Embracing Deep Ecology in Environmental Justice

“The history of life on earth has been a history of interaction between living things and their surroundings… only within the moment of time represented by the present century has one species – man – acquired significant power to alter the nature of this world.”
– Rachel Carson, Silent Spring

Scientists say that the Earth has undergone five mass extinctions so far, beginning 450-440 million years ago to the latest one 66 million years ago, due to volcanism, low oxygen content in atmosphere, glaciation, flood basalt events or asteroid impacts.

All the extinctions so far have been natural, but the scientific community predicts that the sixth one, which would mark the end of Holocene, is going to be anthropogenic or human-induced.

Given that there was no human life form – and hence no “anthropocentrism” – 66 million years ago, this prediction is obvious. The scientific and environmental community believes in a neo-liberal, sustainability development approach for saving the planet. Accordingly, it has played a great role in reinforcing an anthropocentric approach towards ecological conservation. In the process, the eco-centric or “Deep Ecology” approach of nature conservation has been discarded.

Norwegian ecologist and anarchist Arne Naess postulated the principles of Deep Ecology. He emphasized on “bio-spherical egalitarianism” i.e., all human and non-human life forms have intrinsic, inherent, and independent values, and that they are not dependent on the usefulness of non-human life forms for the purpose of human life forms. He also mentioned that the flourishing of human life and culture is compatible with substantial decrease of human life forms.

Therefore, if we really want to save this planet with its existing life forms and diversity, then we must shift our thinking from human superiority to nature superiority. But such a shift may not fulfil the purpose of the commoditised world and market economy. So, we have two problems in hand – one, saving the planet and two, meeting the needs of the market economy, especially without compromising the ability of our future generations to meet their own needs.

In this scenario, the effort to integrate economy and ecology, to establish that the environment cannot be protected without considering economic and social development, took roots.

The UN Conference on Human and Environment of 1972, also known as the Stockholm Conference, first attempted to institutionalize such a thought. It laid the foundation for environmental governance and an institutional framework for upholding anthropocentric ecological conservation. After that, the Brundtland Commission coined the definition of Sustainable Development in 1987.

The UN Conference on Environment and Development of 1992 at Rio de Janeiro finally completed the process of integrating ecology and environment. It emphasised on developing an institutional framework for International Environment Law and also provided some of its significant principles, most notably the Common but Differentiated Responsibilities, the Precautionary Principle, the Polluter Pays Principle, and Good Neighbourliness. These are reflected in several national and international environmental laws and adopted in regulations across various countries.

Yet, when the scientific and environmental community got convinced that enacting environmental laws is more effective than creating ecological awareness or adopting an ecologically sustainable lifestyle, then that simply completed the commodification of the environment and nature.

In today’s world, all environmental laws are based on anthropocentric principles, whereas ecological awareness in its true intent and spirit has always been based on eco-centric principles. Humans are stuck between the two. This conflict is reflected most in environmental jurisprudence.

For example, a deep dive into Indian environmental legislations shows us that despite a varied range of environmental legislations, none have been able to express “environmental crime” in definite terms.

In ordinary language, a crime is an unlawful act punishable by a state or other authority. However, in law, it is generally agreed that the essential ingredients of any crime are (1) a voluntary act or omission (actus reus), accompanied by (2) a certain state of mind (mens rea). The first ingredient, actus rues, should be a voluntary act or omission due to statutory, legal, or contractual obligation; and mens rea is all about intention, motive, prior knowledge, foresight of consequences etc. related to such voluntary acts or omissions.

From the environmental point of view, it is not easy to establish mens rea. For example, X runs an effluent treatment plant and discharges effluent treated as per the parameters prescribed and issued by the local State Pollution Control Board. Despite using the latest known technology for designing his ETP, X fails to maintain one of the parameters within prescribed limit.

Now, X is definitely not complying with regulatory requirements, but their act cannot be termed as an “environmental crime” as we cannot say for sure that X has intention or motive behind discharging effluent without meeting the prescribed parameter. The mens rea aspect cannot be established here.

We cannot remove this dilemma in Indian environmental regulations unless the thought process shifts from anthropocentrism to eco-centrism. Laws formulated by humans are always for humans, even if they intend to protect the environment and hence incorporating “environmental crime” into environmental justice is not easy.

Nevertheless, we have two important criminal legislations which make the effort to define crime related to environmental pollution. Section 133 of The Code of Criminal Procedure, 1973, prescribes conditional orders for removal of public nuisances and few Sections (s 278, s 425) of the Indian Penal Code 1860 punish the creation of noxious atmosphere or damaging property (contaminating water etc.).

However, remedies under these regulations are injunctive in nature, passing orders on removal of obstructions. They do not cater to to abetment of pollution, nor do they take any cognizance of offences or public nuisances. But then, regulations based on anthropocentric principles of environmental protection are fundamentally restricted in taking cognizance of anthropogenic environmental damage.

In 2010, India became the third nation after Australia and New Zealand to constitute a “Green Tribunal”. The National Green Tribunal Act, 2010 was enacted “for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensations for damages to persons and property and for matters connected therewith or  incidental thereto.”

This preamble gives hope that the nation is shifting environmental jurisprudence towards eco-centrism, but Section 20 of the Act prescribes, “The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.”

These three principles are the outcome of the anthropocentric Rio process and its effort to integrate economy and ecology. The principle of Sustainability Development clearly emphasizes on meeting the needs of current and future generations. The precautionary principle imposes a strong suspicion that a certain activity may have environmentally harmful consequences, therefore it is better to control that activity now rather than wait for incontrovertible scientific evidence.

Here, “environmentally harmful consequences” primarily mean those for human environmental health, and “control” means measures necessary to permit human activities to be carried out without impacting human health. Non-human life forms are simply ignored in these concepts.

The polluter pays principle, fundamental to many national and international environmental laws, intends to make the party responsible for producing pollution also responsible for paying for the damage it does to the natural environment. In other words, humans are allowed to pollute the natural environment to meet their needs and then pay for the damage.

How shall legislations (including National Green Tribunal Act) which adopt these principles and protect legal rights of human with respect to environmental matters provide justice to all human and non-human life forms on the planet?

Interestingly, the Supreme Court of India has pronounced the shortcomings of such legislations in protecting the environmental rights of all life forms and reinstated the significance of an eco-centric approach in dispensing environmental justice.

In the case of T.N. Godavarman Thirumulpad vs Union of India (2012) 4 SCC 362, 374, Justice K.S. Radhakrishnan mentions, “Anthropocentrism considers humans to be the most important factor and value in the universe and states that humans have greater intrinsic value than other species. Resultantly, any species that are of potential use to humans can be reserved to be exploited which leads to a point of extinction of biological reserves. Further, that principle highlights human obligations towards environment arising out of instrumental, educational, scientific, and cultural, recreational and aesthetic values that forests has to offer to humans. Under this approach, environment is only protected as a consequence of and to the extent needed to protect human wellbeing. On the other hand eco-centric approach to environment stress the moral imperatives to respect intrinsic value, inter dependence and integrity of all forms of life. Eco-centrism supports the protection of all life forms, not just those which are of value to humans or their needs and underlines the fact that humans are just one among the various life forms on earth.”

Should judicial systems think about embracing principles of Deep Ecology in dispensing environmental justice through an eco-centric environmental governance system?