Politics & Media
Jun 01, 2010, 06:48AM

A Just Response to the Oil Spill

Just what penalty should be dolled out when all is said and done?

Who are the real environmental villains? And how do we punish them?

Polly Higgins, a “campaigning environmental lawyer,” apparently has the answers to both questions. To her, it’s quite obvious that the culprits are those who start a chain of events that ends in destruction of the environment, like what we currently see in the Gulf of Mexico [http://www.guardian.co.uk/environment/2010/apr/09/ecocide-crime-genocide-un-environmental-damage]. Though it is just to condemn these villains, they haven’t actually committed any “crimes.” Higgins wants to change that. She proposes the creation of a new category of crime called “ecocide.” That means harming plants and animals. Or to quote the legalese, ecocide is “the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes.” Higgins has even spelled out how this statute would look in the case of the ongoing oil spill. “The international crime of ecocide would legally bind BP to take full responsibility for the damage and destruction to, or loss of, ecosystems caused by this incident. Where a large oil spill causes large, long term or severe ecosystem destruction, ecocide prosecution will attract imprisonment of the CEO and liability for restorative justice.”

Whatever the disadvantages of Higgins’ account, it is at least clear and understandable: you pollute the environment, you’re going to pay through the nose and spend time in the crossbar hotel.

Yet Higgins’ proposed definition of the crime, and her proposed punishment, is far from the only suggestion out there. In the popular conception, we are all somewhat guilty for environmental devastation. Surely you know the story of idyllic nature, progressing peacefully toward nirvana and the peak of the evolutionary ladder. All is well until humans, entering the picture, begin to abuse and destroy nature, at last coming close to halting the evolutionary process altogether. The virgin wilderness, raped and flung aside by humankind, is one of the most powerful specters of the postmodern mind.

However, this second account doesn’t directly hold any particular person responsible. Just like the environmental destruction, the guilt is somewhat nebulous and vague. We are all sort of responsible for environmental devastation, but it doesn’t seem that anyone in particular can be punished, because we’re all in it together.

Forget popular conceptions and modern proposals; pre-modern people were also worried about environmental devastation. For example, one of the key figures of early Christianity, the Apostle Paul, tells us that the whole creation groans and travails until now, waiting for redemption. Redemption from what? Sin and God’s curse on the ground for our sake. Even farther back, the Hebrew prophet Joel spoke of damage to plants and animals as being caused by humans. “How the beasts groan! The herds of cattle are perplexed because there is no pasture for them; even the flocks of sheep suffer” (Joel 1:18). One commentator says about this passage, “The Hebrew word for ‘suffer’ is ‘asham, and here it means ‘to suffer punishment’ or ‘to bear guilt.’ The idea would be that the creation suffers for Israel’s guilt.”

And so, through the eyes of antiquity, we as humankind (and not just BP execs) do bear a collective guilt for the crime of ecocide. It’s not just the oil spills or the radioactive waste or the overflowing landfills or the dead fish or the uncontrolled wildfires that we have created for which we are responsible; in one sense, we are quite literally responsible for everything that has gone wrong. On the other hand, Paul claims that the damage is so extensive that we cannot adequately punish for it. On his view (and Joel’s), the current Gulf of Mexico fiasco would be merely a tiny symptom of the overall cosmic mess, which is so big we can’t clean it up, or justly punish for it, ourselves.

To find, and punish, the real enviro crooks, then, we must decide which of these accounts is most accurate. Are there some terribly guilty individuals that we can punish to let the rest of us off the hook? Are we all somewhat guilty, though not subject to punishment? Are we all so guilty that punishment would simply destroy everything else?

A closer examination shows that the proposed ecocide statute is an amalgamation of the first and last of these three options. Consider the most important clause in the statute: environmental damage is ecocide whenever it occurs, “whether by human agency or by other causes.” This definition, created no doubt in strict isolation from anything resembling Christian dogmas, oddly (miraculously?) reflects them. Paul said that collective human guilt was the cause of all creation’s problems. Now the statute is trying to tell us that whatever happens is the fault of humans. Remember, this is an official definition for a criminal court. Now, presumably this court can only try humans. But its definition of crimes includes non-human agents. What is the court supposed to do about environmental destruction by, say, a volcano? Obviously, it can’t do anything about that. Volcanoes are, quite literally, outside its jurisdiction. Yet here the proposed statute is repeating back, in its own inimitable way; Saint Paul’s idea that everything that goes wrong is our fault, never mind that most of it is very far from our control.

To answer the original question, then, there are two categories of villains: those of us who are guilty because we are human, and those of us who are guilty because we have actually done things to damage the environment. All humans are in the first category; some, perhaps BP execs (but only time will tell), are in the second. For the first category, we all deserve punishment equally; for the second, some are guiltier than others. Those in the second category do need to be punished—but we must never fall into the trap of thinking that such punishment can ever stop all forms of environmental damage. Earth will never become a paradise, for no punishments, however harsh, can truly eradicate villainy.


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