The Role of Law in Governing Sustainability

Volker Mauerhofer

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000375688
• Edition: 1
• Topic: Economics
• Subtopic: Sustainable Development
• Index: Economics

This book explores how public and private actors can interrelate to achieve also by means of law a sustainable development which is beneficial for the environment, society and the economy.

The Role of Law in Governing Sustainability assesses the structure, functions and perspectives of law in the wider governance frameworks of sustainable development. It provides latest and in-depth insights from each of the three dimensions of sustainable development and the relations among them. Latest political developments on global and regional level related to the environmental, social and the economic dimensions are provided as well as in-depth case studies. Thereby the book explores how international and national laws and governance can help us move towards a more sustainable future.

This book will be of great interest to students and scholars of environmental law, global governance and sustainable development.

1
The role of net-gain law for governance of a sustainable development

Volker Mauerhofer¹

1. Introduction

Environmental deterioration started to constitute in the second half of the past century a widely recognized global problem (IUCN 1948, Carson 1962). Several transcontinental United Nations (UN)–administered conventions as well as legal acts of the European Union (EU) were afterwards concluded in response (for an overview e.g. Mauerhofer and Nyacuru 2014). Beginning with this millennium, the UN and the EU enacted several political initiatives particularly to stop the loss of biodiversity. These include the 7th Millennium Development Goal (UN 2000), the Aichi Targets (UN 2010), the EU Biodiversity Strategy towards 2020 (EU 2011) and Sustainable Development Goals 14 and 15 (UN 2015). These practical efforts have focused on no net loss and related questionable offset approaches (UN 2010, EU 2011, Prieur, 2012, Calvet et al, 2015, Lindenmayer et al. 2017, O’Neill 2019). IPBES (2019), UN (2020) and the EU (2020a) assume that most environmental goals, such as those embodied in the Aichi Targets (UN 2010), in the EU Biodiversity Strategy (EU 2011), and in the 2030 Agenda for Sustainable Development (UN 2015) have failed so far (see also e.g. Elder and Olsen 2019; Zeng 2020; Mauerhofer 2020).

In 2020, the UN as well as the EU have introduced a much more ambitious main goal than solely stopping the rate of loss or the total extent of the loss of biodiversity, namely to even to revert it. Thus, the UN (2020 p. 6 para 5) aims in the Zero-Draft of the Post-2020 Global Biodiversity Framework:

to transform economic, social and financial models so that the trends that have exacerbated biodiversity loss will stabilize in the next 10 years (by 2030) and allow for the recovery of natural ecosystems in the following 20 years, with net improvements by 2050 to achieve the Convention’s vision of “living in harmony with nature by 2050”.

The EU establishes in the new Biodiversity Strategy 2030 (EU 2020a p. 3 and p. 20) its contribution to the overall

headline ambition to ensure that by 2050 all of the world’s ecosystems are restored, resilient, and adequately protected. The world should commit to the net-gain principle to give nature back more than it takes.

Similarly, the EU (2020b p. 4) proclaims in its new Circular Economy Action Plan, related to sustainable production and consumption, that the:

EU needs to accelerate the transition towards a regenerative growth model that gives back to the planet more than it takes.

These quoted ambitions and the related goals and targets could be seen as an expression for the assumption that other more ambitious trajectories for conserving and sustainably using environmental assets and achieving sustainability are needed in the sense of transformative changes (IPBES 2019, UN 2020). The UN envisages for the new overall net-gain request that the Post-2020 Global Biodiversity Framework “will be implemented primarily through activities at the national level, with supporting action at the subnational, regional and global levels” (UN 2020 p. 6). Similarly, the EU (2020a p. 4) outlines the need for a new governance framework, regulation of gaps, improved legal implementation at the national level, and additional actions on all geopolitical levels.

This chapter tries to make a start for this endeavour by outlining a proposed research agenda for net-gain law. Due to the novelty of this global net-gain request by the UN and EU, it is clear that the role of law for its implementation is not assessed in detail yet, neither nationally nor on other levels of the geopolitical scale.

After a short description of the methods applied, the three main parts of the proposed research agenda will be outlined and initially analysed in the findings. The chapter will end with a discussion and conclusions.

2. Methods

Hermeneutic methods are applied, such as comparative legal analyses and different types of text interpretation (e.g. historic, wording, rational). Additionally, the whole approach takes a normative stance as it provides a proposal for a research agenda.

3. Findings

3.1. The interpretation of net gains in connection with law

The quotations of the UN and EU documents provided in the introduction show that different terms (e.g. “net improvements”, “net-gain”, “planet”, “nature”) are currently used in various geopolitical and thematic contexts (e.g. global, regional, biodiversity, circular economy). They address a wide range of scales and levels (in the sense of Cash et al. 2006). Also in natural science, the terms “net contribution”/”net-gain” and their differences to no net losses have been already intensively discussed for the past decade. The literature spreads over energy, matter and space related to species and ecosystems, their conservation as well as sustainable use (e.g. Arudchelvam and Nirmalakhandan 2012, Kyriazi et al. 2015, Sullivan and Hannis 2015).

Regarding policymaking for net gains, the difference between absolute and relative goals, targets and scenarios has been highlighted: a relative approach is usually of narrow impact and specific to single projects (e.g. in Environmental Impact Assessment [EIA]), while an absolute one ecosystem based and overwhelmingly encompassing several jurisdictions (e.g. Mauerhofer 2012, Bull and Brownlie 2017, Maron et al. 2018, Mauerhofer 2019a, Knight-Lenihan 2020).

The three quoted and interlinked global and regional approaches constitute broad absolute goals across the jurisdiction(s) policies cited. Recently, Baynham-Herd et al. (2018) found in their statistical comparison that governance (defined by mainly law-related indicators) explains the variation in national responses to the biodiversity crisis. Several projections for the contribution of law to global biodiversity net gains have been already articulated. Among them are a new, states-negotiated framework with multiple novel metrics (Bull et al. 2020), a measurement framework based on the United Nations System of Environmental-Economic Accounting (SEEA) (Burnett et al. 2020) or Absolute Sustainability Governance based on applying different existing and behaviour-changing instruments by means of rule-, economic- and information-focused incentives (Mauerhofer 2020). Given this context, it appears to be highly important to identify how the quoted absolute goals and their currently related targets are commonly understood and where major differences in understanding occur in order to support the preparation of legally coordinated net-gain implementation at the subnational, national and supranational levels.

3.2. Establishing net-gain law by showing how existing and future law can contribute to environmental net gains

3.2.1. Background

One of the reports previously cited (EU 2020b) calls for a regenerative growth model that reflects the long established conclusion that continuously increasing throughput of energy and matter in the production and consumption scheme is incompatible with the conservation and sustainable use of natural resources (Daly 1996, Mauerhofer 2011, Otero et al. 2020, Leclére et al. 2020). This is also valid for cases where this threat of growth to biodiversity lays in the underuse of certain socio-ecological systems (Takeuchi 2010, Mauerhofer et al. 2018). Countries of the affluent Global North are expected to run a net-gain policy even under a global no-net-loss policy, due to the assumed managed net loss in non-affluent countries where the imperative for human development is greatest (Maron et al. 2020). This appears to be valid if – such as in the UN and EU approaches just quoted– a global net gain until 2050 and a global no net loss until 2030 are envisaged. Such a conclusion is compliant with the principle of common but differentiated responsibility (Mauerhofer 2008) and complementary to the ecological footprint concept (Rees 2002, Wackernagel 2009, Lin et al. 2018). That indicates that affluent countries of the Global North are always supposed to take the lead (Buscher et al. 2017) and practice an overarching net-gain policy, related to their territory or, if their policies would have negative impacts abroad, then beyond their territory. Carlman et al. (2015, p. 97) emphasized the societal control system through the role of law as the “final safety net” against environmental pollution. Similarly, Mauerhofer (2020) highlighted instruments that act through rule-focused incentives as the ultimate ratio and that are only available to public authorities to change individual’s behaviour towards a public interest. Moreover, Scott (2020) recently showed that law can also be, under certain conditions, extraterritorially implemented, with positive net outcomes globally for a sustainable development. A strong and central involvement of law and of sustainability theory seems to be in this combined way crucial. Moreover, the change of the goal of no net loss of biodiversity toward biodiversity net gains becomes even much more ambitious, and this combination seems to be necessary for achieving the new global goal.

Legal theory has recently and continuously approached sustainability from more ethical standpoints (Bosselmann 2016, Montini 2020) to more principle-oriented approaches (Daya-Winterbottom 2020, Van Calster 2020). While these all are reasonable contributions, a more systemic approach can be also useful. Those who have tried to come up with a more holistic concept (Garver 2013, 2019; Mathis 2018) are not convincing yet regarding the potential application in practice of their more systemic thoughts.

The request for net gains requires a fundamental change in thinking. The usual concepts of environmental and nature conservation that often at best mitigate the worst harms (e.g. of a new construction) and of law and its relation to other instruments need to be “creatively destructed” (Kivimaa and Kern 2016).

3.2.2. 3-D Sustainability basics

Numerous main concepts describe key features of sustainable development and even try to express them with one figure (e.g. Daly 1996, Dyllick and Hockerts 2002, Vince and Raworth 2012). These figures appear widely insufficient as they contain misinterpretations of embeddings, misjudgements of equity between the three dimensions of sustainable development, a lack of expression of limitations, and/or a lack of adequate decision support (Mauerhofer 2008, 2019a, 2020). In comparison, the research agenda proposed here takes its starting point from a decision support concept called 3-D Sustainability (Mauerhofer 2008, 2019a).

Preliminary application results from Europe (EU Austria/Schweden; Mauerhofer 2012, 2018b, Elbakitze et al. 2013), Japan (Mauerhofer 2018b) and the Americas (Volkmer and Pedrozo 2019) indicate the global general applicability of this system, as well as for the analysis of the role of law. This is valid for situations of biodiversity loss driven by overuse as well as underuse (Mauerhofer et al. 2018, Volkmer and Pedrozo 2019) for “rebuilding the relationship between people and nature” (Takeuchi 2010) in order to fulfil the new net-gain request. Decision support from 3-D Sustainability can therefore identify substantive as well as procedural law on the supranational, national and subnational levels (Mauerhofer 2012, Elbakitze et al. 2013, Mauerhofer 2019a) and policy and instrument mixes (Mauerhofer 2020) which contribute to biodiversity net gain. This all is very promising for the application of 3-D Sustainability on the new global net gain request on the UN and EU levels.

3-D Sustainability differentiates between stock (capitals) and flows (capacities) of a system and its boundaries (carrying capacities). It can be applied on each topic and geographic level and derives from the differentiation of a preliminary hierarchy of six decision-making criteria. They are capable of being flexibly applied based on the Precautionary Principle. This sustainability decision support system will be used here to test it on the new net-gain request. Four decision support criteria within 3-D Sustainability are ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• List of figures
• List of tables
• List of contributors
• Foreword and introduction
• 1 The role of net-gain law for governance of a sustainable development
• Part 1 Environmental focus
• Part 2 Social focus
• Part 3 Economic focus
• Index