Environmentalism versus Constitutionalism: a Contest without Winners

The New Zealand Resource Management Act imposes a system for micro-managing the environment. The Act is typical of current state approaches to environmental protection that places heavy reliance on command and control systems in preference to market based systems. Such laws impact heavily on property rights and due process and generally undermine the rule of law by creating centres of arbitrary authority. They also prevent the harnessing of widely dispersed knowledge that is vital to the determination of the costs and benefits of conservation and the development of realistic policy. These measures have been justified on the basis of the ‘precautionary principle’ and the concept of sustainable development and they are supported by claims of scientific consensus about major environmental issues such as climate change. The essay questions this consensus and argues that the precautionary principle and sustainable development are vacuous but dangerous doctrines. The apocalyptic and utopian visions of conservation are challenged and an evolutionary conceptualisation of the environment is proposed. The essay discusses the importance of property rights and compensation for takings as means of advancing legitimate environmental goals and argues that the New Zealand Resource Management Act is a deeply flawed model that imposes serious economic and constitutional costs that ultimately will weaken society’s capacity to achieve those goals.