¹ In the majority of the world’s constitutions the environment is given express constitutional significance through various formulations of a right to a healthy and sustainable environment or through a governmental obligation to protect the environment. Although exact accounting differs by commentator, according to Tim Hayward, ‘around fifty’ nations’ constitutions contain environmental rights, and ‘more than a hundred countries have constitutional environmental provisions of some kind’: Hayward, T., Constitutional Environmental Rights (Oxford University Press, 2005), at pp. 3–4.Google Scholar

² See Thompson, B.H. Jr., ‘Environmental Policy and State Constitutions: The Potential Role of Substantive Guidance’ (1996) 27 Rutgers Law Journal, pp. 863–925Google Scholar, at 897 (noting that ‘[c]ourts actively have sought out legal justifications for avoiding environmental policymaking even in those states with strong environmental policy provisions that appear on their face to impose mandates or obligations on the legislature or directly on the regulated community’).

³ For examples of this earlier scholarship, see, respectively, Stone, C.D., ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review, pp. 450–87Google Scholar; Sax, J.L., ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1970) 68 Michigan Law Review, pp. 471–566Google Scholar; Brown Weiss, E., In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Transnational, 1989)Google Scholar; Kutner, L., ‘The Control and Prevention of Transnational Pollution: A Case for World Habeas Ecologicus’ (1977) 9 Lawyer of the Americas, pp. 257–81Google Scholar

⁴ Cf. Westbrook, D.A., ‘Liberal Environmental Jurisprudence’ (1994) 27 UC Davis Law Review, pp. 619–712Google Scholar, at 711 (‘To date, contemporary liberal ideology has tried to appropriate the essentially religious implications of the concept of nature as either personal preference, and hence of highly limited importance for politics, or as objective truth, certified by the new science, and hence profoundly alienated from individual experience’).

⁵ See Rose, C.M., ‘Environmental Law Grows Up (More or Less), and What Science Can Do to Help’ (2005) 9 Lewis & Clark Law Review, pp. 273–94Google Scholar (advocating continued reliance on science as the fundamental basis of environmental law); Tarlock, A.D., ‘Environmental Law: Ethics or Science?’ (1996) 7 Duke Environmental Law & Policy Forum, pp. 193–223Google Scholar (concluding that environmental law must remain science based); Wapner, P., ‘Environmental Ethics and Global Governance: Engaging the International Liberal Tradition’ (1997) 3 Global Governance, pp. 213–31Google Scholar (suggesting the reframing of international environmental concerns in the nationalist and individualist terms liberalism cognizes).

⁶ Thompson, B.H. Jr., ‘Constitutionalizing the Environment: The History and Future of Montana’s Environmental Provisions’ (2003) 64(1) Montana Law Review, pp. 57–98Google Scholar, at 187.

⁷ Ibid., at 198; see also Tarlock, A.D., ‘Is There a There There in Environmental Law?’ (2004) 19 Journal of Land Use & Environmental Law, pp. 213–53Google Scholar, at 223 (noting that ‘there is no longstanding social consensus about the central question of modern environmentalism – the ‘correct’ human stewardship relationship to the natural world’) (footnote omitted).

⁸ The Constitution of the Kingdom of Bhutan, Art. 5(3), available at: http://www.constitution.bt/TsaThrim%20Eng%20(A5).pdf.

⁹ See Stein, R., ‘Water Law in a Democratic South Africa: A Country Case Study Examining the Introduction of a Public Rights System’ (2005) 83 Texas Law Review, pp. 2167–83.Google Scholar

¹⁰ The situation is comparably dim at the supranational level: ‘While there appears to be a growing trend favoring a human right to a clean and healthy environment – involving the balancing of social, economic, health, and environmental factors – international bodies, nations, and states have yet to articulate a sufficiently clear legal test or framework so as to ensure consistent, protective application and enforcement of such a right’: Hill, B.E., Wolfson, S. & Targ, N., ‘Human Rights and the Environment: A Synopsis and Some Predictions’ (2004) 16 Georgetown International Environmental Law Review, pp. 359–402Google Scholar, at 361.

¹¹ Locke, J., Two Treatises of Government (1690) (reprint, Laslett, P. (ed.), Cambridge University Press, 1988), p. 291Google Scholar (stating that private ownership of land tends to the overall good so long as ‘there is enough, and as good left in common for others’). But see Waldron, J., ‘Enough and as Good Left for Others’ (1979) 29 The Philosophical Quarterly, pp. 319–28Google Scholar (offering a powerful argument that Locke intended the ‘enough, and as good’ proviso to establish a sufficient, but not a necessary, condition for legitimate appropriation of resources).

¹² See Daly, H.E., Beyond Growth: The Economics of Sustainable Development (Beacon Press, 1996), at p. 82.Google Scholar

¹³ To be sure, there are diverse and sophisticated versions of welfare economics that do not take the status quo baseline as normatively sacrosanct in this manner. Cf. Sen, A., Collective Choice and Social Welfare (Holden-Day, 1970), at p. 22Google Scholar (famously arguing that a society or an economy can be considered optimal from a narrow efficiency perspective yet ‘still be perfectly disgusting’). The critique in the text focuses on applications of welfare economics in US environmental law and policy debates, which almost exclusively rely on welfare assessment baselines and valuation techniques measurement techniques that do privilege the status quo.

¹⁴ See Daly, n. 12 above, at p. 82.

¹⁵ See n. 11 above.

¹⁶ See Kysar, D.A., ‘Sustainable Development and Private Global Governance’ (2005) 83 Texas Law Review, pp. 2109–66Google Scholar, at 2123–5.

¹⁷ Ibid., at pp. 2136–45.

¹⁸ Cf. Sax, J.L., ‘The Unfinished Agenda of Environmental Law’ (2008) 14 Hastings West-Northwest Journal of Environmental Law & Policy, pp. 1–11Google Scholar (‘It is a sobering thought that while virtually every other interest that we consider vital has been made the subject of enforceable legal rights, our heritage of biodiversity stands largely outside the framework of established jurisprudential theory’).

¹⁹ O’Neill, J., ‘Representing People, Representing Nature, Representing the World’ (2001) 19(4) Environment and Planning C: Government and Policy, pp. 483–500CrossRefGoogle Scholar, at 497 (‘Given the necessary absence of authorisation, accountability, and presence, claims to speak on behalf of non-humans and future generations relies on epistemic claims, coupled with care’).

²⁰ Tarlock, n. 7 above, at p. 224.

²¹ Sunstein, C.R., Worst-Case Scenarios (Harvard University Press, 2007), at p. 65.CrossRefGoogle Scholar

²² Cf. Slovic, P., ‘‘If I Look at the Mass I Will Never Act’: Psychic Numbing and Genocide’ (2007) 2(2) Judgment & Decision Making, pp. 79–95Google Scholar (describing psychological studies in which both positive affective sentiment and willingness to make donations to humanitarian causes were shown to decline when analytical thinking was primed through statistical information and through increasing the number of individuals benefitted).

²³ Ackerman, B., ‘The Living Constitution (2006 Oliver Wendell Holmes Lectures)’ (2007) 120 Harvard Law Review, pp. 1737–812Google Scholar, at 1793.

²⁴ Thompson, n. 2 above, at p. 898.

²⁵ See Ackerman, B.A., Social Justice in the Liberal State (Yale University Press, 1980), at pp. 93–5.Google Scholar

²⁶ See Kysar, n. 16 above, at p. 2128.

²⁷ Cf. Habermas, J., Between Naturalism and Religion (Polity Press, 2008), at p. 273Google Scholar (describing Rousseauean tradition in which ‘sovereignty branches internally into a communitarian understanding of the political freedom of the members of a national community and toward the outside into a collectivist understanding of the freedom of a nation that asserts its existence against other nations’).

²⁸ Agamben, G., The Open: Man and Animal (Kevin Attell, 2004), at pp. 76–7.Google Scholar

²⁹ Ibid.

³⁰ Ibid.

³¹ See Brady, D. & Palmeri, C., ‘The Pet Economy’, Business Week, 6 Aug. 2007, available at: http://www.businessweek.com/magazine/content/07_32/b4045001.htm?chan=search.Google Scholar

³² See Vlahos, J., ‘Pill-Popping Pets’, New York Times Magazine, 13 July 2008, available at: http://www.nytimes.com/2008/07/13/magazine/13pets-t.html?pagewanted=all.Google Scholar

³³ See generally Latour, B., We Have Never Been Modern (Catherine Porter, 1993).Google Scholar

³⁴ Klaus, V., ‘What is at Risk is not the Climate but Freedom’, Financial Times, 14 June 2007, at p. 9.Google ScholarPubMed