Greening our laws

Implicit subsidies for fossil fuel development are embedded in the legal system

Should a forest be cut down to make way for a new industrial park?

A lot of decisions require society to consider trade-offs like whether a forest should be cut down to make room for an industrial park. Historically, society has put the burden of proof on conservation

When nature was abundant

In the past, a common assumption was that human welfare would increase by sacrificing a forest for an industrial park. Many of our laws from that time which persist to this day, reflect this underlying assumption.

Coal development gets expedited land access

Consider the 1957 Coal Bearing Areas Act which allows the Indian government to acquire land for coal mining through highly expedited procedures, which forgo several due diligence processes required in regular land acquisition cases (see Table below).

Source: Srivastav and Singh (2022). Greening Our Laws: Revising Land Acquisition Law for Coal Mining in India. Economic and Political Weekly.

Fast-track processes for oil development

This is not specific to India though. In America, thanks to eminent domain, oil pipelines can be built without seeking individual landowners’ permission. Other infrastructure, including overhead transmission lines that can help move electricity generated by solar and wind farms, has to go through more stringent land acquisition processes.

Permitting laws support incumbent technologies

This reflects a deeper reality. The advent of fossil fuels has shaped and moulded institutional structures. We live in a world where our laws are biased towards the incumbent technology.

A changing reality

In the past, there was a relative abundance of nature. Yet today, the factual reality is different. From 1970 to 2020, there has been a 73% decline in monitored wildlife populations according to WWF’s Living Planet Index. A study in Nature shows that global human-made mass exceeds all living biomass. The Earth now has more plastics than animals.

More plastics than animals

Source: Elhacham, E., Ben-Uri, L., Grozovski, J. et al. Global human-made mass exceeds all living biomass. Nature 588, 442–444 (2020). https://doi.org/10.1038/s41586-020-3010-5

The assumed infallibility of nature that is baked into our legal and institutional system seems to no longer hold today.

Environmental destruction hurts humanity

Human welfare is being directly impacted as a consequence, with disappearing biomes exposing humanity to new threats and dangerously high levels of greenhouse gas emissions leading to new extreme weather events that entail devastating losses.

The case to shift the burden of proof

It is against this backdrop that the younger generation is demanding that the burden of proof is shifted. Instead of why conservation, they argue it should be why ecological destruction.

Some may wonder whether it matters where the burden of proof lies. To appreciate why consider that innocent until proven guilty is not the same as guilty until proven innocent. The burden of proof is a real “burden” and it's not costless.

Forest for coal?

In Germany when RWE wanted to expand its coal mining operations and encroach upon one of Europe’s oldest forests, wide-scale protests broke out.

The forest in question, Hambach Forest, is 12,000 years old and has already been largely extirpated to make way for Europe’s largest open-cast mine. When the last vestiges of it were threatened, civil society erupted to question Germany’s permitting system. How was this being allowed?

The protest movement was not wrong in challenging the expansion plans and the default assumptions of the legal system that paved the way for this expansion.

A cost-benefit analysis, which I conducted with co-authors, showed that the net present value of halting operations at the Hambach lignite mine was €98–208 billion over 34 years, equivalent to 13–30% of North Rhine-Westphalia’s annual GDP.

These benefits come from reduced air pollution and ecological damage. In fact, given the presence of cleaner ways to produce electricity, the case for expanding coal mining operations in Germany was exceedingly weak, reflecting how the permitting laws were out of lockstep with new realities.

Rethinking old paradigms

Despite projections of objectivity, we all have implicit biases. One of the major questions is: where do we put the burden of proof? While in the past, putting the burden of proof on conservation may have been appropriate, in the present, it may not be. While this is an open debate, what we can say with certainty is that the norms and institutions that we have today have been inherited from the past, and in the meantime, the face of the Earth has changed dramatically.

Is it time for an update?

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