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Transforming the Law for the 21st Century

Science In The CourtsMuch of our current legal code was written decades ago, when our understanding of the Earth was very different than it is now. Now we understand that economic growth can and must happen in a sustainable, healthy way. What needs to happen for our laws to reflect our current reality? How could our legal system better support human and environmental health? Here are some ideas to get started. Cumulative Impacts: Death-Knell For Cost-Benefit Analysis In Environmental Decisions Barry Law Review (Fall 2008) Joseph H. Guth, J.D., Ph.D. We have long assumed we can tolerate the endless growth of small increments of environmental damage in the pursuit of economic growth. But now, the mounting cumulative impact of the human enterprise is threatening the long-term habitability of the biosphere. The law will have to abandon its use of cost-benefit analysis to justify individual environmental impacts and instead adopt the goal of maintaining the functioning ecological systems that we are so dependent upon.

A Law To Protect The Earth: The Tort of Ecological Degradation Joseph H. Guth, J.D., Ph.D. (2009) How can we restructure our law to place greater priority on environmental values? We confront this question now with increasing urgency as our growing footprint on the Earth causes mounting ecological degradation. We know the values that a restructured law must promote: maintaining functioning ecological systems, accounting for the effects of our actions on future generations, and taking environmental justice seriously. But we still have not achieved the critical task of reformulating our laws so that they will in fact promote these objectives instead of undermining them.

Recalibrating the Law of Humans with the Laws of Nature: Climate Change, Human Rights, and Intergenerational Justice Vermont Law School Climate Legacy Initiative (2009)

SEHN was a major contributor to the ideas and materials in the report. The CLI site has the policy report and two appendices, "Background Papers" and "Recommendations."

Four background papers and seven recommendations were authored or co-authored by Joe Guth and Carolyn Raffensperger. The following original SEHN papers are available here:

The Precautionary Principle in Environmental Decision-Making Carolyn Raffensperger Vermont Law School Climate Legacy Initiative Background Paper No. 13 (2009)

Define and Develop a Law of the Ecological Commons for Present and Future Generations Carolyn Raffensperger, Burns Weston, David Bollier Vermont Law School Climate Legacy Initiative Recommendation No. 1 (2009)

Build Environmental Values into the Law, Including the Common Law Joe Guth Vermont Law School Climate Legacy Initiative Recommendation No. 11 (2009)

Comments on the Obama Administration review of Presidential Executive Order (March 16, 2009) Comments filed with the federal Office of Management and Budget (OMB) on behalf of SEHN and 24 co-signers. Executive Order 12,866 should be discarded in favor a new environmental decision making structure that prioritizes protection of the earth rather than maximizing economic growth.

Resolving the Paradoxes of Discounting in Environmental Decisions Journal of Transnational Law & Contemporary Problems (Winter 2009) Joseph H. Guth, J.D., Ph.D.

Carbon emissions, radioactive waste, and species extinctions affect not just the present but also the future, sometimes the distant future. As our impact on the Earth mounts, the specter of the future that we are creating is looming larger, becoming more insistent. The advent of global warming, especially, impresses upon us that environmental degradation is implicating not only our own welfare but also that of future generations. As we consider taking stronger steps to protect the environment, topics that may seem arcane, such as "cost-benefit analysis" and "discounting," are being drawn into the public discourse.1 Discounting, it turns out, holds the key to understanding why our economic and legal systems are having such a difficult time controlling mounting, long-term environmental degradation.

SEHN/Harvard Project on Law for Future Generations (Fall 2008) Two reports on how to use ancient and recent precedent as well as new law and institutions to protect future generations.

Law for the Ecological Age Vermont Journal of Environmental Law (2008) Joseph H. Guth, J.D., Ph.D.

In the United States, property rights, private as well as public, must be structured to further the public welfare. American property law is currently designed to prioritize economic activity, even when it causes environmental damage, on the presumption that it provides a net social benefit. We see now that the ever-growing cumulative effect of the damage thus permitted by the law is running up against the ecological limits of the Earth. Under these new circumstances, to best further the public welfare property law must be restructured to constrain environmental damage to an ecologically sustainable scale. Our entire legal system should implement this constraint on scale in order to redirect the economy onto an ecologically sustainable path. Under our system of law, however, legislatures cannot alone fully restructure property rights while the common law lags behind, pursuing outdated goals. I propose a new rule of the common law, the tort of "ecological degradation," as a model new law for the ecological age.

Transforming American Law to Promote Preservation of the Earth Joseph H. Guth, J.D., Ph.D. (2006)

This is an outline of arguments intended to transform American law, beginning with the common law, so that it will promote preservation of the earth rather than accept environmental destruction as a byproduct of economic growth. These arguments call on the law to bridge the gap between biologists, who see us outgrowing our habitat, and mainstream economists, who foresee a future of unlimited economic growth.

Law for an Ecological Age Video presentation by Joseph H. Guth, J.D., Ph.D. at the Center for Earth Jurisprudence Symposium, February 29, 2008.

Common Law Judges Must Act On Global Warming Joseph H. Guth, J.D., Ph.D. (2007)

We all know that we have to take action now on global warming. As private individuals, we are beginning to do things like installing photovoltaic panels at our homes and businesses, switching to Priuses and bicycles, and buying local. Our governments are edging forward with steps including a revised Kyoto Protocol, California’s Global Warming Solutions Act of 2006 and the America’s Climate Security Act just introduced into the U.S. Senate by Senators Lieberman and Warner.

Two Rules For Decisions: Trust In Economic Growth Vs. Precaution Joseph H. Guth, J.D., Ph.D. (2007)

Everyone knows the role of law is to control and guide the economy. From law, not economics, springs freedom from slavery, child labor and unreasonable working conditions. Law, reflecting the values we hold dear, governs our economy's infliction of damage to the environment.

Our law contains what might be called an overarching environmental decision rule that implements our social choices. The structure of this decision rule is an intensely political issue, for the people of our democracy must support its far-reaching consequences. Today we (all of us) are rethinking our current environmental decision rule, which our society adopted in the course of the Industrial Revolution.

How Dolphins Got The Benefit Of The Doubt And Why It Matters Joseph H. Guth, J.D., Ph.D. (2007)

The "burden of proof" is a central idea in the law -- it can determine whether the law protects public health and the environment, or whether it has the opposite effect. Getting the "burden of proof" right is crucial, as we'll see in the case of dolphin-safe tuna.

For environmentalists, shifting the burden of proof is a key element in a precautionary approach to environmental law. In chemicals policy, for example, chemicals as currently assumed safe until the government can prove they are harmful. The burden of proof is on the government. Environmentalists urge that the burden of proof should be shifted onto industry to prove chemicals are safe rather than on government to prove they are harmful.

The Core Legal Test In A Chemicals Law Joseph H. Guth, J.D., Ph.D. (2007)

The world is searching for better legal systems for controlling the chemicals we place into commerce. Diverse chemicals laws already exist, including California's Proposition 65, the federal Toxic Substances Control Act (TSCA) and the European regulation called the Restriction, Evaluation and Authorization of Chemicals (REACH), which the European Union is working to implement later in 2007. But more are coming. Senator Lautenberg and six other U.S. Senators introduced the Kids Safe Chemicals Act of 2005 (S.1391), and non-governmental organizations around the country are developing still other approaches.

Federal Voiding of State and Local Protections for Human Health and the Environment Joseph H. Guth, J.D., Ph.D. (2006)

Today’s advocates of protecting human health and the environment are focusing their efforts largely on the states, where they believe progressive action on a wide range of issues can best be achieved. Many view the Republican-controlled federal government as a lost cause. However, the federal government is much more dangerous than that. It has the capacity and, unfortunately, now has the will to void all that progressives might achieve in the states, and is ignored by advocates at their peril.