How Green Is My Folly

Friday, April 6, 2012

European parliamentarians want the upcoming United Nations Conference on Sustainable Development to demand that all nations hew to a sweeping legal claim: that international law forbids nations to amend or repeal laws designed to protect the environment.

Most of the European Parliament’s nonbinding resolution is a catalog of the usual appeals for green this and sustainable that, backed by mind-bending assertions such as the scarcity of resources is a “new and emerging problem” and “that a green economy must be focused on decoupling economic activity from resource use.” Hasn’t resource scarcity been the central theme of economic history? And exactly how would the green economy get by without resources?

The resolution also reiterates the well-trod “precautionary principle.” That’s the idea that the burden is on developers to prove their projects are without risk to the environment, rather than on environmentalists to prove environmental costs of development will exceed the benefits. If adhered to, the precautionary principle is like a trump card that can be played to stop almost any project. It’s the card that author Bill McKibben and his merry band of Keystone pipeline protesters have maneuvered Barack Obama into playing, notwithstanding the U.S. State Department’s carefully considered conclusion that the environmental risks of the pipeline are extremely low in relation to significant economic benefits.

But having a trump card is not enough for the European Parliament. It also claims that it is illegal to reverse any government action taken for the purpose of protecting the environment. The Parliament wants to carve in stone existing environmental regulations, apparently without regard to whether regulations have actually achieved their purposes, and without regard for competing human goals.

How do they propose to create this one-way regulatory ratchet? By insisting that nations are obliged to comply with the “principle of nonregression.” According to the International Union for Conservation of Nature, “the principle of nonregression is an international law principle . . . requiring that norms which have already been adopted by states not be revised, if this implies going backward on the subject of standards of protection.”

Michel Prieur, a professor of environmental law and leading advocate for applying nonregression to environmental protections, argues that the principle is justified because the purpose of environmental law is to protect, not regulate, the environment. Environmental law must therefore be an exception to the presumption that legislators can always change the law, he has argued.

Exactly how would the green economy get by without resources?

Give the good professor credit for chutzpah, if not logic. Though it seems a hard case to make in a democracy, who wouldn’t want to have their favorite laws exempt from future legislative reversal or amendment? Between the precautionary principle and the principle of nonregression, environmentalists have a way to permanently secure their agenda. And they have persuaded the European Parliament to sign on, notwithstanding the indisputable costs of regulatory compliance and the desperate fiscal condition of several European governments.

But we should not be surprised. Something resembling the nonregression principle explains the riots in Athens and the staunch resistance to reforming an unsustainable welfare state across most of Europe. Never mind, for example, that 20 percent of Italy’s population is sixty-five or older while nearly one in three young adults are unemployed. (The comparable numbers in the United States are 13 percent and one in five.) It seems many in Europe would sooner bankrupt their governments than agree to a little regression in their entitlements.

If the costs of regulation exceed the benefits, the regulation makes no sense. And regulations that once made sense may later prove counterproductive.

The European Parliament is apparently blind to the obvious and direct link between the financial and economic crises and the demand that all nations be forbidden by international law to amend or repeal environmental laws. Environmental regulation is no different from any other type of regulation. If the costs of regulation exceed the benefits, the regulation makes no sense. And regulations that once made sense may later prove counterproductive.

There’s no mystery why the principle of nonregression is so appealing to many environmentalists. It would exempt existing environmental regulations from review, reform, and repeal, even if the costs have proven to be greater than the benefits. The mystery is why the parliament of an economically struggling continent would agree.