The "Preferential Option for the Poor": An Opportunity and a Challenge for Environmental Decision-Making

University of St. Thomas Law Journal, Mar 2018

Lucia A. Silecchia

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The "Preferential Option for the Poor": An Opportunity and a Challenge for Environmental Decision-Making

This Article is brought to you for free and open access by UST Research Online and the University of St. Thomas Law Journal. For more information The " Preferential Option for the Poor ": An Opportunity and a Challenge for Environmental Decision-Making Lucia A. Silecchia - omas Law Article 6 THE "PREFERENTIAL OPTION FOR THE POOR": AN OPPORTUNITY AND A CHALLENGE FOR ENVIRONMENTAL DECISION-MAKING LUCIA A. SILECCHIA* Our heart cannot be at peace while we see our brothers and sis­ ters suffering . ... To make a concrete response to the appeal of our brothers and sisters in humanity, we must come to grips with * Professor of Law, The Catholic University of America, Columbus School of Law. I am very grateful to the staff of the St. Thomas Law Journal for the invitation to participate in this Symposium. I am also very thankful to Stephen Young of the Catholic University Law Library for his tireless help and to Elena Sweiger, Columbus School of Law Class of 2009, for her excellent research assistance. the first of these challenges: solidarity among generations, soli­ darity between countries and entire continents, so that all human beings may share more equitably in the riches of our planet. This is one of the essential services that people of good will must render to humanity. The earth, in fact, can produce enough to nourish all its inhabitants, on the condition that the rich countries do not keep for themselves what belongs to all. The Church will never tire of reminding everyone that they must take pains to cre­ ate a human brotherhood that consists of concrete gestures on the part of individuals and of Governments and international Institutions. 1 I. INTRODUCTION I want to begin by thanking the St. Thomas Law Journal both for the invitation to participate in this conference and for the selection of such a timely, significant topic for our discussion and reflection. There are many indications that the link between environmental questions and Catholic so­ cial teaching is an area that is receiving, and deserves, precisely the new attention that this conference is providing. 2 In a secular sense, of course, 1. Pope Benedict XVI, Address of His Holiness Benedict XVI at the Presentation of the Letters Accrediting New Ambassadors to the Holy See (June 16, 2005), available at http:// www.vatican.va/holy_fatherlbenediccxvi/speeches/2005/june/documentslhCben-xvi_spe_2005 06 I6_ambassadors3n.html. 2. "Catholic social teaching" is itself a term that may require some definition as well. Fr. William Ryan, S.l, defined it as "a formula or a set of principles for reflection to evaluate the framework of society and to provide criteria for prudential judgment and direction for current policy and action." Fr. William Ryan, S.J., The Coady Lectures: Notes on the Development of Catholic Social Teaching (Oct. 24, 2000), available at http://www.coady.stfx.ca/resources/publi­ cations/publications30adylectures_notes.html. He goes on to say that: [Catholic social teaching] is not a fixed body of teaching and ... it does not provide an infallible or ready answer or solution to any of today's great social, economic, political or ecological problems. Rather, it suggests a framework within which to reflect on these issues and it opens directions or ways of proceeding in making concrete decisions or choices among proposed solutions. It is generally said that, although this tradition has its roots in ancient biblical principles, it was in Pope Leo's landmark encyclical, Rerum Novarum, that the modern social teaching began. Because environmental issues are international and universal in nature rather than local, I will focus my attention primarily on the articulation of Catholic social teaching as it comes from papal encyclicals and Vatican documents intended for a worldwide audience. Indeed, the international perspective of the Church places it in a uniquely independent position to comment on the interna­ tional implications of environmental woes. However, at times, I will also discuss sources gener­ ated by local bishops and national or regional bishops' conferences, which attempt to apply those universal teachings to local circumstances and needs. In addition, of course, the work of many scholars elaborates on this tradition. For a succinct introduction to the key themes in Catholic social teaching, see generally Avery Cardinal Dulles, S.J., Catholic Social Teaching and American Law Practice, 30 FORDHAM URB. L.J. 277, 279 (2002). Cardinal Dulles posits that: [N]o other institution has developed a body of social teaching rivaling that of the Catho­ lic Church, in depth, coherence, and completeness. Unlike the Church's strictly doctrinal teaching, which is addressed specifically to believers, Catholic social teaching is dienvironmental questions dominate popular attention. Political debates, mainstream cinema, celebrity activism and news reports constantly high­ light the environmental questions of our day. 3 In a religious sense, there is also new attention being paid to the contributions that religious thinkers of all denominations may make as they tackle the environmental challenges of our times.4 rected to all persons of good will, including those of any or no religion. It presupposes only that its addressees are interested in building a just and peaceful society on earth. Id. 3. The popularity of the movie An Inconvenient Truth, the "green" Academy Awards cere­ mony, the environmental speeches made by celebrities and the statements of political candidates about their purchase of carbon offsets are but a few examples of the popular, non-academic atten­ tion being paid to this field. The recent presentation of the 2007 Nobel Peace Prize to Former Vice President Al Gore and the United Nations' Intergovernmental Panel on Climate Change increased the coverage of "green" issues in the popular press. Religion continues to play a significant role in shaping our attitudes toward nature.... [W]e owe a duty to future generations to allow them to inherit a healthy environment. Essential to this obligation is spiritual faith, not the trendy brand of secular humanism espoused by eco-dogmatists seeking environmental justice through means unmoored from centuries-old principles of creation. Id.; Daryl Fisher-Ogden & Shelley Ross Saxer, World Religions and Clean Water Laws, 17 DUKE ENVTL. L. & POL'y F. 63 (2006) (describing connections between religious perspectives and the rationales behind clean water regulatory regimes); Jeffrey J. Guhin, Where Are the Catholic Envi­ ronmentalists?, AM., Feb. 13, 2006, at 7 ("[E]cology is becoming a social concern."); John L. Allen, Jr., Pope and Patriarch Both Speak Out on Environment, NAT'L CATH. REP., Jan. 12, 2007 at 14 ("While environmentalism has long been a cause more associated with the secular left, the increasingly intense engagement of both the patriarch and the pope ... suggests a broad 'green­ ing' of institutional Christianity."); Juliet Eilperin, Warming Draws Evangelicals Into Environ­ mental Fold, WASH. POST, Aug. 8, 2007 at Al (describing the interest in ecological issues on behalf of the evangelical community in the United States); Robert W. Lannan, Catholic Tradition, and the New Catholic Theology and Social Teaching on the Environment, 39 CATH. LAW. 353, 355 (2000) ("[T]he past decade has witnessed an explosion of commentary from Catholic theolo­ gians on environmental challenges facing the world community today."). For a brief but compre­ hensive overview of Catholic social thought on the environment, see generally SR. MARJORIE KEENAN, RSHM, CARE FOR CREATION: HUMAN ACTIVITY AND THE ENVIRONMENT (2000). In addition, for more academic commentary on the link between ecology and religion, see generally COVENANT FOR A NEW CREATION: ETHICS, RELIGION AND PUBLIC POLICY (Carol S. Robb & Carl J. Casebolt eds., 2005) [hereinafter ETHICS, RELIGION & PUBLIC POLICY]. However, for an alternative and largely negative analysis of the intertwining of religion and ecology, see generally Daniel M. Warner, An Essay on the Market as God: Law, Spirituality, and the Bco-Crisis, 6 RUTGERS J. L. & RELIGION 1 (2003); see also A. Dan Tarlock, Environmental Law: Ethics or Science?, 7 DUKE ENVTL. L. & POL'y F. 193,200 (1996) ("Religion has not been and is unlikely to be a basis for a workable theory of environmentalism. Despite efforts to create a revisionist green theory of stewardship, religion remains more of a cause rather than a solution to environmental problems."); id. at 194 ("[E]nvironmentallaw and management should derive their primary political power and legitimacy from science, not ethics."); id. at 196 (arguing against "the tendency to respond to the contingencies and uncertainties inherent in environmental science by reclassifying problems as ethical rather than scientific."). The Catholic tradition has also spoken to these questions. Through a long line of papal encyclicals,5 various pontiffs have addressed the applica­ tion of basic principles of Catholic social thought to environmental ques­ tions both directly and, more often, indirectly.6 In Pope John Paul II's landmark 1990 Message for the World Day of Peace entitled, as is this conference, "Peace with God the Creator, Peace with All of Creation,"7 5. Unless otherwise noted, all citations to papal encyclicals throughout this paper will be from CATHOLIC SOCIAL THOUGHT: THE DOCUMENTARY HERITAGE (David J. O'Brien & Thomas A. Shannon eds., 1992) [hereinafter THE DOCUMENTARY HERITAGE]. 6. For a brief but authoritative overview of the development of Catholic thought with regard to ecological matters with helpful citations to original documents, see generally PONTIFICAL COUNCIL FOR JUSTICE AND PEACE, COMPENDIUM OF THE SOCIAL DOCTRINE OF THE CHURCH 197-211 (2005) [hereinafter COMPENDIUM]. This text is also a valuable introduction to Catholic social teaching in general. In addition, see United States Conference of Catholic Bishops Catholic Teaching and Principles [hereinafter USCCB], http://www.usccb.org/sdwp/catholicteaching­ principles.shtml (last visited Mar. 4, 2008), for a brief outline of the basic principles of Catholic social teaching including many of the principles applicable to ecological issues. 7. Pope John Paul II, Message of His Holiness Pope John Paul IIfor the Celebration of the World Day of Peace: Peace with God the Creator, Peace with All of Creation (Jan. 1, 1990) [hereinafter Peace With All of Creation], available at http://www.vatican.va/holyjather/ john_pauUi/messages/peace/documents/hfjp-iLmes_19891208_xxiii-world-day-for-peace_en. html. This statement remains the most extensive explication of ecological questions promulgated by the Vatican, and is a useful starting point for inquiry into this question. In the wake of this statement, the American Catholic bishops issued their own pastoral statement on ecological mat­ ters, USCCB, Renewing the Earth: An Invitation to Reflection and Action on the Environment in Light of Catholic Social Teaching (Nov. 14, 1991) [hereinafter Renewing the Earth], available at http://www.usccb.org/sdwp/ejplbishopsstatement.shtml. Subsequently, the USCCB has issued two additional statements dealing more narrowly with the question of global climate change. See gen­ erally USCCB, Global Climate Change: A Plea for Dialogue, Prudence, and the Common Good (June 15,2001) [hereinafter A Plea for Dialogue], available at http://www.usccb.org/sdwp/inter­ national/globa1climate.shtml; USCCB, Global Climate Change (Feb. 2005), avaifable at http:// www.usccb.org/sdwp/intemational/climatebackground.shtml. In addition, many other regional and national bishops' conferences have issued statements on environmental matters. See, e.g., Canadian Conference of Catholic Bishops, A Pastoral Letter on the Christian Ecological Imperative from the Social Affairs Commission (Oct. 4, 2003 ) [hereinaf­ ter The Christian Ecological Imperative], available at http://www.cccb.ca!sitelFiles/pastoralenvi­ ronment.html; Australian Catholic Bishops, Statement on the Environment (2002) [hereinafter Australian Bishops Statement], available at http://www.marquette.edu/theology/interfacing/ ChurchonEcologicalDegradationidocuments/ANewEarth-australian_OOO.pdf; The Columbia River Watershed: Caring for Creation and the Common Good-An International Pastoral Letter by the Catholic Bishops of the Region (Jan. 8, 2001) [hereinafter Columbia River Watershed Pastoral Letter], available at http://www.columbiariver.org/files/pastoral-english.pdf; Bishops of the Bos­ ton Province, And God Saw That It Was Good: A Pastoral Letter (Oct. 4, 2000) [hereinafter God Saw It Was Good], available at http://www.vermontcatholic.org/meetbishop/environ.htm; Dermot Clifford, Archbishop of Cashel and Emly, Pastoral Letter on the Environment [hereinafter Clif­ ford Letter], available at http://www.marquette.edu/theology/interfacing/ChurchonEcologicalDeg­ radationidocumentslPastoralLetterontheEnvironmentcasheCOOO.pdf; Australian Bishops' Comm. for Justice, Development and Peace, Christians and Their Duty Towards Nature, http://www. marquette.edu/theology/interfacing/ChurchonEcologicalDegradation/documents/Christiansand theirDutyTowardsNature_OOO.pdf; South African Catholic Bishops' Conference, Pastoral State­ ment on the Environmental Crisis (Sept. 5, 1999) [hereinafter Southern African Bishops' State­ ment], available at http://www.marquette.edu/theology/interfacing/ChurchonEcological Degradation/documents/SOUTHERNAFRICANCATHOLICBISHOPS_OOO.pdf; Alberta Bish­ ops, Celebrate Life: Care for Creation (Oct. 4, 1998) [hereinafter Celebrate Life], available at environmental concerns were given a spotlight previously unseen in papal documents. 8 It was with that document that environmental concerns truly came into their own as a subject of inquiry separate from more general discussions of Catholic social thinking. It was followed in 2002 by a more detailed Declaration on the Environment, signed by both Pope John Paul II and Patriarch Bartholomew I of Constantinople.9 More currently, Pope Benedict XVI has given this issue much atten­ tion in his papacy.lO This may, perhaps, have taken his observers by sur­ prise. ll Most directly, he followed his predecessor's example by devoting a significant part of his second and third World Day of Peace Messages to ecological questions, calling his 2007 statement "The Human Person, The Heart of Peace,"12 and the 2008 statement, "The Human Family, A Comhttp://www.wcr.ab.calbin/eco-Iett.htm; Catholic Bishops of Northern Mexico, A Pastoral Letter on the Forests of the Sierra Tarahumara (Mar. 29, 2000) [hereinafter Sierra Tarahumara Letter], available at http://www.marquette.edu/theology/interfacing/ChurchonEcologicalDegradation/doc­ umentslNorthernMexicoBishopsonForest_OOO.pdf; New Mexico Catholic Conference, Partner­ ship for the Future (May 11, 1998), available at http://www.environment.harvard.edu/religion/ publications/statementslPartnershipforthefuture-Newmexico.pdf; Catholic Bishops Conference of the Philippines, What is Happening to Our Beautiful Land? (Jan. 29, 1988) [hereinafter What is Happening ?], available at http://www.marquette.edu/theology/interfacing/ChurchonEcological Degradation/documentslWhatisHappeningtoOurBeautifulLand_OOO.pdf. More ecumenically, interfaith and interreligious groups have also issued statements pertain­ ing to ecological responsibility. Prominent among these is The Interfaith Council for Environmen­ tal Stewardship, Cornwall Declaration on Environmental Stewardship (Feb. 1,2000) [hereinafter Cornwall Declaration], available at http://conservation.catholic.org/cornwall_declaration.htm. 8. Since then, "concern for the environment is moving up the Church's agenda over the past decades. We are re-discovering our rich theology in this area and gaining new insights." Clifford Letter, supra note 7, at 4. 9. Pope John Paul II & Patriarch Bartholomew I, Common Declaration on Environmental Ethics: Common Declaration of John Paul II and the Ecumenical Patriarch His Holiness Bartholo­ mew I (June 10, 2002) [hereinafter Declaration on the Environment], available at http:// www.vatican.va/holyjather/john_pauUilspeeches/2002/june/documents/htjp-ii_spe_20020610 _venice-declaration_en.htrnl. This is often popularly called the Venice Declaration in honor of the city in which it was signed. 10. In a previous paper, I explored the environmental thought of Pope Benedict XVI in the years prior to his papacy through the first two years of his pontificate. See generally Lucia A. Silecchia, Discerning the Environmental Perspective of Pope Benedict XVI, 4 J. CATH. Soc. THOUGHT 227-69 (2007). In addition, an early book of then-Cardinal Ratzinger developed many basic ecological themes nearly two decades before his papacy began. See generally JOSEPH CARDI­ NAL RATZINGER, 'IN THE BEGINNING': A CATHOLIC UNDERSTANDING OF THE STORY OF CREATION AND THE FALL (Boniface Ramsey trans., William B. Eerdmans Publ'g Co. 1995) (1986) [hereinaf­ ter IN THE BEGINNING] . 11. See Ian Fisher, Pope Benedict XVI Issues Annual Message for Peace, INT'L HERALD TRIB., Dec. 12,2006, available at http://www.iht.com/articles/2006112112/news/pope.php ("In an annual message for peace, Benedict strongly emphasized a theme rarely taken up in his two years as pope: what he called the 'ecology of peace,' the idea that protecting the environment and finding alternative energy sources could also reduce conflict."). 12. Pope Benedict XVI, Message of His Holiness Pope Benedict XVI for the Celebration of the World Day of Peace, The Human Person: The Heart of Peace (Jan. 1, 2007) [hereinafter The Heart of Peace], available at http://www.vatican.Va/hOlyjather/benediccxvi/meSSages/peace/ documents/hCben_xvi_mes_20061208_XI_WOrld_day_peace_en.htm!. munity of Peace."13 The popular press recently reported that, under Pope Benedict XVI's leadership, the Vatican City State is to become the world's first carbon neutral nation,14 and Pope Benedict XVI himself has been named one of the world's top religious environmentalleadersY More aca­ demically, from April 26-27, 2007 the Pontifical Council for Justice and Peace convened an international "Study Seminar on Climate Change and Development," at the Vatican-the very first of its kind. 16 In the midst of this attention, it may fairly be asked, what is the unique contribution that the Catholic Church can make to today's discussion of ecological matters?17 With so many secular, scientific, economic, political and industrial voices already in the throes of the debate, there is no shortage of expertise on these questions. In light of this, then, what is it that the Catholic Church can contribute that will be productive, helpful and consis­ tent with the Church's prophetic role to challenge decision-makers to view their work in a proper ethical framework, be faithful to Gospel values and pursue the common good? For further commentary on this address, see generally Gerard O'Connell, UCAN: Pope Bene­ dict XVI's Peace Day Message Identifies Triple Danger, CATH. NEWS SERV., Dec. 13, 2006, available at http://www.cathoIic.org/internationallinternationaCstory.php?id=22337. 13. Pope Benedict XVI, Message of His Holiness Pope Benedict XVI for the Celebration of the World Day of Peace, The Human Family, A Community of Peace (Jan. 1,2008) [hereinafter A Community of Peace], available at http://www.vatican.va/holy3ather/benediccxvi/messages/ peace/documentslhCben-xvi_mes_2007l208Jli-world-day-peace_en.html. 14. See Francis X. Rocca, Vatican Takes a Role in Keeping God's Earth Green: Catholic Church Balances Ecology with Theology, U.S.A. TODAY, July 25, 2007, at 9D ("The Holy See announced this month that it would become the world's first 'carbon neutral' sovereign state by planting trees in a Hungarian national park to offset the carbon-dioxide emissions and energy use of Vatican City."); id. ("Vatican officials announced that the papal audience hall adjacent to St. Peter's Basilica would be covered with photovoltaic panels that will make it possible to heat, cool and light the building exclusively with solar power."). Pope Benedict XVl has been ranked as one of the top 'green' religious leaders by the online environmental magazine Grist. . . . The Pope's use of an electric-powered popemobile and solar-power-friendly Vatican City helped him land at No.6 on the list. Grist said that the Pope has been increasingly vocal about the suffering that climate change will cause for the world's poor. 2008] This paper posits that the traditional "preferential option for the poor" is the unique and, perhaps, most valuable contribution that Catholic social teaching may malce to modern discussions of both domestic and interna­ tional environmental decision-making. 18 This doctrine may be a new source of unity between the Catholic view of environmental ethics and the view posited by many secular environmentalists. 19 Often, these two groups have been at odds with each other or, at the very least, perceived to be at odds with each other over the role of the human both in creation and. against creation. By paying new attention to the "preferential option for the poor," a proper understanding of the role of humanity in and toward the environment can be appreciated. This paper begins by assessing the reason that there must be a Catholic voice in this debate and the limitations on the current popular discussion in this field. After a very brief overview of the "preferential option for the poor," I then trace six traditional Catholic principles of environmental eth­ ics,z° each of which is inextricably intertwined with the "preferential option for the poor." By exploring how the preferential option comes into play, these six principles can be better understood, and the link between protec­ tion of the poor and protection of the environment is better established. Remaining mindful of this link is an essential component to understanding the key values that should be considered in both domestic and international environmental decision-making. Frustratingly-and yet realistically-this doctrine also poses a number of significant challenges, both practical and theoretical, and these I also address and identify as issues in need of further reflection. Nevertheless, the "preferential option for the poor" breaches an important gap and offers a valuable Catholic contribution to environmental decision-making?1 18. For discussion of this unique contribution, see generally Walter E. Grazer, Environmental iustice: A Catholic Voice, AM., Jan. 19, 2004, at 12: The bishops are seeking to create an authentically Catholic voice in the environmental debate, one that focuses on the human person's place in nature and that puts the needs of the poor and vulnerable front and center. This new voice has old roots. The life of St. Francis of Assisi ... demonstrated a love for creatures and the poor that can inspire us to find a way to care for both the earth and the wretched of the earth. . . . Too few, however, have reflected his love for both the poor and nature .... 19. Fisher-Ogden & Saxer, supra note 4, at 116 ("Secular environmentalists need to recog­ nize that many environmental ethical theories have been influenced by religious values and that people with religious views are their allies and not opponents."). 20. I articulated these same six principles in a prior paper. Lucia A. Silecchia, Environmental Ethics from the Perspectives ofNEPA and Catholic Social Teaching: Ecological Guidance for the 21st Century, 28 WM. & MARY ENVTL. L. & POL'y REv. 659-798 (2003-04). 21. More generally, others have suggested that religious values can play this role. See FisherOgden & Saxer, supra note 4, at 64-65: Religion could help save the ecology of our planet. ... [I]n the face of scientific uncer­ tainty, religious values play an important role alongside the traditional cost-benefit anal­ ysis.... We hope that religious principles will serve as a 'stepping stone' in bridging the gap between human-centered utilitarianism and the environmental moralist approach. THE LIMITS OF THE CURRENT ENVIRONMENTAL DEBATE We live in an era when environmental concerns garner much attention. Our generation, and the one that follows, will have many important deci­ sions to make that will affect the future of the world environment for many years to come. As Pope Benedict XVI said in a 2007 address to the youth of Loreto: The future of the planet is entrusted to the new generations, in which there are evident signs of a development that has not al­ ways been able to protect the delicate balances of nature. Before it is too late, it is necessary to make courageous decisions that can recreate a strong alliance between humankind arid earth?Z Yet, there is much about the state of current environmental discussions that should make observers uneasy about the way in which those decisions will be made. In brief, and of no surprise to anyone, there is a great deal of rancor and partisan bickering rampant in discussions?3 Scientists are ac­ cused of bias, advocates are accused of alarmism and the cautious are de­ rided as naively complacent.z4 The motives of many are suspect, and the general public is overwhelmed with information that may inspire inertia either because it is paralyzingly gloomy or unrealistically positive. As times change, it often seems as if a different environmental concern acquires ceAlthough this paper explores the unique Catholic contribution to this debate, it also seems possible that this will be-and, indeed, has already been-fruitful grounds for inter-religious and ecumeni­ cal cooperation. 22. Pope Benedict XVI, Homily of His Holiness Benedict XVI, Plain of Montorso (Sept. 2, 2007) [hereinafter Montorso Homily], available at http://www.vatican.va/holyJather/bene­ dicCxvilhomilies/2007/documents/hCben-xvi_hom_20070902_loreto3n.htrnl. He went on to plead that, "[a] decisive 'yes' is needed to protect creation and also a strong commitment to invert those trends which risk leading to irreversibly degrading situations." Id. These comments echo those made over a quarter century ago by the Synod of Bishops who warned: [M]en are beginning to grasp a new and more radical dimension of unity; for they per­ ceive that their resources, as well as the precious treasures of air and water-without which there cannot be life-and the small delicate biosphere of the whole complex of all life on earth, are not infinite, but on the contrary must be saved and preserved as a unique patrimony belonging to all mankind. Synod of Bishops, Justice in the World (1971), in THE DOCUMENTARY HERITAGE 287, 289, supra note 5 [hereinafter Justice in the World]. 23. See, e.g., A Plea for Dialogue, supra note 7 ("Much of the debate on global climate change seems polarized and partisan. Science is too often used as a weapon, not as a source of wisdom. Various interests use the airwaves and political process to minimize or exaggerate the challenges we face."); id. ("The common good is built up or diminished by the quality of public debate.... Serious dialogue should not be jeopardized by public relations tactics that fan fears or pit nations against one another."); Grazer, supra note 18, at 13 ("[T]he search for the common good is often overwhelmed by powerful competing interests and polarizing claims and tactics."). 24. Vatican Information Service, Environmental Protection is a Moral Imperative, VIS BUL· LETIN, Sept. 25, 2007 (quoting comment by Msgr. Pietro Parolin, Vatican Under-Secretary for Relations with States to the U.N. General Assembly, in which he warned that, "the results of these scientific assessments, and the remaining uncertainties, should neither be exaggerated nor mini­ mized in the name of politics, ideologies, or self-interest."). The divisive nature of this debate is explored more fully in Jeff Severns Guntzel, Polarization Freezes Global Warming Debate, NAT'L CATH. REp., June 17,2005, at 2a. lebrity status, and much of the debate on ecological matters is directed to­ ward that one concern to the exclusion of others. One can easily get the impression that ecological policy is created in "triage" mode, responding to each particular crisis individually, without an overarching, holistic frame­ work for planning?5 Today, for example, concerns about "global warming" have dominated debates,26 perhaps at times to the exclusion of other press­ ing environmental issues such as access to safe drinking water?7 the healthy use of pesticide, the shortage of effective sanitation and the blight of urban air pollution, to name but a few. More troubling has been the nearly complete absence of the poor in the debates about the environment and the issues that it raises. 28 In the past, the environmental movement was often criticized as a movement of the wealthy-those who could afford to be concerned about the "luxury" of conservation?9 Even as the world now realizes that a clean environment is not a lUxury but a necessity, there is still an absence of full participation by the poor in the discussions of important environmental questions. The more complex ecological issues become, the higher the level at which they are addressed-and the further removed these discussions can become from those who are most directly affected. Yet, in a very real way, the impacts of both environmental prob­ lems and the proposed solutions to those problems have a disproportion­ ate impact on the poor of the world. Whether one argues in favor of the status quo or in favor of aggressive environmental mitigation, the im­ pact of both action and inaction will fall largely on the poor,30 who Testimony] ("Sadly, the voices and presence of the poor and vulnerable are often missing in the debates and decisions on climate change."); A Plea for Dialogue, supra note 7 ("The search for the common good and the voices of poor people and poor countries sometimes are neglected."); id. ("[C]hurch leaders in developing countries ... fear that affluent nations will mute their voices and ignore their needs."). 29. See, e.g., Speth, supra note 25, at 789: [T]he poorer countries of the global South have perceived the global environmental agenda as an agenda of the wealthy North, and, indeed, international environmental regimes have typically been pushed by the richer countries. The poorer countries have not only given these concerns a lower priority, they have feared that agreement would undermine their growth potential or impose high costs of compliance. 30. Pontifical Council for Justice and Peace, A Contribution of the Holy See to the Fourth World Water Forum: Water, An Essential Elementfor Life (Mar. 16-22,2006) [hereinafter Water, An Essential Element for Life], available at http://www.vatican.vaJroman3uriaJpontificaCcoun­ cils/justpeace/documents/rc_pcjustpeace_doc_20060322_mexico-water_en.htrnl: It is they who live in precarious conditions which increase their vulnerability to harmful natural occurrences and they who are most affected by price increases of natural re­ sources in periods of scarcity and emergency. The need for ethical and moral considera­ tions as regards actions to reduce the risks for those living in poverty cannot be overlooked. Id.; Carr Testimony, supra note 28, at 4 ("[T]hose who contributed least to climate change will be affected the most; those who face the greatest threats will likely bear the greatest burdens and have the least capacity to cope or escape."); id. ("Many cite concern for the poor on both sides of this issue. We hope that the poor will not be ignored or misused either in postponing action or choosing policies that harm the poor more than help them, or as excuses not to take action."); id. ("Ironically, the poor and vulnerable generally contribute much less to the problem but are more likely to pay the price of neglect and delay and bear disproportionate burdens of inaction or unwise actions. We know from bitter experience who is left behind when disaster strikes."); A Plea for Dialogue, supra note 7: Inaction and inadequate or misguided responses to climate change will likely place even greater burdens on already desperately poor peoples. Action to mitigate global climate change must be built upon a foundation of social and economic justice that does not put the poor at greater risk or place disproportionate and unfair burdens on developing nations. See also Catholic News Service, Environmental Damage Risks God's Creation, Threatens Poor, Pope Benedict Says, CATH. NEWS SERV., Aug. 28, 2006, available at http://www.catholic.org/ internationaUinternational_story.php?id=21044 (quoting Pope Benedict XVI's reflection that "en­ vironmental degradation makes poor people's existence intolerable."); Grazer, supra note 18, at 13: seem at times to be spoken oj more than spoken to or with m these debates. 31 Most troubling to me, however, has been the tendency in environmen­ tal debates to debase the value of the human in the natural order. This attack on the human person may take the form of casting mankind as a villain in an environmental crisis,32 It may arise as a, perhaps, well-intended but mis­ guided plea to consider all other elements of creation as having the same dignity as the human. 33 It may also take a far more sinister form as advo­ cacy for abusive popUlation control or rampant abortion in poor nations. 34 The poor are vulnerable to environmental hazards. Poor families often live on the mar­ gins of society: in urban areas where their housing is poor, or in rural areas, where the land is overused, in flood plains or subject to drought. They often live near toxic dumps, where housing is cheaper. Some hold jobs that people of higher incomes would not consider, jobs that expose poorer workers directly to environmental toxins. 31. See Grazer, supra note 18, at 13 ("In debates about the environment, the poor and vulner­ able workers are often out of sight and have no voice."); id. ("In these struggles, the voices of the poor are missing."). See also supra note 23 and accompanying text. 32. Environmental Protection is a Moral Imperative, supra note 24 (quoting Msgr. Pietro Parolin's critique of "those who hold up the earth as the only good, and would characterize hu­ manity as an irredeemable threat to the earth, whose population and activity need to be controlled by various drastic means."). 33. See COMPENDIUM, supra note 6, at 202: A correct understanding of the environment prevents the utilitarian reduction of nature to a mere object to be manipulated and exploited. At the same time, it must not absolu­ tize nature and place it above the dignity of the human person himself. In this latter case, one can go so far as to divinize nature or the earth, as can readily be seen in certain ecological movements that seek to gain an internationally guaranteed institutional status for their beliefs. The Magisterium [opposes] a concept of the environment based on ecocentrism and biocentrism.... See also Grazer, supra note 18, at 15: Extremes need to be resisted. Some espouse an almost divine status for nature, without any reference to the unique dignity of the human person or the need for development. Others embrace a strictly utilitarian view of nature. The church recognizes, on the other hand, that humans are part of nature. It neither divinizes nature nor embraces a material­ istic view. No environmental ethic will be satisfactory without a clearer perspective on the place of humans within nature and a better understanding of the moral responsibili­ ties of caring for creation. 34. While "[r]apid population growth presents special problems and challenges that must be addressed to avoid damage done to the environment and to social development," Renewing the Earth, supra note 7, Catholic teaching has consistently warned that policies to address this com­ plex question may not run counter to human dignity. See, e.g., Pope John Paul II, Address at the Liturgy of the Word (June 12, 1999) (on file with author), critiquing those who "oppose the destruction of the environment while allowing, in the name of comfort and convenience, the slaughter of the unborn and the procured death of the elderly and the infirm, and the carrying out, in the name of progress, of unacceptable interventions...." See also Pope John Paul II, Sollic­ itudo Rei Socialis (Dec. 30, 1987), in THE DOCUMENTARY HERITAGE, supra note 5, No. 25 [here­ inafter Sollicitudo Rei Socialis]: [I]t is very alarming to see governments in many countries launching systematic cam­ paigns against birth, contrary not only to the cultural and religious identity of the coun­ tries themselves but also contrary to the nature of true development. It often happens that these campaigns are the result of pressure and financing coming from abroad, and in some cases they are made a condition for the granting of financial and economic aid and assistance.... [T]here is an absolute lack of respect for the freedom of choice of the parties involved, men and women often subjected to intolerable pressures ... in order to force them to submit to this new form of oppression. It is the poorest populations which In all these ways, some current environmental debates seem to run contrary suffer such mistreatment, and this sometimes leads to a tendency toward a form of racism.... This link between population and development was explored nearly half a century ago by Pope John XXIII, Mater et Magistra (May 15, 1961), in THE DOCUMENTARY HERITAGE, supra note 5, Nos. 188-99 [hereinafter Mater et Magistra]. He addressed this question with optimism that the resources of the earth would be sufficient to avoid a cortflict. He wrote: [T]he interrelationships on a global scale between the number of births and available resources are such that we can infer grave difficulties in this matter do not arise at present, nor will in the immediate future.... Besides, God in his goodness and wisdom has, on the one hand, provided nature with almost inexhaustible productive capacity; and, on the other hand, has endowed man with such ingenuity that, by using suitable means, he can apply nature's resources to the needs and requirements of existence.... [M]an should, by the use of his skills and science of every kind, acquire an intimate knowledge of the forces of nature and control them ever more extensively. Moreover, the advartces hitherto made in science and technology give ahnost limitless promise for the future in this matter. [d. at 115, No. 189. This was followed by a warning that "these problems should be posed and resolved in such a way that man does not have recourse to methods and means contrary to his dignity, which are proposed by those persons who think of man and his life solely in material terms." [d. at 115, No. 191. More recent writings have tempered this early optimism with recognition of the limitations inherent in certain resources. See, e.g., Justice in the World, supra note 22, at 289: In the last twenty-five years a hope has spread through the human race that economic growth would bring around such a quantity of goods that it would be possible to feed the hungry at least with the crumbs falling from the table, but this has proved a vain hope in underdeveloped areas and in pockets of poverty in wealthier areas, because of the rapid growth of population and of the labor force, because of rural stagnation and the lack of agrarian reform.... See also Pope John Paul II, Laborem Exercens (Sept. 14, 1981), in THE DOCUMENTARY HERITAGE, supra note 5, at 352, 353, No.1 [hereinafter Laborem Exercens] (acknowledging "the growing realization that the heritage of nature is limited and that it is being intolerably polluted...."). A similar theme was echoed in Pope John Paul II, Centesimus Annus (May 1, 1991), in THE DOCUMENTARY HERITAGE 439-88, supra note 5, at 463, No. 33 [hereinafter Centesimus Annus]. See, e.g., Second Vatican Council, Gaudium et Spes (1965), in THE DOCUMENTARY HERITAGE 166-237, supra note 5, at 227, No. 87 [hereinafter Gaudium et Spes]: Many people assert that it is absolutely necessary for population growth to be radically reduced everywhere or at least in certain nations. They say this must be done by every possible means and by every kind of government intervention. Hence this Council ex­ horts all to beware against solutions contradicting the moral law, solutions which have been promoted publicly or privately, and sometimes actually imposed. [d.; Renewing the Earth, supra note 7 ("Regrettably, advantaged groups often seem more intent on curbing Third-World births than on restraining the even more voracious consumerism of the de­ veloped world. We believe this compounds injustice and increases disrespect for the life of the weakest among us.") [d.: Respect for nature ought to encourage policies that promote natural family planning and true responsible parenthood rather than coercive population control programs.... How ... can we protect endangered species and at the same time be callous to the unborn, the elderly, or disabled persons? Is not abortion also a sin against creation? If we tum our backs on our own unborn children, can we truly expect that nature will receive respect­ ful treatment at our hands? The care of the earth will not be advanced by the destruction of human life. . . . See also A Plea for Dialogue, supra note 7: Population is not simply about statistics. Behind every demographic number is a pre­ cious and irreplaceable human life whose dignity must be respected. The global climate change cannot become just another opportunity for some groups-usually affluent advo­ cates from the developed nations-to blame the problem on population growth in poor countries. to the dignity that should be accorded to the human person in the considera­ tion of environmental questions?5 What the "preferential option for the poor" may inject into this diffi­ cult situation is a framework in which to make environmental decisions. By keeping the status of the poor front and center in environmental decision­ making, it may be possible to restore the proper place of the human in environmental questions, while at the same time reaching decisions that often, although concededly not always, will have a beneficial impact on the natural environment itself. 36 Making environmental decisions in view of the See also Rocca, supra note 14, at 9D ("Catholic leaders are leery of any environmental policies that might hold back economic development, and they categorically reject proposals that conflict with church doctrines forbidding artificial birth control and abortion."); Pope Benedict XVI, Ad­ dress of His Holiness Benedict XVI to the Bishops of Kenya on their "Ad Limina" Visit (Nov. 19, 2007), available at http://www.vatican.valholyjather/benedicCxvi/speeches/2007/november/doc­ uments/hCben-xvi_spe_20071119_bishops-kenya_en.html ("[I]t is a matter of great concern that the globalized secular culture is exerting an increasing influence on local communities as a result of campaigns by agencies promoting abortion."); COMPENDIUM, supra note 6, at 209: The close link that exists between the development of the poorest countries, demo­ graphic changes and a sustainable use of the environment must not become a pretext for political and economic choices that are at variance with the dignity of the human per­ son.... Although it is true that an uneven distribution of the population and of available resources creates obstacles to development and a sustainable use of the environment, it must nonetheless be recognized that demographic growth is fully compatible with an integral and shared development. 35. In fairness, human health, to a certain extent, has always been a factor in environmental decision-making. See, e.g., Alyson C. Floumoy, In Search of an Environmental Ethic, 28 COLUM. J. ENVTL. L. 63, 6 4 (2003 ) ("Some thirty years ago, American society awoke to a fundamental flaw in the status quo. Existing patterns of economic activity, law and policy left certain widely­ shared values unprotected. In particular, human health and the environment were suffering un­ precedented and unacceptable degradation."). Yet, while this attention to human health is reflected by the regulations actually passed, it still creates unease among some secular environmental ethicists. See id. at 80-81: Anthi:opocentric utilitarian ethics suggest that one guiding principle of the good should be to maximize welfare for humans. Incidental protection of non-human nature reflects "the good" only insofar as it advances humans' interests or values. Such an approach is rejected by the majority of environmental philosophers as inherently insufficient to ad­ dress the problem of human relations with the non-human environment. Nonetheless, an anthropocentric utilitarian ethic is a familiar justification for many regulatory statutes, including many environmental laws.... [A]n anthropocentric rights-based ethic is an important concept since many of our laws are arguably consistent with such an ethic. 36. See Benyhill, supra note 4, at 5 ("Only upon rekindling a passion for creation with a sense of indignation at the suffering of our neighbors will we be able to see the ecological problem with sober eyes."); id. ("[M]uch rational methodology for governing the allocation of natural resources must be dictated by a respect for creation and a love of neighbor."); The Christian Ecological Imperative, supra note 7, No. 17: All social justice issues have ecological implications: the case of water is a perfect example of this.... The cry of the earth and the cry of the poor are one. Ecological harmony cannot exist in a world of unjust social structures; nor can the extreme social inequalities of our current world order result in ecological sustainability. See also Fisher-Ogden & Saxer, supra note 4, at 71-72 ("Without a lucid and universally accept­ able understanding of the human relationship to the natural and physical environment, we cannot hope to achieve global environmental policies to prevent the global and cross-cultural occurrence of increasing degradation and loss of our natural resources."); Southern African Bishops' State­ ment, supra note 7, at 1 ("Environment is not only about landscapes and the survival of endan­ gered animals, but it is also about the life of the people, the conditions in which women and men long- and short-term consequences for the most vulnerable is both consis­ tent with the primary focus of Catholic social teaching and likely to curb the most egregious harm to creation itself. 37 THE PREFERENTIAL OPTION FOR THE POOR: A BRIEF OVERVIEW The joys and the hopes, the griefs and the anxieties of the men of this age, especially those who are poor or in any way afflicted, these too are the joys and hopes, the griefs and anxieties of the followers of Christ. 38 Much has been written about the "preferential option for the poor" and what it may entail as we generate policies and decisions that recognize that "[t]he neediest among us have a special claim on our care and compas­ sion."39 I will not, therefore, dwell too long on this, except to provide some 2008] basic background on the contours of this doctrine so that its relevance to the environmental debate may be c1earer.40 At its most basic level, the "preferential option for the poor" has bibli­ cal origins in both the Old and New Testaments. 41 In the Old Testament, the idea of the jubilee year and the Sabbath tradition had as their goals the restoration of property to the poor and the reestablishment of equity among landowners.42 The theory underlying these traditions was to provide a regu­ lar time at which to appraise whether the land itself or the poor on the land had suffered a wrong that needed to be corrected. All could then be renewed with a new start. While not pelfect, these traditions linked the care of the poor with the care of the land and recognized the need to consider them together and to reexamine obligations to both. Likewise, the plight of the widow and the orphan-the ancient "poor" because of their circumstances-were given particular attention in the Old Testament injunctions regarding the demands of justice.43 The New Testament roots of the doctrine, of course, arise from the many examples of Christ's identification with the poor and outcast,44 and his reminders 43. See, e.g., DORR, supra note 40, at 5 ("The Old Testament leaves us in no doubt that God has a special care for the poor.... Time after time, God sent the prophets to protest against . . . injustice and to proclaim his care for the poor."); Jubilee Call for Debt Forgiveness, supra note 42, § II, para. 7 ("Scripture tells us that one way to judge the moral character of society is to look at how widows and orphans are treated. The preferential option for the poor incorporates this scriptural theme into Catholic ethical reflection."); Justice in the World, supra note 22, at 293 ("In the Old Testament God reveals himself to us as the liberator of the oppressed and the de­ fender of the poor, demanding from man faith in him and justice toward man's neighbor."); Hiers, supra note 41, at 180 (discussing Old Testament commands to care for widows and orphans). 44. See, e.g., Pope Leo Xli, Rerum Novarum (May 15, 1891), in THE DOCUMENTARY HERI­ TAGE, supra note 5, at 23, No. 20 [hereinafter Rerum Novarum] ("God himself seems to incline more to those who suffer evil; for Jesus Christ calls the poor blessed; he lovingly invites those in labor and grief to come to him for solace; and he displays the tenderest charity to the lowly and oppressed."); Justice in the World, supra note 22, at 293 ("In his preaching [Christ] proclaimed the fatherhood of God toward all men and the intervention of God's justice on behalf of the needy and the oppressed."); Pope Benedict XVI, Address of His Holiness Benedict XVI to the Directors, Medical Staff, the Sick, and Their Relatives at the "San Mateo" Polyclinic in Pavia (Apr. 22, 2007), http://www.vatican.va/holy_father/benedicCxvi/speeches/2007lapriI/documents/hCben­ xvi_spe_20070422_ospedale-pavia3n.html ("The Church, following the example of her Lord, always expresses a special preference for the suffering and ... sees Christ himself in the suffer­ ing...."); COMPENDIUM, supra note 6, at 80 ("The Church's love for the poor is inspired by the Gospel of the Beatitudes, by the poverty of Jesus and his attention to the poor."); Ryan, supra note 2, para. 15 ("In the Church's early tradition we find that the rich were believed to have been given wealth or power or property so that they could perform ministry to the poor, for the love of Christ. Christ was always seen as identifying himself with the poor."). In addition, the "preferential option" has been identified as an element of Marian spirituality. See, e.g., What is Happening?, supra note 7, at 7 ("We Filipino have a deep devotion to Mary. We tum to her for help and protection in time of need. We know that she is on the side of the poor and those who are rejected."). In a recent address to priests and religious in Austria, Pope Benedict XVI addressed Christ's identification with the poor as he explained: Jesus Christ, who was rich with the very richness of God, became poor for our sake.... He emptied himself; he humbled himself and became obedient even to death.... The one who himself became poor called the poor "blessed." Saint Luke, in his version of the Beatitudes, makes us understand that this statement-calling the poor blessed­ certainly refers to the poor, the truly poor, in Israel at that time, where a sharp distinc­ tion existed between rich and poor. But Saint Matthew, in his version of the Beatitudes, explains to us that material poverty alone is not enough to ensure God's closeness, since the heart can be hard and filled with lust for riches. Matthew ... lets us understand that in any case God is particularly close to the poor. Pope Benedict XVI, Address of His Holiness Benedict XVI at Vespers with Priests, Religious, Deacons and Seminarians (Sept. 8, 2007), http://www.vatican.va/holyjatherlbenediccxvil speeches/2007/september/documentslhCben-xvLspe_20070908_vespri-mariazeICen.htrnI. that whatever is done to and for the "least" is done to and for God himself. 45 More recently, this "preferential option" has become a theme in more modern encyclicals. It was addressed, albeit in a largely indirect way, in the first modern encyclical, Rerum Novarum itself.46 It has been more fully developed in Rerum Novarum's progeny,47 most'notably in Pope John Paul II's Sollicitudo Rei Socialis. 48 In Sollicitudo Rei Socialis, Pope John Paul II explained the option by saying: This is an option, or a special form of primacy in the exercise of Christian charity, to which the whole tradition of the Church bears witness. It affects the life of each Christian inasmuch as he or she seeks to imitate the life of Christ, but it applies equally to our social responsibilities and hence to our manner of living, and to the logical decisions to be made concerning the ownership and use of goods. Today . . . given the worldwide dimension which the social ques­ tion has assumed, this love of preference for the poor . . . cannot but embrace the immense multitudes of the hungry, the needy, the homeless, those without medical care and . . . those without hope of a better future. . . . To ignore them would mean becoming like the "rich man" who pretended not to know the beggar Lazurus lying at his gate (footnote omitted). Our daily life as well as our decisions in the political and eco­ nomic fields must be marked by these realities.49 The "preferential option for the poor" doctrine attained a higher profile in the 1970s and 1980s when it was discussed among theologians and bish­ ops of Latin America.5o As it became more frequently discussed, it has not been without controversy.51 Because it became intertwined with the more controversial "liberation theology," it was sometimes met with a cautious reception. 52 It has also been downplayed at times because it is seen by some to advocate a distinction that may result in resentment among classes.53 In 49. Id. at 425, No. 42. 50. See, e.g., Twomey, supra note 40, at 23: While the formal concept of the "preferential option for the poor" emerged in church discourse from within the Latin American context only in the early 1970s, it quickly spread and became more widely embraced as an apt metaphor to focus attention on the official teaching of the Church as a defense of the poor and powerless in society and an encouragement to them in the struggle for justice. See also id. at 132 ("Increasingly, the Latin American Church began to take the side of the op­ pressed, and felt compelled to make this option for the poor on the basis of a new reading of the biblically-based claims of faith in the historical Jesus."). 51. See, e.g., id. at 19 ("Paradoxically, the option for the poor served both to unite and divide the Church."). Tool of Development, 21 NOTRE DAME J.L. ETHICS & PUB. POL'y 263, 280 (2007) ("Sometimes misunderstood, the option for the poor means neither that rich and middle-class people are unimaddition, it is an unsettling doctrine in that it often demands governmental or societal action rather than solely changes in personal morality.54 How­ ever, in spite of its difficult history, the "preferential option for the poor" is now a generally accepted component of modern Catholic social teaching. 55 The heart of this "option" is the notion that, while we are called to love all and not to love exclusively one group over another, those who are poor have a "special claim" both to love and compassion, as well as to the mate­ rial goods of the world. 56 When the "common good" and "universal desti­ nation of goods" are discussed, the poor must be given special consideration.57 While this "poverty" traditionally refers to those who are should provide decision-makers with necessary practice in weighing the in­ terests of those who are not "at the table" when and where decisions are made. 112 More importantly, the need to weigh soberly our obligations to those who follow us requires that sustainable human development become a pri­ ority in planning. 113 Discounting or ignoring those who follow has been labeled by some to be "contempocentrism."u4 Those who find themselves in the most desperate of circumstances may, quite rationally, deplete the resources that surround them to meet the urgent necessities of feeding and clothing their families and to eke a living 112. This, of course, often includes those people and nations who are the poorest. 113. 2006 Common Declaration, supra note 82, para. 10 ("[W]e appeal to social leaders and to all people of good will to engage in a reasonable and respectful stewardship of creation, so that it may be correctly administered in a spirit of solidarity, especially for the sake of peoples afflicted by famine, so as to bequeath to future generations a world that is truly inhabitable for everyone."); A Community of Peace, supra note 13, No.7 ("[F]uture generations also have the right to reap [nature's] benefits and to exhibit towards nature the same responsible freedom that we claim for ourselves."); H.E. Mons. Renato Raffaele Martino, Statement to the United Nations on Item 98F, para. 13 (Nov. 28, 2001) (on file with the author), available at http://www.vatican.valro­ man3uriaisecretariat_state/documents/rc_seg-sCdoc_20011128_martino-item98Cen.html ("Knowledge is the only true inexhaustible resource that assures a sustainable environment and development and ... only knowledge, together with an ethical sense of our relationship with the environment, can help to guide our efforts today and for future generations."); Rio Statement of Archbishop Martino, supra note 79, para. 20 ("A serious and concerted effort aimed at protecting the environment and at promoting development will not be possible without directly addressing the structural forms of poverty that exist throughout the world."); Renewing the Earth, supra note 7, para. 4 ("Environmental issues are also linked to other basic problems. . . . To ensure the survival of a healthy planet, then, we must not only establish a sustainable economy but must also labor for justice both within and among nations. We must seek a society where economic life and environmental commitment work together to protect and to enhance life on this planet."). For a thoughtful analysis of long-term sustainable development from a religious perspective, see generally JOHN E. CARROLL, SUSTAINABILrry AND SPIRITuALrry (2004) and IAN HORE-LACY, RESPONSIBLE DOMINION: A CHRISTIAN APPROACH TO SUSTAINABLE DEVELOPMENT (2006). 114. See Speth, supra note 25, at 784 ("Contempocentrism is the habit of thought that dis­ counts the future in favor of the present. Like anthropocentrism, it is another form of self­ centeredness. Contempocentrism is at war with one of the two central propositions of environmen­ tal ethics: the proposition that we have duties to future generations...."). In a fascinating article, Prof. Cass R. Sunstein compares the reactions of Americans to the dangers of terrorism and climate change and offers the following explanation as to why the inter­ est of future generations tend to be discounted in the setting of environmental priorities: [C]urrent citizens may tum out to be unwilling to pay a great deal to help those who will follow them. Perhaps current citizens are rationally discounting the future, believing that harms in fifty years do not deserve the same attention as harms today. Perhaps citizens are assuming that if risks will not be incurred for several or many decades, they might not be incurred at all, simply because technological advances will provide a solution. Perhaps they are using an implausibly high discount rate to assess future benefits. Perhaps they are being unrealistically optimistic, or reducing cognitive dissonance.... Cass R. Sunstein, On the Divergent American Reactions to Terrorism and Climate Change, 107 COLUM. L. REv. 503, 531 (2007); see also IN THE BEGINNING, supra note 10, at 34 ("Our age is the first to experience that hideous narcissism that cuts itself off from both past and future and that is preoccupied exclusively with its own present."). 2008] out of tired soil or an inefficient old plant. l1S However, the temptation to focus solely on easy short-term "band-aids" is to be avoided.116 As Pope John Paul II feared: [P]roper ecological balance will not be found without directly ad­ dressing the structural forms of poverty that exist throughout the world. Rural poverty and unjust land distribution in many coun­ tries . . . have led to subsistence farming and to the exhaustion of the soil. Once their land yields no more, many farmers move on to clear new land, thus accelerating uncontrolled deforestation, or they settle in urban centres which lack the infrastructure to re­ ceive them. Likewise, some heavily indebted countries are de­ stroying their natural heritage, at the price of irreparable ecological imbalances, in order to develop new products for ex­ port. . . . [I]t would be wrong to assign responsibility to the poor alone for the negative environmental consequences of their ac­ tions. Rather, the poor, to whom the earth is entrusted no less than to others, must be enabled to find a way out of their poverty.1l7 115. Striking this balance is not an easy task. See Renewing the Earth, supra note 7, para. 62 ("The ecological crisis . . . challenges us to extend our love to future generations and to the flourishing of all earth's creatures. But neither our duties to future generations nor our tending of the garden entrusted to our care ought to diminish our love for the present members of the human family, especially the poor and the disadvantaged."). 116. See Berryhill, supra note 4, at 42 ("Pollution control is either overlooked or given a very limited role in the development projects because these concerns are outweighed by the positive economics designed to enhance the quality of life for the poor."). 117. Peace With All of Creation, supra note 7, No. 11. Similar fears were articulated by the United States bishops, who warned: [IJn most countries today, including our own, it is the poor and the powerless who most directly bear the burden of current environmental carelessness. Their lands and neigh­ borhoods are more likely to be polluted or to host toxic waste dumps, their water to be undrinkable, their children to be harmed. Too often, the structure of sacrifice involved in environmental remedies seems to exact a high price from the poor and from workers. Small farmers, industrial workers, lumberjacks, waterrnen, rubber-tappers, for example, shoulder much of the weight of economic adjustment. Caught in a spiral of poverty and environmental degradation, poor people suffer acutely from the loss of soil fertility, pollution of rivers and urban streets, and the destruction of forest resources. Overcrowd­ ing and unequal land distribution often force them to overwork the soil, clear the forests, or migrate to marginal land. Their efforts to eke out a bare existence adds in its own way to environmental degradation and not infrequently to disaster for themselves and others who are equally poor. Renewing the Earth, supra note 7, para. 7. See also id. ("[TJhe poor suffer most directly from environmental decline and have the least access to relief from their suffering. Indigenous peoples die with their forests and grasslands. In Bhopal and Chernobyl, it was the urban poor and working people who suffered the most immediate and intense contamination."); [d. para. 44 (,,[WJorkers cannot be asked to make saclifices to improve the environment without concrete support from the broader community. Where jobs are lost, society must help in the process of economic conversion, so that not only the earth but also workers and their families are protected."); A Plea for Dialogue, supra note 7, para. 27 ("Many of the poor ... live in degrading and desperate situations that often lead them to adopt environmentally harmful agricultural and industrial practices. In many cases, the heavy debt burdens, lack of trade opportunities, and economic inequities in the global market add to the environmental strains of the poorer countries. Developing countries have the right to economic development that can help lift people out of dire poverty."); Jubilee Call for Debt Forgiveness, supra note 42, para. 25 ("The debt burden can lead to environmental degradation if Properly considering future generations requires a high degree of sacri­ ficial restraint. 118 The needs of the present need not be abandoned, but the needs of those to follow must be given their due weight. As a property teacher, I appreciate the analogy of one commentator119 who provided a practical, familiar framework for analyzing whether the interests of the fu­ ture generations are properly weighed. He suggested that a useful approach is to use the analogy of a life tenancy and consider ourselves to be life tenants in creation rather than its holders in fee simple absolute. 12o Thus, "[a]lthough the life tenant is allowed . . . to use and enjoy the benefit of the asset over his life, the corpus is to remain intact for use and enjoyment of future interest holders. The future interest holders are protected by the law of waste. . . ."121 This analogy has much to say about the way in which consideration of future generations can best be accomplished. Use of the earth's resources is permitted, but waste 122-the very thing which most harms the poor-is to be avoided if future generations are to be treated with the dignity they de­ serve. Thus, when weighing our obligations to future generations, decision­ makers may be well advised to ask themselves: - Are renewable resources relied on whenever possible?123 the need to generate hard currency through exports in order to make debt repayments results in intensified or reckless use of natural resources. Over-emphasizing export-oriented sectors such as logging, mining, or mono·cropping, for example, can result in depleted soils, denuded forests, exhausted fisheries, and polluted waters."). 118. Philip Pullella, Listen to Earth, Pope Says in Environmental Plea, REUTERS, July 25, 2007, available at http://in.reuters.comlarticle/worldNews/idINIndia-28652020070n5 (quoting Pope Benedict XVI's reflection that "obedience to the voice of the Earth is more important for our future happiness ... than the desires of the moment."); Partnership for the Future, supra note 7, at 3 ("Many of the decisions we must make will mean for many of us a reduction in consuming and being more intentional in our lifestyle choices."). 119. Fellow property teacher, Professor Wade Berryhill, of the University of Richmond's Law School. 120. Berryhill, supra note 4, at 47-48. 121. ld. The model of a "trust" is also a way of envisioning the rights of future generations. See Dulles, supra note 2, at 281 ("It is urgent for us to become more conscious that the resources of creation are given to us in trust, to be preserved for the use and enjoyment of all peoples, including future generations."); Nagle, supra note 80, at 1227-28 ("Like other trustees, people should not act to further their own best interests, but instead to best serve the owner."). 122. Legally, "waste" is defined as: An abuse or destructive use of property by one in rightful possession.... A destructive or material alteration or deterioration of the freehold.... An unreasonable or improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession, which results in its substantial injury. Any unlawful act or omission of duty on the part of the tenant which results in permanent injury to the inheritance.... The term implies neglect or misconduct resulting in material damage to or loss of property but does not include ordinary depreciation of property due to ... normal use. BLACK'S LAW DICTIONARY 1425 (5th ed. 1979). The application of this definition to ecological obligations should be obvious: "normal use" to satisfy current needs is not waste, while "improper use, abuse, mismanagement" is. 123. Pope John Paul II commented on the link between renewability, vel non, and obligations to future generations when he warned, "natural resources are limited; some are not, as it is said, renewable. Using them as if they were inexhaustible, with absolute dominion, seriously endangers 2008] - Is sufficient research being done to identify potential new sources of renewable resources and more efficient use of non­ renewable ones? - Do these new sources have negative side-effects now or in the future? - Are technological advances that can lead to more efficient use of resources being shared generously with those who most need them? - Is a distinction made between those environmental harms that are short-term and those that are irreversible? Are these harms assessed with scientific honesty, free from political biases and economic self-interest? - Procedurally, who is charged with representing the future gen­ erations so they have at least theoretical "standing" in environ­ mental debates? - How is this representation accomplished in light of what may be an inherent conflict of interest? As Pope Benedict XVI recently acknowledged, this last question is a difficult one, and one worthy of much lay attention: Humanity today is rightly concerned about the ecological balance of tomorrow. It is important for assessments in this regard to be carried out prudently, in dialogue with experts and people of wis­ dom, uninhibited by ideological pressure to draw hasty conclu­ sions, and above all with the aim of reaching agreement on a model of sustainable development. . . . Prudence does not mean failing to accept responsibilities and postponing decisions; it means being committed to making joint decisions after pondering responsibly the road to be taken, decisions aimed at strengthening that covenant between human beings and the environment, which should mirror the creative love of God. . . .124 D. In the Spirit of Subsidiarity, Environmental Decision-Making Must be Made at the Appropriate Level This principle requires that those charged with decision-making in the environmental fields-as well as others-assess the proper level at which decisions should be made. The traditional Catholic articulation of this prin­ ciple is the statement that decisions should not be made by a higher author­ ity when there is a lower authority that is capable of making that their availability not only for the present generation but above all for generations to come." Sollic­ itudo Rei Socialis, supra note 34, at 418, No. 34. 124. A Community of Peace, supra note 13, No.7. decision.125 Conversely, if a lower-level entity is not capable of accom­ plishing the task, then higher entities are required to do SO.126 In the environmental arena, there are decisions to be made and actions to be taken that are' very local. 127 Thus, localities are to be intimately in­ volved in making those decisions. Likewise, there is a role to be played by non-governmental, private entities and individuals-an involvement much encouraged in Catholic teaching. 128 At the same time, it is obvious to all that the nature of ecological problems means that the international commu­ nity is often required to act via global initiatives if complex problems are to be tackled. 129 2008] The "preferential option for the poor" can be linked with the notion of subsidiarity on both sides of the "lower level" and "higher level" contin­ uum. On the lowest level, the '~preferential option for the poor" requires that impoverished individuals and communities playa role in assessing the eco­ logical harms they are suffering and the potential remedies available at the local level. The ecosystems of the world are, indeed, global. However the local variety of resources and limitations requires decision-makers to pay attention to the voices of those who actually live in those areas affected by environmental harm. Failure to do so is not only unwise from an ecological perspective,130 but it is also an affront to the dignity of those who may often be in the best position to know their own needs. A paternalistic or conde­ scending exclusion of the local poor from the decision-making that affects them can not only deter ecological progress, but may also contribute to the vidual nations must measure their self-interest against the greater common good and contribute equitably to global solutions."); Peace With All oj Creation, supra note 7, No.9 ("The concepts of an ordered universe and a common heritage both point to the necessity of a more internationally coordinated approach to the management oj the earth's goods. In many cases the effects of eco­ logical problems transcend the borders of individual States; hence their solution cannot be found solely on the nationallevel."); Renewing the Earth, supra note 7, para. 36 ("Ecological concern has now heightened our awareness of just how interdependent our world is. Some of the gravest environmental problems are clearly global. In this shrinking world, everyone is affected and eve­ ryone is responsible...."); Celebrate Life, supra note 7, para. 24 ("[S]ince our major ecological challenges, such as greenhouse warming and depletion of the ozone layer, are increasingly global in scope, we need to speak of a global common good going beyond all provincial and national boundaries."); Guhin, supra note 4, at 9 ("[O]ne of the most important elements of subsidiarity is that sometimes larger institutions are needed to do the things the smaller ones cannot."); Aug. 1, 2007Audience, supra note 105, para. 24 ("[T]his is an age in which, in a globalized world, even people who are physically distant are really our neighbours ...."); Pope Benedict XVI, Address of His Holiness Benedict XVI at the Meeting with the Authorities and the Diploni.atic Corps of Austria, para. 8 (Sept. 7, 2007), available at http://www.vatican.valholy_fatherlbenedicCxvi/ speeches/2007/september/documents/hCben-xvi_spe_20070907_hofburg-wien_en.html ("The oft-cited process of globalization cannot be halted, yet it is an urgent task and a great responsibil­ ity of politics to regulate and limit globalization, so that it will not occur at the expense of the poorer nations and of the poor in wealthier nations, and prove detrimental to future generations."); COMPENDIUM, supra note 6, at 203, No. 466 (calling environmental problems "a responsibility that must mature on the basis of the global dimension of the present ecological crisis and the consequent necessity to meet it on a worldwide level, since all beings are interdependent in the universal order established by the Creator"); id. at 209, No. 48 ("Modern ecological problems are of a planetary dimension and can be effectively resolved only through international cooperation capable of guaranteeing greater coordination in the use of the earth's resources."). 130. See, e.g., Water, An Essential Element for Life, supra note 30, para. 24 ("Marginalized groups within the community need to be consulted about appropriate solutions to their needs. Traditional knowledge can be vital in planning water resources. More highly technological solu­ tions can often ignore local knowledge regarding terrain and climate and more importantly the human component. Respect for the principal of subsidiarity should, therefore, be a part of all water management policy."); see also Pope Benedict XVI, Message of His Holiness Benedict XVI to Mr. Jacques Diouf, Director General of FAO on the Occasion of World Food Day 2007, para. 3 (Oct. 4, 2007), available at http://www~vatican.va/holy_father/benediccxvj/messages/food/docu­ mentslhCben-xvLmes_20071004_world-food-day-2007_en.htrnl (urging that those working to eradicate hunger "take into account the cycles and rhythm of nature known to inhabitants of rural areas, thus protecting the traditional customs of the indigenous communities, leaving aside egotis­ tical and exclusively economic motivations"). real or apparent lack of political power that contributes to the very poverty they experience. Likewise, it cannot be forgotten that the poor themselves have obliga­ tions to do what is possible to address environmental harms. l3l In today's world, "the ecological crisis has assumed such proportions as to be the re­ sponsibility of everyone."132 The temptation, therefore, to rely on large­ scale or international initiatives should not overshadow the legitimate and necessary role that can and should be played by the poor. The "preferential option" is not an exemption for the poor from responsibility nor an invita­ tion to passivity and inertia. Quite the contrary. It requires that poor people be a principle force in improving their situation. Anything else is contrary to human dignity and responsibility.133 As Sollicitudo Rei Socialis warned with respect to international development generally: 131. See, e.g., Pope Benedict XVI, Address of His Holiness Benedict XVI to H.E. Mr. Ivan Guillermo Ricon Urdaneta, Ambassador of the Bolivarian Republic of Venezuela to the Holy See, para. 6 (Aug. 25, 2005), available at http://www.vatican.va/holy_fatherlbenedicCxvilspeeches/ 2005/augustidocuments/hCben-xvLspe_20050825 _ambassador-venezuela_en.html ("Venezuela has been wonderfully endowed by the Creator with natural resources. This brings with it the responsibility to cultivate and care for the gifts received ... so that all its inhabitants may have the possibility of living with the dignity that befits human beings. In this task, no one may feel exempt from active collaboration, especially in cases of poverty or social marginalization."); A Plea for Dialogue, supra note 7, para. 28 ("Developing and poorer nations must have a genuine place at the negotiating table. Genuine participation for those most affected is a moral and political neces­ sity for advancing the common good."); Ryan, supra note 2, para. 28 ("Christians must have a preferential option for the poor, and this option requires that they work for changes in unjust political, economic, and social structures, a task in which the poor themselves are the first agents of change."); Celebrate Life, supra note 7, para. 24 ("An authentic understanding of development needs to include all, especially the poor and marginalized, and to address all the different dimen­ sions of human flourishing over both the short and long term."); DORR, supra note 40, at 156: Being on the side of the poor in their cry for justice must surely involve encouraging them to find effective ways to ensure that their voice is really heard. The encyclical lays so much stress on the value of collaboration of rich and poor, and on the duty of those 'at the top' to initiate this, that it does not pay enough attention to what the poor can and should do. See also id. at 230 ("The Church must also encourage the poor to see themselves as the primary agents of change."); id. at 238 ("Almost everybody has some degree of complicity in these injus­ tices - the well-off who protect their own interests at the cost of the poor, and the poor them­ selves who often remain sunk in apathy."); id. at 275 ("The poor are being recognised as the most important agents of social change. In view of the inspiring vision that now permeates Catholic social teaching, they can no longer be seen as passive recipients of alms; they are ... the makers and subjects of their own history...."). 132. Peace With All of Creation, supra note 7, No. 15. See also Declaration on the Environ­ ment, supra note 9, No. 12 ("Religions, governments and institutions are faced by many different situations; but on the basis of the principle of subsidiarity all of them can take on some tasks, some part of the shared effort."). 133. Pope John XXIII spoke of the fact that human dignity requires the participation of all in their own authentic development. He wrote that those advancing economic development "should have this goal in mind, that citizens in less developed countries ... feel themselves to be the ones chiefly responsible for their own progress. For a citizen has a sense of his own dignity when he contributes the major share to progress in his own affairs." Mater et Magistra, supra note 34, at 109, No. 151. See also Pacem in Terris, supra note 47, at 150, No. 123 (stating that developing countries "must realize that they are primarily responsible, and ... they are the principal artisans Development demands above all a spirit of initiative on the part of the countries which need it. Each of them must act in accor­ dance with its own responsibilities, not expecting evelything from the more favored countries, and acting in collaboration with others in the same situation. Each must discover and use to the best advantage its own areas of freedom. Each must make itself capable of initiatives responding to its own needs as a society. Each must likewise realize its true needs, as well as the rights and duties which oblige it to respond to them. The development of peoples begins and is most appropriately accomplished in the dedication of each people to its own development, in collabora­ tion with others. 134 At the same time, the "preferential option for the poor" requires that the international community become involved when there is an ecological harm that cannot be resolved at a local or individual level. The doctrine itself does not offer a clear blueprint for determining what issues these might be; however, the briefest of reflections suggests that these issues might include those that involve multiple nations, those that require expen­ sive solutions beyond the economic ability of an affected country, or those that demand technical expertise unavailable within an individual nation. The "preferential option for the poor" requires that when the international organizations do act, they act with respect for impoverished nations and with priority given to those neediest nations. In this way, the "preferential option for the poor" should inform the way in which subsidiarity is consid­ ered in the environmental decision-making process. As Pope John XXllI explained while discussing economic development: [C]ivil authorities in pursuing their interests not only must not harm others, but must join their plans and forces whenever the efforts of an individual government cannot achieve its desired goals; but in the execution of such common efforts, great care mu~t be taken lest what helps some nations should injure others. 135 The Right to Private Property and the Mandate to Use Property for the Common Good Must Both be Respected in Environmental Policies A fifth principle guiding Catholic teaching on ecological matters re­ quires a proper and nuanced understanding of property rights. The first of in the promotion of their own economic development and social progress); Populorum Progressio, supra note 63, at 258, No. 77 ("Peoples themselves have the prime responsibility to work toward their development."); Justice in the World, supra note 22, at 291 ("By taking their future into their own hands through a determined will for progress, the developing peoples-even if they do not achieve the final goal-will authentically manifest their own personalization."). 134. Sollicitudo Rei Socialis, supra note 34, at 427, No. 44. 135. Pacem in Terris, supra note 47, at 147, No. 99. the modem encyclicals were very much concemed with property issues­ with a particular focus on how this affected labor relations and class distinc­ tions. 136 Much has been wtitten about how the Catholic tradition condemns both socialism137 and unbridled capitalism,138 as both can lead to distinct dangers.139 However, the responsible use of property and a correct under­ standing of it can inform ecological discussions and the "preferential option for the poor" both domestically as well as internationally. While this view of property had its historical origins with regard to real property (i.e., land and its resources),140 in our modern world it also applies to talent141 and technology. 142 2008] The Catholic social tradition repeatedly affirms the right to private property.143 Thus, this respect for private property should give decision­ makers much pause when considering any measures that would directly or indirectly take private property, its value, or the rights to economic initia­ tives from private owners.144 Out of respect for those who are the poorest, private property ownership must be recognized for what it is: one of the surest ways to provide families with a means to support themselves and plan for their long-term security.145 Thus, a hard look must be given to present and future generations."); Rio Statement of Archbishop Martino, supra note 79, para. 17 ("For developing nations, at times rich in natural resources, the acquisition and use of new tech­ nologies is a clear necessity. Only an equitable global sharing of technology will make possible the process of sustainable development."); Global Climate Change, supra note 7, para. 8 (urging "much greater assistance to the developing nations, particularly in providing economic develop­ ment assistance to enable poorer countries to adopt state-of-the-art technology"); A Plea for Dia­ logue, supra note 7, para. 27 ("Wealthier industrialized nations have the resources, know-how, and entrepreneurship to produce more efficient cars and cleaner industries. These countries need to share. these emerging technologies with the less-developed countries and assume more of the financial responsibility that would enable poorer countries to afford them."); COMPENDIUM, supra note 6, at 78, No. 179 ("New technological and scientific knowledge must be placed at the service of mankind's primary needs. ...") (italics in original). See also Pacem in Terris, supra note 47, at 145, No. 88 ("[I]t can happen that one country surpasses another in scientific progress, culture, and economic development. But this superiority, far from permitting it to rule others unjustly, imposes the obligation to make a greater contribution to the general development of the people."). 143. See Rerum Novarum, supra note 44, at 16, No.5 ("[E]very man has by nature the right to possess property as his own. This is one of the chief points of distinction between man and the animal creation.") (italics in original); id. at 16, No.6 ("[M]an can possess not only the fruits of the earth, but the earth itself; for of the products of the earth he can make provision for the future."); id. at 17, No.8 (calling private property "preeminently in conformity with human na­ ture, and ... conducing in the most unmistakable manner to the peace and tranquility of human life"); A Plea for Dialogue, supra note 7, para. 16 ("Stewardship ... requires freedom to act. Significant aspects of this stewardship include the right to private initiative, the ownership of property, and the exercise of responsible freedom in the economic sector."); COMPENDIUM, supra note 6, at 77, No. 176 ("Private property is an essential element of an authentically social and democratic economic policy, and is the guarantee of a correct social order. The Church's social doctrine requires that ownership of goods be accessible to all, so that all may become, in at least some measure, owners....") (italics in original); cf Columbia River Watershed Pastoral Letter, supra note 7, at 17 ("The right to own and use private property is not seen as an absolute individ­ ual right; this right must be exercised responsibly for the benefit of the owner and the community as a whole. Property must be used wisely as a trust from God to the civil owner."). 144. See Sollicitudo Rei Socialis, supra note 34, at 403, No. 15 (italics in original): [I]n today's world ... the right of economic initiative is often suppressed. Yet it is a right which is important not only for the individual but also for the common good. Experience shows us that the denial of this right, or its limitation in the name of an alleged "equality" of everyone in society, diminishes, or in practice absolutely destroys the spirit of initiative.... As a consequence, there arises not so much a true equality as a "leveling down." In the place of creative initiative there appears passivity, dependence and submission to the bureaucratic apparatus. 145. See Pontifical Council for Justice & Peace, Towards a Better Distribution of Land: The Challenge of Agrarian Reform, No. 29 (1997) [hereinafter Better Distribution of Land], available at http://www.vatican.vairoman_curiaipontificaCcouncils/justpeace/documents/rc_pc-iustpeace_ doc_1201l998_distribuzione-terra_en.html ("[O]wnership is a condition and protection of free­ dom and the presupposition and guarantee of human dignity."); Butman, supra note 53, at 279 those systems in which land is owned by a limited few 146 or those systems in which property rights are violated to such an extent that those who do own property are not secure in it. 147 At the same time, this view of private property is tempered with an equally consistent teaching that there is a common or "universal" destina­ tion of goods,148 which demands that "in the right of private property there ("[P]rivate property is justified ... because it affords each person the scope necessary to provide for the needs of his or her family. [It] is an aspect of personal freedom."). 146. One of the most comprehensive Vatican statements on land distribution issues is to be found in Better Distribution of Land, supra note 145. This document explores the political, moral, social and historical aspects of land distribution patterns. 147. Adding an additional layer of complexity to the property rights discussion is the unique relationship that may exist in developing countries between indigenous peoples and the land. See, e.g., Better Distribution of Land, supra note 145, No. 11: [Vlarious forms of economic activity based on the use of natural resources have steadily expanded into land traditionally occupied by indigenous populations. In most cases, the rights of the indigenous inhabitants have been ignored when the expansion of large­ scale agricultural concerns, the establishment of hydroelectric plants and the exploita­ tion of mineral resources, and of oil and timber . . . have been decided, planned and implemented. [T]he property rights upheld by the law are in conflict with the right of use of the soil deriving from an occupation and ownership of the land the origins of which are lost in memory. In the culture and spirituality of indigenous populations, land is seen as the basis of every value and as the unifying factor that nourishes their identity. However, when the first great landholdings were formed, these peoples lost the legal right to ownership of land on which they had lived for centuries, which means that they can now be dispossessed without warning.... Indigenous populations can also run the absurd but very real risk of being seen as "invaders" of their own land. But see id. at No. 39 ("Defence and development of community ownership [by indigenous people] ought not to blind us to the fact that this type of ownership is bound to change. Any action aimed purely at guaranteeing its preservation would run the risk of binding it to the past and thus de­ stroying it."). 148. See Gaudium et Spes, supra note 34, at 212-13, No. 69 ("God intended the earth and all that it contains for the use of every human being and people. Thus, as all men follow justice and unite in charity, created good should abound for them on a reasonable basis.... [A] man should regard his lawful possessions not merely as his own but also as common property in the sense that they should accrue to the benefit of not only himself but of others."); Carr Testimony, supra note 28, para. 11 ("[The] ethic of solidarity requires us to act to protect what we hold in common, not just to protect our own interests."); A Plea for Dialogue, supra note 7, para. 17 ("Our Catholic tradition speaks of a 'social mortgage' on property.... It also calls us to use the gifts we have been given to protect human life and dignity, and to exercise our care for God's creation."); Renewing the Earth, supra note 7, para. 38 ("Created things belong not to the few, but to the entire human family."); Third World Water Forum Contribution, supra note 27, para. 12 ("The earth and all that it contains are for the use of every human being and all peoples. This principle of the universal destination of the goods of creation confirms that people and countries, including future generations, have the right to fundamental access to those goods which are necessary for their development.") (italics in original); Australian Bishops Statement, supra note 7, at 9 ("Ac­ cording to the principle of the universal destination of goods everyone has the right to access the goods of creation to meet their needs-our lifestyles should not make such large demands on resources that others are left in need. We should practise simplicity, moderation and discipline."); Pope John Paul II, General Audience (Jan. 17, 2001) available at http://www.vatican.va! holyjather/john_pauUi/audiences/2001ldocuments/hfjp-ii_aud_200101173n.htrnl (hoping for a "rediscovered harmony with nature and with one another [in which] men and women are once again walking in the garden of creation, seeking to make the goods of the earth available to all and not just to a privileged few, as the biblical jubilee suggests"); Centesimus Annus, supra note 34, at 462, No. 31 ("God gave the earth to the whole human race for the sustenance of all its members, is rooted a social responsibility."149 That is, while there is a right to own property, there is also the obligation to recognize that the goods of the earth were given by God to satisfy the needs of all-not the wants of some. Thus, property comes with a so-called "social mortgage."150 This mortgage re­ quires property owners to ensure that as they use their property, they do so in a way that will benefit the common good both affirmatively (i.e., using property productively) and negatively (i.e., refraining from those uses of property that will cause harm to others).151 without excluding or favoring anyone. This is the foundation of universal destination of the earth's goods. The earth, by reason of its fruitfulness and its capacity to satisfy human needs, is God's first gift for the sustenance of human life."); COMPENDIUM, supra note 6, at 75, No. 171 ("God gave the earth to the whole human race for the sustenance of all its members, without excluding or favoring anyone. This is the foundation of the universal destination of the earth's goods. The earth, by reason of its fruitfulness and its capacity to satisfy human needs, is God's first gift for the sustenance of human life.") (italics in original); id. at 76, No. 175 ("The universal destination of goods requires a common effort to obtain for every person and for all peoples the conditions necessary for integral development, so that everyone can contribute to making a more humane world. ...") (italics in original); id. at 77, No. 177 ("Christian tradition has never recognized the right to private property as absolute and untouchable. ... The principle of the universal destina­ tion of goods is an affirmation both of God's full and perennial lordship over every reality and of the requirement that the goods of creation remain ever destined to the development of the whole person and of all humanity.") (italics in original). 149. Mater et Magistra, supra note 34, at 103, No. 119. See also Pacem in Terris, supra note 47, at 134, Nos. 21-22 ("The right to private property ... also derives from the nature of man.... However, it is opportune to point out that there is a social duty essentially inherent in the right of private property."); Gaudium et Spes, supra note 34, at 214, No. 71 ("By its very nature, private property has a social quality deriving from the law of the communal purpose of earthly goods. If this social quality is overlooked, property often becomes an occasion of greed and of serious disturbances."); Populorum Progressio, supra note 63, at 245, No. 23 ("[P]rivate property does not constitute for anyone an absolute and unconditioned right. No one is justified in keeping for his exclusive use that what he does not need, when others lack necessities."). 150. See Sollicitudo Rei Socialis, supra note 34, at 426, No. 42 ("[T]he goods of this world are originally meant for all. The right to private property is valid and necessary, but it does not nullify the value of this principle. Private property is, in fact, under a 'social mortgage' which means that it has an intrinsically social function....") (italics in original); Centesimus Annus, supra note 34, at 461, No. 30 (discussing "the necessity and therefore the legitimacy of private ownership, as well as the limits which are imposed upon it"); Celebrate Life, supra note 7, para. 25 ("Our private property and accumulated wealth are not an absolute right because these carry a 'social mortgage' at the service of the global common good."); Human Right to Food, supra note 91, No. 5 (discussing "[t]he social lien on the right to private property" and "[the way it is] expressed in public law"); The Christian Ecological Imperative, supra note 7, No.7 ("The principle of the social mortgage on private property should include an 'ecological mortgage' on the goods of creation...."). 151. See, e.g., Rerum Novarum, supra note 44, at 23, No. 19: Whoever has received from the divine bounty a large share of blessings, whether they be external and corporal, or gifts of the mind, has received them for the purpose of using them for perfecting his own nature, and, at the same time, that he may employ them, as the minister of God's Providence, for the benefit of others. The distinction between the principles governing use as opposed to ownership have been oft­ repeated. See, e.g., Quadragesimo Anno, supra note 47, at 52, No. 47 ("[T]he right of property must be distinguished from its use.... [I]t is false to contend that the right of ownership and its proper use are bounded by the same limits...."); Mater et Magistra, supra note 34, at 87, No. 19 ("Private property . . . is a natural right possessed by all, which the State may by no means suppress. However, as there is from nature a social aspect to private property, he who uses his Those who own property are to be imbued anew with the understand­ ing of their obligations to use that property for the common good. Indeed, "[m]an and woman must care for creation, so that it will serve them and remain at the disposition of all, not just a few."152 This may mean volunta­ rily foregoing the most profitable use of that property to ensure that the needs of others are not compromised. It may also mean sharing talent153 and technology with developing nations in such a way as to ensure that intangible intellectual property is placed at the service of others. 154 More delicately, this approach to property requires the careful and prudent con­ sideration of those measures that would involve involuntary controls on the free use of property. This is a politically sensitive issue that is left to lay judgment, but it poses one of the more difficult and thorny questions for policymakers trying to reconcile a rigorous protection of property rights with the mandate that property be used for the common good. In an ideal world, property owners would, of their own volition, consider the implica­ tions for others as a result of the way they use their tangible and intangible property. When the force of law should intervene is a topic for much reflec­ tion and careful balance. Environmental Concerns are Moral Concerns that Require Radical Rethinking of Consumer Culture. 155 It is this final principle of Catholic ecological teaching that most di­ rectly impacts the "preferential option for the poor." It is the principle that right in this regard must take into account not merely his own welfare but that of others as well."); Gaudium et Spes, supra note 34, at 214, No. 71 ("It is a further right of public authority to guard against any misuse of private property which injures the common good."). 152. Better Distribution ofLand, supra note 145, No. 22. See also id. No. 25 ("[W]e cannot do whatever we want with the goods that God has given to all."). 153. See, e.g., id. No. 41 ("The increasingly decisive factor in gaining access to the goods of the earth is no longer possession of land, but possession of the whole complex of know-how that people can accumulate."). 154. For a comprehensive analysis of the intersections between intellectual property and moral obligations to the poor, see generally Thomas C. Berg, Intellectual Property and the Preferential Option for the Poor, 5 J. CATH. Soc. THOUGHT (forthcoming 2008). As Professor Berg's article clearly demonstrates, many of the complex moral issues concerning the appropriate scope of prop­ erty rights in real property are mirrored in the equally complex debates over intellectual property. See also Centesimus Annus, supra note 34, at 462, No. 32 ("[TJhere exists another form of owner­ ship which is becoming no less important than land; the possession of know-how, technology and skill. The wealth of the industrialized nations is based much more on this kind of ownership than on natural resources."). 155. See The Heart ofPeace, supra note 12, at No.9 ("[RJespect for nature is closely linked to the need to establish, between individuals and between nations, relationships that are attentive to the dignity of the human person and capable of satisfying his or her authentic needs. The destruction of the environment, its improper or selfish use, and the violent hoarding of the earth's resources causes grievances, conflicts and wars, precisely because they are the consequences of an inhumane concept of development."); Declaration on the Environment, supra note 9, para. 7 ("The problem is not simply economic and technological; it is moral and spiritual. A solution at the economic and technological level can be found only if we undergo, in the most radical way, an inner change of heart, which can lead to a change in lifestyle and of unsustainable patterns of frames ecological problems in a moral framework rather than simply in economic, social or scientific terms. In earlier times, it may have been pos­ sible to be optimistic about the future capacity of the earth to tolerate exces­ sive use. In a burst of optimism, Pope Leo XIII long ago said, "[n]ature . . . owes to man a storehouse that shall never fail, the daily supply of his daily wants. And he finds this only in the inexhaustible fertility of the earth."156 This optimism now must be curbed with a sober, but not despairing, understanding that there are limits on what can be done with and to the earth without doing serious and permanent harm. Given this, recent popes have taught that the ecological challenge is, at its root, a moral challenge that requires a radical rethinking of a materialistic, consumer culture. Pope Benedict recently lamented the fact that "the distance between rich and poor is growing constantly."157 Thus: The traditional biblical fullness of food and years, considered a sign of divine blessing, is now countered by an intolerable satiety composed of an excessive load of humiliations. And we know today that many nations, many individuals, are truly burdened with derision, with the contempt of the rich and the disdain of the proud. 158 consumption and production."); A Plea for Dialogue, supra note 7, para. 18 ("Changes in lifestyle based on traditional moral virtues can ease the way to a sustainable and equitable world economy in which sacrifice will no longer be an unpopular concept."); What is Happening?, supra note 7, at 1 ("[W]e are convinced that this assault on creation is sinful and contrary to the teachings of our faith."); id. ("At the root of the problem we see an exploitative mentality...."); Vespers Address, supra note 60, No. 6 ("The greatest area of common ground for collaboration should be the defence of fundamental moral values-transmitted by the biblical tradition-against the relativistic and consumerist cultural forces that seek to destroy them."); Pope Benedict XVI, Homily of the Holy Father (December 1, 2006), available at http://www.vatican.va!holy_father/ benedicCxvi/homilies/2006/documents/hCben-xvi_hom_2006120 l_istanbuLen.html (decrying "a world in where men are so loath to share the earth's goods and there is a dramatic shortage of water"). 156. Rerum Novarum, supra note 44, at 16, No.6. See also id. at 17, No.7 ("[T]hat which is required for the preservation of life and for life's well-being is produced in great abundance by the earth, but not until man has brought it into cultivation and lavished upon it his care and skill."). Forty years later, Pope Pius XI combined a forceful condemnation of greed with this same optimism about the earth's abundance when he wrote: Mere sordid selfishness, which is the disgrace and the great clime of the present age, will be opposed in very deed by the kindly and forceful law of Christian moderation, whereby man commanded to seek first the kingdom of God and his justice, confiding in God's liberality and definite promise that temporal goods also, so far as is necessary, will be added unto him. Quadragesimo Anno, supra note 47, at 73, No. 136. 157. Latin American Inaugural Address, supra note 82. See also Jubilee Call for Debt For­ giveness, supra note 42, para. 7 ("[T]he divide between the wealthy and poor nations is deepening. This divide is based ... on radically different living standards that threaten to relegate the most impoverished nations to a permanent underc1ass status."). 158. Pope Benedict XVI, General Audience, No. 3 (June 15, 2005), available at http:// www.vatican.valholy_father/benedicCxvi/audiences/2005/documents/hCben-xvLaud_200506 15_en.htm!. Pope Benedict XVI echoed the warning of his predecessor, Pope John Paul II, who decried this when Pope John Paul II also lamented: It is manifestly unjust that a privileged few should continue to accumulate excess goods, squandering available resources, while masses of people are living in conditions of misery at the very lowest level of subsistence. Today, the dramatic threat of ecologi­ cal breakdown is teaching us the extent to which greed and self­ ishness-both individually and collectively-are contrary to the order of creation, and order which is characterized by mutual interdependence. 159 Even mort;) urgently, Pope Benedict XVI warned: [T]he seriousness of the ecological issue lays bare the depth of man's moral crisis. If an appreciation of the value of the human person and of human life is lacking, we will also lose interest in others and in the earth itself. Simplicity, moderation and disci­ pline, as well as a spirit of sacrifice, must become a part of every­ day life, lest all suffer the negative consequences of the careless habits of a few. 160 This is true of individuals, as they consider their personal use of the goods of the earth161 and heed Pope John Paul II's warning that, simply put, 159. Peace With All of Creation, supra note 7, No.8. This statement echoes one made several decades earlier in Justice in World, when the Synod of Bishops said: It is impossible to see what right the richer nations have to keep up their claim to increase their own material demands, if the consequence is either that others remain in misery or that the danger of destroying the very physical foundations of life on earth is precipitated. Those who are already rich are bound to accept a less material way of life, with less waste, in order to avoid the destruction of the heritage which they are obligated by absolute justice to share with all other members of the human race. Justice in the World, supra note 22, at 299, No.7. See also Columbia River Watershed Pastoral Letter, supra note 7, at 12: While many people lack life's basic necessities, others have more than an excess for a lifetime. This gross imbalance is harmful to humanity and, to the extent that singular individuals have consumed more than a reasonable share of earth's resources, they have harmed creation. Good stewards of creation use what they need and recognize that others, both those presently living and future generations, have a right to enjoy the fruits of the earth as well. 160. Peace With All of Creation, supra note 7, No. 13. Pope John Paul II reiterated this concern in 2002 when he warned: [D]estruction of the environment highlights the consequences of decisions made by pri­ vate interests that do not weigh the real conditions of human dignity. One finds preva­ lent an unbridled desire to accumulate personal wealth that prevents people from hearing the alarming cry of poverty of entire peoples. In other words, the selfish quest for their own good fortune induces people to disregard the legitimate expectations of present and future generations. Pope John Paul II, Message of John Paul II for the 23rd World Day of Tourism 2002, No.2 (June 24, 2002), available at http://www.vatican.va/holyjather/john_pauUi/messages/tourisrnldocu­ mentslhfjp-ii_mes_20020625_xxiii-giornata-mondiale-turism03n.html. 161. See Water, An Essential Elementfor Life, supra note 30, para. 20 ("[A]ll too often water is not perceived as the lUXUry it really is, but is paradoxically wasted. This action of wasting water is morally unsustainable. Citizens in some countries are used to taking advantage of a privileged situation without thinking to the consequences of their wasting water on the lives of their brothers and sisters in the rest of the world."); Sollicitudo Rei Socialis, supra note 34, at 412, No. 28 "we cannot continue to use the goods of the earth as we have in the past."162 Examining personal consumption patterns and priorities through the lens of sacrificial solidarity with those in need is a challenge to all as individuals in a world of both great plenty and great want. 163 ("[S]ide-by-side with the miseries of underdevelopment ... we find ourselves up against a form of superdevelopment . . . [t]his superdevelopment, which consists in an excessive availability of every kind of material goods ... easily makes people slaves of 'possession' and of immediate gratification. . . . This is the so-called civilization of 'consumption' or 'consumerism,' which involves so much 'throwing away' and 'waste."') (italics in original); Centesimus Annus, supra note 34, at 467, No. 37 ("Equally worrying is the ecological question which accompanies the problem of consumerism and which is closely connected to it. In his desire to have and to enjoy rather than to be and to grow, man consumes the resources of the earth and his own life in an excessive and disordered way. At the root of the senseless destruction of the natural environment lies an anthropological error...."); Rio Statement of Archbishop Martino, supra note 79, para. 15 ("The scandalous patterns of consumption and waste of all kinds of resources by a few must be corrected, in order to ensure justice and sustainable development to all, everywhere in the world."); Renewing the Earth, supra note 7, para. 38 ("[S]olidarity requires sacrifices of our own self-interest for the good of others and of the earth we share."); Pope Benedict XVI, Address of His Holiness Benedict XVI to Youth of the Diocese of Pavia (Apr. 21, 2007), available at http:// www.vatican.va/holy_father/benedicCxvi/speeches/2007/april/documentslhCben-xvi_spe_2007 042Cgiovani-pavia_en.html ("Society ... awaits your contribution in order to build a common coexistence that is less selfish and more supportive, truly inspired by the great ideals of justice, freedom and peace."); Pope Benedict XVI, Angelus (Aug. 5, 2007), available at http:// www.vatican.va/holy_fatherlbenedicCxviiangelus/2007/documentslhCben-xvi_ang_20070805_ en.html ("[T]he Word of God spurs us to reflect on what our relationship with material things should be. Although wealth is a good in itself, it should not be considered an absolute good. Above all, it does not guarantee salvation; on the contrary, it may even seriously jeopardize it."); Australian Bishops Statement, supra note 7, at I ("Human greed, violence and selfishness have a destructive impact, on people and the environment."); id. ("[W]e must examine our lives and acknowledge the ways in which we have harmed God's creation through our actions and our failure to act. We need to experience a conversion, or change of heart."); id. ("Our personal choices-recycling, waste avoidance, composting, tree planting, car-pooling, prudent water and energy use-are important, but to achieve authentic sustainability, our personal actions must be reflected in the way in which economic and political systems are structured."); Gary Cuneen, It's Time to Wake Up and Smell the Carbon, U.S. CATH., Nov. 2001, at 32-33 ("If we want to be people of compassion, we cannot continue to plead ignorance to the direct impact of our lifestyles and habits on the rest of the world and on the health and survival of our planet."); Celebrate Life, supra note 7, para. 27 ("[I]n a world of increasing population and widening inequality within nations and between nations that is already approaching real ecological limits, sufficiency means that those consuming a disproportionate share of the earth's natural resources, including energy resources, need to examine critically their lifestyles and levels of consumption."); COMPENDIUM, supra note 6, at 210, No. 486 ("Serious ecological problems call for an effective change of mentality leading to the adoption of new lifestyles. . . . These lifestyles should be inspired by sobriety, temperance, and self-discipline at both the individual and social levels.") (italics in origi­ nal); God Saw That It Was Good, supra note 7, para. 30 ("In a consumer society, personal habits of over consumption and waste have adverse environmental and social impacts."). 162. Peace With All Creation, supra note 7, No. 1. See also Renewing the Earth, supra note 7, para. 1 ("[T]he environmental crisis is a moral challenge."); id. ("So vast are the problems, so intertwined with our economy and way of life, that nothing but a wholehearted and ever more profound turning to God, the Maker of Heaven and Earth, will allow us to carry out our responsi­ bilities as faithful stewards of God's creation."). 163. For a detailed examination of divergent patterns of energy consumption around the globe, which clearly reflects this disparity, see generally Ambuj D. Sager et a!., Climate Change, Energy, and Developing Countries, 7 VT. J. ENVTL. L. 71 (2005-06). More difficult, however, is the challenge that Catholic leaders have posed to the governments of wealthy nations to do on a national level the same re-examination of priorities and values to which individuals are called. 164 This challenge is one directed primarily to leading economic powers like the United States,165 but it is fair to say that no nation is exempt 164. This obligation was addressed by Pope John XXIII nearly half a century ago when he wrote: Perhaps the most pressing question of our day concerns the relationship between eco­ nomically advanced commonwealths and those that are in process of development. The former enjoy conveniences of life; the latter experience dire poverty. Yet, today men are so intimately associated in all parts of the world that they feel ... as if they are members of one and the same household. Therefore, the nations that enjoy a sufficiency and abundance of everything may not overlook the plight of other nations whose citizens experience such domestic problems that they are all but overcome by poverty and hun­ ger, and are not able to enjoy basic human rights. Mater et Magistra, supra note 34, at 110, No. 157. See also Pacem in Terris, supra note 47, at 146, No. 92 ("As men in their private enterprises cannot pursue their own interests to the detriment of others, so too states cannot lawfully seek that development of their own resources which brings harm to other states and unjustly opposes them."); Declaration on the Environment, supra note 9, para. 7 ("Everyone has a part to play, but for the demands of justice and charity to be respected, the most affluent societies must carry the greater burden, and from them is demanded a sacrifice greater than can be offered by the poor."); Justice in the World, supra note 22, at 290 ("[S]uch is the demand for resources and energy by the richer nations, ... and such are the effects of dumping by them in the atmosphere and the sea that irreparable damage would be done to the essential elements of life on earth, such as air and water, if their high rates of consumption and pollution, which are constantly on the increase, were ex­ tended to the whole of mankind."); 2006 Common Declaration, supra note 82, No. 10 ("[W]e ... invite rich countries to pay greater attention to developing and poorer countries in a spirit of generous solidarity, recognizing that all people are our brothers and sisters and that we are duty bound to come to the aid of the lowliest and the poorest who are the beloved of the Lord."); 2006 World Food Day Statement, supra note 127, para. 11 ("Today more than ever, in the face of recurring crises and the pursuit of narrow self-interest, there has to be cooperation and solidarity between states, each of which should be attentive to the needs of its weakest citizens, who are the first to suffer from poverty."); Peace With All of Creation, supra note 7, No. 10 ("The ecological crisis reveals the urgent moral needfor a new solidarity, especially in relations between the devel­ oping nations and those that are highly industrialized.") (italics in original); A Plea for Dialogue, supra note 7, para. 22 ("Affluent nations such as our own have to acknowledge the impact of voracious consumerism instead of simply calling for population and emissions controls from peo­ ple in poorer nations."); Renewing the Earth, supra note 7, para. 47 ("Authentic development also requires affluent nations to seek ways to reduce and restructure their over consumption of natural resources."); Australian Bishops Statement, supra note 7, at 9 ("As Christians, we are challenged to analyze the social structures that force millions to live in squalor, burdened by crippling debt, while a tiny minority accumulate vast wealth from exploiting earth's resources."). 165. See Carr Testimony, supra note 28, at 1 ("[S]olidarity ... requires that the United States lead the way in addressing this issue and in addressing the disproportionate burdens of poorer countries and vulnerable people. This is not simply a technical question ... but rather, a deeper question of acting effectively on our moral obligations to the weak and vulnerable and how to share the blessings and burdens in this area with justice.") (underline in original); A Plea for Dialogue, supra note 7, para. 6 ("Because of the blessings God has bestowed on our nation and the power it possesses, the United States bears a special responsibility in its stewardship of God's creation to shape responses that serve the entire human family."); id. ("The responsibility weighs more heavily upon those with the power to act because the threats are often greatest for those who lack similar power, namely, vulnerable poor popUlations, as well as future generations."); Re­ newing the Earth, supra note 7, at 49 ("Consumption in developed nations remains the single greatest source of global environmental destruction. . . . By one estimate, each American uses from the requirement that it re-examine its contribution both to global well­ being and degradation. Indeed, poorer "countries in the process of industri­ alization are not morally free to repeat the errors made in the past by others and recklessly continue to damage the environment through industrial pol­ lutants, radical deforestation or unlimited exploitation of non-renewable resources."166 International treaties have adopted this philosophy in the use of a model of "common but differentiated" responsibility as the guiding princi­ ple for addressing global climate change. 167 That is, the principle that the developed nations should adopt more stringent restrictions on their future twenty-eight times the energy of a person living in a developing country. Advanced societies, and our own in particular, have barely begun to make efforts at reducing their consumption of re­ sources and the enormous waste and pollution that result from it."); id. ("More people seem ready to recognize that the industrialized world's overconsumption has contributed the largest share to the degradation of the global environment."); DORR, supra note 40, at 181 ("[T]hose countries which were first to get into 'development' have taken far more than their fair share of the availa­ ble benefits.... [I]t was assumed that new technologies, inventions, and discoveries could ensure that there would be no limit to growth imposed by shortage of energy or raw materials, while toxic wastes could be dumped and dispersed.... Today ... it is clear that there are severe limits to this type of growth...."); Drew Christiansen, S.J., Beyond Kyoto: Equity in Global Climate Change Policy (2004), available at http://www.ncrlc.comJ3_Christiansen05.html(..Catholic social teach­ ing has long held the right of poor nations to development and specified the obligations of justice and solidarity of rich nations to help in that development."); Sagar et aI., supra note 163, at 74 (noting that "in 2000, the [total primary energy supply] of the United States was more than 40 times that of Bangladesh") . 166. Peace With All of Creation, supra note 7, No. 10. See also DORR, supra note 40, at 94 ("The belief that the best way to solve social problems is to speed up economic growth is not confined to Western countries. Most, but not quite all, Third World countries are convinced that their best hope of eliminating poverty lies in rapid growth."); Sagar et aI., supra note 163, at 71 ("[T]he growth of energy demand and use in developing countries is also seen as a significant driver of increasing stress on the global energy markets."); id. at 75 ("While the energy consump­ tion per capita of a country is closely linked with its level of economic development, energy use in developing countries has been growing faster than in industrialized countries. In fact, developing countries increased their per-capita energy consumption by a factor of 2.1 from 1971 to 2002. In terms of total primary energy consumption, China and India had an approximate three-fold in­ crease during the same period.") . See also KEENAN, supra note 4, at 25 (criticizing the "demoniza­ tion of the First World and a refusal to consider that the Third World might have some part of responsibility for environmental degradation thereby blocking the needed common efforts"). 167. The international law implications of this approach are beyond the scope of this paper. For an excellent analysis of this principle, see generally Christopher D. Stone, Common But Dif­ ferentiated Responsibilities in International Law, 98 AM. J. INT'L L. 276 (2004). As Prof. Stone notes: The concept of "common but differentiated responsibilities" (CDR) is receiving increas­ ing recognition in international law. "Common" suggests that certain risks affect and are affected by every nation on earth. These include not only the climate and ozone shield, but all risk-related global public goods. . . . In reducing the mutual risks, all nations should "cooperate in a spirit of global partnership." Responsibilities are said to be "dif­ ferentiated," however, in that not all countries should contribute equally. CDR charges some nations, ordinarily the Rich, with carrying a greater share of the burden than others, ordinarily the Poor. Id. at 276-77. This issue is also explored in Paul G. Harris, The European Union and Environmental Change: Sharing the Burdens of Global Warming, 17 COLO. J. INT'L ENVT'L. L. & POL'y 309 (2006). use has gained currency as a way to address developmental imbalances among nations. Yet, there are many limitations.and tensions still inherent in the ways in which these differentiated responsibilities are assessed. Never­ theless, Catholic social teaching constantly reminds both nations and indi­ viduals that the option for the poor and responsibility toward the environment require that those who are rich in the goods of the earth bear a moral responsibility of restraint and generosity. V. CHALLENGES FOR THE FUTURE The beauty of creation and the love of God are inseparable. 168 Hopefully, these reflections suggest that the Catholic contribution to environmental decision-making can be a valuable one if its articulation of basic ecological principles is constantly imbued with attention to the needs and dignity of the most vulnerable. Lest it appear as though this considera­ tion is a neat and easy way to realign environmental debate, it is imperative to consider some of the challenges that this "preferential option" presents to environmental decision-makers and some of the limitations on its reach. First, this doctrine identifies, but does not clearly distinguish between, various types of poverty. 169 It does not draw nuanced distinctions between, for example, long-term poverty and short-term poverty or between urban poverty and rural poverty17°_all of which require different approaches and 168. Pope Benedict XVI, Greeting of His Holiness Pope Benedict XVI: His Meeting with the Community of Poor Clares (May 12, 2007), available at http://www.vatican.va/holyJatherlbene­ dicCxvi/speeches/2007/may/documentsIhCben-xvUpe_20070512_clarisse-braziI_en.html. 169. For a discussion of the myriad forms of poverty, see Human Right to Food, supra note 91, No.2: [R]ural and urban areas of the world, men associate poverty with a lack of material assets, whereas for women poverty is defined as food insecurity. Generational differ­ ences emerge as well. Younger men in some parts of the world consider the ability to generate an income as the most important asset, whereas older men in other parts of the world consider the status connected to traditional agricultural lifestyles to be most important. A person's status and location affect perceived causes of poverty. For example, in some areas farmers link poverty to drought; the urban poor link poverty to rising prices and fewer employ­ ment opportunities; and the rich link poverty to the deterioration in domestic and international terms of trade, neglect of time-honoured customs and traditions, a lack of motivation among cer­ tain classes and groups of people, price liberalization and devaluation, lack of education, and absence of government. Poverty never results from the lack of one thing, but from many interlock­ ing factors that manifest themselves in the experiences of the poor. See also Centesimus Annus, supra note 34, at 481, No. 57, noting that the preferential option: ... is not limited to material poverty, since it is weII known that there are many other forms of poverty, especiaIIy in modem society-not only economic but cultural and spiritual poverty as well. The church's love for the poor ... impels her to give attention to a world in which poverty is threatening to assume massive proportions. . . . 170. Guhin, supra note 4, at 9 ("[C]atholics' lack of passion about the environment may be a function of the fact that most of them live in cities."). The conditions of the poor in agricultural settings are explored more fuIIy in Better Distribution of Land, supra note 145, No.6, which warns, among other things, that "[m]any developing countries have sought to modernize their economics as quickly as possible by basing themselves for the most part on the often unjustified considerations. It also does not fully develop the distinction between the poor in poor countries and the poor in wealthy countries.l7l As Pope John Paul II noted: One cannot ignore the fact that the frontiers of wealth and poverty intersect within the societies themselves, whether developed or developing. In fact, just as social inequities down to the level of poverty exist in rich countries, so, in parallel fashion, in the less developed countries one often sees manifestations of selfishness and a flaunting of wealth which is as disconcerting as it is scandalous. 172 Depending on the type of poverty present, the potential dangers-and the available remedial resources-will be very different. In addition, this doctrine does not draw distinctions among the differ­ ent conditions that exist in "developing" countries at very different stages in development. 173 This complicates the creation of easy and simple interna­ tional solutions to environmental harms. There is the temptation to divide the world, perhaps too simplistically, into "north" and "south" or "devel­ oped" and "developing." However, there are much more complex and so­ phisticated distinctions to be drawn among the nations in these groups. They differ with respect to: population and demographics; level of current industrialization; presence of natural resources, especially fuel, energy sources and potable water; political stability and accountability; strength of the legal system; vulnerability to natural disasters; history, in particular, colonialization history and private prop­ erty history; level of foreign investment; trade status; belief that rapid industrialization can bring about an improvement in general economic well-being, even if agriculture suffers in the process." Id. at No.6. 171. For a discllssion of environmental equity questions in the poor communities of the United States, see generally Tseming Yang, Environmental Regulation, Tort Law and Environmental Jus­ tice: What Could Have Been, 41 WASHBURN L.J. 607 (2002). See also Centesimus Annus, supra note 34, at 481, No. 57 ("In the countries of the West, different forms of poverty are being experienced by groups which live on the margins of society, by the elderly and the sick, by the victims of consumerism, and even more immediately by so many refugees and migrants."). 172. Sollicitudo Rei Socialis, supra note 34, at 402, No. 14. 173. Most often, the distinction to be drawn is between China and India, on the one hand, in contrast to other nations. The former countries are experiencing a rapid growth in industry and economic development-with a corresponding surge in energy use. See, e.g., Sager et a!., supra note 163, at 75 (noting that between 1971 and 2002, "[iJn terms of total primary energy consump­ tion, China and India had an approximate three-fold increase") ; id. ("The International Energy Agency ... estimates that the global energy demand will grow almost sixty percent by 2030. More than two-thirds of this growth will be because of an increased demand in developing countries, especially India and China."). geography and climate; and culture and religion.. These myriad distinctions-to name but a few-make clear that a "two sizes fit all" approach to development is unrealistic and unworkable. However, these fine classifications are not fully discussed in the "preferen­ tial option for the poor." As the Church struggles with determining her proper role in the de­ bate,174 its relationship with science,175 and the boundaries of scientific un­ certainty,176 there is much complexity ahead. As an observer with no financial, national or political stake in the environmental debate, the church is in a unique position to offer a new perspective on those complex issues. Yet, identifying its precise and proper role is more complex. Articulating timeless principles that will withstand changing scientific data is a challeng­ ing task facing the Church in the years ahead. At the most basic level, however, the recent words of Pope Benedict XVI to the youth of San Paolo are instructive as nations and individuals face the environmental responsibilities of our time. He said: [T]he Lord asks us-or better-requires us to open our hearts wider so that there will be room for even more love, goodness, and understanding for our brothers and sisters, and for the 174. Latin American Inaugural Address, supra note 82, para. 39 ("If the Church were to start transforming herself into a directly political subject, she would do less, not more, for the poor and for justice, because she would lose her independence and her moral authority, identifying herself with a single political path and with debatable partisan positions. The Church is the advocate of justice and of the poor, precisely because she does not identify with politicians nor with partisan interests."). See also Sollicitudo Rei Socialis, supra note 34, at 424, No. 41 ("The Church does not have technical solutions to offer for the problem of underdevelopment. ... [T]he Church does not propose economic and political systems.... But the Church is an 'expert in humanity' and this leads her necessarily to extend her religious mission to the various fields in which men and wo­ men expend their efforts.. '..") (italics in original). 175. See Rocca, supra note 14, para. 6 ("[S]ome say the Vatican's approach to the subject is hampered by a lack of scientific expertise and by a theological bias that privileges humanity over the rest of nature."); id. ("The Vatican is agnostic on the science behind some of the most dis­ cussed environmental questions, including the causes of climate change and the safety of geneti­ cally modified organisms in agriculture."). 176. See, e.g., Renewing the Earth, supra note 7, para. 3 ("Opinions vary about the causes and the seriousness of environmental problems."); Dulles, supra note 2, at 286 ("[A]ware of the dis­ agreements within the scientific community about issues such as global warming, the Church has thus far refrained from precise applications. It encourages knowledgeable persons to try to deter­ mine the extent to which the government should limit emissions of carbon dioxide and require industries to pay the expenses of cleaning up polluted lands and rivers."); COMPENDIUM, supra note 6, at 204, No. 469 ("The authorities called to make decisions concerning health and environ­ mental risks sometimes find themselves facing a situation in which available scientific data are contradictory or quantitatively scarce. It may then be appropriate to base evaluations on the 'precautionary principle,' which does not mean applying rules but certain guidelines aimed at managing the situation of uncertainty.") (italics in original); id. at 205, No. 469 ("Prudent policies, based on the precautionary principle require that decisions be made on a comparison of the risks and benefits foreseen for the various possible alternatives, including the decision not to intervene."). 4. Many have commented on the increased role of religious groups in environmental discussions . See, e.g., W. Wade Berryhill, Creation, Liberation, and Property: Virtues and Values Toward a Theocentric Earth Ethic, 16 REGENT U . L. REv. 1 , 1 - 2 ( 2003 -04): 15. Joshua Garner , "Green" Ranking Worthy of Envy-Pope, Nun, Priest Rated Among World's Top Environmental-Friendly Leaders, CATH . NEWS SERV., Aug. 7 , 2007 , available at http://www.catholic.org/national/national_story.php?id=24962: 16. I was fortunate to be a member of the American delegation to that Study Session, and I was deeply touched by the thoughtful urgency that pervaded our discussions and by the desire that the Vatican provide even greater guidance to help shape environmental debates. The papers presented at this Study Session are publically available online at http://www.justpax.itlpcgp/eng/ home_eng.htrnl. For a report on the proceedings, see generally Carol Glatz , Mirroring Wider Debate, Vatican Seminar on Global Warming Gets Heated, CATH. NEWS SERV., Apr . 27 , 2007 , available at http://www.catholic.org/internationallinternational_story.php?id= 23925 . 17. For an interesting collection of Vatican interventions at United Nations conferences that provides an overview of the Holy See's statements on many issues discussed in this paper, see generally SERVING THE HUMAN FAMILY: THE HOLY SEE AT THE MAJOR UNITED NATIONS CONFERENCES (Carl J . Marucci ed., 1997 ). 26. Intervention by the Holy See at the Ninth Conference of the Parties (COP-9) to the United Nations Framework Convention on Climate Change (UNFCCC), Intervention by Rev . Msgr. Frank J. Dewane (Dec. 10 , 2003 ) [hereinafter Dewane Intervention], available at http:// www.vatican.vairoman_curiaisecretariacstate/2003/documents/rc_seg -st_2003121031imatechange_en.html ("Climate is the overriding context for the consideration of many other social and econ0mic problems that the world faces today."). For a thoughtful essay on the implications of this aspect of environmental debate, see generally Mary Christina Wood, Nature's Trust: A Legal, Political and Moral Frame for Global Warming , 34 B.C. ENVTL. AFF. L. REv . 577 ( 2007 ). 27. Archbishop Renato R. Martino , President, Pontifical Council for Justice and Peace, A Contribution of the Delegation of the Holy See on the Occasion of the Third World Water Forum (Mar . 22, 2003 ) ( on file with author) [hereinafter Third Water Forum Contribution]: 28. Religious and Moral Dimensions of Global Climate Change: Before the S . Comm. on Env't & Pub. Works, 1l0th Congo 4 ( 2007 ) (written statement of John L. Carr, Sec. of Dep't of Social Development and World Peace of the USCCB) (on file with author) [hereinafter Carr are living, working and recreating."); God Saw It Was Good, supra note 7, para. 9 ("[T]he promotion of human dignity cannot be separated from our care and protection of God's creation."). 37. Others have written about the link between poverty and ecology from secular as well as religious perspectives-and in ways both consistent and inconsistent with Catholic social teaching. For diverse perspectives on this theme, see generally E. CALVIN BEISNER, PROSPECTS FOR GROWTH: A BIBLICAL VIEW OF POPULATION, RESOURCES, AND THE FUTURE ( 1990 ) ; INHERITING THE EARTH: POOR COMMUNITIES AND ENVIRONMENTAL RENEWAL (Don Brandt ed ., 2004 ); LEONARDO BOFF, CRY OF THE EARTH, CRY OF THE POOR ( 1997 ) ; DAVID G. HALLMAN, SPIRITUAL VALUES FOR EARTH COMMUNITY ( 2000 ) ; THE GREENING OF FAITH: GOD, THE ENVIRONMENT, AND THE GOOD LIFE ( 1997 ) ; ETHICS OF ENVIRONMENT & DEVELOPMENT: GLOBAL CHALLENGE , INTERNATIONAL RESPONSE (J. Ronald Engel & Joan Gibb Engel eds., 1990 ); SALLIE McFAGUE, LIFE ABUNDANT: RETHINKING THEOLOGY AND ECONOMY FOR A PLANET IN PERIL ( 2001 ) ; ART & JOCELE MEYER, EARTHKEEPERS: ENVIRONMENTAL PERSPECTIVES ON HUNGER , POVERTY , & INJUSTICE ( 1991 ) ; MARTIN PALMER WITH VICTORIA FINLAY, FAITH IN CONSERVATION: NEW ApPROACHES TO RELIGIONS AND THE ENVIRONMENT ( 2003 ). 38. Gaudium et Spes, supra note 34, at 166, No. 1 . 39. Ryan , supra note 2 . See also Water, An Essential Elementfor Life , supra note 30, § VIn, para. 3: parts of the world and suffer most from any scarcity or misuse of water resources . See also Dulles, supra note 2 , at 280 ( arguing that Catholic social teaching requires a "special solicitude for those who are at greatest risk: the widow and the orphan, the poor and defenseless, the sick and the aged, the migrant and the refugee."); John Kohls & Sandra L. Christensen , The Business Responsibility for Wealth Distribution in a Globalized Political-Economy: Merging Moral Economics and Catholic Social Teaching , J. Bus. ETHICS 223 , 229 ( 2002 ) (defining the preferential option for the poor as "a special obligation on the part of everyone to respond to the needs of the poor and vulnerable" and arguing that "[t]he church's love for the poor, which is essential for her and a part of her constant tradition, impels her to give attention to a world in which poverty is threatening to assume massive proportions in spite of technological and economic progress." ); Gene R. Laczniak , Distributive Justice, Catholic Social Teaching, and the Moral Responsibility ofMarketers , J. PUB. POL'y & MARKETING 125 , 127 ( 1999 ) (explaining that Catholic social teaching "represents an endorsement of one fonn of distributive justice theory because it embraces principles that favor those who are the weakest in an economic system"); id .: 40. For additional background on the preferential option for the poor, see generally Gerald S. Twomey, The "Preferential Option for the Poor," in CATHOLIC SOCIAL THOUGHT FROM JOHN xxm TO JOHN PAUL II ( 2005 ) ; DONALD DORR, OPTION FOR THE POOR: A HUNDRED YEARS OF VATICAN SOCIAL TEACHING ( 1983 ) ; THE PREFERENTIAL OPTION FOR THE POOR (Richard John Neuhaus ed., 1988 ). For an excellent current exploration of the issue, see generally Gerald S. Twomey, Pope John Paul II and the "Preferential Option for the Poor," 45 J. CATH . LEGAL STUD . 321 ( 2006 ) [hereinafter John Paul II and the Option for the Poor] . 41. The biblical roots of this doctrine are beyond the scope of this paper. For more detailed explication of this link, see generally Richard H. Hiers, Reverence for Life and Environmental Ethics in Biblical Law and Covenant, 13 J.L. & RELIGION 127 , 180 - 82 ( 1996 -98), which offers a detailed analysis of provisions in the books of Deuteronomy and Leviticus that establish obligations to use land to provide for the needs of the poor . 42. The biblical traditions of the jubilee year represented a model of stewardship in which the obligations of both humans and nature were married . See, e.g., Renewing the Earth, supra note 7 , § IIA : toil to workers and beasts alike. The jubilee tradition is also discussed at length in Celebrate Life, supra note 7, para . 12 : creation. See also Admin. Bd. of the U.S. Catholic Conference, A Jubilee Call for Debt Forgiveness (Apr . 1999 ) [hereinafter Jubilee Call for Debt Forgiveness] , available at http://www.jesuitie/ijndlBishops2. htrnl ("In the Hebrew Scriptures, the jubilee was to be a time to free slaves, to return land to its rightful owners, and to forgive debts. The jubilee was to be both a time of repentance when injustices were put right and the symbolic beginning of a new era."). The theme of the jubilee year and its implications for ecological matters resurfaced in anticipation of the 2000 Jubilee Year . See generally John Hart, A Jubileefor a New Millennium-Justice for Earth and Peoples of the Land, 43 CATH . RURAL LIFE MAG . 2 ( 2001 ). For a more recent account of the jubilee tradition, see Pope Benedict XVI, Homily of His Holiness Benedict XVI at St . Stephen's Cathedral (Sept. 9 , 2007 ), http://www.vatican.va! holy_fatherlbenedicCxvi/homilies/2007Idocuments/hCben-xvi_ hom_20070909_wien_en.html (linking celebration of the Sabbath with the imperative to consider environmental obligations, saying, "Sunday is also the Church's weekly feast of creation-the feast of thanksgiving and joy over God's creation. At a time when creation seems to be endangered in so many ways through human activity, we should consciously advert to this dimension of Sunday too."). 45. See Matthew 25 : 40 ( "Amen, I say to you, whatever you did for one of these least brothers of mine, you did for me."). 46. Rerum Novarum, supra note 44 , at 14- 39 . Although devoted primarily to labor relations, it is easy to see how that would lead to a discussion of poverty. Indeed, the encyclical itself begins with a critique of "the enormous fortunes of individuals and the poverty of the masses." [d . at 14; see also id. at 28 , No. 29 : back upon, and must chiefly rely upon the assistance of the State. For further commentary on the theme of poverty in Rerum Novarum, see, for example , DORR, supra note 40 , at 11 (calling Rerum Novarum "a cry of protest against the exploitation of poor workers."); id . at 12 ( "Leo XIII intended his encyclical to be a major intervention in defence of the poor."); id. ("[T]his first of the social encyclicals must be seen as a very significant move of the Church towards the side of the poor."); id . at 253: changes about. [d. at 15 : 47. See , e.g., Pope Pius XI , Quadragesimo Anno (May 15, 1931 ), in TI-ffi DOCUMENTARY HERITAGE, supra note 5 , at 42, 47, No. 25 [hereinafter Quadragesimo Anno] ("It is the duty of rulers to protect the community and its various parts, but in protecting the rights of individuals they must have special regard for the infirm and needy."); Pope John XXIII, Pacem in Terris (Apr . 11, 1963 ), in THE DOCUMENTARY HERITAGE, supra note 5 , at 131, 140, No. 56 [hereinafter Pacem in Terris]: their rights and to assert their legitimate claims . Pope Paul VI, Octogesima Adveniens (May 14 , 1971 ), in THE DOCUMENTARY HERITAGE, supra note 5 , at 265,273, No. 23 [hereinafter Octogesil11a Adveniens] ("In teaching us charity, the Gospel instructs us in the preferential respect due to the poor and the special situation they have in society: the more fortunate should renounce some of their rights so as to place their goods more generously at the service of others."). 48. Sollicitudo Rei Socialis, supra note 34. 125. See generally Dulles, supra note 2 , at 280-81: 126. A classic formulation of this doctrine can be found in Quadragesimo Anno , supra note 47 , at 60, No. 79 , in which Pope Pius XI explains: by lesser and subordinate bodies . See also Centesimus Annus, supra note 34 , at 476, No. 48 : 127. See Pope Benedict XVI , Message of His Holiness Benedict XVI to the Director General of the Food and Agriculture Organization for the Celebration of World Food Day, para. 6 (Oct . 16 , 2006 ) [hereinafter 2006 World Food Day Statement], available at http://www.vatican.va! holyjatherlbenediccxvi/messages/food/documentsIhCben-xvi_mes_20061016_ world-food-day2006_en.html ("Local communities need to be involved in choices and decisions concerning land use, since farmland is being diverted increasingly to other purposes, often with damaging effects on the environment and the long-term viability of the land."); Third Water Forum Contribution, supra note 27, at 4 ("The principle of subsidiarity acknowledges that decisions and management responsibilities pertaining to water should take place at the lowest appropriate level. While the water issue is global in scope, it is at the local level where decisive action can best be taken."); Columbia River Watershed Pastoral Letter, supra note 7, at 19 ("Local community members are often most knowledgeable about local ecosystem dynamics. Such citizens are best able, sometimes with necessary technical assistance, to initiate community-based and community-oriented ecologically sustainable economic development, and to suggest areas of individual and community sacrifices to conserve resources for the common good."). 128. Ryan , supra note 2, para. 7 ("This principle [of subsidiarity] balances the power between the individual and community. It calls for a pluralistic structuring of power in society. That is, human society is more than government; it is the thousands of voluntary and corporate associations that make up civil society ."). 129. See A Plea for Dialogue, supra note 7, para . 15 ( "Responses to global climate change should reflect our interdependence and common responsibility for the future of our planet . Indi- 136. See generally Rerum Novarum, supra note 44 , passim. 137. Indeed , socialism was a primary object of critique in the very fIrst modem encyclical, Rerum Novarum itself . There, Pope Leo xm warned: in the community . Rerum Novarum, supra note 44 , at 15, No. 3 . 138. See , e.g., Quadragesimo Anno, supra note 47 , at 62, No. 88 ( "[T]he proper ordering of economic affairs cannot be left to the free play of rugged competition . . . . Free competition, however though justified and quite useful within certain limits, cannot be an adequate controlling principle in economic affairs."). 139. See , e.g., Sollicitudo Rei Socialis, supra note 34 , at 407, No. 21 ( "[T]he Church's social doctrine adopts a critical attitude toward both liberal capitalism and Marxist collectivism."). 140. See Water , An Essential Element for Life, supra note 30, § II, para. 1 ("As a good of creation, water is destined for all human beings and their communities. God intended the earth and all it contains for the use of all, so that all created things would be shared fairly by humankind under the guidance of justice tempered by charity . . . . Water is a universal common good, a common good of the entire human family. Its benefIts are meant for all and not only for those who live in countries where water is abundant, well managed, and well distributed."); id. ("Water must ... be considered a public good, which all citizens should enjoy, but within the context of the duties, rights, and responsibilities which accrue to each person."); Latin American Inaugural Address, supra note 82, § 2, para. 4 ("[T]he liberal economy of some Latin American countries must take account of equity, because of the ever increasing sectors of society that fInd themselves oppressed by immense poverty or even despoiled of their own natural resources."). 141. Pope Benedict XVI , Message of His Holiness Pope Benedict XVI for the Celebration of the World Day of Peace (January 1, 2006 ), available at http:www.vatican.valholyjatheribenedicCxvil messages/peace/documentslhCben-xvLmessage ( "God is love which saves, a loving Father who wants to see his children look upon one another as brothers and sisters, working responsibly to place their various talents at the service of the common good of the human family."); Populorum Progressio , supra note 63 , at 251, No. 48 ( "Given the increasing needs of the underdeveloped countries, it should be considered quite normal for an advanced country to devote a part of its production to meet their needs, and to train teachers, engineers, technicians, and scholars prepared to put their knowledge and their skills at the disposal of less fortunate peoples."). 142. See Watel~ An Essential Elementfor Life, supra note 30, para. 6 ("Developing countries require the necessary know-how and technology along with developmental assistance of a scale suffIcient to address major projects needed to guarantee access to safe water and sanitation for


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Lucia A. Silecchia. The "Preferential Option for the Poor": An Opportunity and a Challenge for Environmental Decision-Making, University of St. Thomas Law Journal, 2008,