Reconciling God and Green
John Copeland Nagle*
Online Symposium: Jay Wexler’s When God Isn’t Green: A World-Wide Journey to Places Where Religious Practice and Environmentalism Collide
96 B.U. L. Rev. Annex 7 (2016)
Jay Wexler found the perfect excuse to travel the world and get his bosses to pay for it. Here’s his itinerary. He journeyed to Guatemala, where the harvesting of palm branches for Palm Sunday worship services was destroying the yellow-eared parrot; Mumbai, where idols immersed in rivers leach toxic chemicals into the water; the National Eagle Repository, where the federal government collects bald eager feathers to be used by Indian tribes in sacred ceremonies; Singapore, where Taoists burn joss paper to please and appease the ghosts of their ancestors; Taiwan, where Buddhists beliefs encourage the mercy release of animals to improve one’s kharma; and Barrow, Alaska, where Inupiat people hunt bowhead whales for a mixture of religious, ceremonial, subsistence, historical, and cultural reasons. The two common themes are “places where religious practice and environmentalism collide,”1 and lots of occasions to post on TripAdvisor.
My response is motivated by a mixture of jealousy and admiration. My academic research has taken me to the Aleutian Islands, the rain forests of Malaysian Borneo, and the cliffs of the Orkney Islands, but I must confess that Professor Wexler has outdone me. Apart from our personal competition, and far more importantly, the wonderful book that emerged from Wexler’s travels yields three insights that inform our ongoing discussions of environmental protection and religious freedom.
First, When God Isn’t Green confirms the value of travel scholarship. This is Wexler’s second book based on his journeys to places with legal significance. The first, the wonderfully titled Holy Hullabaloos2, explored the sites of famous first amendment religion cases. Other writers have traveled to, and told the stories of, the world’s most polluted places and the remaining habitats of endangered species.3 My own contribution to the genre sought to flip the ordinary focus on how each environmental law applies throughout the country, and instead look at each place to see how all laws shape its environment.4
One virtue of this approach is that it allows you to experience the actual places that give rise to legal disputes, rather than being limited to the stylized account offered in most judicial opinions. The experience is much richer when the author is as talented as Wexler. His reports from the friend remind us that academic work may place us in surprising situations. We read of him watching twenty-two episodes of Orange is the New Black with nothing else to do in the nearly dry community of Barrow, wondering if he will survive a chaotic drive through the Mexican jungle, and sipping a drink in a bar seated next to a cat licking an ice cube in its own shot glass. Sometimes we wish we were with him; other times not so much. We wish he could have taken more trips, perhaps to Africa and to Europe, which are not represented among the book’s chapters.5 Mostly, we’re thankful that Wexler’s journeys provide us with a very fun read.
Second, Wexler’s book affords an insight into some surprising religious practices and how they affect the natural environment. The book taught me about the Hindu belief in the cleansing power of the river to reinvigorate their carefully crafted idols, the Taoist burning of joss paper to appease the ghosts of their ancestors, and the South African Shembe practice of wearing leopard pelts in order to symbolize power. I was only vaguely aware of the belief, common to numerous Native American communities, that bald eagles and whales offer themselves to their hunters as sacrifices.
Wexler does a terrific job of narrating the environmental impacts of such practices. Four of the chapters address threats to rare wildlife: bald eagles throughout the United States, bowhead whales in northern Alaska, the yellow-eared parrot in Guatemala, and a menagerie of turtles in Taiwan. The other two chapters consider toxic pollution: of the air in Singapore, and the water in Mumbai.
The whaling chapter is illustrative. I confess that hunting whales would gross me out. Eating whale meat – yuk – seems far less appetizing than my experience munching on a tarantula served with a delicious lime sauce at a restaurant in Phnom Penh. Wexler didn’t “have the words to describe how the stuff tasted,” but he did allow that he “did not ask for seconds.”6 But Wexler was not on a culinary tour. His experience in Barrow taught him that whaling “serves the same function that more obviously religious traditions serve in other communities.”7 Indeed, the subtitle for his chapter refers to “the power of community.”
Intrigued, I followed some of Wexler’s leads to Washington State, where the Makah Tribe have been engulfed in controversy as they have sought to resume their traditional whale hunt. The religious character of the whale hunt seems to be more evident there than it is among the Inuit in Barrow. According to one report:
Continuation of the Makah whale hunt provides the Makah Tribe with a reliable mechanism to repair the damage done to social structures and spiritual networks during the years of forced assimilation. The important ceremonial obligations associated with whale hunts will be widespread, because spiritual preparation affects the whaling crew members and their respective family members. Now that a quarter of the Makah Tribe’s members participate in ancient religious ceremonies, the lack of an active hunt makes it impossible for certain spiritual rituals to be performed. A spiritual void of this nature is devastating for Tribal members. The connection between unhealthy social behaviors and the inability to practice traditional rituals is common in the writings of noted American Indian authors. Thievery and substance abuse could be reduced if rigorous ritual preparation were again a part of the daily life of Makahs. There is far more at stake for the Makah Tribe than just subsistence benefits.8
More succinctly, “[t]he resumption of the whale hunt will provide more than subsistence foods for the body. It will provide spiritual subsistence to the soul of the Makah people.”9
Third, Wexler’s journeys convince him that we need to balance religious practices and environmental protection. It would have never occurred to religious practitioners that their activities needed to be balanced with other concerns. The practices long predated the environmental awareness which concerns us today. Now a balancing is necessary because we are so much more sensitive to the environmental impacts of any activities.
Initially, we are far more sensitive to the condition of the natural environment around the world, even if we have never visited there. As Wexler observes, whether the Arctic National Wildlife Refuge should be opened to oil drilling or set aside as a wilderness area has provoked a longstanding national debate, even though only about one thousand people visit there annually.10 Several Americans went all the way to the Supreme Court because they were worried about the fate of elephants and leopards in Sri Lanka and crocodiles in Egypt.11 Wildlife channels on cable television, remote webcams that are only one click away, and the dulcet tones of David Attenborough narrating the story of Planet Earth bring even the most distant part of the natural world into our world.
The awareness of the global environmental has been accompanied by an appreciation of the cumulative nature of many environmental harms. Wexler freely admits that the environmental impacts of religious practices pale in comparison to many other activities. Joss burning is “not the biggest source of air pollution in places like Singapore and Hong Kong – far from it – but it is still a big deal.”12 One could write a similar book about the environmental harms caused by such desirable activities as scientific research, university education, caring for pets, and recreation. Most of the six places that Wexler visited experience far greater environmental threats than those resulting from religious practices. Industry and power plants cloud the skies of southeast Asia much more than joss paper; narco-traffickers “who clear huge swaths of land out of the forest” are a much greater threat to the yellow-eared parrot and the rest of the local Guatemalan ecosystems than annual Palm Sunday celebrations.13 But each environmental harm adds up; we are much more cognizant of the cumulative nature of many environmental harms.
The second reason why a balancing is necessary is that our awareness of environmental harm, and our understanding of the cumulative nature of such harm, is expanded further by our widening definition of environmental harm. For some, natural conditions are the ideal, and any human interference in natural environmental conditions constitutes a harm. Scholars have thus explained how environmentalism can become a religion of its own.14 If so, then the sites that Wexler visited involve conflicts between two different religions, rather than different values. Of course, this idealized vision of a natural world remains the province of a discrete collection of thinkers, but the aspiration to minimize any human interference in the environment is much more common.
Bald eagles illustrate the relative priority of green beliefs and religious beliefs. Bald eagles possess a special hold on the American imagination; eagle feathers are essential to Native American religious practices. Once nearly extinct outside of Alaska because of the effects of DDT, bald eagle populations have recovered so well that they are no longer covered by the Endangered Species Act. They are still protected by federal law, though: the Eagle Act specifically protects bald and golden eagles in many of the same ways that the ESA protects other species. So, among other things, is remains illegal to “take” an eagle without a permit. As Wexler describes, the U.S. Fish & Wildlife Service is reluctant to issue any such permits to native Americans who seek eagle feathers for their sacred ceremonies, preferring instead to allot feathers as necessary (and as available) from the agency’s official eagle repository. (A repository, I should note, that Wexler describes with childlike wonder). The FWS has been stingy in permitting Native Americans to take bald eagles instead of taking feathers from the repository. The contrary religious convictions of the Native Americans are decidedly unpopular: Wexler quotes a writer who asked, “What kinds of gods really want eagles dead instead of soaring in our spacious skies?”15 By contrast, the FWS has come under fire for being too loose in authorizing new wind farms to kill larger numbers of eagles over a longer period of time – to wind farms. Of course, generating renewable energy is among the most favored activities for much environmental thinking, evoking passionate support (especially compared to alternative forms of energy production) akin to religious belief. The willingness to allow wind farms to kill bald eagles while prohibiting Native Americans from killing bald eagles deserves a better explanation.16
As we recognize a broader and cumulative understanding of environmental harm, Wexler’s preferred approach is to work with religious communities and to turn to government regulation only as a last resort. I would add, with the bald eagle example in mind, that regulation of religious practices should occur only if other, more popular but equally harmful activities are regulate, too.
The ideal solution occurs when religious communities engage in voluntary actions to minimize the environmental harms of their practices, or to eliminate those harms altogether. Wexler’s story of the cultivation of alternative palm branches and U.S. churches contributing $25,000 annually to help preserve Guatemalan forests evidences the power of this approach.17 Additionally, religious communities worked with governmental authorities in several of the stories Wexler tells. Indian pollution control agencies issued voluntary guidelines “for celebrating the Ganesh festival in an environmentally friendly fashion.”18 Animal rights groups have worked with Buddhist organizations in Taiwan to develop alternative mercy release methods “that truly embody the spirit behind the ancient mercy release teaching” instead of following “the corrupt and dangerous big-business model of mercy release.19 Wexler thus calls on the government to work with religious groups when crafting any necessary regulations.20
Wexler is far more concerned about the efficacy and equity of imposing government regulation to coerce religious communities into compliance with environmental norms. He notes, for example, that the Indian government could not ban the practice of idol washing “without causing something resembling a revolution.”21 Many of Wexler’s conclusions are animated by such worries. He warns that the government should not regulate in a way that “will allow some believers to practice their religion but not others” because of the extra cost to comply.22 He fears that seemingly minimal government regulations “will in fact have substantial effects on how the religion is practiced.”23 He cautions the government against questioning the authenticity of a religious practice.24 And he wonders whether making religious practices more environmentally friendly is worth the cost “of making religion dull and pedestrian, perhaps even discouraging people from practicing their rituals?”25
Such concern with the value of religious freedom has long characterized our civic debates. As Wexler observes, the Supreme Court’s narrowing of the protections afforded by the first amendment’s free exercise clause in Employment Division v. Smith26 “was one of the most unpopular decisions the Supreme Court had ever issued,” so Congress responded by overwhelming passing the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) to afford greater federal protection to religious freedom.27 RFRA has been applied to adjudicate several disputes regarding bald eagle feathers.28 But RFRA itself became unpopular when the Court applied it to our cultural debates about sexuality.29 More still, the very notion of religious freedom has been a casualty of those debates.
Wexler touches on those debates in his book. I doubt that a book based on travels to the epicenter of those conflicts would be as enjoyable as When God Isn’t Green. The lessons of the book for our more familiar culture war battles are profound. Wexler demonstrates that in another context, in disparate societies around the world, we have found a way to accommodate longstanding religious beliefs with a modern awareness of the changing world in which we live. We tolerate the harms caused by our neighbor’s religious practices because we recognize the importance of those practices to our neighbors, and because we see how they are working to live out their beliefs in a more environmentally friendly manner. Wexler tells us how the EcoPalm project substituted branches from a different palm tree in Guatemala, how idols are being made differently in Mumbai, and how different approaches to releasing animals are being tried in Taiwan. Not all of those efforts are likely to work; we will probably still be left with some environmental harms. But we will also retain an appreciation of the many, seemingly strange religious beliefs that our neighbors hold dear.
* John N. Matthews Professor of Law, University of Notre Dame Law School.
[1] Jay Wexler, When God Isn’t Green: A World-wide Journey to Places Where Religious Practice and Environmentalism Collide (2016).
[2] Jay Wexler, Holy Hullabaloos: A Road Trip to the Battlegrounds of Church/State Wars (2010).
[3] See Andrew Blackwell, Visit Sunny Chernobyl: And Other Adventures in the World’s Most Polluted Places (2013); Cameron MacDonald, The Endangered Species Road Trip: A Summer’s Worth of Dingy Motels, Poison Oak, Ravenous Insects, and the Rarest Species in North America (2013).
[4] See John Copeland Nagle, Law’s Environment: How the Law Shapes the Places We Live (2010). I am currently writing a book on the scenic values of national parks which, of course, has afforded me an excuse to visit nearly forty U.S national parks so far.
[5] In his introductory chapter, Wexler offers two examples from Africa that illustrate “the use of animals as part of a religious observance or ritual.” Wexler, When God Isn’t Green, supra note 1, at 36. One can sense Wexler’s wistfulness at not having the opportunity to visit there, too.
[6] Id. at 186.
[7] Id. at 183.
[8] Ann M. Renker, Whale Hunting and the Makah Tribe: A Needs Statement 67 (May 2012). See also Draft Environmental Impact Statement on the Makah Tribe Request to Hunt Gray Whales passim (Feb. 2015) (relying on Renker’s research).
[9] Renker, supra note 8, at 83.
[10] See Wexler, supra note 1 at 70; U.S. Fish & Wildlife Serv., Arctic National Wildlife Refuge: Public Use, http://www.fws.gov/uploadedFiles/Region_7/NWRS/Zone_1/Arctic/PDF/ccp/ccppup.pdf (providing visitation statistics).
[11] See Lujan v. Defenders of Wildlife, 504 U.S. 555, 563-64 (1992) (holding that a mere future hope to visit the crocodiles in Africa was not enough to support standing in federal court). The recent discovery of Nile crocodiles in the Everglades prompted Wexler to quip, “This can’t be good for the environment, but the plaintiff in the Lujan case is probably psyched!” Jay Wexler, Facebook post, May 24, 2016 at 2:57pm.
[12] Wexler, supra note 1, at 125.
[13] Id. at 49.
[14] See Robert H. Nelson, The New Holy Wars: Economic Religion Versus Environmental Religion in Contemporary America (2009).
[15] Wexler, supra note 1, at 108.
[16] Nor are eagles the only casualty. “Renewable energy projects,” the Ninth Circuit has explained, “although critical to the effort to combat climate change, can have significant adverse environmental impacts, just as other large-scale developments do.” Oregon Natural Desert Association v. Jewell, 2016 WL 3033674, *1 (9th Cir. May 26, 2016). The court thus overturned the federal government’s approval of a large wind farm project in the sagebrush habitat of the greater sage grouse in eastern Oregon. The Bureau of Land Management’s environmental impact statement for the project had acknowledged the “potential conflict between wind energy development and greater sage-grouse winter foraging habitats, because the windswept ridges that keep sagebrush exposed during winter months could also be ideal locations for wind energy development,” but the court faulted the BLM for not actually surveying the project area to determine whether any sage grouse wintered there. Id. The implicit question is whether permits are – or should be – more forthcoming for activities that are “critical to the effort to combat climate change” than they are for those whose “gods want dead eagles” – even though the number of eagles killed by wind projects is likely to be greater than the number killed by Native Americans. Id.
[17] Wexler, supra note 1, at 56.
[18] Id. at 84.
[19] Id. at 147.
[20] Id. at 141.
[21] Id.
[22] Id. at 102.
[23] Id. at 140.
[24] Id. at 168-69.
[25] Id. at 128.
[26] 494 U.S. 872.
[27] Id. at 111.
[28] See, e.g., United States v. Hardman, 622 F. Supp. 2d 1129 (D. Utah 2009).
[29] See Paul Horwitz, The Hobby Lobby Moment, 128 Harv. L. Rev. 154 (2014).