One organization that has not yet offered an assessment or proposal for environmental law is the preeminent entity in the United States for the formulation and clarification of law: the American Law Institute (ALI). While ALI has explored the environmental implications of some provisions in its Restatements and Projects on other legal topics, ALI has not chosen to undertake any major projects dedicated to environmental, natural resource or energy law. ALI’s restraint arises from several historical and policy factors, but those constraints may not necessarily bar ALI from changing course and exploring environmental or natural resource laws in the future.

This presentation explores whether U.S. environmental law is ready for a restatement, and overviews possible reasons why ALI has not previously made the leap. It then reports on an ongoing effort by a workgroup of ALI members to define a potential environmental or energy law project that might offer the best initial opportunity for clarification or reform. This workgroup includes over 40 ALI members who are leading environmental practitioners and academics. The initiative has already led to an internal debate and polling process to identify aspects of environmental law that offer the best prospects for restatement or clarification. It will culminate in a proposal and white paper to ALI in September 2012 that will outline the state of environmental law, identify aspects of environmental law that offer the best promise for a Restatement or Project, and then provide preliminary recommendations on the structure and key points of such an effort.

The Anthropocene has been derived in part through the mechanization of exploitation and commodification of Nature through a regulatory structure known as 'law.' Positive laws have been crafted to protect Nature but struggle against economic forces and there is no rule as to when Nature or Neoliberalism wins, except as determined by political whim.[4] Part of weathering the Anthropocene must involve the mechanism most systematically used for governing human behavior, the law, and in so doing, it should look to that theory of law which is most concerned with promoting justice and good human behavior, the natural law. In other words, natural law is the ideal toward which positive laws should converge. However, there have been naturalist scholars throughout the Enlightenment and Industrial eras who have seen human domination of Nature as a universal mandate. As the Anthropocene indicates, those self-serving interpretations are errant.[5]

[1] International Union for the Conservation of Nature [IUCN], The IUCN Red List of Threatened Species (2011), http://www.iucnredlist.org/.; Secretariat of the Convention on Biological Diversity, Global Biodiversity Outlook 3 (2010).

[2] United Nations Development Programme [UNDP], Human Development Report 2010 (2010).; United Nations Department of Economic and Social Affairs [UNDESA], The Millennium Development Goals: Report 2010 (2010).; New Economics Foundation, The UnHappy Planet Index 2.0: Why Good Loves Don't Have to Cost the Earth (2009).

[3] Jan Zalasiewicz et al., Are We Now Living in the Anthropocene?, 18 GSA Today 4-8 (2008).

[4] Cormac Cullinan, Wild Law: Governing People for Earth (2002).

[5] Robyn Eckersley, Environmentalism and Political Theory: Toward an Ecocentric Approach (New York: State University of New York Press, 1992) at 25.

Well, there are, according to Buber, three ways of meeting between Me and Thou, a) humans and non-human nature, b) humans and humans and c) and Eternal. These meetings are the basis for the three forms of Justice mentioned in Earth Charter according to Bosselmann, respectively: (a) interspecies justice, b) intra-generational justice and c) intergenerational justice.

Although humans have obligations of Justice with the rest of nature, and, in this sense, the justice and the legal standards not only related to humans, the duties and the Pact are just among the latter. If the meeting between humans is the deepest because they use the language of dialogue, then this is a privileged location for the meeting. A Pact of international environmental law should use dialogue to promote the meeting.

A meeting when people can dialogue to find the solution of an aporia common to all interlocutors. The methodology used to formulate this solution in a manner acceptable to all is the dialectics (Aristotle). Dialectic not produces universally valid results, regardless of who speaks, but assumes the acceptability of its results based on assumptions accepted by interlocutors.

Thus, in terms of international law, it is understood that the real meeting between peoples only occurs with a Pact that present assumptions acceptable by all interlocutors. These premises must be content commitments with the interests of North and South, but by connecting them to justice and human rights (to health, work, housing, civil liberties, and of course a healthy environment. If these assumptions are acceptable, the findings of the argument, which will be duties of justice are also acceptable.

The Earth Charter establishing the duty of "5. Protect and restore the integrity of the Earth's ecological systems, with special concern for biological diversity and the natural processes that support the life" and "9. Eradicating poverty as an ethical imperative, social and environmental ", seems to embrace the assumptions necessary to produce the accession of all those involved (BOSSELMANN). In the environmental and ethical crisis affecting humanity nowadays, the assumptions used must be consistent with what is accepted (or acceptable) for all and that is not ideally, but actually.

In this sense, a Pact such as the Earth Charter, for its content, can be considered jus gentium, a form of law which derives is validity from human reason in dialectical debate, and therefore does not depend on a formal agreement between all those who are specifically affected by it. In time, it is expected that serious compliance of those participating in the Pact will serve as good reasons for those whom initially where out to also be a part of it.