Allocating the Earth Allocating the Earth A Distributional Framework for Protecting Capabilities in Environmental Law and Policy Breena Holland Associate Professor, Lehigh University Political Science & the Environmental Initiative 1 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Breena Holland 2014 The moral rights of the author have been asserted First Edition published in 2014 Impression: 1 All rights reserved. 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Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. To Edith and Stephen Preface This book develops and applies a new theoretical framework for thinking and reasoning about the purpose, value, and social implications of environ- mental protection policies. I rely most heavily on a particular theory of social justice—the “capabilities approach” advanced by Martha Nussbaum—to pro- vide the framework’s guiding normative principle and basic conceptual logic. The capabilities approach has much in common with rights-based approaches to evaluating and designing policies because it treats individual-level politi- cal protections as constitutional guarantees owed to citizens living in lib- eral democratic societies. The individualistic focus has particular advantages for addressing the inequitable impacts that environmental policies pro- duce, such as those that expose people to different levels of environmental harm. The approach to designing and evaluating environmental policy that I develop treats a certain level of environmental quality as an entitlement to which each individual citizen has a basic political guarantee. However, I define this individual guarantee in terms of a person’s capabilities rather than a person’s rights. As a conception of individual well-being and advan- tage, people’s capabilities are preferable to rights, most simply, because the former defines a sphere of action that rights commonly protect, as well as the preconditions that make it possible for people to engage in specific forms of protected action. By extending the account of what is worthy of political pro- tection to include these enabling conditions I hope to advance an evaluative framework that clarifies and reveals the vital role the natural environment plays in a meaningful and flourishing human life, and therefore to affirm environmental quality as a matter of basic political protection. Environmental policy gives rise to many different kinds of questions. Those that motivate the present project concern issues of valuation, justifica- tion, and participation. How should we value the natural environment when we assess the social value of policies that protect it? On what the oretical and philosophical basis should we seek to justify environmental protection? What role should citizens, experts, and various other stakeholders play in environmental policy decisions? Because my intent is to bring a particu- lar theoretical approach to justice to bear on answering these questions, this book is an exercise of applied political theory. I set the stage for this vii Preface exercise by first introducing the contemporary environmental policy context (Chapter 1), the problems that give rise to questions of valuation, justifica- tion, and participation (Chapter 1 and Chapter 2), and the primary aims and innovations of the relevant literature on human capabilities (Chapter 3). Readers who are familiar with current practices and trends in environmental policy, such as stakeholder collaboration and citizen participation, and the use of economic analysis to assess environmental policies, may wish to skip or skim through Chapter 1 and Chapter 2, which review the problems and questions to which these trends and practices in environmental policy give rise. Likewise, readers who are familiar with the rapidly growing literature on human capabilities may wish to skip or skim through Chapter 3, where I introduce this literature—capabilities theory—as providing both a theory of well-being and the theory of justice and discuss why the theories are rele- vant to questions of valuation, justification, and participation in environ- mental policy. It was many years ago, when I was a doctoral student at the University of Chicago, that I first began thinking about the relationship between people’s capabilities and the natural environment. Since then, I have continually found the broad conception of well-being that capabilities theory offers to be productive in illuminating the unseen or unacknowledged impacts that environmental problems have on different people. While environmental degradation is increasingly recognized as bad for the planet as a whole, its impact on different people varies widely and is often difficult to measure in ways that link the actions of different people. Yet our ecological con- nectedness to each other is significant and inescapable—its importance has sustained my interest in developing a general framework for thinking and reasoning about the role of environmental relationships in making people capable of doing and achieving things that make their lives meaningful and good. Thus, while this book has a theoretical orientation, it is inspired by the very practical problem, which is that the laws providing protection from environmental harms and access to environmental benefits do not serve all citizens equally. Some people have an easier time avoiding environmental problems, and others have an easier time accessing environmental benefits. If the environment’s value were a purely subjective matter, and if the envi- ronment contributed to people’s lives in relatively similar ways, then these varying impacts might be less problematic. But environmental relationships are highly varied and some of them are objectively good for us regardless of what any person subjectively values. In proposing a framework for designing and evaluating environmental policies that can address inequities resulting from the complexity and sig- nificance of environmental relationships, this manuscript draws heavily on theoretical ideas, but it also reasons through the practical application of these viii Preface ideas to address questions of value, justice, and participation that arise in the context of environmental policy decisions. Scholarship like this, which endeavors to work back and forth between theory and practice, runs the risk of pleasing neither theoreticians nor practitioners. I have been aware of this problem from the start and settled on the goal of saying enough to convince both audiences that advancing this work in either direction is a worthwhile task. Many people have helped me in this endeavor. I cannot thank them all here, but wish to express my gratitude to those who played a significant role in helping me to complete the present project. First, I wish to thank Jeremy Bendik-Keymer for first proposing that I write on the topic of human capabilities when we were both taking Martha Nussbaum’s graduate course on Neo-Aristotelian political thought at the University of Chicago. Jeremy not only helped me conceptualize the project, he also offered critical feedback on nearly every chapter that evolved into a dissertation and then a book manuscript. Jeremy’s passion for philosophical thinking and intellectual capacity can be inspiring and consuming; I am cer- tain it sustained me through many moments of academic doubt. He has been an ongoing source of rigorous thinking, creativity, and passion for learning, from which I have benefitted in more ways than I can convey. Second, I wish to thank my dissertation committee at the University of Chicago, which was chaired by the late Iris Marion Young. In addition to providing continual commentary and review, Iris played an important role in orienting my initial doctoral project to fit within the context of a larger research agenda that made it possible for me to continue working on the ideas long after completing the dissertation. I miss experiencing the imme- diacy and strength of her personality and ideas, but am so grateful to have had the chance to know her and the significant body of work she left with us. Martha Nussbaum’s guidance has also been crucial to this project. Her capac- ity for absorbing information about environmental issues as yet another area of knowledge continues to astound and inspire me. I am lucky to have had her help in navigating the broad literature that has emerged on capabilities. I have always insisted that her work in this literature has particular advan- tages for questions that interest me in environmental policy, but I appreciate her patience with my speed and inelegance in demonstrating why. She has been a thoughtful and crucial source of advice throughout the drafting of this manuscript and the professional life I tried to balance while writing it. Cass Sunstein and Leigh Raymond also played crucial roles in my effort to apply capabilities theory to environmental policy. Leigh provided significant policy expertise combined with a genuine interest in normative political the- ory, which gave me confidence and direction in developing the ideas and bringing them down to the level of application. Cass’s overall confidence in the project and his remarkable capacity to reorient and reframe my thinking ix