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.
ECOLOGICAL GOVERNANCE Reappraising Law s Role in Protecting Ecosystem Functionality OLIVIA WOOLLEY
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: /9781107060456 2014 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 978-1-107-06045-6 (Hardback) 1. Environmental law Social aspects. 2. Environmental management. I. Title. K3585.W66 2014 344.04 0 6 dc23 2014016704 ISBN 978-1-107-06045-6 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.
CONTENTS Acknowledgements page ix 1 Introduction 1 1.1 Avoiding societal collapse 1 1.2 Ecosystems and ecological degradation 2 1.3 Overcoming epistemic challenges 6 1.4 Normative precaution 8 1.5 The state, non-governmental actors and collaborative governance 10 1.6 Adaptive governance 12 1.7 Structure 14 2 Scientific and ethical foundations 15 2.1 Introduction 15 2.2 Scientific foundations for ecological law 18 2.2.1 From stability to complexity 19 2.2.2 Ecosystems as complex adaptive systems 21 2.2.3 Interaction between ecosystems and the Earth System 23 2.2.4 Complexity, regime shifts and environmental decision-making 25 2.3 The meaning of resilience 27 2.3.1 Specified and general resilience 28 2.3.2 What makes an ecosystem generally resilient? 32 2.3.2.1 Biodiversity 34 2.3.2.2 Tightness of feedbacks 36 v
vi contents 2.4 A legal framework for ecological protection 37 2.5 Ethical foundations for ecological law 40 2.5.1 The dominion perspective of nature 42 2.5.2 Revaluing nature 44 2.6 Duties and principles for ecologically oriented decision-making 47 3 Ecologically oriented policy-making 53 3.1 Introduction 53 3.1.1 Adapting to endemic uncertainty 54 3.1.2 Ecological policy-making 56 3.1.3 Political will 58 3.2 Decision-making in the face of uncertainty 59 3.2.1 Precaution under an ecological paradigm 61 3.2.2 Taking precautionary action 64 3.2.3 Normative precaution 65 3.3 A legal framework for ecologically oriented policy-making 67 3.3.1 Ecological protection as a strategic objective 70 3.3.2 Principles for ecological policy-making 71 3.3.2.1 Reducing consumption 71 3.3.2.2 Obviating development 73 3.3.2.3 Substitution 74 3.3.2.4 Sunsetting 76 3.3.3 Assessing alternative policy options 77 3.3.4 Forming strategic visions of desired futures 85 3.3.4.1 Picturing the future 87 3.3.4.2 Policy impact assessment 88 3.3.5 Public participation in policy-making 89 3.4 Reforming the policy-making process 93 3.4.1 A whole-of-government approach 96 3.4.2 Promoting change in the culture of governmental decision-making 98 3.4.2.1 The rolling review of policy 99 3.4.2.2 The independent review of policy proposals 101
contents vii 4 Governing an ecological transition 104 4.1 Introduction 104 4.2 Designing a system of ecological governance 105 4.3 The limitations of devolution 107 4.4 The state s role in ecological governance 115 4.4.1 A guiding state 118 4.4.2 A communicative state 120 4.4.3 A coordinating state 121 4.4.4 An enforcing state 123 4.5 Expanding the state s range 126 4.5.1 Regional government 126 4.6 Local government 131 4.6.1 Legitimacy 132 4.6.2 Giving form to ecological sustainability 133 4.6.3 Promoting behavioural change 136 4.6.4 Constructing a sense of sustainable places 137 4.7 Marine governance 139 4.7.1 Bridging the land/sea divide 143 5 Ecological planning 146 5.1 Introduction 146 5.1.1 Reforming land use planning 150 5.2 Environmental limits and governance 153 5.2.1 Identifying environmental capacities 154 5.2.2 The limitations of limits-based regulation 158 5.2.3 Ecological and ethical difficulties 159 5.2.4 Ecological planning 162 5.3 A national framework for ecological planning 164 5.3.1 Comprehensive planning 165 5.3.2 Analytical planning 169 5.3.3 Strategic planning 172 5.3.4 Ecological land use planning 175 5.3.5 Decision rules 177 5.4 Environmental assessment 183
viii contents 6 Public participation in ecological governance 187 6.1 Introduction 187 6.2 The promise of deliberation 190 6.2.1 Transforming preferences 190 6.2.2 Internalising environmental considerations 191 6.2.3 Catalysing value formation 193 6.2.4 Enhancing the acceptability of ecological governance 195 6.3 Putting deliberation into practice: challenges and responses 198 6.3.1 Unpredictability: problem or opportunity? 200 6.3.2 Levelling the playing field 202 6.3.3 Deliberation s reach 205 6.3.4 Consultation s inadequacy 208 6.4 Deliberative participation under ecological governance 210 7 Informing ecological governance 215 7.1 Introduction 215 7.1.1 Addressing the information deficit 216 7.1.2 Legal requirements for ecological information 218 7.2 Developing a capacity for institutional learning 219 7.2.1 Combining ecology and law: from problem-solving to permanence 220 7.3 Using law to maintain the flow of information 225 7.3.1 Increasing knowledge and understanding of ecosystems 226 7.3.2 Enabling reaction to change 227 7.3.3 Enabling responsiveness to systemic reactions 229 7.4 Using structures for decision-making to stimulate information flows 230 7.4.1 The adequacy of information for decision-making 230 7.4.2 Generating information through exploratory development 232 Bibliography 234 Index 257
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