ANTHROPOCENTRISM AND ECOCENTRISM AND INDICATORS FOR ‘MEASURING’ ENVIRONMENTAL SUSTAINABILITY

ANTHROPOCENTRISM AND ECOCENTRISM AND INDICATORS FOR ‘MEASURING’ ENVIRONMENTAL SUSTAINABILITY

In this brief note I would like to try to bring out a point of intersection that I felt I could identify between the outcome of some attempts to reread in an ecological sense the fundamentals of constitutionalism (and in particular the content of the Constitution of the Italian Republic) and the role of indicators, and in particular the indicators that are used to measure environmental sustainability.
The idea that I will attempt to expound and argue is that the ecological redefinition of the constitutional pact (according to the meaning of which I will speak), insofar as it has inscribed ecological transition within the programmatic horizon of the Constitution, has declined sustainability into a principle of non-regression in environmental protection. A principle, and herein lies the point of contact, that rests its prescriptive aspiration on the normative attitude of the indicators used to measure environmental sustainability, which are thus invested with a particularly onerous and, therefore, particularly problematic weight.

I will state the things I would like to say by ordering them in three parts:
1. In the introductory part I will mention the essential features of the attempt to redefine the fundamentals of constitutional theory in an ecological key, in order to be able to say how this redefinition has been translated into positive constitutional law (recalling in particular the idea of the Republic ‘founded on the environment’).
2. In the central part, I will say why the inscription of the ecological transition in the constitutional pact determines the need to decline sustainability in a constitutional principle of non-regression in the protection of the environment, and the repercussions that this generates on the indicators.
3. I will conclude, stopping at the doorstep of the topic of indicators, by highlighting two problems arising from it. The first concerns the balance between government and guarantee powers. The second concerns the way (the form) in which indicators enter into public decisions through which political-normative power (technical standardisation) is expressed.

I start from an even trivial datum, recalling that the relationship that constitutional theory has developed with the environment is the result of a dichotomous approach that is typical of the anthropocentric perspective on which all Western thought is built, which has produced two fundamental theoretical consequences for the development of the social sciences, and thus also of the legal sciences: a non-political understanding of the environment and, at the same time, a non-biological understanding of the political.
I start from here because it is precisely on the deconstruction of this approach that a multidisciplinary and interdisciplinary theoretical effort is focusing, which has given itself the name ‘political ecology’, a critical doctrine, which identifies itself in three theoretical fractures: eco-feminism, de-colonial thinking and eco-Marxism. A critical doctrine, I said, characterised by the will to deconstruct that dichotomous split and recompose it into an ‘integrated socio-ecological’ interpretative framework. The basic issue for political ecology is to frame the environment (biosphere) not as the object of an autonomous demand (an apolitical conception, precisely, of ecology), but as an element of the social, historically situated (hence conflictual) context in which social relations (social organisation) take place.

Although not originally a legal perspective, political ecology finds a natural declination in constitutional terms, guiding the redefinition of the fundamentals of constitutionalism in an eco-centric key (without making a tabula rasa, but reinterpreting the cornerstones within that integrated socio-ecological framework of which Torre speaks).
Italian constitutionalist doctrine has not been slow to take these approaches seriously and (not by chance, especially in the run-up to the 2022 revision), has begun to decline that reflection with its own categories (De Leonardis's Ecological State, Amirante's Environmental Constitutionalism, Carducci's Constitution as an ecosystem and Laura Ronchetti's Eco-Constitutionalism).
Likewise, he did not fail to try to calibrate those results on a ‘positive’ level, with reference to a Constitution that, as we know, originally did not contemplate expressis verbis any reference to the environment. Prof. Morrone, for example, giving a challenging reading of the revision of Articles 9 and 41, evoked the image of the refoundation of the republican pact, the result of the introduction of a new ‘primary value’ (or ‘meta-value’). But others, while giving less innovative readings of the reform, have also accepted the basic idea, differing only in the conviction that the legislative intervention was limited to taking note of a transformation already completed.

In short, the point for one part of the doctrine, I'll make it short, is to try to grasp the meaning of this refounding. The end of the political project enshrined in the Constitution does in fact, according to this perspective, make a qualitative leap. The purpose is not repudiated (there is no tabula rasa, in fact) but extends its horizon, in a manner consistent with what political ecology itself is trying to explain: from the realisation of a society of people equally freed from need to the ‘broad society of those freed from need and from the actual risks of extinction and the needs arising from it’. The task of the Republic is therefore ‘to promote the necessary actions so that lives can and are worth living’.
The protection of the environment that the Constitution is concerned with, which until now has been understood more or less as looking after the welfare of the ‘backyard’ now coincides with the ‘ecological transition’, i.e. with the desire to tackle (in the light of the pre-existing political-ideological framework) the structural crisis of ‘ecological collapse’, which has been given the name ‘ecological recession’.

This is no small thing, of course, since these are developments that radically involve the study of constitutional law, stimulating the elaboration of principles capable of translating that refoundation into normative terms.
I will try, in seizing this stimulus, to isolate a possible development: the inscription of the ecological transition in the performative horizon of the Constitution, entails the need to juridify the commitment in an inter-generational perspective (as, moreover, now expressly provided for in Articles 9 and 41) and, in this sense, to decline sustainability as non-regression in the protection of the environment.
A principle that finds a non-negotiable core in what lies beyond the limits of ‘ecological collapse’, but which at the same time expresses a further commitment not to lower the threshold of guaranteed protection.

Indicators have a great deal to do with all this, because if so, it is precisely in the quantitative indicator that this prescriptive tension finds its legal device. This is not surprising: indicators by nature offer the possibility of strengthening constitutional performativity by giving ‘objective’ references to the constitutional principles to be applied.

I will limit myself, in this regard, to pointing out two things:
- The first is a fact that does not seem irrelevant to me, namely the proliferation of legal studies aimed at measuring the effectiveness of environmental law precisely through indicators, such as the one published in 2021 by Michel Prieur and Cristophe Bastin (Measuring the effectiveness of environmental law) and the one published last year by Jérôme Fromageau, Ayman Cherkaoui and Roberto Coll (Measuring the effectiveness of environmental law through legal indicators and quality analyses).
- The second is the proliferation of these indicators of different origins. I could give many examples of indicators that are somehow emerging as usable in this sense. I will just mention a few: such as the 232 indicators developed to measure progress in the implementation of the Sustainable Development Goals adopted by the UN and the so-called planetary boundaries, which in some ways have even ended up playing a constitutive function in the notion of ecological collapse (which would indicate the non-negotiable content of sustainability) and which, although of academic origin, have already taken on a normative value, having been introduced into European policies at least since the Seventh Action Programme (2014), inaugurating w ‘a leitmotif of European sources’ (up to the Green Deal).

Two different sets of problems open up at this point.

The first concerns the balance between government powers and guarantee powers, on which indicators exert a very significant weight, because they represent the device that makes it possible to bind the translation of politics (to the extent that it now includes ecological transition) into policies to predetermined objectives. This is because, by representing a phenomenon that cannot be directly observed (giving immediate evidence to latent quantities), indicators make it possible to make commitments that would otherwise remain orientation-programmatic objectives concretely enforceable.
Since the ultimate objective (transition in this case) cannot be concretely demanded, in fact, it is only on the trajectories traced by public policies that control can be pinned, and indicators make it possible precisely to measure and assess the adequacy of the trajectory with respect to the objective, as the means employed for the purpose. On the other hand, it seems to me that this is an assumption that already emerges from the discussion outline prepared for this panel, in which, when asked what rules sustainability translates into, the answer was naturally ‘with the identification and definition of indicators-legal rules consistent with constitutional principles and mechanisms for measuring government decisions’.

Two different sets of problems open up at this point.

It is no coincidence, and is evidently linked to this very assumption, that the issue of using the judicial system to challenge public policies has emerged so clearly. So much so that the topic of strategic litigation has now become a topos in constitutional law (the cases demonstrating this trend are many and well known).
What takes place, however, is a very problematic path for constitutional law: while it has always been assumed in general that constitutional principles are violated in the presence of conflicting provisions, through indicators the verification of compliance can act through a very narrow margin, because the ‘overshoot’ from the parameter becomes in itself symptomatic of a violation.
The way is then open to the judge for significant interference in government activity, which is all the more problematic due to the fact that the review may not be constrained by parameters already identified by the political bodies. Not infrequently, in fact, there is a tendency towards a sort of free fishing between indicators of public origin (especially international organisations) but also of private origin (this is the case of planetary boundaries).

It is therefore necessary to question the legitimacy of indicators, distinguishing between normative indicators (from domestic or international sources), indicators incorporated in soft law acts, and indicators developed by private parties (hence associations, NGOs, academia, etc.) and to reiterate the need that in order to be used by the court, indicators should be positively pre-defined (ex-law) for reasons of legality and delimitation of jurisdiction.

I turn to the second order of problems, closely linked to the first, which concerns the way in which indicators can be assimilated into the decision-making processes through which political will is expressed and, in particular, into regulatory decisions. In this sense, provisions incorporating indicators produce regulations that belong to the category of those defined as technical. The theme is by no means new. In environmental law, politics and technical-scientific knowledge are inextricably and inevitably intertwined, so that the production of law almost always consists of an activity of ‘technical standardisation’, i.e. the production of rules drawn up on the basis of assumptions of a ‘technical-scientific’ nature. The point is the same one that has been questioning the doctrine for some time: how technical norms are constructed and, in this case, how the (political) power to select the indicators that, being materially transposed into the normative text, become part of the legal system is expressed. This is obviously a question of enormous breadth and depth.

This problem can be looked at from different angles. The most interesting one seems to me to be the one offered by the sources of law: and thus by the form (including the procedure) in which the technical norm is expressed. Things, in fact, change considerably depending on the type of act-source in which they are inserted.
As has been written repeatedly by now, the most appropriate form for this type of regulation is undoubtedly that of non-legislative sources, for procedural reasons and for reasons related to the capacity of the subject at hand to satisfy the technical-informative requirement. Shifting the level of regulatory production to a non-legislative level makes it possible, in fact, to postpone the final solution of technical or political knots and to simplify subsequent maintenance (a characteristic of technical regulations is in fact the need for updating, since they involve a regulation in the making). The law and parliament - which are inadequate to deal with detailed technical regulation - should decide and make explicit in a meaningful way the goals to be achieved and the criteria to be followed in setting technical rules (and thus also the indicators) by expressing the general principles of political will, after filtering it through parliamentary debate.

The problem is that what happens in reality is very different: the law, in fact, merely entrusts - by means of numerous (mostly blank) references - the power to determine the content of the technical regulations (and thus also the choice of indicators) to the (almost always monocratic) organs of the government. This circumstance is linked to a further problem, which concerns the unfathomability of what happens ‘after the law’. And the problem does not even lie so much in the now well-known ‘flight from regulation’ as in the fact that, even before its prescriptive capacity, in Italy there is a complete lack of a preliminary discipline of non-legislative regulatory procedures. Even if one wanted to comply with it, in fact, law 400 of 1988 deals with the regulatory procedure only from a time when the content of the act has already been formulated, without there being any way of governing either the composition of the interests at stake or the way in which the information requirement is satisfied. The result is a very problematic picture, in which the formation of these rules ends up resolving itself into multiple acts of trust by the legislator in relation to those who actually draft the text.