ECOLOGICAL GOVERNANCE

Transcription

1 ECOLOGICAL GOVERNANCE Ecological degradation has been an object of concern for the international community since the early 1970s, but legal approaches that have been employed to improve the protection of ecosystems have failed to halt this decline. Ecological Governance explores how the law should respond to this rapid global deterioration of ecosystems by examining the foundational scientific and ethical considerations for designing laws that are effective for ecological protection. Based on these analyses, it argues that developed states should prioritise the reduction of the ecological stresses for which they are responsible in decision-making on their future courses. The book also proposes structures for governance and associated legal frameworks that would enable the formulation and implementation of policies for ecological sustainability. olivia woolley is a lecturer in the School of Law at the University of Aberdeen. In her research, she explores how law can be used more effectively to protect ecosystem functionality, particularly by enhancing the sustainability of developed states.

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3 ECOLOGICAL GOVERNANCE Reappraising Law s Role in Protecting Ecosystem Functionality OLIVIA WOOLLEY

4 University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. Information on this title: / This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Woolley, Olivia, author. Ecological governance : reappraising law s role in protecting ecosystem functionality /. pages cm Based on author s thesis(doctoral University College London), 2011), under title: Developing a system of ecological governance. ISBN (Hardback) 1. Environmental law Social aspects. 2. Environmental management. I. Title. K3585.W dc ISBN Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

5 CONTENTS Acknowledgements page ix 1 Introduction Avoiding societal collapse Ecosystems and ecological degradation Overcoming epistemic challenges Normative precaution The state, non-governmental actors and collaborative governance Adaptive governance Structure 14 2 Scientific and ethical foundations Introduction Scientific foundations for ecological law From stability to complexity Ecosystems as complex adaptive systems Interaction between ecosystems and the Earth System Complexity, regime shifts and environmental decision-making The meaning of resilience Specified and general resilience What makes an ecosystem generally resilient? Biodiversity Tightness of feedbacks 36 v

6 vi contents 2.4 A legal framework for ecological protection Ethical foundations for ecological law The dominion perspective of nature Revaluing nature Duties and principles for ecologically oriented decision-making 47 3 Ecologically oriented policy-making Introduction Adapting to endemic uncertainty Ecological policy-making Political will Decision-making in the face of uncertainty Precaution under an ecological paradigm Taking precautionary action Normative precaution A legal framework for ecologically oriented policy-making Ecological protection as a strategic objective Principles for ecological policy-making Reducing consumption Obviating development Substitution Sunsetting Assessing alternative policy options Forming strategic visions of desired futures Picturing the future Policy impact assessment Public participation in policy-making Reforming the policy-making process A whole-of-government approach Promoting change in the culture of governmental decision-making The rolling review of policy The independent review of policy proposals 101

7 contents vii 4 Governing an ecological transition Introduction Designing a system of ecological governance The limitations of devolution The state s role in ecological governance A guiding state A communicative state A coordinating state An enforcing state Expanding the state s range Regional government Local government Legitimacy Giving form to ecological sustainability Promoting behavioural change Constructing a sense of sustainable places Marine governance Bridging the land/sea divide Ecological planning Introduction Reforming land use planning Environmental limits and governance Identifying environmental capacities The limitations of limits-based regulation Ecological and ethical difficulties Ecological planning A national framework for ecological planning Comprehensive planning Analytical planning Strategic planning Ecological land use planning Decision rules Environmental assessment 183

8 viii contents 6 Public participation in ecological governance Introduction The promise of deliberation Transforming preferences Internalising environmental considerations Catalysing value formation Enhancing the acceptability of ecological governance Putting deliberation into practice: challenges and responses Unpredictability: problem or opportunity? Levelling the playing field Deliberation s reach Consultation s inadequacy Deliberative participation under ecological governance Informing ecological governance Introduction Addressing the information deficit Legal requirements for ecological information Developing a capacity for institutional learning Combining ecology and law: from problem-solving to permanence Using law to maintain the flow of information Increasing knowledge and understanding of ecosystems Enabling reaction to change Enabling responsiveness to systemic reactions Using structures for decision-making to stimulate information flows The adequacy of information for decision-making Generating information through exploratory development 232 Bibliography 234 Index 257

9 ACKNOWLEDGEMENTS I owe a debt of gratitude to several persons for their support and assistance during the time I spent both undertaking research at University College London for my doctoral thesis (on which the book is based) and working on this book whilst employed as a lecturer in Law at the University of Aberdeen. I am deeply indebted to Professor Jane Holder and Professor Maria Lee, both of the Faculty of Laws of University College London, for their excellent supervision of my research and for their astute comments on countless draft chapters of my thesis. I thank Professor Joanne Scott of University College London, Professor Catherine Redgwell (then of University College London, now of the University of Oxford) and Professor William Howarth of the University of Kent for their helpful feedback on my work at crucial points during my research. I am most grateful to Professor Laurence Gormley of the Faculty of Law of the University of Groningen for introducing me to Cambridge University Press. Thank you also to Professor Gormley and to Professor Jeanne Mifsud Bonnici, also of the University of Groningen, for their helpful comments on my book proposal. In addition, I am obliged to Anne-Michelle Slater, Head of the School of Law at the University of Aberdeen, and to many of my colleagues at Aberdeen for lightening my workload during the second half of 2013 so that I could concentrate on writing the book. I thank everyone with whom I worked at Cambridge University Press for their enthusiasm for the project, and for their help with preparing the book for publication. I am grateful to Sinéad Moloney for her interest in my book proposal and for commissioning reports on this. Thank you also to the two anonymous reviewers of the proposal for their positive reviews, constructive comments and helpful suggestions on further areas and literature that I should explore. I owe much to the research student community at University College London for their friendship and support during the time I spent working on my thesis. Thanks in particular must go to Rebecca Smith, who spent many evenings listening patiently as I tested my ideas out on her. Finally, I thank my mother. This book would not have seen the light of day without her support, always unquestioningly given, for my endeavours. ix