. The Lakes have been stable in water depth except for very recent years when the effects of global warming raised the levels

15 See Rita Sudman, “Colorado River Compromise,” Water Education Foundation, at www.watereducation.org/western-water-except/colorado-river-compromise/. 16 Ibid.

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and consequently partly eroded their shores. The significant threats to the ecology of the Great Lakes include (i) invasive species, (ii) industrial toxins especially from mining, (iii) water diversions, (iv) wetland destruction, (v) sewage overflows, and (vi) climate change. Cross-border regulation of the Great Lakes began in 1909 with the “Boundary Waters Treaty” which created the International Joint Commission to advise the state and provincial governments on water resource issues. The primary concerns were water diversions from the Great Lakes. For example, water was diverted into the Chicago River to operate the Illinois Waterway. The “Water Resources Development Act” of 1962 codified the law with respect to diversions in that all eight state governors and Canadian Province Premiers, acting as the Great Lakes Commission, needed to unanimously approve diversions. For example, in 1998, the Canadian Company “Nova Group” won approval from the Province of Ontario to withdraw 158 million Gallons of freshwater to ship by tanker to Asian countries. Public outcry forced the company to abandon the plan, but since that time, the Premiers of Quebec and Ontario, together with the US Governors of the states that bordered the Great Lakes, negotiated the “Great Lakes – Saint Lawrence River Basin Sustainable Water Resource Agreement and Compact.” This prevents most local water diversions and all long-distance ones. Following this, in 2008, The Great Lakes Compact was approved by all eight US Governors, by Congress, and signed by President Bush into law. This prevents diversions of water into towns that do not lie directly on one of the Lakes, and restricts the use by those that do. The “Compact” offers extensive protections because it treats groundwater, surface water, and tributaries as a single ecosystem. In attempting to battle the threats cited above, the “Great Lakes Restoration Initiative” (GLRI) of 2012 and 2019 authorized (i) federal expenditures on local Great Lakes’ toxic cleanups, (ii) wetlands and coastline restoration projects, and (iii) invasive species related projects. During 2020, the following thirteen local projects were funded by the US EPA: • For urban watershed management implementation: – Milwaukee Metropolitan Sewerage District ($380,000) – Lake County Stormwater Management Commission ($446,603) – Delta Institute ($355,370)

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– Great Lakes Community Conservation Corps ($390,995) – Grand Valley Metropolitan Council ($340,065) – Grand Traverse Bay Watershed Initiative ($340,065) • For invasive species prevention and control: – Grand Traverse Conservation District ($301,340) – Grand Valley State University ($405,275) – Ozaukee Washington Land Trust ($514,278) • For agricultural watershed management implementation: – – – –

Ozaukee County ($298,869) Macatawa Area Coordinating Council ($473,111) Fox-Wolf Watershed Alliance ($498,634) Calhoun Conservation District ($160,377).

The “urban watershed management” grants generally funded the updating of old sewer systems. The older-designed stormwater runoff systems were usually integrated into the local sewerage treatment systems. During large storm-water runoffs, the sewerage treatment plants would be overrun, and untreated sewerage washed into the Lakes.17 The various EPA grants, listed above, were for updating these systems. Since the nineteenth century, an estimated 160 new species (many invasive and destructive) have entered The Great Lakes ecosystem. They generally entered through ship ballast.18 Currently, the zebra mussel (discovered in 1988) and the quagga mussel (discovered in 1989) are particularly destructive. They destroy fish spawning ground and reduce available food.19 The alewife also entered Lake Ontario in the nineteenth century, and by the 1960s it was also a nuisance on Lake Michigan, Huron, and Erie. Periodically, the alewife died in large numbers, and the dead fish washed onto lake shores. In the late 1960s, state and federal Fish and Game Departments stocked the Lakes with salmon and lake trout, and the alewife (herring) dropped considerably since these larger 17 See “14th Biennial Report on the Great Lakes Water Quality,” at www.ijc.org/php/ publications/pdf/ID1631.pdf. 18 See “Our Threatened Great Lakes,” Inland Sea Education Association, April 3, 2013, at www.greatlakeseducation.org. 19 See “Great Lakes Aquatic Nuisance Species,” The Great Lakes Commission, March 27, 2007, at www.glc.org/ans/.

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fish feed on the smaller alewife.20 In addition, the nuisance goby, ruffe, Asian carp, and the parasitic lamprey entered the Lakes in the 1950s through the 1990s. They prey on other more desirable fish, and survive in poorer water conditions. As a result, the Great Lakes Fishery Commission was formed. It initiated preventive actions to limit the spread of the noxious fish.21 All of these efforts—anti mussel initiatives and noxious fish destructions—benefit from the “invasive species prevention and control” projects of the GLRI as listed above. As in other water bodies (Gulf of Mexico, Chesapeake Bay, and a large number of other lakes), summer algae blooms have also been a problem in the Great Lakes, especially in the shallow areas such as along the shores of Lake Erie. In these areas, phosphate detergents historically have been a significant source of pollution that feeds these blooms, but by the mid1980s, Canada and the US had fully regulated this source. Currently, there are two significant sources that feed these blooms: (1) agricultural fertilizer runoff, and (2) sewerage that even when treated, still adds fertilizer when the treated waste is dumped into a river and/or lake.22 The largest Lake Erie bloom was in 2015, near Toledo (1300 square kilometers). There are five large sewerage systems on the Great Lakes: Detroit, Cleveland, Buffalo, Milwaukee, and Gary. They form the largest sewerage-system sources of untreated, or insufficiently treated, discharge into the Lakes.23 The GLRI initiative listed above is designed to combat this pollution. To control agricultural fertilizer runoff, the US Department of Agriculture: Natural Resource Conservation Service, promotes the establishment of “bumper crop borders” around agricultural crop fields (generally ten feet wide perimeters) so that the fertilizer runoffs are stopped and absorbed by the bumper crops. This method improves soil health, reduces soil erosion into streams, and reduces the nutrients and sediments into the Lakes. This reduces the algae blooms. All these efforts benefit from the 20 Ibid. 21 Ibid. Also see “Predicting Invasive Species in the Great Lakes,” US EPA at www.epa.

gov/ord/sciencenews/csinews_great_lakes.htm. 22 “Spring Rain, then Foul Algae in Ailing Lake Erie,” New York Times, March 14, 2013. Also see Sharon Hill, “Large Lake Erie Algal Bloom Nearing Colchester Tested for Toxicity,” Windsor Star, August 7, 2019. 23 See “New Report: Solving regions Sewerage Crisis Will Create Jobs, Restore Great Lakes,” Healthylakes.org, August 9, 2010.

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“agricultural watershed management” funding and efforts of the GLRI as listed above. The Great Lakes Compact and Commission are the significant institutions that seek to protect this essential natural resource. They are cross-border government organizations rather than NGO environmental advocacy organizations. The Great Lakes have no significant NGO in effective ecological support dedicated to either the Lakes as a group, or to any single lake, or coalitions of NGOs, that organize the political impetus behind the resource’s preservation or restoration. Through organizing the efforts of the bordering states and provinces, the cross-border government-formed “Compact” and “Commission” have mitigated the dire versions of the tragedies-of-the-commons. The collective action needed to avoid the “tragedies” has been exercised, even in the context of multi jurisdictions across two countries with numerous borders.

4 Applying Ostrom’s Analysis and Fairness Criteria In examining the institutions of governance for Common Property Resources (CRPs), Elinor Ostrom studied common pasture lands in Switzerland and Japan, agricultural irrigation systems drawing from commonly shared rivers in Spain, and commonly shared irrigation systems in the Philippines.24 Each of these manifested institutional agreements evolved over lengthy time periods. From these background observations, Ostrom derived and posed eight rules for managing a CPR (listed in Chapters 5 and 10): (1) The user group boundaries must be clearly defined. (2) The rules governing CPRs should match local needs and conditions. (3) Those affected by the CPR rules should be included in any modifications of those rules. (4) The rules for governing CPR use should be respected by outside authorities. (5) The community of users should develop a monitoring system for CPR use. 24 See Ostrom (1990, p. 90).

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(6) Graduated sanctions should be used for rule violations. (7) Dispute resolutions should be of low cost and accessible. (8) The responsibilities for governing CPRs should be nested into tiers from lowest to highest, with the lowest being closest to the users. All eight of these rules depend on meaningful reasoned discourse (whether face-to-face or otherwise) among the community of all affected users. The rules for CPR use, however, should also meet some other standards of inclusivity concerning the information to be gathered and the otherwise fairness of the decision criteria (rules) to be used. The CPRs that Ostrom cites, however, had a small number of users, evolved over lengthy periods of time, and not from any crises. The crossborder examples examined above, however, had large numbers of users in each case. In the tragedies of the Northwest Atlantic Fisheries, the near extinctions of the Columbia River anadromous fish, and the over allocation of water from the Colorado River, all emerged from immediate crises, i.e., the crises posed by these resource exploitations emerged quickly due to rapid industrialization and/or other development. In addition, rules (5), (7) and (8) were violated. With respect to the Columbia River Basin fishery, there was no dispute resolution process—the area’s indigenous tribes had no say in the industrialization of the Basin. With respect to rule (5), in the cases of the tragedies of the Northwest Atlantic Fisheries, the near extinctions of the Columbia River anadromous fish, and the over allocation of water from the Colorado River, the “monitoring” of the resource was virtually non-existent until the crises were fully apparent. With respect to rule (8), there was no “tiering” of responsibilities for the Northwest Atlantic, Columbia River Basin, and Colorado River water allocation system. In these cases, the cross-border government regulatory bodies were not the “lowest” tier. In all of the four cases examined above, the resource was in demand by large numbers of users, but in two of the three “tragedy cases”— the Columbia River case and the Northwest Atlantic case—the necessary information was not available in a timely way prior to the discovery of the resource dissipation. The information concerning the overallocation in the Colorado River system was available for many years prior to the crisis between Arizona and California, namely that California was extracting in excess of its allocation, and given its growth, was not likely to stop. This abuse led to the Arizona reaction of constructing the Central Arizona Project.

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In addition, the tragedies cited above demonstrate a variation of the classic tragedy-of-the-commons explanations. In the Colorado River case, it is not individuals who make the judgment that if they don’t over exploit the resource, then others will; it is the three states of the Lower Basin that make this judgment. Also, the overallocations should have been logically foreseen, but the evidence was ignored. In the case of the Columbia River Basin, users surely could foresee that the hydro dam constructions would disrupt the anadromous fishery, but they ignored the importance of the fishery, especially for the indigenous native populations. In the Northwest Atlantic ground-fishery, after observing the effects of the foreign factory trawler, and the banning of these foreign fleets from the Grand Banks, the effects of the establishment of the Canadian fleet should also have been logically foreseen. The scientific evidence was, however, ignored, and the tragedy ensued. Would all of this “overlooking of the logical consequences” have occurred if we had dedicated EAOs monitoring these situations? That is an interesting question that poses a possible lesson. We can also observe that the various biases reviewed in Chapter 5 apply in the cross-border cases cited above. These include: • • • • • •

the bias against giving up autonomy, of being fooled by the illusion of abundance, the bias of having an overly narrow vision, the bias of believing “It’s gone!” and cannot be brought back, the bias of not having a sufficiently broad vision of restoration, the bias against perceived elite decision makers.

Perhaps the reaction of Arizona to establishing its Central Arizona Project in order to use all its potential allocation within the Lower Basin stems from its bias against giving up its autonomy to California. The Columbia River Basin fishery certainly suffered from an “illusion of abundance” of anadromous fish. It is important to note that the Upper Basin indigenous tribes do not suffer from the belief that “It’s gone and will not come back!” As a result, there is some salmon restoration.

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5 Conclusions Concerning Tragedies of the Commons in Cross Border Contexts All of the four significant water resources examined in this chapter exhibit some degree of suffering the tragedy of the commons, but the Great Lakes appears to suffer the least. The Colorado River and its “Compact” appears to suffer the most, and the degradations of the Columbia River anadromous fishery, and the Grand Banks and Georges’ Bank are somewhere in between the extremes. The Columbia River’s anadromous fish appear to have some future in that progress has occurred with respect to the enhanced hatchery techniques. Native tribes have celebrated the returns of the Chinook salmon to the upper Columbia, even though young fish will have to be mechanically transported to below the lowest dam, and returning fish (or their fertilized eggs) have to be transported back to the spawning grounds. The resource has been permanently degraded, but not entirely destroyed. It might survive. Still, the spiritual aspects of this limited return of the salmon appear exciting for both the native tribes and other nature enthusiasts. The Northwest Atlantic groundfish might never return to its pre factory trawler levels, but shellfish and farmed fish have substituted as commercial industries. This resource therefore has been partly salvaged. The Colorado River demonstrates more classic tragedy of the commons attributes. In the Lower Basin, the rivalry for each state to “get its share” of water extractions has led to Arizona demanding a project comparable to California’s “Imperial Valley.” It is as though in the classic commons grazing example, one shepherd saw her neighbor with a larger flock than hers, and fully knowing that the commons would be overgrazed, she demanded to have her own flock increased to a comparable size, a version of “See how much gold you can take to your grave.” In an ethical sense, this demonstrates a “lack of good will” in negotiation as explored in Chapters 3 and 5. It also demonstrates an “us versus them” attitude that separates constituents, and that fosters enmity between Lower Basin citizen groups. The shepherds could have negotiated to downsize their grazing demands, but “choosing to ignore” the scientific evidence, instead decided to “over allocate.” The tragedy ensued and will become worse as the current drought becomes more servere. In both the Columbia River and Northwest Atlantic cases, industrialization overwhelmed the non-industrialized users, and did so quickly. In the Columbia River case, hydro dams constructed in the 1930s doomed

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the fishery, even though they could have been designed to allow fish to pass. In the Northwest Atlantic case, the factory trawlers appeared quickly and doomed the groundfish (cod and haddock) in just a few years of operation, although Canada’s response of building a fleet of similar trawlers of its own exhibited a cavalier ignorance of the problem. The Great Lakes, with its “Compact” and its cross-border “Commission,” appears to be responding to threats of Lakes’ degradation. The GLRI demonstrates this conscious and scientifically informed response. This case illustrates the potential for effective cross-border supervision and regulation, as does the Columbia River Compact. The Georges Bank also demonstrates cross-border regulation, however weaker in effect than the Great Lakes’ examples. The states of the Colorado River’s Upper Basin also demonstrate cooperative and reasoned cross-border supervision, but the Lower Basin states do not. Perhaps it is the crisis generated by rapid population and economic growth demands of Arizona and California that cause this rather obvious tragedy, but an evaluation of the cooperation within the Lower Basin indicates a “lack of good will,” a lack of “pursuit of the moral community.”

References Michaelsen, Robert S. 1995. Dirt in the Courtroom. In American Sacred Space, ed. David Chidester and Edward T. Linenthal. Bloomington, IN: Indiana University Press. Ostrom, Elinor. 1990. Governing the Commons: The Evolution for Collective Action. New York, NY: Cambridge University Press. Reisner, Marc. 1986, 1987, 1993. Cadillac Desert: The American West and Its Disappearing Water. New York, NY: Penguin Books.

CHAPTER 12

Common Property Resources and the Making of the Global Tragedy

1

Introduction: The Global Commons and Its Tragedy

We can categorize the world’s common property resources to include (1) our oceans and seas that are openly available for use by populations of all nations, and (2) our globally circulating atmosphere. But we also should consider including (3) various land-mass particulars such as our agricultural areas, rivers systems, mountain ranges, forests, and largely unoccupied polar areas of the artic and antarctica, all of which substantially influence the world’s populations outside of the resource’s political boundaries. Of course we have large sections of our oceans and land-masses that lie within the political domains of various countries, but since the management of these resources affect global populations— as illustrated by our climate change phenomena and other sustainability problems—we do attempt to establish, and sometimes enforce restrictions on their use via various international treaties. For example, agricultural goods must meet various safety standards for cross-border trade. But even when a river system lies entirely within a political boundary, such as the Mississippi River, its waters likely flow into seas and oceans that affect other nations. Large river systems should, therefore, be considered as part of the global commons. We also have mountain ranges such as the

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Rockies, the Alps, and the Himalayas with large glaciers and snow packs that are the sources of these river systems, and from which the agricultural irrigation and other water needs of populations in various countries depend. These mountain ranges should also be considered as part of the global commons. For another example, one component of human caused climate change is the widespread destruction of our global forests—or “carbon sinks”— that would otherwise act as cleansing agents of atmospheric greenhouse gasses. As a result of a variety of global environmental problems, the destructions of these forests and other essential natural resources pose what is perhaps history’s greatest tragedy, the global tragedy of the commons . This is no longer the problem described by Hardin (1968, reviewed in Chapter 8) of one farmer allowing her flock to graze a common pasture beyond the necessities for regeneration and hence causing a local commons’ crisis. The global problem is rather a problem of one nation exploiting a resource—perhaps entirely within its political boundary—so that the world’s environment loses its regenerative and sustainable capability. This is the essential problem of our age, and by its nature, it is political and manifests all the political vicissitudes, but on the global stage. It is, therefore, extremely difficult to solve as reviewed in this chapter. 1.1

The Political Problem

As explored below, the political problems of reasoned discourse associated with the management of our global resources appear to us now as overwhelmingly difficult to overcome. These are the problems for which we particularly need clarity as to their possible resolutions. Perhaps achieving this “clarity” would politically enable a strategy for remedy. This political problem is explored here. This chapter explores various aspects of our global tragedy of the commons . Previous chapters have shown how our nongovernment environmental advocacy organizations (EAOs) have contributed to our restoration and preservations efforts. In the context of exploring our global sustainability crisis, some of these EAOs, along with other government organizations formed for cross-border monitoring or for political influence, again play a role. This chapter examines some of these efforts, and the critical difficulties generated by our problems

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being politically global in nature, particularly the informational problems. Some of the international efforts of our various nongovernment EAOs, academics, government organizations, and especially the crossborder inter-government bodies created for resolving these problems, all need our examination. The chapter begins by exploring the sustainability issues caused by the destruction of some of the world’s most significant remaining forests.

2

Brazil’s Example of Deforestation and the Search for Fairness

Trees absorb the carbon dioxide we exhale and also the heat-trapping greenhouse gases our human activity promotes, and that results in global warming. Forests still cover about thirty percent of the world’s land mass, but they are disappearing at an alarming rate. According to the World Bank, between 1990 and 2016, the world lost 502,000 square miles of forests (1.3 million square kilometers), an area larger than South Africa. About seventeen percent of the Amazon rain forest, currently the world’s most significant forest, has been cleared in the last fifty years.1 Preserving the world’s forests is, therefore, an environmental issue related to the global warming problem, but it also is an issue that is independent of climate change. For example, deforestation also destroys the habitat of threatened species. 2.1

The Legacy of Slash-and-Burn

Slash-and-burn is a method of clearing forests for the purpose of creating agricultural lands. For this purpose, forests are cut; the downed wood is allowed to dry; once dried, the debris is burned. The burning provides some small amounts of soil nutrients for planting crops, but this system usually creates nutrient-deficient fields that provide only temporary fertility. This is especially true for the clearing of rain forests in tropical areas such as the Amazon or Malaysia. Whereas river deltas consist of the accumulated nutrient-rich soils that provide lasting cultivation—the Mississippi, Nile, and Amazon delta regions being prime examples—the more steeply-sloped outer areas that are drained by these river systems

1 See Nunez (2019).

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have their soils eroded, with the nutrients eventually being drained into the lower regions of delta accumulation. Cutting the rain forests often means cutting areas that are borderline for growing crops, and this facilitates erosion. Sloped barren lands erode easily from rainfall. As a result, the agricultural productivities of the lands left by slash-and-burn have limited life. Historically, slash-and-burn has been the primary agricultural method used by tribal communities for subsistence farming. This method has been practiced throughout the approximately 12,000 years since the neolithic revolution—the time when humans transformed from primarily hunting and gathering economies to rudimentary agriculture. Stief (2019) reports that roughly 7% of the world’s agricultural population still currently uses slash-and-burn, mostly in tropical areas where nutrients are primarily in the forest canopies and the soils below are sandy. For this agricultural method, the forest is typically cut months before a dry season. The dried slash is burned during the following dry season, and only at the start of the next rainy season, are crops planted. This is a moderately slow conversion process. The method slowly extends the existing crop lands for which once the nutrients are depleted, they are abandoned. This is typically a family-farm method of gradual incurrence into the forest, i.e., a gradually moving farm. It currently occurs in traditional peasant-farming areas like those found in the tropics—such as the Brazilian forest—where property rights are not well established, but the peasant traditions are strong. In these tropical areas, the heavy rains exacerbate the soil erosion making the useful agricultural lives of the remaining soils as brief as five years. But the standing tropical forests are rich in biodiversity so that the problem of species extinction is exacerbated by the slash-and-burn methods. 2.2

The Brazilian Rain Forest and Deforestation

The Brazilian forest includes the Amazon rainforest and more. The Western and Southern portions of the Brazilian forest are water sheds for the drainage that flows into Paraguay, Uruguay, and parts of Argentina. Except for a small Western portion that lies against the Andes Mountain Range, the entire Brazilian forest is in danger of being transformed from a rain forest into a hot savanna region with temperatures of 10 degrees F° warmer than it currently is. One of the World’s leading experts on this globally essential forest is Dr. Carlos Nobre of the University of Sao

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Paulo’s Institute for Advanced Study. He points out that as of September, 2019, the original Brazilian forest is now seventeen percent deforested. The “tipping point” that will propel the transformation into hot savanna lands is at twenty to twenty-five percent deforestation.2 Brazil has laws against further deforestation whether for agriculture, or mining, or timber harvest. But President Jair Bolsonaro has led the current nationalist rhetoric for clearing the forest to facilitate the expansion of soy and cattle farming through slash-and-burn methods, and also for timber harvesting, and mining. The annual deforestation is currently large, and the transformation into savanna may occur within twenty years. Nobre points out that reforestation could now also occur rapidly through planting native vegetation. To prevent further degradation, however, Nobre is calling on international companies that purchase the agricultural products and timber to boycott Brazilian exports until the supply chain becomes clean of deforestation methods.3 Nobre points out that currently, the Brazilian Forest cleans the world’s atmosphere of one to two billion tons of carbon-based gases per year. This is five percent of all the world’s human caused carbon-based gases. The current fires from slash-and-burn, however, threaten to turn the forest into a net producer of these greenhouse gases—500 to 700 million tons of carbon-based gases produced per year by burning the Brazilian forest. Nobre argues that an effective deforestation-free supply chain might pose the answer. A 2006 agreement with Cargill—the Western world’s leading trader of soy from the Brazilian rain-forest lands—to only trade in deforestation-free products, has unfortunately been repeatedly violated.4 Bolsonaro’s nationalist rhetoric questions this “boycott Brazilian products” approach as being unfair. North America, Europe, and Asia have all largely cleared their forests, but Brazilian peasants would bear the povertycausing brunt of the rain forest’s preservation. This, Bolsonaro claims, would be “unfair.” A claim of this sort does warrant a clear exploration of the issues of what could be the world’s largest tragedy of the commons phenomena. This exploration is provided below.

2 See Montaigne (2019). 3 Ibid. 4 Ibid.

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3

The Logic of the Global Commons

Chapter 8 argues that (i) the establishment and management of the commons depends upon the collective exercise of imperfect duty at least on the part of some knowledgeable organized activists. Consequently (ii) the tragedy of the commons results from a failure of the communal exercise of this imperfect duty. Note that the exercise of collective imperfect duty ultimately defines the perfect duties necessary for the avoidance of these “failures.” Note also that these “failures of imperfect duty” could occur either due to the establishment of inappropriate governance of the commons, or due to lack of monitoring of the resource, or due to the weakness in the enforcement of the established perfect obligations. This is also true for our problems with the global commons. This latter problem, however, is exacerbated by the difficulties with organizing collective imperfect duties across political borders. These boundaries appear to inhibit the necessary collective reasoned discourse as explored here. As a result, this examination of collective imperfect duty provides insight into the causes of the tragedies-of-the-commons as conceptualized by Hardin (1968). Perhaps the problem of the global commons was previously perceived as only lapses of those perfect duties created by international agreements. But it is shown here that the global challenge is substantially one of the cross-border collective imperfect-duties to properly define the problems, and to then establish the effective agreements that specify the appropriate and necessary perfect duties of international commitments. These include the necessary monitoring systems. For example, in a multi-country river system, it makes poor economic sense for an upriver country to build a hydropower dam to sell energy to the downriver country when that country would be economically devastated by the dam’s effects on its agriculture and aquaculture. Yet, as shown below, we observe attempts at this sort of arrangement. The global resources in question must be defined, and a system of management envisioned and suggested through the collective imperfect duty exercised with knowledge and by concerned experts. This collective imperfect duty can, however, result in badly designed governance of the sort that leads to a lack of enforcement. This is a matter of practical political expertise. As stated in Chapter 5, if reason is the defining characteristic of individuals, then the tragedy of the commons poses a conundrum, namely “Is the commons’ problem embedded in the reasoning capability of people, or

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is it perhaps some other human characteristics?” Might these “characteristics” be exacerbated by the cross-border necessities of dealing with our globally important resources. This question is begged because collective reason appears to be the basis of socially acceptable management of all common property resources, and yet the “tragedies” continue to exist. Possible explanations include the following: • Human reason may be a capacity of all persons, but the exercise of rational and unselfish judgment may not be ubiquitous with respect to global commons because of cross-border conflicts, jealousies, and politics. Various issues of “fairness” commonly appear to emerge from these conflicts. For example, is it “fair” that some might sacrifice their economic interests to preserve a global CPR? • For reasons perhaps unrelated to self interest, some persons’ visioning of the common property resource may not coincide with those of others. For example, one person’s vision of a water shed may be another’s vision of timber land. Yet another may envision an agricultural land. Hence the collection of the judgments of the many may have wide variation. Disputes among these many may lead to inattention to management and ultimate destruction of the resource. But this problem might be overcome with reasoned social discourse. • Wide social discourse and reasoning are likely to be much more difficult than reasoning in smaller isolated groups. For example, there may be various inhibitions to wide communal reasoning due to the need for each separate individual’s vision being aired in public. It takes considerable work to classify and group the visions of the many so that analysis is possible. This might be the core of the problem, i.e., we have artificial inhibitions that inhibit our listening to others presenting their many alternative visions. The last of these explanations is of particular interest here. It begs two questions: • What is the nature, definition, and subsequently implied society’s view of optimal governance of “the global commons” of resources? • What in general is therefore the potential for undertaking any collective human action based on global communal reason and judgment?

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The first of these questions concerns the problem of envisioning what the governance of the global commons might be. The second question concerns the political problems of applying that governance. It is argued here that any logical answer to these questions concerns the examination of imperfect duty with its practical limits, especially in the collective. This examination poses particularly interesting insights into the causes of our age’s global environmental degradation. Consider again Hardin’s (1968) classic grazing problem that purports to explain the basis of the tragedy. Hypothetically allow a farmer with cattle to consider overgrazing a village common. If she allows the overgrazing, then the common will lose its regenerative ability. The farmer, however, believes that if she halts the grazing then others will continue grazing their cattle so that the tragedy of the commons will occur independently of her decision. Given that others believe the same, then all (or at least some) continue grazing and the tragedy is assured. How does this vision of the local commons’ tragedy extend to the global commons? For the global problem, we usually have a limited number of countries as users. In both commons’ examples, we have potential free riders, possibly many for the local commons, and possibly only a few for the global commons. The ability to identify the free riders who might abuse the agreed-upon restrictions, and to identify the many losers if the free riders have their way, might prevent the global tragedies. Therefore the ability to identify free-riders, as well as winners and losers, is an important aspect of an agreement that attempts to avoid this tragedy. The collective imperfect duties necessary to organize such an agreement, whether at the local or global levels, is therefore the essential ingredient for reaching solutions, but organizing collective imperfect duties on an international scale—across cultures, languages and historically based suspicions—must be a difficult task. The alternative to “tragedy” is that through collective agreement, all can avoid commons’ degradation by collectively establishing some “limited rights to use.” Establishing the “limited right” creates the perfect duty to not violate the restriction, but the formulation of these rules of restriction depends upon the users’ collective imperfect duty. This essentially describes Ostrom’s (1990) Swiss village solution to the commons grazing tragedy as reviewed in Chapter 5. The Swiss village problem involves all users agreeing to mutual restrictions according to the herds each farm was capable of supporting during the previous winter season. This limited the size of herds allowed to

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graze, but it also excluded any new farms from grazing their herds on the common pasture. The well-defined common resource, therefore, has well-defined users and restrictions on use via mutual agreements of these users. Compare this to the problems of avoiding the tragedies of the global commons where the users are not a small homogenized group; where the restrictions on use that are necessary to avoid the “tragedy” might exclude current users; and where if no restrictions are imposed, the resource would be destroyed, and the world will substantially suffer from the loss. The cross-border examples of fisheries and water extractions examined in the previous chapter illustrate these problems. The global resource management problems are, therefore, substantial. To approach the analysis of this “global tragedy,” we should consider applying the four fair and reasoned criteria developed in Chapter 3 and reviewed here. For the convenience of application these Rawlsian fairness criteria, as developed in Chapter 3, are repeated here: The informed criteria: All relevant information (both scientific and socioeconomic) is considered without ideological bias by those included, and is logically reflected in the negotiations. Criteria of inclusiveness : All affectedparties have representative access to the negotiations, and all have the “power to avoid coercion.” All affected also have access to relevant information and are represented in the negotiations. As a result, paternalism is not present. Corruption or integrity criteria: All of the agreement’s negotiations are without deception. and all negotiators are transparent with respect to their interests, i.e., they have no hidden conflicts of interest . The objective evidence and judgments indicate that all negotiating parties have reasonable expectations of being able to, and fully intending to, fulfill their commitments. Also, all negotiating parties exhibit “the noble nature” of voicing their ethical concerns in the relevant social settings. Logic and diligence criteria: Those involvedin negotiating and reaching the agreements must communicate and explore the options for resolution of the relevant environmental problems. They must demonstrate the creativity and inductive logic for developing the best solutions to these problems. In this sense, the agreement must be judged as logical according to the “Rawlsian stability criteria” explained above.

These four characteristics for “fair and reasoned” environmental discourse and decisions were founded in the Rawlsian criteria for competent moral

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judges and considered moral judgments. If the four fair and reasoned characteristics listed above are met, then the Rawlsian criteria should also be satisfied. Applying the criteria to the problem of negotiation and establishment of environmental agreements might offer protection to remaining global resources, such as forests. The first step in the negotiation process that tries to reach these agreements is, therefore, the recognition that any restriction on the global resource destruction, such as with forests, impacts the economic activities of some wide group of users (or potential users). But that is the nature of “restriction.” Therefore, Brazilian President Jair Bolsonaro’s claims of “unfairness” with respect to restrictions that apply to the Brazilian rain forest could be applied to any CPR restriction. On their face these restrictions are not necessarily “unfair” just because other forests were previously destroyed and the global warming crisis is now generally apparent. This judgment is independent of the reasonable claim that other developed countries have already cut their forests for economic benefit. So why shouldn’t Brazil be allowed to cut? Given this “reasonable claim,” however, perhaps compensation is warranted as explored in Chapter 6. Compensation does not imply “no restriction;” it enables restrictions. Of considerable importance in this consideration is the fact that the world’s population will be deprived of economic and perhaps life-sustaining and other sustainability benefits if the forests continue to be cleared, and the lands revert to hot savanna. In applying the four “fair and reasonable” criteria to the Brazilian forest example, we can make the following observations: • With respect to the “fully informed criteria,” the science and socioeconomic information is already generally known and reflected in the Brazilian law that restricts further burning of the forests. Whether Bolsonaro’s rhetoric reflects this information appears doubtful. • With respect to the “fully inclusive criteria,” global inclusiveness requires that more than only the Brazilian interests be considered. Destroying the Amazon rain forests affects the globe and its entire population. • With respect to the “corruption criteria,” it should be noted that all the world’s population have conflicts of interest in applying restrictions on Brazilian forest destruction because all will suffer with its destruction. But reacting favorably to only those who have “direct

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economic conflicts of interests,” as defined in Chapter 3, would lead to biased decisions against fairness. • With respect to the “logic criteria,” those judges or decision makers with respect to Brazilian forest destruction who do not have direct conflicts of interest would likely decide in favor of the restrictions as currently reflected in Brazilian law. Note that the current destruction as supported by Bolsonaro’s nationalist rhetoric is contrary to law so that the essential problem in Brazil concerns the institutions of enforcement, and this points out an essential problem with similar global negotiations, i.e., global negotiations need wide agreements to have the potential for enforcement. This issue is examined next. 3.1

The Free-Rider Problem and Enforcement Institutions

Free riders to agreements (such as those explored above) are those who wish to take advantage of the restrictions imposed on others, but who do not intend to keep to the restrictions themselves. For example, those in a resource-extraction industrial cartel (such as OPEC) would be happy to see other members reduce their individual market supply in accordance with the cartel’s agreement, while they plan to extract more than their allotment. The industry’s market supply is lower as a result of the behavior of others in the cartel, and, therefore, the resulting market-clearing price is higher as a result. But the free riders take advantage of the higher price by selling more than they were allotted, and their revenue is higher than the other cartel members. This is a common problem in cartels.5 All who enter restrictive agreements of this sort should be aware of the freerider problem, and therefore should attempt to establish (i) monitoring mechanisms for discovering the free-riders, and (ii) effective enforcement penalties for abuses. These sub-agreements (monitoring and penalties) compose the associated enforcement institutions. When we establish environmental agreements such as restrictions of forest clearing, the enforcement institutions must be perceived as effective

5 See Ferguson (1972, Third Edition, pp. 355–365). Also note that this is a continual problem for OPEC.

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or the users of the resource will be more likely to flaunt the restrictions even if they would prefer that the restrictions work. Why? Because they perceive that the abuses will continue, that others will be “free riders.” Reaching environmental agreements are not, therefore, the key to avoidance of the tragedy of the commons. The “key” is to establish the institutions of effective enforcement. On a global level, this “establishment” requires intergovernmental cooperation and commitment. This requires transparency as to the monitoring and enforcement, and this essentially requires political stability as well as commitment. For example, the US in “good faith” entered the Paris Accord for restrictions on greenhouse gases, but the Trump Administration withdrew from the Accord in November of 2020. (The Biden Administration has reentered the Accord as of January, 2021.) This makes further global environmental agreements more difficult to reach since others might doubt the efficacy of the enforcement institutions. Why should any nation keep its commitments believing that others won’t? It might believe that the free-rider problem will be widespread. In addition, consider Brazilian President Bolsonaro’s proclamation that his country is being treated unfairly by the world’s request for an end to slash-and-burn forest clearing, although Brazil’s laws tightly restrict further forest clearing. These presidential declarations are signals to the institutions of law enforcement to not enforce the law, and consequently, the Brazilian forests continue to burn with impunity. Consider the efforts and successes of the cross-border The Friends of the Columbia River Gorge for restricting the sort of commercial development within the region that would degrade the resource. (See Chapter 10.) This environmental NGO’s success stems from (i) its initial establishment of political influence, and (ii) its thorough and persistent establishment of enforcement institutions including intergovernmental agreements. These are the two pillars of regional and global agreements if they are to be effective. Problems with establishing these institutions explain why global agreements have to date not demonstrate particular effectiveness. Countries with strong nationalist political movements are not likely to enforce, and perhaps not even enter, the sort of effective global agreements necessary to avoid the tragedy of the global commons. Why? Because suspicions of “the others” are the basis of the nationalist’s political movements. Note the use above of the term “effective global agreements.” There is also always a commercial industry bias against entering effective environmental agreements, i.e., those agreements with effective enforcement

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institutions. Industry’s proclamation is likely to be “Yes, we agree, but don’t monitor our compliance!” This is the likely slogan for the various greedy industries and their political lackeys. They wish to be free riders. As explained below, it is “monitoring” that is key to effective agreements and this is an information problem. 3.2

Wide Acceptance and the Crisis-of-Information

As indicated in Chapter 7, to assure compliance to environmental agreements, we first need a wide acceptance that: (i) the particular environmental crisis (or crises) demands that an agreement be reached, (ii) we believe the proposed agreement has a reasonable potential to be effective in its enforcement institutions for solving the crisis, and (iii) we judge the agreement’s negotiations to be fair and reasoned according to the criteria specified in Chapter 3 and reviewed above. Compliance is unlikely if people do not believe the crisis is real, or the free-riders will not dominate, or that the agreement is “unfair.” The latter perceived “unfairness” only stimulates a rebellious outrage and, therefore, defiance of the restrictions. This last condition means that we generally consider that the proposed agreement results from a process that is at least close to our ideal categorical imperative process , including the freedom aspects of the universal principle of justice. (See Chapters 2 and 3.) This implies: • The agreement, with its restrictions, respects the dignity of individuals to use the resource subject to the non-infringement of the freedom of others to use it. This implies that the restrictions do not unnecessarily impinge on the freedoms of those affected, i.e., the restrictions are all necessary to resolve the crisis so that the general freedom of access to the resource is maintained. • The compliance demands are considered to express universal moral maxims that are necessary for the preservation or restoration of the resource.

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• The agreement is generally recognized as motivated by the pursuit of the moral community. These agreements mean that some people, and/or countries, give up their control of some resource according to the specified restrictions. To do so, they should be satisfied that the conditions listed above are met. Reaching these agreements largely means that the parties are people of good will , and that there is sufficient information available to assure that the crisis is present, and that only the necessary enforcement institutions are specified by the agreement. This information problem poses a crucial roadblock, but in our current information age, this roadblock can be breached. For example, the US National Aeronautic and Space Agency (NASA) captures almost continuous and time-persistent satellite images of Earthdata in real time. From satellite images and observations, NASA’s Earth Observing System Project Science Office captures and disseminates data concerning: (i) global temperatures, (ii) the extent of droughts, floods, fires (such as forest fires) and their carbon emissions, (iii) storms and the blackouts due to significant storms, (iv) invasive-specie invasions such as the water hyacinth that disrupts water navigation, (v) polar sea ice contractions and seasonal expansions, and ocean levels and temperatures, (vi) aviary and other animal migrations, (vii) the health of marine life, (viii) farming expansions, contractions, and yields, (ix) contractions in the globe’s forests, and much more. These and other metrics can offer effective monitoring methods in support of potential agreements concerning forest preservation and a multitude of other global environmental problems such as marine health or climate health restorations or preservations. NASA also has satellite images of oceans and seas that could be used for monitoring plastic pollution, and these pollutions could be sampled for their source so that a potential agreement that poses restrictions on plastic production or waste generation could conceivably be monitored. In addition, satellite images

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of both polar regions allow estimates of glacial ice-cap coverages so that a crucial index of earth and sea temperatures and elevations can potentially be used for adaptive management of global warming. The crisis of lacking information can, therefore, be overcome by those of good will who recognize the global crises and who have some hope for remediation.

4 North American Deforestation and the Clear-Cutting Controversy Since the establishment of European Settlements in the 1620s, the forested areas in the US landmass (excluding Alaska) have decreased from approximately 1.023 to 0.766 billion acres, a reduction of approximately twenty-five percent.6 A 2017 US Forest Service study estimates, however, a three-percent reduction in US Forests between the short span of 1992– 2001. Although the US is the second leading producer of the world’s supply of forest products, wild fires are the most significant cause of loss, with 85 million acres lost in the Western US prior to the 2020 forest-fire season—the most difficult forest-fire season to date. The increase in fires resulting from climate change is the culprit for this acceleration of acreage lost. Illegal logging is another significant cause of reduction since those who lease sections of the National Forests for clear-cutting tend to cut more than their leased allotment. 4.1

Forest Clearing in US National Forests

The US Forest Service is a division of the Department of Agriculture. It administers ninety percent of all federal timber lands. It leases sections of these lands for harvest and supervises the cutting of these forests for commercial wood products. The various harvesting methods include: 1. clear-cutting all the trees within the leased section, 2. cutting that leaves seed trees for regeneration, 3. cutting that leaves shelter stands to protect tree species that need shade-type shelter, and that then has seedlings planted in those shady areas,

6 Estimated by the US Forest Service, “Forest Facts, 2012,” at www.fia.fed.us/library/ brochures/docs/2012/ForestFacts_1952-2012_English.pdf.

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4. select harvesting of those valuable trees that are at appropriate age for harvesting, but that preserve much of the tree stands, 5. sanitation harvesting that cut diseased trees or other clearings that preserve the overall forest stands. Prior to 1970, most of the forest harvesting was by select harvesting (methods 2–5 above). But between 1984 and 1997, the clear-cutting method harvested fifty-nine percent of all cuts in National Forests.7 The clear-cut method has been controversial because it leaves deeply scarred and unsightly large forest sections, areas that typically then have significant erosion. The National Forest Management Act of 1976 (NFMA) requires that the Forest Service use cost-benefit analysis—with public input—to decide which sections should be leased for timber harvest, and that all competing uses—such as recreation, watershed potential, fishing and/or hunting—be considered. “Given the Forest Service’s history,” however, the various “non-wood-product interests” argue that the Department of Agriculture is biased toward treating the forests as a type of farming.8 Furthermore, these interests argue that “clearcutting is simply just cheap logging,”9 similar to harvesting a field of wheat or corn. In addition, the NFMA requires that the replanting of the cut acreage must occur within five years of the cutting. Part of the lease payments for the sections of National Forest to be cut include fees for this replanting, but in most cases the replanting remains unfulfilled after the five-year expiration. The soil erosions are particularly severe in the forests of the Pacific Northwest where old-growth forests are most often on steep slopes, and clear-cutting results in significant erosion in the rainforests of this region. To reduce erosion, replanting should be quick, but these areas are often left un-replanted. Alternatives to clear-cutting requires that the Forest Service actively manage the cut areas. For example, logging in these often remote forests requires that access roads be built according to standards that should minimize erosion. Also, the harvesting methods utilize steel cables from winches to drag the logs up the slopes, and up to the logging trucks. This method typically scars the soils as though they were plowed. This loosens the soils and exacerbates erosion. Dragging these cables also 7 See Gorte (1998). 8 Ibid., p. 16. 9 Ibid., p. 15.

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destroys other small trees in the area, trees that were not envisioned as part of the harvest. This residual tree damage also exacerbates soil erosion. These soil erosions clog streams converting the previously drained areas into swamps that damage the fish and aquatic life. This destroys the watershed value of the forests. In addition, harvesting old growth forests eliminate the “carbon sink” capabilities of these large public lands, and also deprives various native species from their old growth habitats. 4.2

Cutting the Tongass

Alaska’s Tongass Forest is the largest US National Forest. It is located in coastal southeastern Alaska—the “panhandle region.” It covers 16.7 million acres—a million acres larger than the State of West Virginia. It is within the geographic Pacific Temperate Rainforest and includes a variety of endangered species. It includes nineteen officially designated “wilderness areas”—those areas with legal restrictions on mechanical access and commercial development. The Forest Service refers to the Tongass as “the crown jewel of the National Forests.”10 The Alaska Wilderness League describes the Tongass “as one of the last intact temperate rainforests in the world.”11 Whereas the timber industry previously dominated the area, the economy has now become a fishing, hunting, recreation and ecotourismbased forest. Eco tourism now supports more than 10,000 jobs in the Tongass. The Tongass Forest largely consists of western red cedar, Sitka spruce, and western hemlock. The animal population includes five species of salmon, brown and black bears, eagles, wolves, mountain goats, ravens, black-tailed deer, Artic terns, orcas, humpback wales, sea lions, seals, sea otters, river otters, and porpoise. Approximately ten million acres of the Tongass are forested. About half of this is “old growth,” but one-half of this “old growth” is in the wilderness areas.12 Twelve percent of the “old growth” is planned for cutting

10 See https://wilderness.org/blog/economic-realities-tongass-national-forest. 11 See The Alaska Wilderness League, “The Tongass National Forest: Recreationalists’

Paradise and Wildlife Lover’s Dream,” https://www.alaskawild.org/wp-content/uploads/ 2014/10/Tongass-77-1pageFINAL.pdf. 12 See “Tongass Forest Management FAQs” at www.fs.fed.us/r10/tongass/forest_facts/ faqs/forestmgmt.shtml#1.

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in the coming decade.13 The current foresting plan is for a phase out of old growth harvesting in favor of rotational harvesting of quick-growing softwood trees. Timber harvesting in the Tongass has involved various court battles, including a court ban on over 150 square miles of further clear cuts. (Note that prior to 1995, over half of the forest’s old growth was clear cut.) Also, in 1990 the Federal District Court for Alaska asserted that all timber harvesting must leave “buffer strips” that protect salmon spawning streams from degradation by soil erosion. The Tongass Timber Reform Act of 1990, however, canceled $40 million in annual subsidies for timber harvests. It also established new standards for further timber harvest. The most significant Tongass-related controversy concerns logging roads. In 2001, the Clinton Administration established the “Roadless Rule,” which prohibited the development of the remaining roadless areas which then consisted of fifty-five percent of the Tongass. In this area of Alaska, the current road system largely exists because of the Forest Service’s support for logging. These “logging roads” now serve to connect communities and also to avail visitors of access to recreation. In June, 2007, Congress stopped funding for additional roads in the area, previously over $50 million in annual subsidies for the area’s logging roads. In September of 2020, however, the Trump Administration reopened logging on 168,000 acres of “old growth timber lands” in the Tongass, and reestablished the road subsidies to facilitate this logging. Opponents argue that the Tongass is an enormous “carbon sink” that holds eight percent of all carbon held in the US National Forest.14 The head of the Alaska Wilderness League (Andy Maderow) argues that the Tongass is where many typical American ecotourists come to experience Alaska. Instead of promoting tourism and recreation—the most important sectors of Alaska for generating public benefits and income—the Trump Administration continued to spend “tens of millions of dollars every year to expand logging roads for the dying old growth timber industry. The Tongass alone stores more than 400 million metric tons of CO2 and sequesters an additional three million tons annually, equivalent to taking

13 See “Tongass National Forest Management Plan Final EIS,” at www.tongass-fpadjust. net/Document/Final_EIS_Volume.pdf. 14 See Wamsley and Neuman (2020).

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650,000 cars off the road annually,” Maderow said.15 “So why, with our climate in crisis and Alaska experiencing impacts more acutely than most, are we even discussing chopping down a natural climate solution and a regional economic powerhouse just to ship (logs) overseas? The timber industry is a relic of the past, and today we should be focused on what kind of world we leave to our kids.”16 Public comments on the “Roadless Rule” change overwhelmingly oppose it—96% oppose the new road building.17 Note that China is currently the largest consumer of US log exports, and a large plurality of American voters support the “Roadless Rule.”18 4.3

Brazilian Deforestation, US Deforestation, and the Climate Crisis

President Bolsonaro of Brazil and President Trump of the US obviously had similar deforestation policies. The Brazilian President “slashes-andburns forests” in contradiction to Brazil’s law, and in opposition to those who plea for maintaining the world’s forests as “carbon sinks” that at least to some extent remedy the global greenhouse-gas problem. The economic benefits to Brazil of the “slash-and-burn” policy are temporary, and perhaps illusory at best. In a similar way, the US President changed the US regulations in order to cut one of the world’s largest carbon-sink forests for the purpose of promulgating a temporary, and perhaps illusory, economic benefit. Neither president followed a feasible plan for the future. Both envisioned their country as independent of the global climate crisis. Their nationalist attitudes and actions made reaching global climate-change agreements more difficult, and they illustrate the problems with establishing the potential institutions for agreement and enforcement. In particular: (i) The scientific and socio-economic evidence was ignored by both of these countries’ nationalistic centered policies.

15 Ibid. 16 Ibid., p. 4. Parentheses were added. 17 See Stone, September 25, 2020. 18 See Rollins, July 15, 2020.

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(ii) They established no settlement institutions that can enforce the preservation of what should be recognized as the globe’s CPR. For example, although international trade is important to both counties, there are no current trade penalties for violating the global commons. These problems and potentials for agreements are further explored below along with a more complete analysis of similar environmental resource policies.

5 Some Global Commons and Their Degradation Risks 5.1

Significant River Ecosystems as Global Common-Resources and Their Management

The Mekong River The Mekong River originates in the Tibetan Plateau. It flows through China (where it is called the Lancang), Myanmar, Laos, Thailand, Cambodia, and Vietnam—where it ultimately flows into the agriculturally productive Mekong Delta and then into the South China Sea. After it flows through the mountain gorges of the “Upper Basin” in Tibet, the Mekong flows through the “Golden Triangle area” where the borders of China, Laos, Myanmar, and Thailand meet. This area is a global resource for poppy production. The Mekong then continues its flow into the “lower basin” where the agriculture of the Delta produces large amounts of rice, maize, cassava, and fish in quantities important to South East Asia. This river basin provides the world’s largest inland fishery. More than 60 million people depend on it for their livelihoods and their significant source of protein and other food. Few rivers in the world rise and fall with the seasons as much as the Mekong, which at the end of the dry season might have dropped by 40 feet in various places as compared to its seasonal high. When the monsoon arrives, they normally produce a water level pulse that provides sediment to agriculture as well as large amounts of larvae and tiny fish, which are swept into flood plains where they can mature. But in 2019, sub-normal water levels did not produce this “pulse.” These “sub-normal levels” resulted from up-river dam construction in China and Laos.

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In 1995, Laos, Thailand, Cambodia, and Vietnam established the Mekong River Commission (MRC) with China and Myanmar as “dialogue partners.” The purported purpose of the Commission is to manage the sustainable development of the River through the cooperation of signee members. Regional cooperation between Cambodia, Laos, Thailand, and Vietnam dates back to 1957 when the “Committee for Coordination of Investigations of the Lower Mekong Basin”—the “Mekong Committee”—was established under the auspices of the United Nations. In the 1950s, experts traveled the Mekong to begin gathering the information necessary for the management of the resource. In 1995, the signees established the “Mekong Agreement” (establishing the MRC) for the cooperative development of the River System particularly for the benefit of the poor of the region. As a platform for water diplomacy and regional cooperation, the MRC acts as a conduit for the scientific and socioeconomic information necessary for sustainable fisheries and agriculture, sustainable hydropower, freedom of navigation, flood management, the preservation and restoration of ecosystems, drought management, and the global warming-related higher water levels in the Delta. Most of the population of the Delta is engaged in agriculture and/or aquaculture, but twenty percent of this population is below the poverty level; hence the need for a development strategy by the MRC. Within the Mekong River Basin, some areas have rich soils and irrigation, but other areas have poor soils and intermittent irrigation. During the dry season, agricultural productivity is low in the Central Highlands of Vietnam, Cambodia, and sections of Thailand. In the Delta Region of Vietnam, however, seven rice crops can be harvested every two years. Rice is the most important crop in Asia, and rain is the most important source of irrigation throughout the Delta. The Delta’s rice paddies also serve as flood control barriers and prevent soil erosion. Although cassava, soy, sugar cane, and maize are grown throughout the countries of the Mekong and in the Delta, rice is its most important crop, and the Delta’s crop is essential for the population of Southeast Asia. There are, however, competing demands between agricultural use of the Basin’s water, and hydropower use. Using water flow to generate hydropower can conflict with agricultural demands. Yet the increase in power demand, the volatile energy prices, and concerns over carbon emissions, intensifies the demands for hydropower. At present, only ten percent of the

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potential hydropower in the Basin has been developed. This agriculturehydropower tradeoff is one of the significant strategic decisions of the MRC. Dams on the upper Mekong are contributing to the degradation of the entire river system. They collect sediment that formerly flowed to the Delta; they block fish migrations; they create reservoirs that support only a small fraction of the fisheries that the flowing water would support downstream.19 China operates eleven dams along the main body of the Mekong, and does so without consultation with downstream users. China is not a member of the MRC. Its decision to halve the water released from its dams in July, 2019, contributed to the low-water levels downstream and at a time when drought adversely affected the agriculture of Laos, Thailand, and the Vietnamese Delta. China benefitted from hydropower energy, but the downstream nations suffered from agricultural deficiency and environmental degradation. In response to this Chinese development, Laos is now planning to become “the battery of Southeast Asia” by building its own hydropower dams on the Mekong and is tributaries, and then selling power to its neighbors. It now has fifty dams either operating or under construction, and has plans for fifty more.20 Over this controversy, it appears that the MRC has descended into anarchy. Fisheries provide a significant occupation for the Mekong’s population, and provide its people with their major source of protein. The population of the lower Mekong is projected to be over 100 million by 2025. Dependence on the Mekong fisheries will increase. If the productivity of the fisheries declines, or if they become contaminated by industrial or other waste, then the consequences will likely be extreme. Total catches from the Mekong were approximately 3.9 million tons in 2008.21 Fisheries account for twelve percent of Cambodia’s GDP, and seven percent of Laotian GDP. Millions rely on these subsistence fisheries for food. They also support tens of thousands of businesses that sell the products, or that build the boats or provide other fishing supplies.22 The growth in Mekong aquaculture (farm raised fish and shellfish) has been huge. In 2008, aquaculture production was estimated at 1.9 million

19 See https://stragesounds.org/2019/09/mekong-river-drying-up-disaster-videp.html. 20 Ibid. 21 See https://mrcmekong.org/topics/fisheries. 22 Ibid.

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tons, five times more than in 2000. About 1.6 million tons were generated by the Delta Region alone. The production of inland aquaculture in Cambodia, Laos, and Thailand is increasing, but all of this is threatened by dam construction.23 In the Mekong Basin, fish compete for water with irrigated agriculture, domestic water demands, and industrial use. An integrated approach to managing these resources poses a challenge for the MRC. The Danube River and Old World Pollution The Danube is Europe’s second largest river.24 It once formed the eastern border of the Roman empire. Today it either flows through or borders the following central and eastern European countries: Germany, Austria, Slovakia, Hungary, Croatia, Serbia, Romania, Bulgaria, Moldova, and Ukraine. Its basin’s tributaries drain nine other countries before it empties into the Black Sea via its Delta, which is located along the border of Romania and Ukraine. Historically, the Danube has been an essential transportation vehicle through Eastern Europe, as it is today. The Danube Commission dates back to the “Paris conferences of 1856 and 1921,” which established international control of navigation on the River. Since then, in 1998 the International Commission for the Protection of the Danube River (ICPDR), was formed to regulate the Basin’s water resources. Its expressed purpose is to promote and coordinate conservation for the pursuit of sustainable and equitable water management. Hence the Danube River Basin has been governed by multilateral agreements and various forms of international administration since 1856, but the history of bilateral treaties governing the basin stretches back even further. Historically, these treaties and agreements largely focused on improving navigation, flood control, hydro power, and commerce along the region’s waterways. Currently, the non-navigational uses of this water resource—i.e., the environmental-sustainable aspects—are governed by the Convention and Cooperation for the Protection and Sustainable Use of the Danube of 1998 (DRPC). The ICPDR acts as the “commission” for the agreement’s enforcement. The ICPDR treaty parties include Austria, Bosnia-Herzegovinia, Bulgaria, Croatia, the Czech Republic, Germany, Hungary, Moldova, Montenego, Romania, Serbia, the Slovak Republic,

23 Ibid. 24 It is 2850 km long. The Volga is Europe’s largest river.

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Slovenia, and Ukraine. The European Union is also a contracting party. The additional countries within the drainage basin that are also parties to the agreement include Albania, Italy, Macedonia, Poland, and Switzerland. Note that some of the Southern Danube Basin countries were formerly Stalinistic, i.e., authoritarian socialist Soviet-Bloc countries who still have residual paranoia about outside contacts and agreements. They were also the sort of centralized socialist countries with horrendous environmental records. As a result, their bureaucracies have long been reluctant to cooperate with industrial reforms for cleaning their pollution. Nonetheless, the Environmental Program for the Danube River Basin, signed in 1998, requires each state to adopt uniform monitoring systems and adopt laws restricting cross-border pollution. It also establishes rules for the protection of wetlands and conservation areas of ecological and aesthetic importance. The ICPDR’s responsibilities are to implement the DRPC and its broad goals which include: • protecting the Danube Basin’s water resources for future generations, • resolving the risks from toxic chemical pollution, • preventing floods and the damage they cause, and • maintaining the environmental health of the Basin. To implement these broad goals requires data gathering, policy formation, and implementation. Specifically, the ICPDR’s responsibilities are to: • implement efforts to remedy the detrimental effects of centuries of man-made structural changes to the river, • implement improvements to urban wastewater systems, • disseminate phosphate-free detergents, • install systems to prevent accidental pollution, • eliminate microplastic pollutants, and to • eliminate cyanide and heavy metal pollutants that have accumulated in various wetlands.

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The implementation and coordination of these activities is the task of the ICPDR, but upstream pollution and restoration of wetlands and tributaries remain significant problems. Sewerage discharge and industrial wastes remain significant problems. For example, all of the sewerage of the city of Belgrade is emptied into the Danube as raw effluent, and only partly treated effluent from other cities along the river is also discharged into the Danube. Industrial wastes, particularly from upper-basin countries, and particularly in the form of plastics, continues to contaminate the River.25 In addition, sediment problems caused by dams have changed the flows of the River and the natural agricultural productivity of the Delta.26 Sturgeon and other popular fish are now on the brink of extinction.27 The full range of the problems of restoration and preservation is significant. Cooperation is only superficially present, and this makes progress slow. The Nile River and Its Conflicts The Nile is the longest river in the world at 4132 miles. Along its agriculturally fertile banks, it provides the essential resource for one of the world’s oldest civilizations. For millennia, the Nile Delta was replenished by the black silt of the drainage from its bordering African countries: Egypt, Sudan, Ethiopia, Zaire, Uganda, Kenya, and Tanzania. The Nile Basin Initiative (NBI) represents an agreement, supported by the World Bank, to pursue “sustainable economic development through the equitable utilization of, and benefits from, the common Nile Basin water resources.”28 It was launched in 1999 by the water ministers of nine countries that share the river: Egypt, Sudan, Ethiopia, Uganda, Kenya, Tanzania, Burundi, Rwanda, and Congo. But in May, 2010, five upstream states signed a “Cooperative Framework Agreement” to seek more water from the Nile—a move strongly opposed by the lower Nile countries of Egypt and Sudan. Representatives of the upstream countries indicated that they were “tired of first having to get permission from Egypt

25 See www.sciencedirect.com/science/article/pii/so269741114000475.html. 26 See https://ec.europa.eu/regional_policy/en/project/austria/restoring-the-danube-

sediment-balance.html. 27 See www.life-sterlet.boku.ac.at/index.php/downloads.html. 28 See “Nile Basin Initiative: Background” at www.nilebasin.org/index.php?option=

com_content&task=view&id=13&itemid=42.

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before using Nile River water for any development project like irrigation,” a permission required by a colonial era (1929) treaty.29 The threat of upriver countries drawing substantial irrigation from the Nile has been Egypt’s nightmare for two centuries. Egyptian civilization was based on riparian agriculture for 3000 years, but the upstream countries are poor and in need of their own agricultural development. Egyptian regional policy has been to support rebel conflicts so that the upstream societies would not develop to the point of being capable of exerting significant demands for the Nile water resource. Cairo has backed rebel groups in Ethiopia, Sudan, and Somalia. Addis Ababa claims that Cairo provides military intelligence, training, and arms to separatist rebels, contributing to Ethiopia’s civil war and the eventual partitioning of the country into Ethiopia and Eritrea.30 These conflicts continue today. A 1959 treaty with Sudan claims to give Egypt rights to 87% of the Nile River’s water, while Sudan receives the remaining 13 percent. But 86 percent of the Nile water originates farther upstream in Ethiopia, who receives no share under the agreement between the downriver countries of Sudan and Egypt. Although Addis Ababa proclaims the right to develop the Nile’s resources, the country’s civil conflicts limit that development. Now both Ethiopia and Sudan are demanding the Nile’s resources.31 Currently, Egypt recognizes that its interests lie in friendly relations with these two countries, but Ethiopia’s “Grand Ethiopian Renaissance Dam” (GERD), currently being constructed, is the source of substantial threats to both Sudan’s and Egypt’s agricultural existence. The GERD is a $4.5 billion hydropower project designed to thrust Ethiopia into regional prominence. It will provide electricity to 60 percent of Ethiopia’s households, who now are not on a power grid. It will also provide significant power exports to neighboring countries. It will halt the reliance on forest wood for energy, wood from shrinking Ethiopian forests. The simple physics of dam establishment is that once the dam waters are filled, the flow can continue downstream at its pre-fill rate. During the time the dam is being filled, however, the water flow is disrupted. The GERD is now close to completion, and is already filling

29 See “Ethiopia led River Nile agreement signed without Egypt and Sudan,” at www. en.afrik.com/article17639.html. 30 See www.globalpolicy.org/component/article/198/40151.html. 31 Ibid.

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its lake (as of August, 2020). Egypt, Ethiopia, and Sudan are now negotiating over the rate the dam will be filled: Ethiopia proposed three years, Egypt wants ten to fifteen years which would allow a more continuously even flow. The parties have agreed on eight years.32 The GERD is a source of national pride for Ethiopia; it is entirely self-funded, and it is uniting the Country. Short of invasion from its northern neighbors, it will be completed within the next two years. It will provide the power and irrigation necessary for Ethiopian development. Egypt argues that a two percent drop in Nile flow, however, would result in a decrease of 200,000 acres in its farmed lands, and a loss of one million jobs.33 The effects of the dam flow reductions are already being experienced in Egypt. It asks Ethiopia for a guaranteed minimum annual flow of 40 billion cubic meters of water, but its former flow was 55 billion. The effects on outer-lying Egyptian farms are being experienced now. Farms that were established in the 1960s are now being abandoned as they become desert.34 The problem is both Malthusian and Ricardian. The Reverend Thomas Malthus was the late eighteenth to early nineteenth-century British economist. Malthus published An Essay on the Principle of Population as it Affects the Future of Society in 1798. He theorized that food and resource production would only grow at arithmetic rates, but the population would grow at an exponential rate so that British society’s restrictions on population growth rates and establishment of “poor laws” were justified in order to limit population crises. David Ricardo was an early nineteenthcentury economist. In 1817 he published Principles of Political Economy and Taxation. He was a colleague of Malthus, and as an extension of Malthusian theory, he argued that there would always be poor farmers on the margin of agricultural productivity. Perhaps Malthus’ theory of exponential population growth assures that “poor farmers” exist in this area. In Egypt today these “marginal” farmers are certainly present due to the decrease in available irrigation water. But Egypt is also attempting to transfer its agriculture from flood irrigation to a more intensive drip irrigation system. But even if this transformation is completed, the most

32 See the August 13, 2020, CNN report at www.cnn.com/2020/07/21/africa/eth iopia-nile-river-dam-afr-intl/index.html. 33 Ibid. 34 See Magdy, August 20, 2020.

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significant underlying problem in the Nile Basin is likely to be drought management. An upper basin drought would mean drastic reduction in water flows through the GERD. Ultimately, such a reduction means less silt for replenishing the lower Nile, and less irrigation for the areas not adjacent to the River. Also, an increase in irrigated agriculture upstream means more contaminated water flowing downstream as the upstream fields are drained of fertilizer effluent. As a result of all these water resource changes, the healthier agriculture will be relocated to the Upper Nile Basin, and the marginal or poorer agriculture will be located in the formerly fertile Lower Nile Basin. The pending conflicts between Upper and Lower Basins are apparent and currently raging. 5.2

Three River Systems and Their Inherent Conflicts

The three international river systems reviewed above—The Mekong, The Danube, and The Nile—illustrate four inherent and overlapping problems of similar global systems: 1. Especially in the age of global warming, hydropower is particularly desirable, but hydro-dams compete with agriculture and aquaculture which are also desirable. This competition poses cross-border political conflicts. The Mekong and Nile systems illustrate this phenomenon. 2. The silting that occurs behind upstream dams harms the downstream agriculture and aquaculture. This inherent natural tradeoff also poses cross-border political conflicts. The Mekong and Nile systems illustrate this phenomenon. 3. The upstream demands for diversions and the downstream deltarelated demands inherently create political conflicts. The Mekong and Nile systems illustrate this phenomenon. 4. Pollutions initiated upstream become concentrated downstream. The Danube illustrates this concentrated negative externality. This externality that upstream imposes on downstream inherently causes political conflicts. The old common’s problem of lack of political control of the resource is manifested and exacerbated by competing multi-governmental controls along a river that crosses borders, especially if each of the countries has a

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history of suspicion toward the intentions of the others. This appears to be inherent between upriver and downriver countries. For example, we observe these suspicions manifested in • Vietnam’s fear of Chinese intentions for the upper Mekong, and • the downstream former Stalinist countries suspicions of upstream Germany, Austria, and Slovakia in the Danube system, and • the suspicions of all the upstream countries concerning Egypt’s history of demanding and dictating the Nile system’s water resource uses. These political histories of international river systems pose problems as difficult as the hydrology and other natural barriers to efficient commons’ management. If the above reviews illustrate the global problem of managing common resources, then there is little hope warranted, at least until the problems become so acute that there is no other choice except either armed conflict or cooperation. One must wonder about the possible future use of military force to resolve these acute problems. Environmental advocacy organizations (EAOs) can only offer objective observations of the facts of these political conflicts, and pose the objective external monitoring necessary for potential cross-border political settlements. Suppose that the upriver and downriver countries believe in the fairness criteria reviewed in Sect. 3 above and developed in Chapter 3. If so, then I argue that they would accept and support an analysis of the entire river system, an analysis that would be (i) fully informed of relevant scientific and socio-economic information, (ii) would openly solicit and consider input from all those affected by the system’s management, (iii) would have a management-decision process with decision makers who do not have direct conflict of interest, and (iv) would include decision reviewers who are also logical and disinterested. Such a process would undertake an appropriate cost-benefit analysis of possibilities for the entire system in search of an optimality that also considers the river system as part of the global commons. This implies a consideration that the world’s population is also affected by the system’s management decisions, that the river system would not be managed so as to further pollute or degrade the

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global commons. The initiations of these necessary “cross-border analyses” could also be the efforts of some particularly dedicated globally oriented EAOs. Some potentials for this are reviewed in the next sections.

6

The Institutions of Global Environmental Reform

Up to now, we have one international agreement to combat the global commons tragedy, the Paris Accord. Up to now, we have approximately 200 signatories to this agreement, including the US. This Accord asks the signatories to commit to their own greenhouse gas reductions, but it has no real penalties for lack of conformance. The world does not appear to be ready to pose a united confrontation to the global warming problem. As reviewed in Chapter 8, Ostrom’s theory and observations of successful commons management conclude that local political solutions are preferable in achieving the goal of tragedy avoidance, and for having stability through time. In terms of generating the imperfect duties of the commons’ constituents, consider that the locals: (i) know the problem, (ii) know each other so that communicating possible solutions are relatively easy, and (iii) can monitor the agreements at lower relative costs than would occur with a distant regulatory body so that the “free-rider problem” need not inhibit reaching an effective solution. This local establishment of agreements and solutions were fully manifested in two of the cross-border agreements used to illustrate effective restorations: The Chesapeake Bay Foundation and The Friends of the Columbia River Gorge. (These organizations and their accomplishments were reviewed in Chapter 10.) In each of these illustrative examples, the coalitions initiated: (i) effective political influence strong enough to marshal cross-border political regulatory bodies for enforcement, (ii) effective data gathering institutions so as to avoid the free-rider problem, and (iii) penalties and/or inducements to avoid violations.

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The question then becomes, “Can we use the lessons from those effective cross-border, but still local regulatory examples, to apply to our global commons problems?” This substantially reduces to the following questions: 1. Would broad coalitions of local regulatory bodies and systems be capable of solving global scale problems? 2. Would global-scale regulatory systems be effective for solving global scale problems? Associated with this second question is a third: 3. Is there an inherent political implosion tendency associated with global scale systems? Are they particularly vulnerable to attacks from local interests? To answer the second and third questions above, consider this anecdotal story. In the late 1970s, this author was the principal researcher who organized the economic and environmental analysis for the Army Corps of Engineers in support of irrigation expansion in one of America’s major river basins. Gathering the required information required a great deal of contact with local officials and businesses. At all times I tried to keep a very low profile while gathering data on such issues as the health of the local aquifers, the yields of various crops in various locales, the salinity of soils in various small valleys, the agricultural business support in various towns, and dozens of other concerns relevant to the cost–benefit analyses of possible government subsidies for irrigation expansions. With my “low profile,” I heard much from local people (agricultural agents, farmers, local political-office holders, and business people) who frequently expounded on what they perceived as “big government” ignorance in making the decisions that they should be making locally. The fact that the water they demanded was a scarce commodity, and that it had to be allocated among many worthy non-local needs, appeared to escape their consideration. They universally argued that their particular locale should get all the water they requested but with federal subsidies. The big and distant Corps, they thought, would surely make the wrong decision, and the Corps’ bureaucratic decision making was the heart of the problem, not

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the scarcity of the resource, nor the competing upstream versus downstream user demands. There should be no wonder why I tried to keep a low profile! It is the nature of the problem that water and other resources are scarce; they must be allocated by a rational decision process. As a result, people fear that they will somehow be “cheated out of their fair share.” The more distant the decision makers or decision process is—or appears to be — from the local users, the more the locals fear the decisions are out of their control; and so they are likely to politically attack the decision makers. Perhaps the more transparent both the process and the information used for the decision analyses, and the more the locals are solicited to provide their input (as is the case with the Corps’ decisions), the less likely, and less vehemently, they will criticize the decision; the less likely the political process will implode onto itself. By their nature, global political systems are the farthest from those directly affected. They are likely to be frequently and vehemently politically attacked. But this is unavoidable given that global common resources (oceans, climate, and international river systems, and the like) can only be regulated and supervised by a significantly large regulatory body. All people are local; perhaps all politics are local. But the most burdensome problems that affect these people can only be alleviated through supra regulatory bodies. Ostrom’s “lowest regulatory level possible” should actually be the “lowest regulatory level that is sufficient to resolve the commons’ problem,” and for our most significant current problems, that level is global, not local. The fairness criteria reviewed above demands the transparency in process and information necessary (but perhaps not sufficient) for even “locals” to accept the results. The question becomes, therefore, how do we establish these criteria on a global scale? Previous chapters explored the role of EAO-type organizations for providing some of the ingredients of this criteria, and for even initiating the fair process. The role of similar global-oriented EAOs for providing an impetus on a world scale is reviewed in the next section. 6.1

Some Global Organizations and Their Contributions

Previous chapters reviewed the efforts of various EAOs with respect to some localized conservation efforts, some being very successful and some being moderately successful. These organizations illustrated the collective

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imperfect duties necessary to organize the political influence required for effective preservation and restoration. To accomplish this on a global scale would be, however, much more difficult. This difficulty is both because many governments are more authoritarian than others, and therefore not as subject to political influence, and also because raising the consciousness of the world’s population to the global-level crises is more difficult than influencing locals who see their more narrow problems directly before them. Locals are more likely to have some degree of confidence that their local governments can be effective in managing those problems. There is then considerable difference between politically “acting locally” and “acting globally.” Nevertheless, we do have some EAOs that act to raise the world’s consciousness, and that have some degree of moderate success. This section reviews the global sustainability efforts of three EAOs that attempt to raise the world’s environmental consciousness: The World Wildlife Fund for Nature, The Nature Conservancy, and Greenpeace. The World Wildlife Fund for Nature The World Wildlife Fund for Nature (WWF) is an international EAO founded in 1961. It promotes wilderness preservation and the reduction of human impact on the natural environment.35 The WWF is the world’s largest conservation organization. It includes over five million supporters worldwide; it works in more than 100 countries; it currently supports approximately 3000 environmental projects. Since 1995, it has invested more than $1 billion in more than 12,000 conservation efforts. Most of its financial foundation is funded by individuals; nineteen percent is from governmental organizations such as the World Bank; and eight percent is from corporations.36 The WWF’s mission is to “stop the degradation of the planet’s natural environment and to build a future in which people live in harmony with nature.” It publishes The Living Planet Report every two years (since 1998), and this includes a “Living Planet Index” of humanity’s ecological footprint.37 The 2020 report of the “Planet Index” indicates that

35 See www.worldwildlife.org/about/history. 36 See https://wwf.panda.org/who_we_are/organization/. 37 See “WWF conservation projects around the world,” at www.panda.org/about_wwf/ where_we_work/project/.

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since 1970, the world’s wildlife populations have declined by sixty-eight percent, and freshwater species have declined by eighty-four percent. The report indicates that one-of-three freshwater species is now threatened.38 The WWF’sThe Living Planet Report, includes a chapter titled “Imagining a Roadmap for People and Nature.” This “Roadmap” specifies the initiatives the WWF is pursuing for the purpose of modifying the globe’s degradation. The initiatives include: 1. Promoting management improvements of already existing protected areas. In addition, the initiatives include promoting an improvement in landscaping-type conservation efforts such as natural buffer zones around water resources. The buffers would be composed and designed to absorb various pollutants. (The designed buffers would be similar to those propagated by The Chesapeake Bay Foundation in the Chesapeake Bay area. See Chapter 10.) 2. Promoting the research into improvements in agricultural productivity and consequential trade. The increases in productivity would allow the conservation of existing natural lands not currently being farmed. 3. Promoting a more sustainable consumption with a target of a fifty-percent reduction in animal calories consumed by 2050 to be replaced by calories from vegetables. This would conserve grazing lands and reduce greenhouse gas production that contributes to global warming. 4. Promoting research on various land-use models that would encourage biodiversity even in agricultural lands. As with the EAOs explored in previous chapters, the WWF also encourages environmental research, preservation, and restoration efforts, except that rather than for localized causes, they do so for globally oriented objectives. The Nature Conservancy The Nature Conservancy (TNC) is a US EAO that has expanded to become a global institution dedicated to land conservation. It was

38 See

pdf.

https://f.hubspotusercontent/hubfs/4783129/LPR/PDFs/ENGLISH-FULL.

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founded in 1951. Its programs have protected 119,000,000 acres of land and thousands of miles of rivers worldwide. It purports to be the largest environmental nonprofit NGO by asset size and by revenues in the Americas.39 Its international conservation efforts are in the Americas, Africa, the Pacific Rim, and elsewhere in Asia. TNC currently has a major effort to halt and reverse deforestation. In the Yucatan, it is leading efforts to preserve 1.8 million acres of private forested lands along the Mexican-Guatemalan border by negotiating arrangements between private land holders and governments. In the US, it has either purchased or negotiated the following land preservations: • TNC has negotiated the preservations of private lands in Idaho, Wyoming, and Montana in support of the Greater Yellowstone Ecosystem. • In 2007, TNC paid $110 million to purchased 161,000 acres of New York forestland from private holdings for the purpose of preservation.40 • In 2008, TNC purchased 320,000 acres of Western Montana forestland for $510 million. This is part of the Montana Legacy Project which is dedicated to protecting wildlife and public access to eco-tourism recreation on these lands. • In 2015, for $134 million TNC purchased 257 square miles in the North Cascade Mountains of Washington, and additional large acreage in Montana for the purpose of preserving the Blackfoot River Valley in Montana, and the Yakima River Headwaters in Washington.41 In 2015, through its financing unit called “Nature Vest,” TNC established a debt swap for a new Marine Protected Area in the Seychelles of the Indian Ocean. This expanded that country’s protected waters from one percent of its area to thirty percent.

39 See “Nonprofit Organization—About Us—The Nature Conservancy,” at www.nature. org/aboutus/. 40 See “The Nature Conservancy Purchases 161,000 acres in New York,” at www.lan dreport.com/2007/08/nature-conservancy-purchases-161000-acre-tract-in-new-york/. 41 See “Forests for America’s Future,” at www.nature.org/ouriniatives/regions/northa merica/unitedstates/forests-for-americas-future.xml. See also Gunther (2016).

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As part of the United Nations Environment Program’s “Plant A Billion Trees Campaign,” TNC launched its own tree planting campaign in 2008. For this, it raises dedicated funds for planting the appropriate native trees that restore forests to their maximum “carbon sink” potential for the purpose of absorbing greenhouse gasses and thereby fighting climate change. TNC estimates that the restoration of the great forests of the Americas will remove 10 million tons of carbon dioxide per year from the atmosphere (the equivalent of removing 2 million cars from the road). TNC acts as both a watchman for environmental change and as a promotor and agent of environmental preservation. It does so by acting globally for land conservation and climate restoration. Greenpeace Greenpeace is an environmental NGO with offices in 55 countries and headquarters in Amsterdam, The Netherlands. It was founded in 1971 in Vancouver, BC. It focuses on remedying climate change, deforestation, overfishing, commercial whaling, genetic engineering, and is also involved in anti-nuclear issues. It is known and recognized for its “direct action” methods thereby being the most visible environmental activist organization. Its mission proclaims language such as: • It “uses non-violent, creative confrontation to expose global environmental problems.” • It works to “stop the planet from warming beyond 1.5 C° to prevent the most catastrophic impacts of the climate breakdown.” • It works to “protect biodiversity in all its forms.” • It works to “slow the volume of hyper-consumption to learn to live within our means.” This is the activist language of “direct confrontation.” Greenpeace seeks to use these “confrontations” to publicize the global environmental crises. Six examples of this” direct confrontation” include: 1. “Save the Artic” from oil drilling (2013), 2. Disrupting the Icelandic and Norwegian whaling (1978–1985), 3. Disrupting the ocean dumping of toxic and radioactive waste (1978–1985), 4. Filming the grey seal hunt in the Orkney Islands (1978–1985),

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5. Using Greenpeace’s ship Rainbow Warrior to evacuate 300 Rangelap Atoll South-Sea Islanders from the nuclear fallout waste from previous US bomb tests (1985), 6. Disrupting French nuclear-bomb tests at Moruroa Atoll for which the French secretly bombed the Rainbow Warrior with one volunteer dying from the explosion (1985). For example, in “direct confrontation” to oil drilling in the Artic, in 2013 Greenpeace occupied Norwegian oil rigs in the Artic Ocean, and also on the supposed uninhabited wildlife-sanctuary of Bear Island. This island and surrounding ocean areas are close to habitats for the endangered polar bear. Greenpeace argues that oil spills in this area would be very difficult to clean up because of the harsh weather. These confrontations are currently ongoing. Videos of Greenpeace’s ocean vessels disrupting whaling, Artic oil drilling, and other confrontations have been used to propagandize selected environmental problems. The videoed attempts to disrupt whaling by placing Greenpeace’s ship Rainbow Warrior between whales and whaling ships, has been a mainstay of Greenpeace’s campaigns. Similarly, the Rainbow Warrior’s attempts to disrupt ocean dumping of toxic wastes were videoed for the purpose of generating publicity, as were the filming of disruptions of the Orkney seal hunts. In addition, attempts to disrupt the French nuclear tests, and the evacuation of islanders from their contaminated home islands were designed for the publicity of these efforts. Greenpeace’s strategy was to raise the world’s concerns for global endangered species risk, and ocean pollution. These publicity efforts have been successful even though they have been called “eco-terrorism” by various governments who have been the target of Greenpeace’s criticisms. Greenpeace also has an additional significantly publicized environmental campaign against the river pollutions associated with the fashion industry. In 2011, Greenpeace released a “Dirty Laundry” report which accused the world’s top fashion and sport wear companies of dumping its toxic wastes into Chinese rivers. In particular, it accused two top textile companies of dumping its toxic wastewater into both the Yangtze River Delta and the Pearl River Delta. Analyses indicated that the wastewaters were toxic. In 2013, Greenpeace organized its “Detox Fashion” campaign which resulted in various fashion companies pledging to stop purchasing textiles that were manufactured using hazardous discharge.

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6.2

Environmental Organizations with Global Influence

The three example EAOs reviewed above (Greenpeace, World Wildlife Fund, and The Nature Conservancy) illustrate some degree of global influence in promoting environmental preservation. Perhaps we are early in the global environmental movement, but given the efforts of similar EAOs, perhaps the coordinated efforts supported by collective imperfect duties reviewed above, might have some effect. The key would be the propagation of awareness concerning the problems. Chapter 1 examined six issues which were framed and posed in the form of six questions: 1. Do we have moral processes for forming our society’s notions of environmental duty? 2. What do we mean by “reasoned public discourse” concerning the environment? 3. Do we have any irrational biases concerning environmental problems? 4. What are the equity issues generated by current environmental problems? 5. How do we overcome the anti-intellectualism (anti-scientific knowledge) associated with potential environmental restoration? 6. What role might public environmental organizations and coalitions play in resolving the above questions, and what inhibits the formation of these organizations and coalitions? The sixth of these questions concerns international environmental organizations and their role in facilitating cross-border or global responses. Consider the first part of the sixth question, “What role might public environmental organizations and coalitions play in resolving the above issues?” Apply the answer to question (1), “Do we have moral processes for forming our society’s notions of environmental duty?” In the global context, we do not have the “moral processes” for forming the “global society’s notions of environmental duty.” First of all, we have no global consensus as to environmental duty. In the commons’ situations reviewed in this chapter—the important cross-border river systems and significant large forests of global importance—each local entity has a tendency to follow only their narrow interests rather than considering the interests

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of all affected as our fairness criteria warrants. The river system examples provided above show attempts at creating “regional commissions” for management. But they have not resolved the “upstream versus downstream” issues posed by these systems such as upstream power generation versus downstream agriculture. The “commissions” have not considered the interests of the systems as whole entities, that is of establishing what we might consider moral processes. One must ask, therefore, can our international environmental EAOs focus on the issue of establishing these fair and reasoned processes even in the typical situations where they have no ability to legally bind the contending parties through arbitration. These international organizations could, for example, promote boycotts of products (as in the case of Brazilian exports onto international markets as cited above) to bring about what the world might judge as environmentally moral actions on the part of the contending parties. In addition, where global commons’ resources are not managed by crossborder commissions, the international EAOs could promote the creations of these institutions. With respect to the question, “What do we mean by reasoned public discourse concerning the environment?” we have generally answered this question in the chapters above, especially Chapter 3. We should apply the fairness criteria to the decision-making institutions, a criteria with four components: (i) being informed, (ii) being inclusive, (iii) uncorrupted, and (iv) being logical, or “reasonable,” according to Rawls’ stability criteria.42 The role of international EAOs could also be to monitor environmental policies and decisions to look for those that do not meet the fairness criteria, so that they could publicize these faulty decisions, and attempt to bring political pressure to change such decisions. The same monitoring could apply to the irrational biases of the concerns of question (3) above, and also of the equity issues of question (4), or the anti-intellectualism or paternalism of question (5). This brings us to the second part of the sixth question, “What inhibits the formation of these globally oriented organizations and coalitions?” In the chapters above, many successful EAOs have been cited, but they largely resolved local problems. We need globally acting EAOs that will address the fairness issues as described here. The inhibitions that prevent 42 The stability criteria means that the decision is consistent with either what was decided, or would be decided in similar decisions by other uncorrupted but fully informed judges.

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these institutions from forming are political; they are formidable, but overcoming these inhibitions is extraordinarily needed.

7

A Justifiable Confidence in Change

Collective imperfect duty expresses a coordinated action. In the topic examined here, the action should not be only locally environmental, it should now begin to be aimed at global environmental effects. This requires a bold and shared vision, and reasonable level of confidence that this coordinated action will be effective. Otherwise the opportunity costs would be perceived as too high, a foolish group’s errand. A previous chapter documents the efforts of two groups that pursued bold environmental action. Those who organized the Chesapeake Bay Foundation in 1964 did so following the advice of Congressman Rogers Morton, that a private sector organization could marshal the political forces necessary to “Save the Bay!” This organization changed the local laws pertaining to land use around the Bay, created the Commission necessary to enforce these laws, and led the EPA into organizing the “consent decree” that controlled the agricultural pollution of the Bay. It also raised the funds necessary for the critical step of monitoring the environmental health of the Bay, and for forming the adaptive strategies for remedial political actions. The efforts necessary to accomplish this all required a sufficient degree of prior confidence, otherwise the initial coordinating efforts would not be considered justified. Perhaps Congressman Morton gave the initial organizers of the Foundation the necessary impetus of confidence. The Friends of the Columbia River Gorgewas formed in 1980. This coalition quickly organized the Congressional approval of the “Columbia River Gorge National Scenic Area” in 1986; then they organized the “Compact” and “Commission” between the States of Washington and Oregon to restrict development in the Gorge. Through a preservation trust, the Friends preserved the lands necessary to maintain the Scenic Area, and also to provided the monitoring necessary to maintain the resource. All of this also required the impetus of prior confidence that persuaded the Friends that their efforts would be successful, otherwise the organizational efforts would likely not have been considered justified. In the mid-1960s, the Hudson River Fishermen’s Association did not act from political motives, but from the confidence that they could be the first to apply enforcements of the “Refuse Act of 1899.” In a series of

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cases that the Association brought against industrial interests, they redirected the environmental movement. The Association won the precedent “Storm King” case that gave standing to environmental organizations to bring suit against industrial polluters for harming CPRs. In the 1980s, the Association evolved into the Riverkeepers organization that further applied the Refuse Act in tort actions against industrial polluters. These actions did not involve forming the prior confidence necessary for political organization, but only the confidence that the existing law could be enforced. Nonetheless, the three examples presented in the previous chapter and reviewed above, illustrate the role that “prior confidence in potential success” plays in environmental reforms. But these three examples involve localized environmental reforms, not global reforms. Local people can more easily meet and reinforce one another than those familiar with our global problems. Also, the “logic of the global commons” is not as apparent as the logic of local preservation. The organizations reviewed in this chapter do attempt global actions, so they must have some degree of confidence that they can be effective in their pursuits. The possibility of potential effectiveness, therefore, appears to be the critical element in the global environmental movement, i.e., increase the probability of success and we increase people’s involvement, and this applies even on a global scale. Presenting the visions of what is possible and what is probable are, therefore, the key actions of our EAOs, even for our global efforts. A theme of this book, however, is that our fairness criteria not only describes our aspirational norm, but is necessary for the motivational aspect of collective imperfect environmental duty even on a global scale. Fairness is necessary for the motivational global vision. Providing clarity as to what is fair in preservation and restoration must also be a required task for our environmental organizations especially for global efforts.

References Ferguson, C. E. 1966/1969/1972. Microeconomic Theory. Homewood, IL: Richard D. Irwin. Gorte, Ross W. 1998. Clearcutting in the National Forests: Background and Overview. Congressional Research Service Report, November 6. Gunther, Marc. 2016. Behind One of the Nature Conservancy’s Largest Ever Forest Purchases. The Guardian. www.theguardian.com/. Hardin, Garrett. 1968. The Tragedy of the Commons. Science 162: 1243–1247.

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Magdy, Samy. 2020. Water Already Dwindling, Egypt’s Farmers Fear Impact of Dam. Associated Press, August 20. https://apnews.com/article/fc117ce69 bfd9d4f5bcdc700c04cc73c. Montaigne, Fen. 2019. Will Deforestation and Warming Push the Amazon to a Tipping Point? Yale Environment 360. www.e360.yale.edu/features/will-def orestation-andwarming-push-the-amazon-to-a-tipping-point.com. Nunez, Christina. 2019. Deforestation Explained. National Geographic. www.nat ionalgeographic.com/global-warming/deforestation.html. Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. New York, NY: Cambridge University Press. Rollins, Ed. 2020. Maintain Roadless Rule to Protect America Against China Ravaging Tongass National Forest. Washington Times, July 15. Stief, Colin. 2019. Slash and Burn Agriculture Explained: How This Agricultural Practice Can Contribute to Environmental Problems. ThoughtCo. www.tho ughtco.com/slash-and-burn-agriculture-p2-1435798?print. Stone, Eric. 2020. Forest Service Forging Ahead with Full Roadless Rule Exemption for Tongass. www.alaskapublic.org/2020/09/25. Wamsley, Laurel, and Scott Neuman. 2020. Trump Administration Moves to Expand Development in Alaska’s Tongass National Forests. NPR. www.npr. org/2020/09/25/916932812/trump-administration-moves-to-allow-log ging.

CHAPTER 13

Concluding Remarks: Our Environmental Advocacy Organizations and the Nature of the Crisis

1

Our Environmental Movement

The environmental movement was created and driven by our environmental advocacy organizations , our EAOs. They built the political groundswell that created our US EPA, and that pushed our government institutions such as the US Army Corps of Engineers to become more responsive to our environmental needs.1 To the extent that government organizations are concerned with environmental preservation and restoration, it is because of the political influence developed by our EAOs. In fact, those government organizations that might have stood for environmental preservation and restoration have often represented the opposite, commercial and industrial development that exploits and degrades the environment. A record of this is documented in previous chapters especially with respect to the Trump Administration’s demonstration of consistent hostility toward the environment. Donald Trump tried to champion commercial and industrial development even when those interests resisted. He made the environmental movement his enemy just so he could have a platform to demonstrate his hostility, even when the issues he decried only existed in the form of the hottest of air. For 1 In fact, government organizations like the EPA were created due to the political groundwork by EAOs such as The Environmental Defense Fund.

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example, with our current glut of oil and natural gas, there is greatly diminished commercial interest in further drilling on Alaska’s North Slope, an area he opened to this drilling. Trump’s opening of Utah to further gas drilling also solicited no or little commercial interest. The US was energy independent prior to Trump, and it will continue as such but with considerable clean renewable power development. We will not return to coal which even under Trump was, and continues to be, an industry in decline not because of environmental regulation, but because of improved technology. Coal is expensive to mine and transport; it is also very costly to public health. (This is documented in Chapter 10.) On December 4, 2019, the United Nations (UN) opened its 25th Climate Change Summit in Madrid, Spain. UN Secretary General’s opening remarks reviewed that the previous five years were the hottest on record, and the previous decade the hottest decade on record. Sea levels are currently the highest on record. “The point of no return is no longer over the horizon; it is hurling toward us.”2 The cause of this global calamity is human production and lack of control of carbon-based greenhouse gases added to earth’s atmosphere. The earth is warmed by a naturally occurring greenhouse effect. Two thirds of the sun’s radiation—the infrared portion of the spectrum—is absorbed and heats our atmosphere. It heats both the naturally occurring and the man-made carbon-based greenhouse gases—carbon dioxide (CO2 ) and methane (CH4 ). We have known the elements of this science since the late nineteenth century, and we have been studying it since. Carbon dioxide and other carbon-based gases are “heat trapping” whether they occur naturally or the result of human industry.3 The human made greenhouse gases have added greatly to this “greenhouse effect” so that currently our global warming is human caused. The Intergovernmental Panel on Climate Change (IPCC) is a UN organization that assembles scientific analyses of this global phenomenon. Their annual IPCC “Synthesis Reports” are compendiums of the peer-reviewed scientific studies of the global warming phenomenon. They present a clear and dominant consensus that global warming is occurring rapidly and is caused by human activity. Their “best estimate” is that humans

2 Reported by Eugene Robinson, Washington Post, editorial page, December 4, 2019. 3 See NASA “Global Climate Change,” at www.climate.nasa.gov/evidence.

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are responsible for all the global warming since 1950.4 We are now producing CO2 at a rate 14,000 times faster than nature has over the last 600,000 years.5 The National Research Council’s 2006 report titled, “Surface Temperature Reconstructions for the Last 2,000 Years,” is contained within the IPCC’s “Synthesis Report: 5th Assessment,” 2014. It reviews examinations of ice core data from Greenland, Antarctica, mountain glaciers, plus ocean sediments, coral reefs, and sedimentary rock.6 The data indicate that although seven cycles of glacial advance and retreat have occurred in the past 650,000 years, the last ice age ended 7000 years ago. Since then, climate perturbations have been largely due to small variations in the earth’s axis position. The recent global warming, however, is found to be ten times as rapid as any previous warmings.7 Global warming is the environmental conundrum of our age, and it applies to both intergenerational problems and the problem of providing equity to those at a distance. Distant people cannot equally participate in our own social discourse, at least not without significant effort. (See the fairness criteria for reasoned social discourse presented in Chapter 3.) The Paris Climate Accord, however, organized by the United Nations Framework Convention on Climate Change includes 196 signatories distributed widely over five continents. The Accord was signed on December 12, 2015. This Accord illustrates the possibilities of overcoming the problems of establishing agreements among peoples at distance, i.e., the problem of inclusivity. The Accord seeks to limit greenhouse gases by way of having each signatory nation pursue its own goals through both expansions of clean renewable energy sources and also energy efficiencies, both of which are economic problems of great importance. For example, as part of the Accord, France plans to ban all petrol and diesel vehicles by 2040, and to discontinue coal production after 2022. Technical experts are to monitor progress with each signatory agreeing to transparency with respect to this

4 See Romm (2018). 5 Nature Geosciences, 2008, as reported in Romm (2018, p. 17). 6 See www.ipcc.ch/site/assets/uploads/2018/02/AR5_SYR_Final_SPM.pdf. 7 NASA and NOAA indicate on 7/18/2019 that globally, the month of June, 2019, was the warmest June on record. See Lewis Joly of the AP, Sun Sentinel, 7/19/2019.

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monitoring. The ultimate stated goal is to limit the average global temperature increase to a maximum of two degrees centigrade as compared to pre-industrial revolution temperatures. In 1977, the US National Academy of Sciences warned that our rate of global production of greenhouse gases is likely to result in increases in the global average temperature of 10° F, and that this could raise sea levels as much as 20 feet.8 The global consequences of this would be catastrophic, especially for some specific global regions such as coastal areas. We can classify the effects of greenhouse gas induced climate change into six categories: i. significantly higher global temperatures and humidity, ii. significant increases in sea levels with catastrophic destructions of coastal regions, iii. extreme weather effects, iv. significant food disruptions and insecurities, v. a myriad of associated health effects, vi. significant social disruptions and consequent migrations. Joseph Romm’s (2018) seminal book, Climate Change: What Everybody Needs to Know, documents the scientific consensus concerning each of these dire effects that the generations younger than I must cope with and try to manage. We observe these effects growing worse every year. Even though the evidence is overwhelming, there are, however, deniers of human caused climate change. Romm also documents these “deniers,” and their source of funding from the fossil fuel industry. Our EAOs demonstrate the conscience of individuals who are not serving narrow commercial interests, but who wish to represent the interests of future generations to interact with a healthier natural environment. To use Kantian language, our EAOs act in the pursuit of a moral community, the only non-egoistic but communally oriented moral motive for action. A record of these morally motivated actions resides in the histories of organizations such as The Sierra Club, The Audubon Society, The Friends of the Columbia River Gorge, The Friends of the Everglades , The Environmental Defense Fund, and so many more as partly presented in this book. 8 See Romm (2018, p. xv).

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The cloth of our great environmental story is made from the threads of the stories of individuals: Thoreau, Muir, Leopold, Douglas, Carson, and legions of others. These threads, and the stories of large numbers of those with the moral motivation to be involved in our EAOs, are not likely to be much different from your own, or my own. At ten years old, my boyhood friend and I rode our bicycles with fishing rods in hand, north up Route 28 in Reading, Massachusetts, and then onto back roads to reach sections of the Ipswich River to trout fish. We did this several times per summer from the time we were nine years old until we were eleven years old.9 Over those years, we watched the deterioration and degradation of the River until our favorite sections became nothing more than industrial drainage ditches. All this destruction occurred in the last years of the 1950s; it occurred because our local government institutions did not enforce their role under the law, the role of preserving the integrity of the River. I have driven many times since to the areas where we once stood, young boys with fishing rods in hand looking for the trout. But now I cannot stand where we once fished, I can only stand on the asphalt of parking lots, illegally paved over land that once was public domain. Or I can stand on lands that were illegally seized by those who owned property up to the riverbank, but who sought to extend their property line beyond the river’s marshy borders. Now the water is too polluted to support the aquatic life of the trout. The once natural drainage is now more of a polluted swamp than a free-flowing natural stream, which it once was. But we all can recount similar stories! They motivate us to try to preserve what is left. One memento I have of my grandfather is an old black-and-white photo of his standing with his father. These two French Canadians from the Atlantic Provinces stood beside two long-stringers of trout caught on a lake in New Brunswick, Canada, probably in the 1930s. Many of the trout were large. The picture screams “natural abundance, no need to worry about a degraded environment.” But industrialization overwhelmed that culture. As a student at the University of Oregon, I moved away from the energized hunt for the big rainbow trout, away from the big steelhead, and toward the more subtle pleasures of fly fishing for cutthroat trout—a small trout with adults of only 8–14 inches, and that live in smaller rivers and streams of incomparable beauty. Each year at

9 This friend became a civil engineer for the EPA.

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the end of the Spring semester, I traveled before dawn far up along the Willamette to its “Middle Fork,” up in the foothills of the Cascades. I parked my vehicle up on a dirt road just before sunrise, and at the far end of a semi-abandoned and very small town. (Envision the town in the movie Stand by Me, because that’s about what it was.) I drove up the road as far as I could safely go given the lack of upkeep on the potholes, and then walked farther up past the town’s old and abandoned sawmill, and another half mile farther to reach the North Fork, which is only about fifty feet wide and fairly shallow. If you time it right in the Spring, the North Fork’s stream banks are filled with flowered trees, buds everywhere, and the caddis flies buzz the water at this time. A small Adam’s fly—about size 10—would do; I loved to tie those silvery grey flies. The water was always cold that time of the year but fairly easy to wade, and with the right drift, you could catch all the cutthroat you reasonably wanted, preferably on barbless hooks so you wouldn’t have to grab them to release them back. They are beautiful fish and inhabit beautiful places that others seldom seek out—hence the advantage of cutthroat trout fishing versus hunting for places where the big rainbow dwell. The best part of the day was when I just sat back on the stream bank to contemplate just how lucky I was to be at that spot, at that time of the year, so into God’s natural gift. The sawmill was gone; the industry gone; but the awesomeness of nature remained. Industry might overwhelm, but it can sometimes be beaten back! There are places and beings—like the cutthroat trout—that are worth saving; that are worth restoring. This is why we join our movement; a generation to generation continuity of the need for interaction with the sublime manifestations of nature. An early draft of some initial chapters of this manuscript was reviewed by an academic philosopher at a significant Ohio university. His comments were basically “Why try? The environment is destroyed and will not come back! We do not have the social institutions to prevent this destruction; nor do we have the social institutions to support its restoration.” But another reviewer, an academic philosopher from a New York City university thought otherwise, that the effort was worth pursuing. And so we are split; some of us try to shape the future toward the better vision. The steelhead stream that flows across the street from my home is a prized place for our local fishermen. It flows through a large area of public wooded domain, that still has strong steelhead runs. So are all the steelhead streams of Western Pennsylvania and Western New York. So we try!

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Lake Erie is not “dead” as was proclaimed by many newspaper stories of the 1960s and 1970s.10 These stories generally concerned the summer algae growth and dead zones caused by our poor sewerage systems and agricultural fertilizer runoff. But, as pointed out in Chapter 11, restoration efforts have been initiated and have already been somewhat successful. Those efforts will continue. The steelhead runs are strong this year! It is certainly fitting that the effort of this book should finish with some tribute to Marc Reisner, the author of the awesome volume Cadillac Desert (1986, 1993). Reisner explored our folly in attempting to replumb the Western US, to bring water from where it was abundant to the dry Southwestern desert. In the late 1970s and early 1980s, I was tangentially involved in that replumbing effort. I have since wanted to purge my soul from memories of bureaucratic involvements, but not from the volume of lessons learned in those days. Those lessons I wish to carry to others. But there is one fleeting reference in Reisner’s book that haunts me, like an echo in a Southern Utah canyon, that just keeps coming back; that idea is the suggestions for large-scale diversions of Columbia River water to the Southwest in much the same way that the Sacramento River has been pumped and plumbed into California’s interior central valley.11 During the 1970s, there were repeated calls for such Columbia River diversion attempts, usually from California’s and Arizona’s Congressional representatives who decried the waste of allowing the Columbia’s freshwater to just flow into the Pacific. Why not divert it toward Arizona, or California, to put it to use for population growth and agriculture? Of course this ignored the fact that the water of the Columbia was being fully used for agriculture, population support, hydropower, fish support, and transportation, but all within its Pacific Northwest domain. But there was a strange occurrence during the late 1970s, one that is worth recalling during this lengthy period of Western drought. In the 1970s, the Pentagon asserted that we had a critical need for the US to build a “hardened-concrete underground intercontinental missile system” to properly threaten retaliation should the Soviets act foolishly with thermo-nuclear weapons. This system—an MX missile system on a

10 See Laura Arenschield (August 25, 2014), “Lake Erie’s problems were solved in the 1970s,” The Columbus Dispatch, at www.dispatch.com/20140825/NEWS/308259917. 11 See Reisner (1993, pp. 274–275).

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large circular track—would be on an underground mobile rail so that the Soviets would have difficulty spotting exactly where the missiles were; they would be moved around under the ground. In this way, the Soviets could not “first strike us” and destroy our retaliatory capability.12 The whole idea seemed weird science fiction, an exorbitant waste of concrete (some claimed all the concrete that the US could produce in a year and more) and also water for the concrete. The system was to be built in Nevada’s northern and central desert, and would require the sort of replumbing of Columbia River water suggested above. The Columbia River Basin actually extends to north-central Nevada, and presumably, the hydropower of the River, plus perhaps the power from some nuclear plants that were planned for Hanford, Washington (plans that were subsequently abandoned) could be used to pump water to the Southwest Desert. I provided some small pieces of information that the proposed project’s directors requested from me, but I ignored listening to the missile system’s publicly presented rationales because I knew the politics were certainly not in favor of such a gigantic and expensive project.13 I thought there was little chance this missile project would be undertaken by the Corps. But the question is, “Why would we even entertain the idea of such a replumbing project? Might other political forces be willing to entertain this foolishness just as a tool to get the Mighty Columbia’s water to be diverted south?” It need not be a conspiracy, but it could just be Southwestern politicians going along with the first stages of the project just to get the water diverted southward. This might seem like a paranoid vision of those events of the late 1970s, but Reisner’s book also expresses some paranoia about the machinations of Southwestern politicians for the Columbia’s freshwater.14 So I wonder about the real political reasons for Congress’ supposedly entertaining this missile proposal back in the 1970s. If we could somehow meet with the political leaders of today and tomorrow, what plea would we put before them? I would plea, “Please let us preserve and restore, and not plan to replumb or rearrange in some grandiose way!” Maybe this is the plea our environmental movement has always yearned to make through our advocacy organizations.

12 See https://historytogo.utah.gov/mx-missile-project. 13 These “small pieces of work” consisted of the Corps’ record of irrigated agriculture

in the Basin. 14 See Reisner (1993, pp. 274–275).

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References Reisner, Marc. 1986, 1993. Cadillac Desert: The American West and Its Disappearing Water. New York, NY: Penguin Books. Romm, Joseph. 2018. Climate Change: What Everybody Needs to Know, 2nd ed. New York, NY: Oxford University Press.

Index

A Acid rain, xi, 60, 200, 208, 214, 215, 217, 218, 221, 239 Adaptive strategies, 101, 244, 338 American Coalition for Clean Coal Electricity, 215, 238 American Farm Bureau Federation (AFBF), 220, 221, 238 American Society of Civil Engineers , 150, 156 Anti-intellectualism, 9–11, 336, 337 Arizona vs. California, 287 Army Corps of Engineers, ix, 49, 128, 135, 150, 151, 153, 250, 264, 329, 341 Audubon Society, xv, 150, 156, 175, 229–231, 234, 235, 273, 344 Autonomy of the will, 19 B Beyond Coal, 204, 206, 214 Big Sugar, 116, 117, 153, 230, 248, 249, 251, 270, 271

Bureau of Reclamation, 206, 287 C Canada’s Department of Fisheries (DOF), 275, 276 Carbon capture storage (CCS), 215, 216 Carbon sink, 300, 315–317, 334 Carson, Rachel, 207, 230–234, 239, 345 Categorical imperative categorical imperative process, 17, 19, 21, 27, 28, 40, 83, 85, 87, 113, 141, 163, 191, 311 formula for respect for the dignity of persons, 23, 27, 28, 30, 40 formula for the kingdom of ends, 20, 22, 25, 26, 86, 192 pursuit of the moral community, 27, 40, 86, 119, 162 formula for universality, 26, 34, 40, 85, 119

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. M. Robinson, Environmental Organizations and Reasoned Discourse, Environmental Politics and Theory, https://doi.org/10.1007/978-3-030-75606-2

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INDEX

Central Arizona Project (CAP), 287, 294, 295 Chesapeake Bay Chesapeake Bay Agreement, 260 Chesapeake Bay Commission, 261, 263 Chesapeake Bay Foundation, xi, xv, 101, 243, 244, 259, 262, 265, 268–270, 328, 332, 338 Chesapeake Bay Restoration Fund, 261, 264 Chesapeake Bay Water Blueprint, 264 Chinook salmon, 283, 296 Clean Air Act (CAA), 208, 209, 217 Clean coal, xi, 214–218 Clean Water Act (CWA), 209, 220, 260–262, 264, 271 Climate change, viii, x, 12, 230, 238, 252, 290, 299–301, 313, 334, 344 Coase theorem, 147–150 Collective imperfect duty, 11, 12, 54, 60, 66, 70, 83, 187–190, 194–199, 273, 304, 306, 338 collective imperfect duty, x Colorado River Colorado River Compact, 284, 286 Colorado River System, 284, 294 Colorado River water allocation, 294 Columbia River Colorado River Lower Basin, 295, 296 Colorado River Upper Basin, 285, 295 Columbia River Cold Water Refuge Plan, 281 Columbia River Compact, 279, 297 Columbia River Federal Power System, 280

Columbia River Gorge, xi, xv, 242, 244, 253, 254, 257, 268–270, 310, 328, 338 Columbia River Gorge fossil fuel highway, 255 Columbia River Gorge Land Trust, 253 Columbia River Gorge National Scenic Area, 242, 252–254, 338 Columbia River Gorge Strategic Plan, 257 Columbia River salmon, 277 Common property (pooled) resource (CPR), 99–104, 187, 189, 195, 199, 243–246, 268–270, 293, 294, 299, 305, 308, 318 Commons global tragedy of the commons, 300 tragedy of the commons, 4, 60, 100, 105, 300 Ostrom’s Swiss Village problem, 113 Compensation criteria, 10, 119, 125–127 Competent moral judges, 56–60, 62, 63, 106, 113, 128, 147, 155, 239, 308 Comprehensive and moral doctrines, 140 Concentrated animal feeding operations (CAFO), 144, 182, 200, 219, 220, 261 Conflicts of interest, ix, xiv, 9, 15, 16, 18, 27, 33, 59, 60, 62, 107, 128, 129, 147, 148, 189, 211, 218, 221, 239, 243, 271, 307–309 Considered moral judgements, 59, 64, 65, 155, 239 Contingent strategies, 101, 244, 268 Corruption or integrity criteria, 62, 128, 307

INDEX

Cost-benefit analysis, 36, 72, 73, 152, 154, 186, 197, 314, 327 Principles and Guidelines (P&G), 150 Cross border government organizations, 273 Cross border resource management, 9 Cutthroat trout, 277, 345, 346 D Danube River, 321 Commission, 321 Dead zones, xi, 219, 221, 239, 259, 262–264, 347 Deforestation, 218, 301–303, 317, 333, 334 rain forests, 301, 302 slash and burn, 303 Deontology, 57, 58, 135 Douglas, William O., 92, 93, 232, 345 Drag netting technology, 276 Duty collective imperfect duty, 11, 12, 54, 60, 66, 70, 83, 187–190, 194, 195 imperfect duty, 11, 35–37, 40–43, 46–48, 50, 51, 53, 54, 60, 61, 66, 70–72, 82, 83, 104, 106, 119, 121, 188, 190–192, 197, 198, 304, 306 perfect duty, 11, 35, 40, 48, 53, 54, 70, 83, 89, 118, 119, 189, 190, 192, 306 recognition of duty, 18, 104 E Emerson, Ralph Waldo, ix, 89–91 Endangered Species Act (ESA), 209, 227, 230, 235–237, 279, 281, 289

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Environmental advocacy organization (EAO), ix, x, xiii, xiv, 11, 12, 19, 20, 31, 36, 42, 53, 60, 66, 79, 99, 104, 136, 153, 187, 188, 199–201, 209, 213, 243, 244, 252, 273, 283, 293, 295, 300, 301, 327, 328, 330–332, 336, 337, 339, 341, 344, 345 Environmental amenities, 39, 71, 74, 86, 95, 109, 126, 133–138, 140, 144, 145, 150, 152, 160, 161, 164, 167, 170, 171, 173–175, 177, 178, 181, 183–186, 242, 247, 261, 268, 271, 272 Environmental Defense Fund (EDF), x, 3, 200, 201, 206–208, 210, 230, 234, 273, 341, 344 Environmental degradation, 1, 7, 12, 23, 24, 40, 43, 44, 71, 96, 110–112, 134, 138, 140, 143, 145, 160, 164, 190, 200, 226, 266, 288, 306, 320 Environmental duty, ix, 8, 17, 24, 46, 47, 60, 71, 72, 104, 199, 336 Environmental equity, 56, 146 Environmental institutions, 4, 5 Environmental justice, 141, 267, 271 Environmental Protection Agency (EPA), 49, 56–58, 128, 135, 142, 143, 199, 207, 216–221, 230, 234–236. See 260 –262, 264, 265, 281, 290, 291, 338, 341, 345 Environmental risk, 74, 75, 141, 164 Equity issues, 7, 10, 11, 54, 337 equity for peoples at distance, 10 intergenerational equity, 56, 139 Eudaimonia, 76, 77, 80, 81 Europe Beyond Coal, 214 Everglades Everglades Agricultural Area, 247, 248, 250

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Everglades Annual Coalition Conference, 246, 251 Everglades National Park, 247, 248 Everglades Restoration Plan (CERP), 250 Everglades Trust, 246, 248–251 Everglades World Heritage Site, 247 Excel pipeline, 141 Exclusive economic zones (EEZs), 275 Externalities negative externalities, 4, 5, 111, 136, 138, 147–149, 155, 160–162, 164, 166, 180–183, 185, 186, 218, 219 positive externalities, 111, 123, 134, 138, 149, 155, 160, 183–186 F Fair and reasoned criteria, ix, xi, xv, 39, 61, 62, 99, 128–130, 152, 307, 308, 311 discourse and decisions, ix, xv, 62, 84, 128, 307 Fairness criteria corruption or integrity criteria, 62, 128, 307 criteria of inclusiveness, 61, 128, 307 informed criteria, 61, 128, 130, 307 logic and diligence criteria, 62, 128, 307 Fish hatcheries, 280, 281 Fishing trawlers, 275 Formula for the respect for the dignity of persons, 23, 24, 30 Formula for universal law, 22, 24 Formula of legislation for a moral community, 23, 25 Free riders, 53, 100, 306, 309–311 problem, 310 Friendships of virtue, 72, 78, 79, 199

Friends of the Columbia River Gorge, xi, xv, 244, 253, 257, 268, 269, 310, 328, 338, 344 Friends of the Everglades , xi, xv, 154, 155, 242, 244, 246, 268–271, 344

G General and comprehensive mora doctrines fair system of cooperation, 141 guidelines of inquiry, 63, 142 publicly recognized decision criteria, 63, 142 Georges’ Bank, 296 Global warming, 7, 60–62, 72, 74, 103, 127, 129, 146, 147, 206–208, 215, 257, 264, 281, 282, 288, 289, 301, 308, 313, 319, 326, 328, 332, 342, 343 Good will, 82, 196, 197, 221, 282, 296, 312, 313 Grand Banks, 105, 274–276, 283, 295, 296 Great Lakes Great Lakes Commission, 290, 291 Great Lakes Compact, 289, 290, 293 Great Lakes Fishery Commission, 292 Great Lakes Restoration Initiative (GLRI), 290 Greenhouse gases, 146, 147, 207, 208, 214, 300, 301, 303, 310, 328, 332, 334, 342–344 Greenpeace, xi, 238, 331, 334–336

H Habitat preservation, 235–237 Hudson River, 243

INDEX

Hudson River Fishermen’s Association (HRFA), 265–267, 271, 338 Hudson Riverkeepers, xv, 244, 265–267, 269, 271 National Alliance, 267 I Imperfect duty, 11, 35–37, 40–43, 45–48, 50, 51, 53, 54, 60, 61, 66, 71, 72, 82, 83, 104, 106, 119, 121, 188, 190–192, 197, 198, 304, 306 Inclusiveness criteria, 61, 307 Informed criteria, 61, 128, 130, 307 Intertribal Fish Commission, 279 Ipswich River, 109–111, 149, 184, 185, 345 Irrational biases, 9, 105, 336, 337 J Justice from autonomy, 53, 75 K Kantian moral construction, ix, xv, 8, 16, 17, 21, 29, 213 Knowledge general knowledge, 79 specific knowledge, 31, 79 Knowledge hypothesis, 46, 104 L Lake Mead, 285, 288 Leopold, Aldo, ix, 93, 202, 345 Logic and diligence criteria, 62, 128, 307 M Market power, 166, 175, 176, 178, 179, 181, 183

355

Market valuation paradigm, 154 Master Lease Plans (MLP), 209, 210, 224–226 Maxim of common interest, 36, 43, 194 Mekong River, 318, 319 Commission (MRC), 319 Mississippi River Coalition (MRC), 220, 221, 319–321 Moral construction, 7, 16, 17, 19, 24, 40, 139 Kantian moral construction, ix, xv, 8, 16, 17, 21, 29, 213 Moral processes, 7, 8, 10, 94, 336 Muir, John, ix, 89, 90, 93, 94, 204, 205, 345

N National Aquatic Resource Surveys (NARS), 220 National Climate Assessment, 147 National Economic Development Benefits (NEDB), 145 National Marine Fisheries Service, 235, 281 National Ocean and Atmospheric Administration (NOAA), 279, 282, 343 National Pork Producers Council, 220, 238 Natural Resources Conservation Service (NRCS), 150 Nature Conservancy, xi, xv, 150, 156, 331, 332, 336 Negative externalities, 4, 5, 24, 111, 120, 136, 138, 147–149, 155, 160–162, 164, 166, 180–183, 185, 186, 218, 219, 221, 326 Neoclassical economics, 26, 135, 161, 164–166, 179, 183 Nile River, 323, 324

356

INDEX

Noble nature, x, 47, 48, 62, 115, 128, 307 Northwest Power Act, 280, 281 Northwest Power Conservation Council, 280

O Ogalala Aquifer, 141 O’Neill, Onora, 22, 48, 49, 52, 86, 185, 192, 196, 197 principles of reasoned communication, 49 Original state of nature, 4, 5, 187 Ostrom Ostrom’s eight rules, 103, 270 Ostrom’s law, 102, 245 Ostrom’s polycentric approach, 102, 245 Ostrom’s three conditions for, 268 Overlapping consensus, 143

P Paris Accord, 54, 61, 62, 114, 127, 129, 147, 310, 328 Paternalism, 10, 18, 29, 61, 86, 128, 140, 150, 307, 337 Pauling, Linus, 1–3 Perfect duty, 11, 35, 40, 48, 53, 54, 70, 83, 89, 118, 119, 189, 190, 192, 306 Principle of flexibility, 141 Principles of reasoned communication, 49 Production possibility frontier (PPF), 135–138 Proposition proposition of collective environmental duty, 60 proposition of environmental community, 47, 104

proposition of environmental knowledge, 47, 50, 51, 54, 197 proposition of mutual dependence, 45, 54, 114, 194, 200 Pursuit of the moral community, 27, 40, 76, 78, 86, 88, 113, 119, 144, 162, 164, 239, 297, 312 R Rawls’ criteria, 64, 106 competent moral judges, 56–60, 62, 63, 106, 113, 128, 147, 155, 239, 308 considered moral judgements, 59, 64, 65, 155, 239 Rawlsian stability criteria, 62, 128, 307 Rawls, John, ix, xi, xv, 8, 16, 27, 57, 58, 63–66, 83, 105, 118–120, 139–141, 143, 148, 191, 337 comprehensive and moral doctrines, 140 Reasonable decision, 59 Reasoned social discourse, viii, 2–4, 6, 17, 19, 21, 23, 28, 53, 54, 60, 63, 66, 75, 76, 101, 107, 128, 153 Refuse Act of 1899, 41, 166, 266, 338 Reservation demand, 73, 95, 177, 236 Riverkeepers , xi, 219, 243, 265–267, 271, 339 Rule of prior appropriation, 286 S Sacredness of nature, 178 instrumental sacredness, 94 Salmon, 12, 203, 277–283, 291, 295, 296, 315, 316

INDEX

Servile, 43, 44, 52 servile to the crowd, 47, 53 Sierra Club, x, 3, 71, 150, 156, 175, 200, 201, 204–206, 210, 214, 218, 227, 238, 273, 344 Silent Spring , 207, 230–235, 239 Six questions (issues), 6, 336 Smith, Adam Invisible hand of the market, 163, 165 Theory of Moral Sentiments, 162 Wealth of Nations , 162 Snake River, 283 Social conception of justice, 140 lasting moral foundation, 140 Rawlsian moral foundations, 140 Southwest Power Resources Association, 150 Stability criteria, 57, 64, 65, 337 Steelhead trout, 277, 280 Storm King Decision, 271 Synthetic a priori, 18, 19

T Thoreau, Henry David, ix, 89–91, 148, 345 Tongas Forest , 315 Tradeoffs, ix, 12, 35, 37, 41, 42, 66, 135, 137, 192, 201, 320, 326 imperfect duty and tradeoffs, 12, 35, 41 Tragedy of the commons, 4, 60, 100, 105 Treatise of 1855, 279

U Universality, 19, 23, 24, 26, 29, 34, 40, 53, 64, 65, 85, 113, 119 Universal principle of justice (UPJ), 28, 29, 84, 143, 164, 193, 311

357

US Army Corps of Engineers, 72, 145, 156, 185, 241, 247 National Environmental Plan, 151, 185 US Department of Agriculture, 156, 292 Natural Resource Conservation Service, 292 US Department of the Interior, 202, 222 US Fish and Wildlife Service, 282 Utilitarian philosophy, viii, ix, 135 Utility functions, 135, 136, 183 interdependent utility, 137 V Virtue friendships of virtue, 72, 78, 79, 199 relations of virtue, 76, 81, 83, 199 virtue ethics, 8, 57, 71, 76, 77, 80 W Waterkeepers, xv, 124, 184, 219, 243 Waterkeepers Association, 71, 109, 123, 126, 221, 243 Water Resources Council (WRC), ix, 72, 150, 152, 156 Principles & Guidelines (P&G), 150 Waters of the United States Rule, 264 Welfare economics social welfare function, 135 social welfare maximization, 135, 165 welfare analysis, 135, 137, 183 welfare efficiency, 135 Western Energy Alliance (WEA), 209–211, 223, 224, 238 Wetlands, 247, 259, 262, 289, 290 Wilderness Act of 1964, 201–203, 206

358

INDEX

Wilderness Society, x, xv, 71, 200–204, 206, 210 World Health Organization (WHO), 214, 238

World Wildlife Fund for Nature (WWF), 331, 332