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Lecture Notes Law, Technology and the Environment (all lectures)
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Lecture Week 1 - The Human/Nature Dichotomy in the AnthropoceneContext:
Our laws and normative presumptions are premised on deeply engrained beliefs, which appear to be
supported by what we observe. By way of illustration, because we observe the earth as flat and the
sun going up and down, for long our behavior and feeling of belonging in this universe reflected such
a belief system. Galileo forced us, much against our better instincts, to see otherwise.
Another example: we have long thought humans to be unique compared to other animals and plants,
until Watson and Crick deciphered DNA in 1952 and showed that humans are almost 60 percent
identical to daffodils and spiders, and 95 percent identical to chimpanzees.
Most recently, in 2016, the Anthropocene Working Group put the world on its head in a different
way; by showing that ‘nature’ in fact has become a human artefact. There is really no ‘natural state’
left and, alarmingly, the way humans have taken command of the planet leaves precious little hope
for a future of human life, as the 6th mass extinction currently taking place leaves little prospect for
most animal and plant species.
If we want to survive, even in the short term, we must apply our collective intelligence to adapt to
new realities that pose incredibly tough dilemmas for legal and governance systems:
1. Through technologies, humans and nature have converged into a toxic mix. Nature has
become human, and humans are about to succumb to nature. It perhaps makes little sense
to approach ‘human health’ differently from ‘environmental health’, in law or otherwise,
because they are completely intertwined.
2. This new human/nature singularity is a ‘complex adaptive system’, in the sense that
‘everything is connected with everything’. To distinguish between ‘local’ and ‘global’
environmental impacts not only is misconceived, it is also dangerous. Furthermore, a
problem like climate change cannot be solved if we continue to approach it as
‘environmental problem’, ‘energy problem’, ‘trade problem’, ‘technological problem’,
‘gender problem’, ‘transport problem’, ‘development problem’, etc. It is all of those at the
same time, and by prioritizing one belief system (e.g. trade) over another (e.g. environment)
we are bound to fail in our mission to preserve life on the planet.
In this first lecture we begin to grasp the enormity of the challenge our generation is facing.
Students must:
1. Understand the characterizing features of the Anthropocene as a new geological epoch;
2. Be able to articulate the most profound legal and governance challenges arising from the
Anthropocene.
Questions for Guidance:
- What do you regard as the most important difference between the Holocene and the
Anthropocene
- Can you mention 3 to 5 legal presumptions (attitudes, principles, hierarchies, etc.) that now
appear incompatible with the Anthropocene?
- What are important challenges for our governance architectures?
- What role(s) do you see for technologies to address (some) of these challenges?
Summary of the videos
- New Era: anthropocene à anthro = people à new geologic age
, - We push planet to a new era à for the first time human aspect incorporated in the era
name
- 10.000 period of unusual warmth, beginning of agriculture, Middle East etc.
- What has been happening? Human have changed remarkably? Human imprints! Rely on own
energy and that of animals. However, now also fossil energy à Human enterprise
- Population grew, consumption grew etcetera, motor vehicles
- 1950 à break down economic institutions, old ways of thinking à period of acceleration
- Anthropocene part 1 à new energy sources
- Part 2 à 1950
What is happening to planet earth?
- Depletion of ozone, loss of forests, extinction rates up, etcetera
- Environmental stability à Holocene à we have moved from this
- Climate change not strongest argument, that is biodiversity
- Accept this? Can we recover Holocene era?
- Boundaries!! Planetary boundaries
o How does it function now?
o We have seen abrupt shifts, we have identified 9 earth systems we need to respect
e.g. climate change
- Once you define boundaries, there is a safe operating space
Connection to technologies:
- Are humans a geologic force? Building cities: mining and using materials
- We have modified the globe à is something nature? Or a consequence of humans? We are
not separated from nature!
- Consumption of water, domesticated land etcetera
- We have transformed the world surface, we dig a lot
- We’re changing the earth plates
- Example: sea levels rise: all laws etcetera need to be re-thought, since they were built based
on stability
o Ports, havens à sea level rise has influence on global trade
o Land: climate change, tropics expand, diseases expand with them, we can map the
spread, identify connect them and prevent epidemics
o Events are concentrated, however have impact globally
- Can we think of de-extinction?
- Look through the anthropocene goggles in making decisions
Compulsory Reading:
(1) Steffen et al, ‘Planetary boundaries: Guiding human development on a changing
planet’, Science 13 Feb 2015, VOL 347 ISSUE. Available on-line:
Important principles and theories within this text
Introduction
- There is an urgent need for a new paradigm that integrates the continued development of
human societies and the maintenance of the Earth system (ES) in a resilient and
accommodating state. The planetary boundary (PB) framework contributes to such a
paradigm by providing a science-based analysis of the risk that human perturbations will
destabilize the ES at the planetary scale. Here, the scientific underpinnings of the PB
framework are updated and strengthened.
- Three of the PBs (climate change, stratospheric ozone depletion, and ocean acidification)
remain essentially unchanged from the earlier analysis.
, - Conclusion: The PB framework does not dictate how societies should develop. These are
political decisions that must include consideration of the human dimensions, including
equity, not incorporated in the PB framework. Nevertheless, by identifying a safe operating
space for humanity on Earth, the PB framework can make a valuable contribution to
decision-makers in charting desirable courses for societal development.
(2) Palsson at al, ‘Reconceptualizing the ‘Anthropos’ in the Anthropocene: Integrating the social
sciences and humanities in global environmental change research’ environmental science &
policy284 (2013) 3-13. Available online
5 concerns relating to the anthropocene, humanities and social science:
1. Efforts must be made to integrate the humanities and social sciences more fully into trans-
disciplinary environmental change research programs and to further encourage the ongoing
‘environmental turn’ in the humanities and social sciences.
2. Planetary limits and boundaries ideas need to incorporate human experience and must be
sensitive to context and to the nature constructed by humans, embedded in a framework
that includes issues of equity and environmental effects on humans
3. It is time now to articulate the culture of emerging Anthropocene societies, drawing upon
natural scientists, humanities scholars, and social scientists to emphasize the new fusion of
the natural and the ideational, transforming the contemporary syndromes of anxiety, drift,
and self-delusion in to a more positive task of building a culture of sustainability.
4. Explain why Western thought traditions that hitherto have heavily depended on the dualism
of nature and society that can confront their internal limits and international tipping points.
5. To remedy the lack of understanding of how to steer society in the Anthropocene, it is
essential to further develop social science sand the humanities work on how directionality
could be articulated, democratically anchored, and implemented in the search for new
technologies, medical knowledge, and ideas of economic and social organization.
(3) H Somsen, ‘The End of European Union Environmental Law: An Environmental Programme for
the Anthropocene’, in Environmental law and governance for the anthropocene
Introduction
- Anthropocene: name is put to a disease, kind of a diagnoses
- This brings 2 new insights:
o (1) in the Anthropocene humankind has become the dominant force determining the
fate of planet Earth and its inhabitants and that
o (2) without a dramatic turnaround in environmental policy or some technological
break-through, humans are precariously close to extinguishing themselves
- 9 Planetary boundaries have been brought to light: which threaten to disrupt self-regulating
capacity of our earth system
- We cannot longer rely on the existing environmental law
- This chapter talks about: fundamental disconnections between the foundational
phenomenological, spatial and temporal and instrumental presumptions underpinning
current environmental law – and on the other hand, realities that reveal through the
anthropocene
- This discussion takes places in the EU – sui generis polity
o This gives interesting perspective
Part II
- Phenomenological, spatial and temporal and instrumental challenges
Phenomenological
- Collapse of the HUMAN v NATURE dichotomy
, - Nature has become human
- Goes against the grundnorm? The Grundnorm for the environment, inversely, can hence be
assumed to amount to a norm pursuant to which human intrusions in the environment, in
any of its parts and regardless of their consequences, are mandated unless and until people
themselves have chosen to limit their freedom to do so.
Spatial
- Disconnection between object of regulation and the regulatory modalities used
- LOCAL v GLOBAL
- This ignores that we are now universal nature
- Saying climate change is an issue of environmental law: is just political
Temporal
- Anthropocene fast age of environmental change
- Environmental law is retrospective in nature – so unfit
- Environmental law is geared at preserving and protecting – status quo
- This is given more weight by the precautionary principle, which effectively codifies an a priori
bias pro status quo over intentional environmental change
- We need prospective environmental law
In EU law the legislation on genetically modified organisms (GMO) represents the example most
closely reflecting the regulation of such prospective ambitions.
Part III
- Human v Nature dichotomy in EU environmental law
- Natural contract was mentioned by Serres – to reflect the indivisibility of man and nature
- May be suggested: Legal grundnorm for the anthropocene should aspire to maintain
ecological integrity (human form large part)
- The natural contract should echo: indivisibility of ecological systems
In this section the focus is on the ways in which the human/ nature dichotomy is legally expressed in
the Charter of Fundamental Rights of the European Union and in primary EU environmental law.
Charter of FHR
- Centrality: human dignity
- Proportionality principle: biased towards economical goals not environmental
- This human dignity is the single most important principle on which the EU legal order rests,
and that the freedoms and rights through which it is realised carry prima facie more weight
than any imperative of ecological integrity
- The dichotomy human v nature becomes clear since there is no articulated principle of
ecological integrity
- There is nothing about non-degradation
Primary EU environmental law
- TFEU and TEU – Union policy on environment
- The powers (environmental, health, transport, internal market) are mutually exclusive
- Hard choices need to be made
- Question: what is the legal basis? Is drinking water health or environmental
- EU law lies the gravity with the biggest surface contact area – however not always fair
A conflict between the two legal bases is bound to arise and a hard choice will therefore have to be
made when health policy is pursued through the manipulation of the environment in ways that
transcend the ‘ preserve, protect and improve ’ trilogy that is at the heart of Article 191 of the TFEU.
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