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Enforcing EnvironmentalEthics: Civic Law andNatural ValueHolmes Rolston IIIPublished online: 29 Mar 2010.

To cite this article: Holmes Rolston III (2002) Enforcing Environmental Ethics:Civic Law and Natural Value, International Research in Geographical andEnvironmental Education, 11:1, 76-79, DOI: 10.1080/10382040208667469

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Enforcing Environmental Ethics: Civic Lawand Natural Value1

Holmes Rolston, IIIDepartment of Philosophy, Colorado State University, Fort Collins,Colorado

How much environmental ethics should we write into law? Politically, ‘command andcontrol’ solutions are out of vogue; what we need instead, many cry, are ‘incentives’.But incentives operate against a background of required compliance. Ethically, whatwe need is ‘caring,’ not law-like forms of ethics. Others emphasise ‘virtues’. Caring,virtuous persons need no rules. That may be true in later stages of personal moraldevelopment; but in public life,caring in concert needs regulation. The virtuous ahead,up front, may need no laws; but those at the rear, and most of us along the way, needenforcement, reinforcement – which helps us move along. Rules channel caring anddiscipline virtuous intentions.

Legislating Environmental CareYou may be surprised how much is enforced, and at how many levels, from US

Acts of Congress to lighting campfires. Following the last quarter century ofenvironmental law and regulation, try shooting a bald eagle, or filling a wetland,or dumping wastes without permit. Internationally, there are over 150 environ-mental agreements registered with the United Nations. If you are caught tryingto bring a snow leopard skin into the United States, you will find yourself inprison.

Add up these enforcements, great and small, and one could probably concludethat, far from environmental ethics being optional and voluntary, to the contrary,most of it is enforced.

Concern and Concert; Cheating and CoercionIn a community, there are things we cannot do unless we do them together,

and especially in public space. A person may be doing what would be a perfectlygood thing, a thing he or she has a right to do, alone, but which, taken in collec-tion with thousands of others doing the same thing, becomes harmful. Theseactions must be regulated when aggregated. This is Garrett Hardin’s tragedy ofthe commons (1968).

Here, contrary to Adam Smith, there is no invisible hand. Hardin found thatsolutions will often require ‘mutual coercion, mutually agreed upon’. A commu-nity nearing the carrying capacity of its resource base will have to curb short-termself-interest for the long-term good of all. Humans can and often do the wrongthing – ‘by nature’ we might say – and law needs to ‘civilise’ these instincts. Ourevolutionary historyshaped us for short-range tribal survival, seldom asking us toconsider future generations beyond children and grandchildren, never figuring

1038-2046/02/01 0076-04 $20.00/0 © 2002 H. RolstonInternational Research in Geographical and Environmental Education Vol. 11, No. 1, 2002

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in the welfare of others thousands of miles away or the incremental build-up ofheavy metals.

Further, some will be tempted to exceed the limits set by policy, the problem of‘cheaters.’ Nor is this always consciously intended; individuals may act as theyhave been accustomed to over decades, without waking up to how thesecustomary individual goods are aggregating to bring communal evils to whichwe are unaccustomed.

This ethic will be a democratically achieved consensus, with the willingsupport of millions of citizens. But this voluntary compliance depends on theexpectation that even those who do not wish to obey will be required to do so.Even if 99% of citizens are glad to behave so, 1% will be pressed to freeload, andthis will trigger bad faith. One rotten apple spoils a barrel. No one has the right toharm others, without justified cause. This requires nudging people along, wherethey do not wish to go – not yet at least, though they may, in retrospect, be quiteglad when they get there. Vested interests, often with much inertia, have to bedivested. Habits have to be de-habituated. Self-interest is easy enough to ration-alise. This is the way we have been doing it for decades; can what was rightyesterday be wrong tomorrow? Shifting patterns of right and wrong at shiftinglevels of scale and scope is going to require enforcement.

The Clean Air Act of 1970 is one of the most successful environmental lawsever. Air pollution has been cut by a third and acid rain by 25%. Cars are 95%cleaner. Emissions of the six worst air pollutants dropped 35% from 1970 to 1997despite a 31% increase in US population, a 114% in productivity and a 127% jumpin the number of miles driven in automobiles. None of this would have beenpossible without enforcing environmental ethics.

I concede that an enforced ethic is incomplete, necessary but not sufficient.Such an ethics is not autonomous; it is nominal. But with enforcement, we canperhaps change habits, and once habituated, the behaviour may be internalised.There is enforcement initially, when the actors have as yet no will; but, havingdone it, afterward the actors come to supply the former deficiency of will.

Democratic Environmental EthicsSuch law ought be enacted and policed through democratic process. In busi-

ness we are consumers; in politics we are citizens. These concerns are allies andalso in tension. Capitalism can be indifferent to values outside the immediateeconomic domain. Here we typically think that government is needed to regulatebusiness on matters such as worker safety, minimal wage, minority hiring, therights of labour, unfair competition. This also extends to environmentalconcerns.

Natural resource decisions have been long considered primarily economic.Shifting concepts of natural value, however, now mean that many, even most, ofthese values cannot be safely left to unregulated capitalist markets. Hence welook to democracy to ensure that these values are sufficiently protected. Ademocracy places the constraint of the general will on those who would degradethe commons. We sometimes legislate morality, at least in minimum essential orcommon denominator areas. There must be a management ethic for thecommons.

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Democracy is no more perfect than capitalism. If human nature is sometimesflawed, these flaws will as soon turn up in government as in business. A test of ademocracy is whether its citizens can learn to practise enlightened constraint,developing an ethic for the use of the environment, and more, developingconcern for the whole commonwealth of a human society set in its ecosystems.One thing that democracy can produce is debate (though, alas, it does not alwaysdo so), and we are more likely to uncover and conserve all of the natural values atstake when issues have been well debated.

Environmental concern tests the popular will for long-term decisions. Thereare lag times for effects, as with aerosol sprays and carbon dioxide emissions.Future generations are not here to vote today. One is tempted to discount thefuture environmentally. The scale and scope of environmental affairs is typicallydecades, even centuries. The scale and scope of Congress can sometimes matchthat, but the scale is often two years, or even the election three months away. Wecan be tempted to vote for the legislator who promises rewards now; those whodo not will be out of office next election. That can mean decisions that are notsustainable over generations. All this means that democracies need to seeklonger-term views than voting citizens are inclined naturally to do.

We do this with checks and balances. The judiciary is not that branch ofgovernment placed under immediate democratic control; to the contrary it isrelatively free of it. Judges must apply laws that they do not make; our democrat-ically elected representatives make them. Such laws must also be constitutional.But judges do not answer directly to democratic will. They listen to argument.They rather consider what is just, or right, what optimises the greatest good forthe greatest number long term – and that means, environmentally, whatcombines civic law with the greatest protection of environmental value.

Human Caring for NatureHumans do not always have themselves at the focus of every environmental

regulation, as, for example with laws about cockfighting, bullfighting, or legholdtraps. In 1992, Coloradoans prohibited spring bear hunting. Hunted in thespring, a sow is taken and her cubs starve, a cruel and unfair hunt. The prohibi-tion was made by state referendum, with 70% of voters enforcing a ban on bearhunters.

Can and ought we enforce environmental ethics if this benefits nature overagainst humans? Some will immediately claim that this need not be ‘versus’; thatis too adversarial. What one seeks is humans ‘with’ nature, ‘in’ nature, humans‘caring for’ nature; or some more complementary and inclusive conjoining of thetwo. So let me hasten to state that one ought to legislate win-win solutions, wherethis is possible. But I remain to claim, with equal insistence, that just as typically,nature is sacrificed for human development; most development is of this kind.

In such conservation dilemmas – humanist ethicists may say – not all develop-ment is justified, but that which gets people fed seems basic and urgent. Thennature should lose. Surely that is just. James Sterba formulates this as ‘a principleof human preservation’. ‘Actions that are necessary for meeting one’s basic needsor the basic needs of other human beings are permissible even when they requireaggressing against the basic needs of individual animals and plants or even of

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whole species or ecosystems’ (Sterba, 2000: 34). On that principle, any lawsprotecting species, ecosystems, animals, or plants, when this thwarts meeting thebasic needs of humans, will be unjust.

Royal Chitwan National Park in Nepal is a primary sanctuary for Bengal tigersand the Asian rhinoceros, both extremely endangered. The region, in lowlandNepal, was too malarious to live in all-year round until the 1950s, then kept as ahunting preserve for the Rana rulers of Nepal in the dry season. Following amosquito eradication campaign, Nepalis began to move in. In 1973, to increaseprotection, the preserve was designated a national park.

Nepalis were surrounding it. The population of the Terai (lowland) region was36,000 in 1950; in less than a decade it was one million. With one of the highestbirthrates in the world, and with the influx continuing, the population in 1991was 8.6 million, 90% of them poor, 50% of them desperately poor (Nepal &Weber, 1993).

No one is allowed to live in the park. People are allowed to cut thatch grassesseveral days a year, and 30% of park income is given to Village DevelopmentCommittees. The Royal Nepalese Army, with 800 soldiers, is responsible forpreventing poaching, grazing, cutting grasses, pilfering timber, and permanenthabitation of the land. Enforcement is quite rigorous. In 1985,554 violations werefined and 1,306 cattle were impounded. In 1993 37 rhino poachers were appre-hended. The soldiers also do what they can to improve the lot of the people. Butbeing hungry is not a sufficient reason to sacrifice the park, and this is legallyenforced.

Again, my caveats. One needs to fix this problem by attacking its root socialcauses. But, alas, in a recent visit to Nepal, I did not find any answers in sight.Yes, there are other options in principle, and the destruction is unnecessary –logically, ideally, eventually. But, practically and now, no such options areviable for most of these nine million Nepalis. Unless civic law can protectnatural value, long before their needs are met, most of the biodiversity in Nepalwill be gone. Humans ought not always and everywhere dump their mistakes,mismanagements, and misfortunes onto jeopardised wildlife; and basic needsunmet is no unchallengeable exception. We might not make this argument forevery endangered beetle, but the lithe, supple cat, epitome of feline power, joinedwith the other charismatic species there, displays richness in value that oneought not to sacrifice for a temporary and ultimately futile solution to these deephuman problems.

Note1. Abridged from ‘Enforcing environmental ethics: civic law and natural value’, in James

P. Sterba (ed.) (2001) Social and Political Philosophy: Contemporary Perspectives (pp. 349–69), London: Routledge.

ReferencesHardin, G. (1968) The tragedy of the commons. Science 169, 1243–8.Nepal, S.K. and Weber, K.E. (1993) Struggle for Existence: Park-People Conflict in the Royal

Chitwan National Park, Nepal. Bangkok, Thailand: Asian Institute of Technology.Sterba, J.P. (2000) Three Challenges to Ethics. New York: Oxford University Press.

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