KEY POINTS:
Humans have overstepped the threshold of sustainability. In the mid-1980s, the capacity of the planet to sustain its human population had reached 100 per cent. The current population now has an ecological footprint equal to 1.25 planets.
If those people who live in the so-called Third World catch up with the lifestyle in the US or New Zealand, we need 4.5 planets.
We are facing one simple loss - our own disappearance from the planet, which itself will continue to live. We need to drastically reduce our ecological footprint.
Individual actions are of limited use. Making the changes requires regulatory and policy changes that strongly enforce footprint-reducing actions. In short, we need mutual coercion, mutually agreed upon.
Environmental law differs from the rest of law with its peculiar space and time dimensions. How to regulate human behaviour in the Here and Now to avoid disaster in the There and Then?
The problem is to reconcile two extreme positions. On the one hand, people living today have a right to pursue their prosperity and well-being, but in doing so they collectively threaten the environment.
On the other hand, the environment demands responsibilities from us now so it can be preserved for the future. To date, rights have trumped responsibilities.
This tragedy is caused by short-sighted economic rationality which has shaped both the capitalist and socialist worlds.
Media attention on issues like climate change and food prices has increased. But the links between ecology and economy are still made only in terms of costs.
Typically, the environment is presented as an economic cost factor, not as a challenge to the economy itself. Financial markets seem to operate in complete independence from the state of the environment.
Governments compartmentalise the environment. There is a Ministry for the Environment but Treasury determines public policy. There are environmental policies but politicians are eager to point out they won't harm the economy. There are environmental laws, but isolated from commercial laws.
Partially protecting the environment in competition with economic objectives is ecological nonsense. Imagine a child protection law that says: "Do not beat your child too often and too much." Environmental law does just that: "Do not pollute the environment too often and too much."
The flawed thinking behind such environmentalism is the assumption that the environmental crisis can be solved within the current economic, political and legal system without challenging underlying values.
By and large, administrators and judges have applied the Resource Management Act in a manner that limits or mitigates ecological damage but doesn't prevent it.
The overall effect has been to mitigate the damage inflicted by industrial economies and western lifestyles. Their unsustainable nature has not been touched at all.
A number of battles have been won but the war is being lost. The global commons - climate, biodiversity, oceans - are in rapid decline, the ecological footprint is now much larger and, most alarmingly, the individual, per capita footprint keeps growing.
We get punished for harming property, but not for harming the environment. Specific laws may prohibit specific actions, such as felling a pohutukawa tree.
But legally, we are entitled to large-scale destruction of the global environment.
Do we need a defined principle of sustainability? Yes. Can such a rule be defined and written into law? Again yes.
Would it be socially acceptable? Probably not. Would it be politically viable? Clearly not, or shall we say, not yet.
The dynamics of the environmental crisis may well cause governments to take draconian measures. Just picture the challenges that countries like Australia or New Zealand are going to face with environmental refugees, water allocation or food supply. The question is how democracy and human rights might be protected when the battles over resources turn nasty.
Mutual coercion is the only way to prevent ecological and social disaster.
It is possible to fashion a rule that draws a line in the sand and sets a bottom-line limitation. This rule would apply throughout the system of law and governance and would not be confined to a single legislative act.
Ecological sustainability is paramount.
The transition to sustainability is a tough call. Yet, it is important not to be afraid.
If Martin Luther King had started his speech with "I have a nightmare" we would probably not remember it. A positive dream for civil rights and a sustainable future is a lot more inspirational. This means turning the financial crisis into an opportunity. The failure of free market ideology calls for a new deal between the state and the economy: a regulatory framework for a 'socio-ecological market system' was never more needed than now.
* Professor Klaus Bosselmann is on the University of Auckland law faculty and director of the NZ Centre for Environmental Law.
