It is also the breath, along with water and thought, that connects all living things in direct relationship. The interrelationship of water, thought (wind), and breath personifies the elemental relationship emanating from "that place that the Indians talk about," that place of the Center where all things are created. (1)
And God said, "Let the water under the sky be gathered to one place, and let the dry ground appear." And it was so. God called the dry ground "land," and the gathered waters he called "seas." And God saw that it was good. (2)
TABLE OF CONTENTS I. Introduction II. The Human Relationship with Land and Nature A. An Overview of Current Legal Views and Theories 1. The Human Relationship to Land and Other Resources 2. Substantive "Environmental" Rights 3. Procedural "Environmental" Rights B. Religious Views and Their Influence on Clean Water Laws 1. Buddhism 2. Hinduism 3. Indigenous Spirituality 4. Islam 5. Judeo-Christian Outlook III. How Religion Informs U.S. Clean Water Legislation A. Introduction B. Effluent Limitations and Best Available Technology C. Water Quality Standards D. Nonpoint Sources IV. Conclusion
Religion could help save the ecology of our planet. Religious values are core to many people in this world (3) and we must speak to this core to realize the radical ethical changes required to save our planet. (4) Laws designed to prevent environmental degradation must be crafted and implemented with recognition that, in the face of scientific uncertainty, religious values play an important role alongside the traditional cost-benefit analysis, typically claimed to constitute rational decision-making, (5) In this article, we have chosen to examine the religious path to an environmental ethic in order to offer "a framework that raises ethical issues and expects ethical conduct. (6) We hope that religious principles will serve as a "stepping stone" in bridging the gap between human-centered utilitarianism (7) and the environmental moralist approach. (8)
Scientific uncertainty exists in many environmental decisions. (9) Therefore, value choices must be made in the absence of known future consequences. (10) Religious values, as well as other values informing policy decisions in the face of uncertainty, should be acknowledged so that they may be debated openly and honestly. (11) Indeed, like other religious activism in the United States that led to political movements such as abolition, the ban on the sale of alcohol, and the civil rights movement, the "environmental movement today continues to draw much of its strength from a religious inspiration." (12) Nevertheless, sometimes religious values and ideals are suppressed in public discourse about environmental law and policy choices because "many Americans are nervous about mixing religion and government." (13)
Deep concerns about environmental degradation in the modern world did not come to the general public debate until attention to the influential writings of Aldo Leopold, (14) John Muir, (15) and Rachel Carson (16) converged in the 1960s and resulted in a flurry of environmental legislation in the 1970s. (17) In addition to providing a rallying call for environmental preservation through legal action, these writings and others provided the foundation for environmental ethics as a new discipline. (18) Professor Eric T. Freyfogle, a major legal scholar in this new discipline, wrote in 1990 that this "field hardly crystallized in 1970 is today rich and vibrant" (19) and he quoted the leading Leopold scholar, J. Baird Callicott, who described this diverse field as "includ[ing] articles by and in criticism of animal liberationists, biocentrists, deep ecologists, strong anthropocentrists, weak anthropocentrists, nonanthropocentric holists, neo-pragmatists, ecofeminists, process philosophers and theologians, Taoists, Zen Buddhists, Christian apologists, Muslim apologists, natural and unnatural Jews." (20)
Environmental ethics as a discipline seeks to define and incorporate ethical values into the human response to environmental issues. Aldo Leopold's land ethic, as expressed in his essays in A Sand County Almanac, (21) is probably the most famous and most referenced view of an environmental ethic. According to Leopold, a land ethic "reflects the existence of an ecological conscience, and this in turn reflects a conviction of individual responsibility for the health of the land." (22) "In short, [Leopold's] land ethic changes the role of Homo sapiens from conqueror of the land-community to plain member and citizen of it. It implies respect for his fellow-members, and also respect for the community as such." (23) As Professor Freyfogle noted, "Leopold spoke to the reader as an individual and challenged the reader to develop an ethical attitude toward the land." (24) Developing such a change of heart requires that we look beyond science or economics to the individual minds and souls of people. (25) Leopold was not a preacher, but instead recognized the evolutionary nature of this spiritual path and attempted to shepherd his readers to find their own ways to an ethical relationship with nature. (26)
This article contends that religious values from diverse world religions can inform policy choices in domestic and international regulatory schemes protecting air, water, and land resources. (27) These values may speak more universally by incorporating stories, such as Noah's ark, from major world religions. (28) By bringing more stories from our global religious heritage to inform our policy decisions, we may be able to "achieve a viable and satisfying human relationship with nature" (29) that can provide for human needs while ensuring those who so provide remain good shepherds of environmental resources.
We examine the major world religions (30) and indigenous spiritualism (31) in an effort to discover how religious views of the human relationship with nature influence our environmental laws. (32) Because culture "produces particular viewpoints, politics, and debates," (33) and world religions produce or influence culture, we must understand how religious values have affected cultural views toward the environment in order to engage in meaningful environmental discourse. (34) Unless we understand this relationship, we will not be able to design successful regulatory models of clean water law to address both domestic and international environmental problems. (35) Ideally, we would find a universal religious view toward the environment (36) that will prevent or slow degradation, but at the very least, we can recognize how religious differences might inhibit a universal approach to environmentalism. (37)
In Section II, we first examine the current legal views about the human relationship to the environment. (38) Legal views impacting this relationship include the definition of property, (39) the constitutional basis for environmental rights, (40) and other legal theories such as standing and regulatory approaches. (41) Laws reinforce values and "people seek to have law endorse their values [because] they want others to share those values." (42) In addition, "[e]nvironmental policy is the product of the combined influences of environmental ethics, science, and economics." (43) Therefore, Section II also describes in more detail how world religions view the human relationship to the environment. Since the "law may be useful in strengthening weakly held values, or in pushing the undecided toward one of a pair of closely contested values," (44) it is critical that we identify a cohesive environmental values framework. (45)
In Section III, religious values will be incorporated practically into a regulatory structure as we examine the impact of religious values on clean water laws. (46) We chose clean water laws because of the countless spiritual references to and ceremonial uses of water, and because clean water is an issue that directly impacts all peoples regardless of whether they live in a country that is urban or agrarian, developed or undeveloped. (47) Water quality is impacted not just by the actions of big business or natural forces such as storms and floods, but by the cumulative acts of individuals contributing to nonpoint source pollution "more or less in every aspect of our lives." (48) And, these polluting acts can impact across borders and cultures. This pervasive impact requires us to have a more universalist approach to environmental ethics, which nevertheless still speaks to individual values and religious beliefs. (49)
We conclude the article by advocating that religious values from the world religions be used as a rich, diverse, and proven value framework to enable the relationship between humans and nature to thrive both physically and spiritually, rather than wither by operating at cross-purposes. (50) This proposal is not radical. Many of our existing laws were based on religious values and, in addition, those laws have stood the test of time. For example, criminal liability for homicide was developed during the middle ages based on the religious concept of moral agency. (51) Perhaps if our environmental laws could be designed and implemented with a greater acceptance of religious values in the public debate, they might be less susceptible to constant challenge. (52)
II. THE HUMAN RELATIONSHIP WITH LAND AND NATURE
Since the beginning of our existence, human beings have struggled to understand our relationship to the earth and nature. This struggle produced theological interpretations, mythologies, and religious awakenings as we began to give shape to this relationship. (53) Religious laws and secular laws defined this relationship in culturally diverse terms and understandings. Without a lucid and universally acceptable understanding of the human relationship to the natural and physical environment, we cannot hope to achieve global environmental policies to prevent the global and cross-cultural occurrence of increasing degradation and loss of our natural resources. (54)
In this Section, we will begin with an overview of the current legal views and theories concerning: 1) the human relationship to land and other resources; 2) substantive environmental rights; 3) procedural environmental rights; and 4) regulatory approach choices such as "command and control" and economic incentives. After painting the legal landscape, we will briefly discuss the foremost secular environmental ethic views and show how many of these views have been influenced by religious values. We will conclude with an overview of major world religious views toward the environment and examine whether they can be integrated with, or bolstered by, secular environmental ethic views to provide a foundation and framework for effective and sustaining environmental laws. This exploration highlights the Judeo-Christian context of United States environmental laws and whether those laws could be successfully adopted in a different religious context.
A. An Overview of Current Legal Views and Theories
1. The Human Relationship to Land and Other Resources The definition of property is a key to understanding how a particular culture views the human relationship to the earth and nature's bounty. (55) Concepts of property and ownership govern how legal relations are ordered, and defining the human relationship toward nature is critical in designing effective environmental laws. For example, even though we are in an age of wilderness scarcity instead of wilderness abundance, some have said that our modern property laws encourage wilderness destruction based on doctrines developed from English law and nineteenth century United States law, which preferred destruction to preservation. (56)
"'Property' is not a preordained or contextual concept--it is a socially constructed concept, with all of the flux and change which that involves." (57) There are a variety of theories about property. A common legal understanding of property in the United States is that property is the relationship among people as to things. (58) This definition emphasizes the anthropocentric view of property and focuses on how people relate to each other in regards to a resource rather than how people relate to the resource itself. "Westerners in particular tend to see the environment as separate from themselves, and to see their moral or ethical responsibilities primarily in terms of their relationships with other people." (59)
The "expectation" theory of property is also based on a human utility model because "[a]s Jeremy Bentham phrased it, '[p]roperty is nothing but a basis of expectation; the expectation of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand towards it.'" (60) However, at least Bentham acknowledged a relationship between people and the resource. Finally, John Locke's anthropocentric labor theory of property was derived from the view that "every man has a property in his own person" (61) and this view assumed "that the only value of a natural resource was its potential to support a property right." (62)
New definitions of property have been proposed by various scholars, but most of these continue to be bound to an anthropocentric vision. (63) Professor Margaret Radin proposed a property theory which views property as part of personhood and "connects ownership with central ideological commitments of liberal thought, particularly with notions of freedom and individualism." (64) She described two types of property relationships--personal (or constitutive) and fungible. (65) Some new proposals for defining property have moved away from what might be viewed as a selfish focus on humans to a view which incorporates values extending beyond human relationships to environmental connections. (66) This nature-oriented property theory recognizes that "[h]umans are part of the ecological community, and therefore have duties to nature or duties to the land--a land ethic." (67) Professor Craig "Tony" Arnold bases his "web of interests" property concept in part on the idea that property involves not only rights, but also duties, including duties to God. (68) His metaphor recognizes the two essential environmental principles: "(1) the interconnectedness of people and their physical environment and (2) the importance of the unique characteristics of each object." (69) Aldo Leopold believed that environmental ethics were needed in the human relationship to nature and that it was certainly a human impulse "to grant moral worth to all members of our community," (70) which, for Leopold, included natural, non-human "members."
Our current understanding of the relationship between property ownership and the environment is that "[p]roperty is about things that are under our control" while the "word 'environment' in ordinary language often designates something that is not under anyone's control at all, something that is a given." (71) Self-interest is an important part of the property ownership norms, but "[t]he rhetoric of property can easily encompass appeals to thrift and carefulness, attentiveness to overuse, and maintenance of a common stock." (72) By incorporating community norms and spiritual values into our understanding of property and our relationship to nature, we can overcome, to some extent, our current anthropocentric property ethic and, alternatively, encourage a belief "that the resources of the great commons are not simply 'givens' that can be completely tamed and turned to our pleasure." (73) Viewed as a golden rule ethic, "do not do unto others what is hateful to you," we could establish a more effective relationship with our environment. (74)
Deep-rooted and spiritually-based ethical concerns about nature may allow a return to using community norms to prevent degradation of common rights such as clean water. (75) As our traditional definition of property is being challenged to take into account ecological and environmental concerns, there is also a "much wider trend in the law that challenges the very notion of private property rights in natural resources." (76) The concept of private property ownership has been reexamined in the last few decades as shrinking resources and environmental degradation generate public demand for collective action. (77) Environmental values, rather than private or even public ownership, may prevent a "tragedy of the commons" (78) more effectively in our world environment. (79)
2. Substantive "Environmental" Rights
One of the ways in which "environmental" rights, or the public right to an environment which can continue to sustain it, might be protected at a higher level is to incorporate these rights into state, federal, or national constitutions. (80) Over half of the states in the United States and several countries have used this approach to encourage fundamental changes in the way citizens view their relationship with nature and to slow or prevent further environmental degradation. (81) Environmental values recognized in these constitutions "can be defined to include respect for the intrinsic value of nature." (82) By granting constitutional status to public-environmental rights, governments hope to send a powerful message that economic welfare, individual liberties, and environmental rights are to be fairly balanced in legal and policy decision-making.
Adopting a constitutional-rights approach to environmental law may result in forcing values, since such an effort "demands that we recognize and acknowledge the values at stake in our environmental decisions." (83) However, because this constitutional approach emanates from the legislature at the People's behest, there is no more danger from "forcing" these values than there is from forcing other "values" that are constitutionally enshrined. By recognizing that these environmental values inform our decision-making, we can act on concerns about ethical responsibilities toward nature and future generations, since constitutional rights reflect fundamental societal values. (84) In addition to structuring the way people relate to each other and to the physical and biological environment, the law reinforces values endorsed by society among both current and succeeding generations. (85) Therefore, it should be possible to use changes in the law for the "purpose of improving societal values with respect to the environment." (86) This value-forcing strategy could help modify people's behavior by showing them that irresponsible actions towards the environment are inconsistent with their own views of moral responsibility. (87)
3. Procedural "Environmental" Rights
Environmental ethics have also influenced the legal rules on who or what has standing to assert a cause of action in court. The landmark case for environmental standing, Sierra Club v. Morton, (88) restricted standing to only those people who have been directly injured as a result of actual or threatened environmental degradation, and held that humans have rights that others do not have when considering the standing issue. (89) Justice Douglas, in his famous dissent, argued that environmental objects should be granted standing "to sue for their own preservation." (90) Justice Douglas's views on environmental standing were heavily influenced by Aldo Leopold's land ethic which "'simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land.'" (91) The same year Sierra Club was decided, Christopher D. Stone published his now famous law review article titled, Should Trees Have Standing?--Toward Legal Rights for Natural Objects, (92) proposing that major natural objects be recognized as holding rights, which could be raised by a court-appointed guardian. (93) However, these environmental ethics did not influence other members of the Court in the Sierra Club decision nor subsequent Supreme Court justices, who continue to narrowly construe standing rights in environmental litigation. (94) Nevertheless, Justice Douglas's dissent introduced new "ideas about the human-nature relationship" (95) directly into basic legal concepts critical to the litigation process and "achieved strides toward translating our still-developing environmental ethic into law." (96)
For those uncomfortable with the implications of Justice Douglas's' dissent suggesting that environmental objects have standing to sue, and Leopold's contention that such natural objects may somehow be entitled to "rights" previously reserved only to humans, a convincing case may also be made for the improved stewardship of natural resources by reference to a "human-oriented" property theory. Such stewardship may be seen, at its broadest level of generalization, as a natural analogue to the broad religious principle, known as the Golden Rule, to "do unto others as we would that others ... should do unto us" and conversely to "do nothing unto others which ... we should not wish done unto us." (97)
This dictum would urge us all toward more efficient use and conservation of the environment, so as to allow our neighbors and future generations its continued fife-sustaining benefits. Indeed, careless use or destruction of natural resources, as well as taking more than our needs dictate, would directly contravene this most universal and basic religious tenet.
Finally, environmental ethics will likely influence the regulatory approach taken toward environmental issues. Command and control regulations "have contributed to significant gains in environmental protection." (98) However, difficulties with enforcement and diminishing results from this type of regulation have spurred legislatures to use economic incentives to achieve greater environmental protection. The successful implementation of either of these regulatory schemes requires that environmental ethics be incorporated into the balancing of private property land uses and societal values through legislation and the acceptance of these values into common law processes and our understanding of real property law. (99)
One alternative to economically-based programs such as environmental trading or cost-benefit analysis is "ecological economics," which "seeks to bring multidisciplinary rigor to the study of nature's role within human economic production." (100) This new field seeks to "provide a more nuanced understanding of human-ecosystem interactions than those offered independently by either economists or conservationists." (101) The major difference between standard economic theory and ecological economics is that "ecological economists view the human economy as a subsystem of the environment, while conventional economists view the environment as a subsystem of the economy." (102)
Daniel Farber, in …