Eco-justice and the moral fissures of green criminology

To satisfy our primary needs, humans transform environments and utilise plants and animals in particular ways. In doing so there are necessarily consequences (negative and/or positive) for the individual areas, specimens, or creatures directly affected as well as potential impacts affecting particular species generally and wider ecosystems up to and including the Earth as a whole. Interacting in-and-with Nature means that hum.ans have been and always will be implicated in the ongoing modification of Nature itself. That is, complex relationships and interdependencies - between Nature and Humans - continually reshape the terrain upon which and within which they emerge and exist. This is a simple but basic ecological proposition.

However, in transforming Nature, humans inevitably (it seems) do harm to others, both human and non-human. This is what brings ecology into the realm of criminology and in particular under the sustained scrutiny of 'green criminology' (White and Heckenberg 2014; South and Brisman 2013). Indeed, to whom or what we do harm, and under what conditions, are key moral questions that are fundamental to understanding emergent differences within green criminology, a rapidly growing area of criminological concern. Specifically, there are tensions between those who view the natural objects of the world as 'resources' for human use and exploitation and those who attribute certain intrinsic rights to specific ecosystems and animal species that preclude a simple or straightforward anthropocentric instrumentalism.

Matters pertaining to the conservation and protection of specific ecosystems, animals, and plants can be approached in a number of ways, including through diverse applications of instrumentalism and utility (for instance, future benefit depend& upon careful management of resources now, benefit for the many depends upon marshalling of resources in an effective and equitable manner). Whatever the specific rationale, the law does allow for a modicum of protection for the non-human as well as the human as seen in legislation pertaining to endangered species (e.g., particular animals such as tigers) and to conservation more generally (e.g., in the form of national parks). Harm is central to these forms of social regulation; however, whether 'harm to the environment' is of consequence unless it is measured with reference to human values (e.g., economic, aesthetic, cultural) is of ongoing concern in regards to legal decision-making (see Lin 2006).

However, the argument herein is that environmental issues also need to be formulated in terms of justice and, as elaborated below, eco-justice specifically. For example, there is an argument that the inherent interests of 'natural objects' ought to be protected through legal actions by the objects themselves, with humans serving as their guardians or trustees (Stone 1972; Lin 2006). Similar arguments are put forward in relation to rights for non-human animals (Regan 2010). Justice is a complex concept with many different dimensions, some of which are explored in this chapter. Nonetheless, at its core is the notion of rights and in particular the rights to 'be' and to 'do'. A central contention of eco-justice is that such rights, in some form, ought to be attributed to (or in some interpretations, conferred upon) natural objects such as rivers and mountains and animals at both species-level and as individual creatures. According to Earth Law proponents and species justice advocates, these are precisely what lay at the heart of what constitutes 'justice' as this applies to the environment and its inhabitants (Cullinan 2003; Sollund 2012).

Specialist environment courts are likewise attempting to come to grips with how best to conceptualise and operationalise 'justice' in their responses to environmental crime (albeit starting within the framework of statutory provisions) (Walters and Westerhuis 2013; Westerhuis 2013; White 2013a). In doing so, they are concretising the seriousness of environmental harm by reference to specific ecological factors, which increasingly provide the substance of court deliberation (for example, through consideration of factors such as total area of land illegally cleared, the type of species impacted and whether or not they are vulnerable, and the number of plants and animals destroyed). They are also implicitly and explicitly (particularly through extra-judicial commentary) confronting more abstract problems that relate to, for example, victimisation (that is, how to be inclusive of non-human interests), ontology (determining the boundaries of the 'natural object'), expertise (who speaks for and on behalf of what or whom), and temporality (concepts of change, especially as this relates to remediation) (see White 2016). Justice as a form of judicial practice demands consideration of specific offences as set out in legislation, including examination of the rights of non-human victims (initially specified in the form of, for example, protected species laws and laws against illegal land clearance) in particular bounded circumstances. Determining the seriousness of environmental harm requires the court to delve into detailed classification schemes (to name is to know) and to draw upon various kinds of expertise (such as ecology, geomorphology, and Indigenous knowledge) in order to evaluate the nature and dynamics of harm in any given situation.

This chapter begins therefore by sketching the broad contours of eco-justice, an approach to justice that incorporates the human and non-human into consideration of ethical questions. The discussions to follow are largely based upon a longer work that explores these questions in greater depth and from a slightly different angle (White 2013b). Eco-justice acknowledges transgressions against humans (environmental justice), specific ecosystems (ecological justice), and animal and plant species (species justice) as the general domain of green criminology. However, this chapter asks the question 'whose justice' ought to prevail in situations where the needs, interests, and rights of the human, the environment, and the animal (and plant) come into conflict? This complex issue is discussed through consideration of the moral and pragmatic basis for the doing of justice, as informed by the overarching eco-justice perspective.