Book Review: Green Governance: Ecological Survival, Human Rights, and the Law of the Commons

Green Governance: Ecological Survival, Human Rights, and the Law of the Commons by Burns H. Weston and David Bollier. Cambridge: Cambridge University Press 2013. 390 pp, £65 hardcover 9781107034365, £24.99 paperback 9781107415447, $28 e-book 9781139604420

People concerned with climate change are making slow progress. Scientists regularly issue reports with dire warnings, politicians make ministerial statements, and activists file lawsuits everywhere from small town courthouses to international tribunals. This is all to little avail. Green Governance: Ecological Survival, Human Rights, and the Law of the Commons by Burns H. Weston and David Bollier suggests a new course. The authors balance the ancient and modern while plotting a unique path out of the current climate stalemate.

Green Governance tackles an immense project in an orderly fashion. The book takes a step-by-step approach to building an argument for potentially radical change. Weston and Bollier begin by describing the shortcoming of the present market/state system. They then outline their vision for how human rights, vernacular law (practices that come from daily life), and commons governance can result in a more sustainable environment. Their analysis fuses a progressive understanding of human rights with a resurgent interest in commons governance, resulting in a coherent path to an ambitious goal.

This book will stimulate wide interest, far larger than the average law work. Academics in the legal profession, particularly those focusing on human rights, the environment, or governance, will find this a welcome addition. Similarly, scholars in other fields, such as political science, environmental studies, or geography will find this book useful. Additionally, this work can be appreciated by environmental and governance activists, or readers outside of academia. An absence of jargon makes this book accessible to a wide audience, by clearly explaining complex concepts such as commons governance.

The authors start by establishing the primacy of a human rights approach. They consider two different routes that are established in modern rights scholarship. Both intergenerational rights and nature’s rights support the human right to a clean and healthy environment and could enable us to confront climate change and ecosystem destruction. Intergenerational rights limit the present population’s activities by recognizing obligations owed to future people who need a clean environment and access to natural resources. Nature’s rights suggest that the environment itself has legal standing. However, both of these concepts do not always cohere with the present legal system. For example, the status quo is ill-equipped to establish legal standing for entities other than presently-existing persons and to incorporate the actuarial science of how much harm is being done by present policies. However, as the authors point out, these reasons do not limit the utility of a human rights approach, which often acts as a trump to more pedestrian laws or policies.

The authors then describe how the commons could be used to govern in new and innovative ways. Today there is significant new interest in the commons, particularly in the context of the internet. The commons governance suggested by the authors would respect nature and be self-governed. It would also promote a sense of citizenship that is both local and international. Commoners would demand that environmental decisions are transparent and actors are held accountable. These are values largely missing in today’s governance. A reinvigorated commons will in turn give rise to sustaining institutions that will manage resources, protect the natural environment, and control climate change.

Human rights and commons are dissimilar governance concepts. The authors discuss vernacular law as a bridge that brings them together. Vernacular law is the informal rules that average people use in their daily lives. Some might call this the law of the ‘streets.’ Some experts may argue that only a system of formal laws could prevent society from imploding in violence. This book persuasively suggests that the wisdom of the people can bring a moral authority to governance. Today, many people are disenchanted with government and are increasingly recognizing the ways that it has failed to protect their natural environment. The authors suggest that vernacular law can correct state law and bring it back to representing the will of the people. By aligning vernacular law with the human right to a clean, healthy, and sustainable environment, it can help governance to be a better caretaker of the common heritage of mankind.

Unlike some authors, Weston and Bollier take pains to address obstacles to implementing their proposed solutions. This is, wisely, an acknowledgment of the fundamental changes that the authors suggest will require significant energy. Their suggestions outline broad principles that will help the commons to develop, such as a right to participate in the governance of important natural resources. They also provide numerous governance examples, which have commons-related principles, such as the Water Replenishment District of Southern Los Angeles County, and the Waterton-Glacier International Peace Park.

The authors suggest ‘catalytic’ ideas that will bring their concepts to reality. These include working with private contract and property law to bring benefits to the collective instead of the individual. Similarly, they investigate the use of grass-roots solutions which take aim at the local and municipal level first. By including these steps the reader has a better image of how a commons based governance could be used to protect the environment.

Green Governance has a number of strengths. It is written with an engaging passion. An undercurrent of urgency pervades this work and pushes the reader along. Balancing this emotional energy, the book is a high quality review of the evolution and state of human rights and the commons. The authors pack important concepts closely together leaving little space for casual remarks or idle observation. Acclaimed scholars, tribunal findings, and international agreements are all marshaled to make the core arguments. The result is an ambitious but strong realization of an original idea.

The authors cite Professor Christopher Stone’s statement that ‘each successive extension ... has been ... a bit unthinkable.’ (p.65) The greatest shortcoming of the book may be that it poses too great a change to the established system. Many readers (and policy makers) desire incremental evolution, and may find Green Governance too much to be taken reasonably. In a similar vein, as with any large project, the devil can be in the details. Many readers may want small details to be more clearly spelled out, and could find that this book does not provide a clear enough roadmap to the future. For example, the authors do not proscribe a series of specific laws that must be adopted. They also do not delve into how entrenched industries, such as the petrochemical or nuclear, could be reformed under their proposals. While these issues do not invalidate the authors approach at all, for some readers it could contribute to a sense of the ‘unthinkable’.

This book is not only a new tactic for legal and political scholars. Green Governance is an engaging work that suggests a broader way of thinking about and governing the natural environment. The author’s combination of human rights, vernacular law, and commons governance are a stark contrast to the traditional state and market-based approaches that dominate traditional discussions. While some readers will find these suggestions audacious, they represent new ideas at a time when there is a desperate need for change.

Scott McKenzie has a Bachelors of Arts in Environmental Studies, Philosophy, and American Studies from the University of Kansas and a Juris Doctorate from the University of Iowa. Currently, Scott is pursuing a PhD in Resource Management and Environmental Studies at the University of British Columbia. Scott’s research and writing focuses on how contending notions of scale and regulation affect water policy (within the water-energy-food nexus). His work considers the relationship between the natural environment, human development, and law.