We have been kind of quiet here at brazenandtenured. Maybe it’s better that way. A friend of mine once disclosed that his goal as a professor was to write as little as possible as well as possible. Most of the world, and especially the professoriate, is going the other way. Prose–good, bad, and indifferent–flies at us from all directions. So maybe our recent silence has been a welcome counterbalance. If so, then I apologize for starting back up.

I couldn’t resist because it appears that a term that I have been using for a few years now in my writing (including in a chapter in an edited volume published by Cambridge University Press) has taken off (not at all because of me, I should add.) The term is the Anthropocene, coined by Eugene Stoermer and Paul Crutzen. It stands for the era of ubiquitous human influence on the planet. Climate change is the number one example, and all the more so now that the world’s leading scientists have prescribed a carbon budget for the planet, which we are likely to exceed in the coming decades. But there are several other indicators as well. We humans and our marks are everywhere. What does this mean? Should it change the way we think about our obligations to one another, other species, and future generations?

I am now immersed in working on a book on these questions, which fold in many others, including more than a few legal ones.  Here is an excerpt from the preface and introduction. (All the usual copyright protections apply.)

Parenting the Planet DRAFT

Preface

Like more than half of the people in the world, I did not grow up in a pastoral, rural, or remotely wild setting.  Englewood, New Jersey, where I was raised, is one of hundreds of tightly clustered suburban towns that fan out from New York City. To provide one highly idiosyncratic measure of the region’s density, from the front door of my childhood home, I could do several different eight to ten mile runs that took me through at least three other towns. The closest thing to a trail run was the route that my high school track coach called the Manhattan Touch, which went up the hill to Englewood Cliffs, through the trash-strewn strip of trees on the Palisades overlooking the Hudson River (I think this was some kind of park or protected space), into Fort Lee, across the George Washington Bridge, and then reversed course back home. For me and my tri-state peers, the night sky had just a handful of stars. Wild animals lived in zoos. Food came in packages, often in the form of miraculous powders that became pudding, coffee, or Kool Aid.

By the time I became aware of the awesome beauty and complexity of non-human nature, it had just been pronounced dead.  I was 23 when Bill McKibben wrote the End of Nature, an early assessment of climate change and its ubiquitous influence on planetary systems. Missing out on the good times, the peak, the in-thing, is endemic to my generation. We were born in the sixties, but came of age during the eighties, the decade of yuppies and conspicuous consumption.  For labeling purposes, we warranted only an X. You would think we would be used to it, this business of being always too late.  But barely missing out on nature? That’s pretty harsh, even for the generation weaned on rap, disco, and punk. Of course I didn’t realize I had missed it until much later. Little did I suspect that as I learned to love sleeping under a glittering night sky, scrambling through obscure canyons, and walking for days without seeing asphalt, I was falling in love with a zombie: Nature, the Walking Dead. By the time I got the news, I was already smitten.  As a result, in part this book is about how to stay in love with a damaged planet. My generation and the ones after, having only had the opportunity to get to know the Earth in its compromised state, may be best situated to figure out how to move forward, soberly yet playfully, without doomed illusions of restoring the past.

There is more to it than that though. Another effect of being embarrassingly oblivious to the environment (a word that stands in for nothing less than “the physical world that sustains us”) throughout my alienated suburban youth was that I came to know nature after I came to know politics. The great discussions in my household and social circles were about civil rights, poverty, and injustices of race, class, and gender.  The issues that motivated me to become a lawyer and then to pursue a career in legal services for low-income clients were steeped in the political, legal, and social structures that caused and perpetuated inequality and injustice among human communities. For a long time, even as I became increasingly green in my personal life, including in terms of causes I supported and individual actions I took, I could not quite marry the environmentalist with the lawyer/activist. Surely my immaturity and naiveté prompted my reactions at the time, which were that environmental law was a somewhat a-political, highly technical field that did a lot of important things, but was the province of earnest hikers, the kids who joined the outdoor activity club in college instead of the protests against apartheid.

Then I lived on the Navajo Nation and witnessed two phenomena up close.  The first was the intimate, deep, and genuine connection that Navajo and Hopi people had to their lands and waters, notwithstanding that their homelands could hardly be described as pristine or untouched.  The second was the myriad ways in which laws, policies, and cultural forces aimed, in the present and for centuries before, to sever that connection. From those experiences, a way of understanding how to connect the dots between social injustice, racial subordination, and environmentalism emerged.  There is no formula for it.  The dots, even when connected, do not create a template, a grid, or a table.  At best, they illuminate patterns, beneath which lie very complicated strata of human and natural history.  The key, however, is a very simple insight.  There is no nature free of human politics. This is a very different observation from Mckibben’s, though the two can live together.  To recognize that, as a physical matter, we have influenced the course of natural phenomena everywhere on Earth is different from concluding that we have always interacted with and ordered our relations with nature according to politics.  To highlight the difference, before or during the early stages of the industrial revolution, at least some parts of the planet (deep oceans, the atmosphere, some far flung patches of tundra and rain forest, etc.) had not been permanently altered by human activity. Yet even then, human access to, understanding of, and use of nature’s physical resources (the ones we could and did reach) were mediated through power, law, and culture. A couple of well-known examples should illuminate the point. The “frontier” that was so famously pronounced to be closed in 1890 by Frederick Jackson Turner only existed because the intertwined forces of law, culture and military might created it in the first place.  The western United States was not a terra nullius—a vast empty space—when the first non-indigenous explorers, trappers, and miners stumbled on it.  It became one because of their individual and collective interests, and the pervasive presence of indigenous peoples was rendered invisible by law and violence.  Similarly, two of our earliest and most famous National Parks, Yellowstone and Yosemite, were withdrawn from “settlement” (meaning from homesteading by non-Indians) to protect their natural aesthetic qualities, notwithstanding that indigenous peoples occupied and used both areas regularly. The Yosemite people were forcibly removed from Yosemite Valley, and the Shoshone, Bannock, Sheepeater and Crow from Yellowstone. As historian Mark David Spence put it, “uninhabited wilderness had to be created before it could be preserved.” In other words, even before human actions irreversibly altered the physical course of the planet, our interactions with non-human nature took place in a space mediated and constructed by us rather than by purely physical or scientific criteria. Physical nature may still have existed separate from human influence, but what we described and valued as “natural” was constructed by law, politics, and culture.

Many prominent scholars, William Cronon foremost among them, have long made this point about the political and social construction of nature and wilderness. For a time, some saw it as an argument that threatened the more objective (i.e. scientific) bases for protecting non-human nature, and therefore tried to distinguish or marginalize its import. But today, now that the End of Nature has met the Construction of Nature, perhaps there is more room to see that science, while crucial to the effort to understand, enact, and often guide our values, does not constitute them in the first place.  We may love and want to protect Yosemite, the Mojave, and the Alaska National Wildlife Refuge today in large part because of their ecology, but their ecology did not automatically dictate their protected status.  (If it worked that way, many more places would have the same protected status.) Nature cannot command us to protect it; it has always been just us humans making the commands.  To pretend otherwise only obscures the rocky political and social path that leads to legally protected designations.

So this book, in addition to being about how and why to love a damaged planet, describes how our efforts to protect (or exploit) non-human nature have always taken place within the contested world of politics and power. In a world indelibly altered by human activities, the recognition that we have always constructed the meaning of nature can become liberating instead of straitjacketing.  Given that it is up to us, why not continue to try to save the pika, the polar bear, and even the braken bat cave meshweaver (an obscure species of blind spider)? There are many reasons to do so, including but not limited to scientific ones.  If nature did not command us to preserve these non-human life forms in the first place, the end of nature is not a reason for us to stop trying.  Seeing that ideas about nature derive from ideas about politics and culture also provides all the more reason to marry questions about how to treat each other with how to treat the environment. The dualism that haunts western thinking about nature and the environment has long masked the ways that access to natural resources, whether to exploit or preserve them, has perpetuated (and sometimes also caused or at least exacerbated) existing inequalities within human communities.  As long as nature, this thing other than us, seemed to command us to do certain things (whether exploit or preserve it) we could avoid seeing that these questions arise always in the context of larger webs of political and social ordering. Now that Nature is Us, perhaps we can see that we approach these questions, and have always done so, within existing political and cultural structures and frameworks. We can therefore approach questions about how to create a sustainable world in ways that weave political and social goals together with ecological ones from the outset. We can engage in acts of promoting democracy, freedom, anti-subordination, and human flourishing simultaneous to protecting and nurturing the non-human world that sustains us, instead of treating either set of goals as after-thoughts or appendages to the other. This does not mean, of course, that we will choose this path, or even if we do that we will succeed.  But given what’s at stake, which is nothing less than all of our intertwined fates as creatures on a shared planet, a vision of vibrant, democratic, free, egalitarian, and ecologically sustainable communities is worth aiming for, even if it’s always just beyond our grasp. And in aiming for it, we will be more likely to create the worlds, damaged though they will be, that we would like to inhabit. These, at least, are the paradoxically utopian and tragic thoughts of this Gen-Xer from New Jersey, raised in the shadow of New York City, come of age in the West and on the Navajo Nation’s high desert plateau, now writing from the foothills of the Rocky Mountains in the midst of a changing human/natural landscape.

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Introduction (excerpt)

Since the first trip to the moon, we have seen images of planet Earth as a big blue marble, something any child could hold in one hand. The image is often invoked to instill a sense of our obligations to our single and shared home.  Today, the marble metaphor might also evoke a more worrisome thought: the Earth is under our thumb. Global warming is the latest example of how human activity has reached every nook and cranny of the earth’s natural systems, but it is not the only one.  The effects on the ozone layer, the collapse of fisheries throughout the world, and the accelerated species extinction rate, among many other phenomena, indicate the planetary scope of human impacts.   As Nobel prize winner Paul Crutzen has put it, we have entered the “Anthropocene,” the era of ubiquitous human influence on the earth’s geological systems. Physicist Robert Socolow similarly has suggested that today we might think of ourselves as “planetarians,” due to our wide ranging impacts.

This stage, the Anthropocene, the Planetarian, or whatever label we choose to apply, provides the occasion to reconsider our relationship with the natural world.  Just as importantly, it provides the occasion to dwell on what it means to be human and whether our capacities for moral thought and action can match our physical imprint. While there is a desperate need for sophisticated technological and legal solutions to address climate change and other global environmental challenges, ultimately our decisions will reflect our moral and ethical commitments to other humans and to the natural world, even if they will not reflect them perfectly.  Our decisions will mirror our ideas about what matters, what constitutes a good and meaningful life more than they will enable humanity to restore, preserve, or conserve (insert any number of environmental verbs here) nature as it was. This is so for two reasons.  First, our ideas about nature have always been a reflection of our ideas about society and culture, even when vast parts of the planet remained relatively unaffected by human actions.  Second, now that we are in the Anthropocene, the physical aspects of nature are and will continue to be profoundly affected by human activity regardless of the choices we make to manage, protect, regulate, or do nothing.

We should think hard about this double-whammy of “it’s all about and dependent on us.” Doing so will not lead us inexorably to shared conclusions about what actions to take any more than the image of the Earth as a blue marble automatically evokes feelings of global responsibility. To the contrary, realizing that we are the adults in charge may only sharpen the differences among us about which values should guide our decisions and actions. If nothing else, however, a fleeting glance at the awesome responsibilities of the Anthropocene may unsettle us into seeing our values clearly, reflecting on them for a moment, and, for some, jostling the recognition that the sum total of a life is nothing more or less than the effort to live in accordance with those values.

This book attempts to take that fleeting glance. It explores examples of human communities attempting to implement moral, ethical and legal commitments that reflect concern for social justice, other species, natural systems, and future generations in contexts that highlight the unavoidable challenges of the Anthropocene.  A recurring theme is that conventional notions of progress are not sufficient to evaluate whether these efforts are worthwhile.  This may sound utterly counter-intuitive.  Since the industrial revolution, progress has gone hand-in-hand with technological innovation.  For roughly the past forty years (dating from the early 1970’s, when many of the United States’ major federal environmental laws were passed), technology has, in significant measure, also allowed us to rein in some of the negative environmental consequences of industrialization.  The western developed world made substantial progress towards addressing, for example, air and water pollution through a mix of regulation and technology.  Even in less obviously technology-dominant areas such as species preservation, the combination of scientific knowledge and human ingenuity resulted in important conservation victories, such as bringing the Bald Eagle, the California Condor and other less telegenic species back from the brink of extinction.  The goals and measures of environmental law have been oriented, quite understandably, toward success that is quantifiable.

More recently, technological frames of thought, including welfare economics, market liberalism, and other rationalist/individualist approaches, have monopolized politics and decision-making in much of the western developed world. These frames have in common an outlook of perpetual economic growth that is dependent on unstated assumptions about boundless resources and/or our technological capacity to overcome any resource limitations. They also tend to instantiate a highly refined type of utilitarian calculation, often in the form of cost-benefit analysis, as their method. This has taken the notion of quantification as the measure of progress to a whole new level.   The idea is that if we reduce everything in the world that has (or detracts from) value to a fungible measure, we can calculate our way to optimal decisions, environmental and otherwise. We thereby avoid messy and contested discussions about which core values should form the bases for our actions, and instead simply run the numbers and await the optimal and efficient operating instructions.

Other writers have skillfully parried assumptions about boundless resources and cost benefit methodology. Doug Kysar in particular has challenged the concept of a value-free starting point for implementing these forms of utilitarianism. This book relies on these important contributions for its inquiry, which involves exploring a conception of how we relate to the planet, its human and non-human constituents, in ways that might supplant the dominant frames with a timelier and yet also enduring vision of ourselves and our obligations. The starting point is not value-free. There is a core normative assumption, and it is simple: we should take care of where we live. The human capabilities that accompany that assumption immediately render it more complicated, however. As human beings, we have the intellectual capacity to understand that “where we live” is both very nearby, and at the same time expands across space and time. In the Anthropocene, we live locally, yet our effects are planetary and enduring. Taking care of where we live therefore includes connecting our daily actions to their planetary effects. Yet it also implies that how we live with one another is just as important as the end goal of a healthy and sustainable planet, in no small part because we may not achieve the planetary goal, and at any rate will certainly not know in our lifetimes whether we will or not. To foster the norm of taking care of where we live in the Anthropocene, we need political institutions and legal arrangements that connect local and egalitarian resource governance with the planetary scale of environmental challenges.

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