Response to Vinay Gupta’s musings about an environmental supreme court

By admin, on August 21st, 2010

This in response to a post on Vinay Gupta’s blog.

Vinay, I think that you’ve missed a fundamental point here. In both the UK and the USA, there is a sense in which these ‘supreme councils’ for the environment already exist – the Environmental Protection Agency and the Environment Agency in particular,and a handful of other quangos and agencies.

Part of the quango philosophy is taking decision making and putting it at one remove from elected politicians. In the UK, the EA ploughs a different furrow to central Government, with arguably a more consistent and unarguably more environmental focus. In the US, the EPA has been able to begin the process of regulating CO2 under laws laid down by central government that were conceived with different pollutants in mind.

Your supreme court for the environment, if the analogy is tolerably close, would work in a legal framework set by democratic government. I think you would agree that democrats are able to pass general principles of environmental protection (e.g. the Clean Air Act) but tend to fall short when they are called upon to balance these environmental protections with other priorities. Regulators like EPA, in principle, are ready to do the job you’ve outlined.

So, the question follows, why isn’t this system, already set up to do what you want, doing it?
Well, part of the explanation can be a measure of degrees of freedom. The supreme court in the US, and the courts in general, are widely understood to be somewhat above political interference, and tend to appoint judges for the long periods you mentioned. Agencies tend to have short term appointees more directly answerable to their political masters, and therefore must tread a careful line between fulfilling their role and poking the democratic bear too firmly. The reduced activity of the EPA under Bush, and the many areas in which environmental legislation remains unenforced are good examples of this probably higher susceptibility to political interference.

More widely, however, the EPA and EA aren’t achieving what you want from them because they do not have the scope of powers to do so. They are limited within the framework of powers granted by the democratic government. The Supreme Court acts only within the legal framework of the democratic government, but because it acts as an arbitrator between two third parties (whether private or public, corporate or individual) it has no limitation of power – it has power wherever a case is brought. Of course, it has no power if a case is not brought – the supreme court cannot see a guy littering and decide to adjudicate without a prosecutor setting the ball rolling. Perhaps one answer would be to bring environmental crime into the purview of the existing courts by empowering citizens to bring complaints against environmental degradation *regardless of whether they or their property were directly affected*.

Of course, there is additional context in the UK at the moment – the SDC had some of the characteristics of the type of body you advocate, and has just been shut down. We are in a phase in which government is downsizing but also bringing decision making power back to its heart. In that climate, your argument may be one that pisses into the wind a little. But more fundamentally, environmental issues are increasingly ubiquitous – if you’re a political Green, you believe that all economic decisions are environmental decisions. I’m not sure that democratic government is ready to further empower external environmentally focused decision makers to take decisions that would inevitably impinge upon centres of wealth and power, and potentially seriously affect growth. And if they just aren’t going to do it – I’m not sure whether you’ve got this question posed in a useful way yet.

Tweet This Post Delicious Digg This Post Facebook Stumble This Post