Tim Weiskel

Thank you very much, Femke Wijdekop, for your clear statement in “Against Ecocide: Legal Protection for Earth.” It has stimulated a lot of lively exchange, and it has raised a great number of good points of discussion. I would like to outline some key issues raised by the piece and then consider the inherent limits of using a legal framework for the understanding the functioning of Earth’s ecosystem and the proper role of humans within it.

I would like to start with some discussion of the origins of the term “ecocide.” Wijdekop indicates that it was coined by Arthur Galston in the 1960s. Actually, to students at Yale (like myself) active with Arthur Galston in the anti–Vietnam War movement at the time, it was clear to all of us (and to Arthur himself) that the notion was much older. In fact, the concept—if not the term—was firmly established in practice of nations and warring parties for several thousand years. The Romans had sown salt in the fields of the Carthaginians as an act of ecocide to ruin the agriculture of the whole region. In fact, the destruction of fields, crops, and forests was a well-known and frequently employed strategy of warfare throughout much of the inter-European wars and the more recent European overseas imperial conquests of the numerous waves of colonial conquest from the sixteenth century onwards.

In Arthur Galston’s case, particularly, it is worth noting that his development of the concept emerged in response to a more general academic response from many quarters to the appeal from Reverend William Sloane Coffin, Jr. (chaplain at Yale), who issued a famous letter “To the Faculty of Yale University.” The purpose of Reverend Coffin’s letter was to challenge the whole Yale faculty to consider the moral dimensions of their work as historians, political scientists, lab scientists (like Authur Galston), psychologists, etc., especially as it related to the conduct of America’s war in Vietnam and beyond.

In short, the response of Arthur Galston and many others to start examining the ecocidal dimensions of their research work emerged in a context of an explicit moral challenge from students and the courageous chaplain at Yale during the 1960s. It is worth noting that Yale was deeply divided at the time. The class of 1968 at Yale included George W. Bush, whose father, George H. W. Bush, had also been a Yale graduate. It was out of this context that the whole issue of “standing” came in to focus—particularly at the Yale Law School. ¹

The attempt at the time was very much in accord with Wijdekop’s statement that we try to restate human duties in an ecosystem: “This duty of care toward nature demands that human laws be harmonized with nature’s laws. To achieve this, we must act as ‘Earth guardians,’ giving voice and legal standing to nature’s rights and interests when crafting legislation and public policy.” The attempt to do this over the last half-century, however, has led to an awareness of the limits of legal language in dealing with the human role in Earth’s ecosystem. In effect, legal constructs are of little use in understanding or operating effectively in a functioning ecosystem over time.

The fundamental problem stems from trying to use “rights language” in the face of the fundamental energetic structure of the ecosystem. As we learn in elementary biology, in Earth’s ecosystem, there are distinct trophic levels. These are a fundamental feature of the system, and they form, essentially, the “non-negotiable principles” of how it functions.

There are, for example, autotrophs—organisms that are able to form nutritional organic substances from simple inorganic substances such as carbon dioxide in the presence of sunlight. On the other hand, there are allotrophs—organisms that obtain their energy from food taken from their environment. This is fundamental to the functioning of Earth’s ecosystem as a system, and the existence of both communities is required for the whole enterprise to persist. While autotrophs—that is, the photosynthesizers—exist in the system on the primary trophic level, all the other organisms live on a secondary or tertiary trophic levels, depending as they must upon the primary capture of solar energy in the tissues of the autotrophs for their own access to the energy needed to support their own life.

These fundamental givens of energy flow through the ecosystem and its myriad organisms have enormous implication for understanding the relationships between individuals, populations, and whole species within the system. In fact, it is right here where the breakdown of “rights language” is apparent. What can it mean in a functioning ecosystem to say that herbivores have “rights”? Or that carnivores have “rights”? Or that either of these communities have “rights” in relation to the primary producers—the photosynthesizers?

Humans do not photosynthesize. In fact, with the important exception of female breast milk, as a species we do not in any meaningful sense “produce food.” Plants produce whatever food we eat or they provide it for the herbivores and carnivores that we choose to eat.

If rights language were to be employed thoroughly in such a system, what “rights” do indigenous plant species have in the fact of any agriculture? Since agriculture is predicated upon “clearing the field” (i.e., eliminating competing species) and favoring a selected species of crop, have indigenous plant communities been violated for the last 12,000 to 15,000 years since humans have intervened in the differential reproduction of plants to favor their cultigens over all other species? Is this qualitatively different from the “ecocide” involved in the systematic application of “herbicides” which will kill anything growing except those species that have been genetically modified to resist the herbicide?

This is what is now practiced widely in the planting of GMO crops that are “Roundup-Ready.” Roundup is Monsanto’s bestselling glyphosate herbicide, and only “Roundup-Ready” GMOs can survive its field application. Should agricultural practices based on GMOs modified to survive the carcinogenic herbicides like glyposate be banned from all national and international use because they represent a conscious strategy of “ecocide?” Certainly there are many who feel that this should be the case, but they usually base their arguments on the carcinogenic impact of glyphosate on human populations—not on the strategy of intentional ecocide (that is, seeking to kill everything else that is living in the system that is not under the patent control of Monsanto).

Beyond the deliberate ecosystem assaults involved in petrochemical agriculture, what about certain types of transportation or home heating or electricity generation in “Northern countries” which emit CO2 on a scale that alters ecosystem functioning and provokes climate change on a scale that destroys ecosystems on islands in the Pacific Ocean?

In short, how can “rights language” have any meaning in the fundamental framework of a functioning ecosystem?

It can be seen—as the systems ecologists Howard and Eugene Odum pointed out long ago—that in a system of complex energy flow, the “rights” of any trophic level do not exist in an ecosystem in any meaningful sense. The only question is if an appropriate balance can be sustained to support a complex structure for the flow of energy through the system comprised of multiple trophic levels. In simple terms, those on the secondary and tertiary trophic levels in a system may “think” they have rights, but they can never be exercised for long if it is at the expense of the those organisms on the primary trophic level.²

In short, since humans cannot produce food, they had better pay attention to the needs of other organisms in the system that produce it for them. By maximizing their own “rights” at the expense of other organisms at more fundamental trophic levels in the system, all they will accomplish is their own more swift extinction.

The fundamental problem (as the Odum brothers pointed out decades ago) is that humans maximize for net return while nature maximizes for gross return. As a species, we operate at fundamental cross-purposes with the governing “laws” of Earth’s ecosystem. If we do not learn that, and learn to subordinate our notions of “rights” and “justice” to those which can operate sustainably within the Earth’s functioning ecosystem, we will become extinct. In fact, the more we think and act as if we are in charge, and that the system exists for our benefit, the more swiftly we will assure our departure as a species from this complex web of life. We perform no essential functions for the vast majority of Earth’s other species, save, perhaps, our own domesticates, parasites and commonly communicated microbial diseases which find us a convenient host. As I have argued elsewhere, “If we disappear it is probable that wheat, rice, cattle, camels and the common cold virus will not survive in their current forms for very long. But the vast majority of the earth's organisms can do perfectly well, indeed perhaps thrive even better, without us or our biological associates.” ³

This is a truism in biology. But it underscores the fundamental limitations of “legal language” in a complex ecosystem.

These difficulties are discussed at length in all serious academic programs on environmental ethics because they reveal the limitation of the current ethical thinking we are bringing to bear on the problems that industrial civilization is facing in the challenge to its survival. On an intergenerational level, of course, there have been several attempts to use legal language to reinforce notions of intergenerational equity as well as a clear resurgence in the assertion of the “rights” of “first peoples” around the world, many of whom are constructing some very inspirational global networks of solidarity across vastly different cultural traditions.⁴ And, on another level, there is a movement—now international in scope—to hold the fossil fuel–extracting corporations legally accountable for having despoiled both local and global ecosystems while they lied about it to their shareholders, all governments, the scientific community, and the public at large.⁵

All of these efforts are admirable. Yet they are not enough, and they can never be enough because they are all still premised on the “rights” of one group of humans vs. the “rights” of other groups of humans (perhaps “standing in” or “speaking for” wide varieties of non-human actors). In an advocacy-oriented legal system, there is no way in which the needs of a functioning system can “win.” Litigators my come to some conclusion—usually out of sheer fatigue—but this does not (because it cannot) serve to solve the problem of human limits on the secondary or tertiary level of a functioning ecosystem. The laws of nature and the laws of human contrivance are not the same because they function in different realms of reality. This has been understood by historians of the ecosystem for decades. So called human “development” goals are necessarily predicated upon disruption and destruction.⁶

Ongoing research on these topics is needed and fortunately is being undertaken now at many universities. In the meantime, we can do little more than listen to and repeat Mozart’s prayer so movingly expressed in the his eighteenth-century opera Così Fan Tutte —long before institutionalize corporate consumption began destroying our life support system: “May the winds blow gently, may the waters be tranquil, and may all of nature answer my prayers for your journey.”

1. Christopher Stone, See Should Trees Have Standing?:Toward Legal Rights for Natural Objects (Los Altos, CA: W. Kaufmann, 1974); Anna Grear, “Should Trees Have Standing: 40 Years On?” Journal of Human Rights and the Environment 3 (June 2012): 1.
2. See Howard Odum, Ecological and General Systems: An Introduction to Systems Ecology (Niwot, CO: University of Colorado, 1994); Eugene Odum, Fundamentals of Ecology (Philadelphia: Saunders, 1971); Betty Craige, Eugene Odum: Ecosystem Ecologist & Environmentalist (Athens: University of Georgia Press, 2001).
3. See Tim Weiskel, “‘While Angels Weep...’ Doing Theology on A Small Planet,” The Harvard Divinity Bulletin 19, no. 3 (Fall 1989).
4. For the former, see, for example, the work of Our Children’s Trust: http://www.ourchildrenstrust.org/. For the latter, see, for , the Equator Initiative of WIN (World Indigenous Network): https://www.equatorinitiative.org/.
5. See John Vidal, “World’s Largest Carbon Producers Face Landmark Human Rights Case,” Guardian, July 27, 2016, https://www.theguardian.com/environment/2016/jul/27/worlds-largest-carbon-producers-face-landmark-human-rights-case.
6. See Timothy Weiskel, “Agents of Empire: Steps Toward an Ecology of Imperialism,” Environmental Review, 11, no. 4 (Winter 1987): 273–288, www.ecoethics.net/Papers/Agents.pdf/.