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Use what you got
New laws that can deal with rapid environmental change take too much time to design and implement. Fortunately, existing ones have untapped potential
- Governments and other governance institutions can make substantial advances in addressing environmental change by exploiting untapped potential in existing laws as opposed to working for major legal reforms
- Current laws are lagging behind scientific insights on how to deal with environmental issues
- By maximising the flexible boundaries within an established law, responses to challenges can be made based on more appropriate and up-to-date science
Why reinvent the wheel. In a study recently published in PNAS, centre researcher Carl Folke, together with colleagues from the US and Sweden, argue that governments and other governance institutions can make substantial advances in addressing environmental change exploiting untapped potential in existing laws as opposed to working for major legal reforms.
In the study, the researchers, lead by Ahjond Garmestani from the US Environmental Protection Agency and Utrecht University School of Law, argue that this approach is far more feasible when it comes to addressing rapidly emerging environmental issues.
The kind of legal reform necessary to respond comprehensibly and forcefully to new and accelerating environmental crises would likely require substantial revision at constitutional and statutory levels. There is little evidence that the US, EU or other nations are prepared and willing at this time to initiate that scale of reform.
Ahjond Garmestani, lead author
Poorly suited for complex challenges
Their argument is partly based on the fact that there is still a limited amount of international agreements to address change and the fact that current laws are lagging behind scientific insights.
Governments intended their first-generation environmental laws, dating back to the 1970s, to improve, preserve and maintain ecosystems in current and historic regimes. They based these laws on the assumption that ecosystems have an inherent balance - a single equilibrium state – that managers could predictably restore.
“We now know that this assumption is wrong,” says co-author Carl Folke. “There is no inherent equilibrium state and altered systems like lakes do not return to ‘normal’ when nutrient pollution stops.”
Take the US Clean Water Act for instance. It presumes that removing human-induced pollution will restore aquatic systems to their desired conditons. This means developers can compensate for destroying resources in one location by restoring or enhancing similar resources in another. This way of thinking corresponds poorly with more contemporary scientific insights, leaving laws in the US and the EU poorly suited to cope with complex social-ecological challenges.
To deal with this, the authors believe environmental law should take a leaf out of resilience thinking and the importance of adaptive and transformative capacities. This means the ability of a system to absorb change without shifting to a new regime with a different set of processes and structures.
For example, existing flexibility in the US’s Magnuson-Stevens Fishery Conservation and Management Act can allow regional fishery management councils to adjust catch allowances as ocean water warms and require fishers to shift their permits to new species as marine fisheries migrate because of climate change. This way managers can maximise the flexible boundaries within an established law and design responses that are based on more appropriate and up-to-date science.
Into the sunset with creative thinking
Another opportunity is to take advantage of provisions that are scheduled for reviews and public input, usually after a 3-5 year implementation period. These “sunset provisions” allows agencies to update or overhaul a law in order for it to be better suited for the future.
Any adaptation or transformation of a law, the authors note, rely on creative thinking about the capacity and limits of existing laws. This is closely connected to whether certain terms are open for interpretations. For instance, a mandate to protect environmental resources for “public benefit” can be an opportunity to incorporate a myriad of ecosystem services concepts and public health concerns into the decision-making.
But a mere touch of creativity is not enough. A closer interaction between law enforcement agencies, NGOs and other collaborators are necessary to implement new law provisions. For example, in the Netherlands, strict conservation laws and a lack of coordination between various stakeholders undermined the restoration of the Markermeer (Lake Marken). A nature conservation organisation’s active involvement, leadership and networking helped restore trust and change procedures so that nature conservation standards were finally met.
In the US, the government has begun delegating aspects of environmental protection to smaller-scale decision-making entities and using hybrid governance approaches when appropriate.
A far more feasible approach
All of this, the authors conclude, is part of a necessary shift in thinking about environmental legislation.
“Tweaks to existing law have the capacity to open up legal space to allow a more effective and adaptive management of our environment. This represents a far more feasible approach than proposing politically untenable new laws or major amendments to existing ones,” they conclude.
Garmestani, A.S., J.B. Ruhl, B.C. Chaffin, R.K. Craig, H.F.M.W. van Rijswick, D.G. Angeler, C. Folke L.H. Gunderson, D. Twidwell, and C.R. Allen. 2019. Untapped Capacity for Resilience in Environmental Law. Proceedings of the National Academy of Sciences, USA
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