The Ecological Constitution: Reframing Environmental Law.

• Author: Scott, Dayna Nadine

In The Ecological Constitution, Lynda Collins offers a concise and compelling case for a fundamental overhaul of the principles that underlie the Canadian Constitution. In fact, she sets out the necessary components of any constitution that could be considered "ecological" in nature--and therefore fit for guiding us through the Anthropocene era and beyond. The aim is to stimulate the transformation that will "align the highest form of domestic law with the non-negotiable laws of nature." (1) Professor Collins makes the case eloquently, dodging tempting theoretical distractions and outright refusing any moral ambivalence. The book should be celebrated not only for its clear vision, but also its view from above; its birds-eye, broad perspective. It is as if we, as readers, are perched on a high ridge surveying the legal landscape below, where the various new strands of thinking that are influencing environmental law--ecological law, rights of nature, and environmental rights--are seen as tributaries of a single river. Collins surveys the landscape from this high perch, asking: where do the strands converge and diverge? Which are dominant in which places, and why? Where and how do they gain or lose strength and force?

Drawing insights from environmental constitutionalism and the amorphous field of "ecological law," the book makes an elegant argument. An ecological constitution is one that codifies the following key principles: the principle of sustainability; intergenerational equity and the public trust doctrine; environmental human rights; rights of nature; the precautionary principle and non-regression; and climate protection through the recognition of planetary boundaries. The rationale for each of these six principles is presented as a generous, concise synthesis of current thinking; each chapter includes comparative examples from various national constitutions and a brief global survey of applicable caselaw. The analysis of the six principles feeds into Collins' main argument that we must constitutionalize environmental rights. And to make it, she stays at the high level of perspective, re-assuring us that the details can be worked out down on the ground. We must constitutionalize, according to Collins, by whatever means necessary: by amendment, by judicial interpretation, by enactment--by any and all of these means. As a vision, it is both bold and pragmatic.

The global perspective is a major strength of this work. It helps Collins to put emphasis on the point: our current constitutional arrangements are failing us. This is undeniably true. That constitutions should preserve the ecological foundations of society, is again, undeniably true. On these points the book makes a very compelling case; on the knottier dilemmas of what we should do to achieve the ecological constitution, or how we should constitutionalize, however, I come away from the book still puzzling over many of the same worries and questions that I had going into it. I am much better informed, and I am further convinced of the direction in which we must move, but I am still unsure about the exact route to take. In the best spirit of academic exchange, I unpack some of these worries here, aiming to contribute to the larger project I have in common with Professor Collins: achieving a radical transformation of environmental law.

WHAT IS NOT ALREADY ECOLOGICAL ABOUT ENVIRONMENTAL LAW?

Collins begins by emphasizing that "the ecological inadequacy of environmental law is written in its DNA." (2) Environmental law is embedded in "unsustainable, 'growth-insistent' economic systems that undermine its potential at every turn." (3) It is anthropocentric, fragmented, "aimed at facilitating the exploitation of commodified natural resources, rather than preserving the stability and resilience of natural systems." (4) As an example, Collins says that an ecological legal order would "regulate ecological realities rather than legal fictions," giving the example of pollution control. (5) Ecological pollution regulation, she goes on, requires "binding ambient standards" or legislated limits on the contaminant levels for air and water that account for the actual burden of emissions from all sources. In other words, we need to replace point source limits with binding ambient standards. We need attention to cumulative effects...