From Environmental to Ecological Law

Kirsten Anker, Peter D. Burdon, Geoffrey Garver, Michelle Maloney, Carla Sbert, Kirsten Anker, Peter D. Burdon, Geoffrey Garver, Michelle Maloney, Carla Sbert

• Editorial: Routledge
• Año: 2020
• ISBN:
  9781000328622
• Edición: 1
• Categoría: Diritto
• Categoría: Diritto ambientale

This book increases the visibility, clarity and understanding of ecological law. Ecological law is emerging as a field of law founded on systems thinking and the need to integrate ecological limits, such as planetary boundaries, into law.

Presenting new thinking in the field, this book focuses on problem areas of contemporary law including environmental law, property law, trusts, legal theory and First Nations law and explains how ecological law provides solutions. Written by ecological law experts, it does this by 1) providing an overview of shortcomings of environmental law and other areas of contemporary law, 2) presenting specific examples of these shortcomings, 3) explaining what ecological law is and how it provides solutions to the shortcomings of contemporary law, and 4) showing how society can overcome some key challenges in the transition to ecological law.

Drawing on a diverse range of case study examples including Indigenous law, ecological restoration and mining, this volume will be of great interest to students, scholars and policymakers of environmental and ecological law and governance, political science, environmental ethics and ecological and degrowth economics.

Part 1
Overview

From environmental to ecological law

1
The transformation of environmental law into ecological law

Massimiliano Montini

Introduction: the ecological crisis and the responsibility to act

Human activities are damaging the ecological foundations of life (UN Environment Programme 2019; IPCC 2018). We are currently facing a broad and comprehensive global ecological crisis. It includes the climate change crisis, the loss of biodiversity crisis and more generally the global tendency toward progressive impairment of the health and integrity of the ecosystems that support life on the planet (Montini 2014). In the Anthropocene humanity is called to recognize its responsibility to act in order to address this global ecological challenge, leaving behind old paradigms and models and moving toward a new legal approach to human development in harmony with nature (Kim and Bosselmann 2013; Bosselmann 2016; ELGA 2016; Aragão 2016; Kotzé 2017; Viñuales 2018).

The starting point must be the awareness that the age of rights, which has characterized our society so far, must be substituted by a new age where rights are paired with responsibilities (Bosselmann 2016). The age of rights, based on the assumption that humans have an inherent right to dominate nature, has stretched its boundaries to justify the massive exploitation of natural resources, the massive pollution of the environmental media and the progressive destruction of the ecosystems. The new age of rights and responsibilities must be characterized by a completely new approach, underpinned by a new holistic cosmovision, according to which humans are an inherent part of the ecosystems in which they are placed. In such a context, humans should strive to achieve a “mutually enhancing human-Earth relationship” (Berry 1999). Therefore, protecting the health and integrity of ecosystems by taking care of “our common home” ought to be the absolute priority for all human activities (Pope Francis 2015; Montini and Volpe 2019). This is because there cannot be any sustainable form of socio-economic development that ignores the inherent ecological thresholds represented by the need to respect planetary boundaries (Rockström et al. 2009a; Rockström et al. 2009b; Rockström et al. 2013; Steffen et al. 2015). Humanity should not aim at promoting infinite economic growth. It should rather aim to flourish within the “safe operating space” given by the finite state of the planet (Garver 2013; Jørgensen et al. 2015; Steffen et al. 2015; Magalhã es et al. 2016; Raworth 2017; Wackernagel et al. 2017; Garver 2019).

The role of environmental law and its double failure

What is the role of environmental law in the context of the global ecological crisis? This is a crucial question that is often ignored or underestimated. Law plays a pivotal role, in that determination of what is or is not “legal” conduct tends to shape the behaviors of citizens and companies, irrespective of their moral convictions. Law is not “neutral” to the kind of human development that a given society pursues. This has been well explained by the legal philosopher Wester-lund in his studies on law and sustainability. According to Westerlund, “unless law is made sustainable, it will protect unsustainable conducts” (2008, 54). Since law is greatly influencing and steering human behaviors, if our society wishes to address the ecological crisis and promote sustainable patterns of development, it needs to embrace a new legal approach to the protection of the environment. The key challenge in this new approach must be to protect the health and integrity of ecosystems as a prerequisite for any sound path of sustainable development for humanity (Garver 2013; Bosselmann 2016; Garver 2019). If society fails to steer the course and direction of human activities toward sustainable development patterns that recognize the necessity to primarily address the ecological crisis, it will inevitably support unsustainable conducts that may eventually lead to the sixth mass extinction of planetary life, including possibly humans (Kolbert 2014).

Once the role that law might play for addressing the current ecological crisis is ascertained, it should be determined whether environmental law, as it stands, is able to deliver a proper response to the present challenge. To this effect, it is necessary to consider the question of the legal effectiveness of environmental law (Montini 2017).

This question can be analyzed through the conceptual framework originally proposed by Bodansky (2010), on the basis of Young’s research on the meaning of effectiveness in international governance (1994). Bodansky’s framework was originally conceived to analyze the effectiveness of international environmental law, but it represents an appropriate instrument to assess, by analogy, the effectiveness of environmental law in general, irrespective of the international, supranational or national level concerned (Montini 2017).

This reference framework distinguishes among three different meanings of the term effectiveness, namely legal effectiveness, behavioral effectiveness and problem-solving effectiveness. In such an analytical context, the first meaning, legal effectiveness, refers to the formal compliance with a certain given norm. It aims at assessing whether certain behaviors conform with a requested prescription set by the law, seeking the assessment of a formal understanding of the term legal effectiveness. The second meaning of the term, behavioral effectiveness, focuses on the capacity of a certain prescription to give rise to behavioral changes from the point of view of the addressees of a certain legal prescription. In this case, effectiveness is analyzed with respect to the capacity of a certain norm to produce a visible change in the targeted behaviors. The third meaning, problem-solving effectiveness, deals with the capacity of a given norm to contribute to the achievement of the ultimate environmental objective of a given prescription, that is, to concretely address the environmental problem at stake.

So far, most of the legal analysis on effectiveness of environmental law has focused on the formal legal effectiveness of the norms and tends to underestimate the role of the other two meanings of the term. In my opinion, the key meaning of effectiveness should be the third one, the capacity of a certain norm to contribute to the achievement of the ultimate goal of a given norm (Montini 2017). As explained elsewhere, from the point of view of problem-solving effectiveness, environmental law in the several decades of its evolution has been characterized by a double failure (Montini 2017). This is related to the two (often parallel) tracks that have shaped the evolution of environmental law, giving rise to similar results, despite their different starting points. The first track, which corresponds to an environmental regulatory trend, has shaped the first phase of evolution of environmental law in most jurisdictions. It is based on a command-and-control approach and led to the adoption of a broad corpus of environmental legislation aimed mainly at managing the environmental emergencies caused by the negative externalities of economic growth paths promoted by the dominant neoclassical economic model. The huge quantity of environmental legislation adopted under the regulatory trend has been sometimes quite successful, but at the same time has often shown some structural deficiencies, related in particular to the progressive bureaucratization of environmental policies and procedures as well as to the inability to achieve a real and effective level of environmental protection.

In most jurisdictions a new environmental deregulatory trend (Bosselmann and Richardson 1999; Montini 2017) gradually emerged, starting from the 1980s. It has been characterized by the use of various tools, such as voluntary measures, market-based approaches (including most notably tradable permits), and incentives and taxes, as alternatives to the traditional command-and-control instruments (Rehbinder 1999). The deregulatory trend has attempted to address the main structural deficiencies of the environmental regulatory trend through the adoption of a softer approach to regulation, characterized by the tendency toward the simplification and streamlining of existing environmental legislation. Deregulation in the environmental field has been largely promoted in the name of reducing burdens on business and citizens, on the assumption that a stringent environmental regulation may put them at a competitive disadvantage compared to actors operating in less regulated legal regimes, whereas the right incentives would lead to innovations that protect the environment without hurting business. However, the risk of such a deregulatory approach is that if priority is given to economic and competitiveness considerations over environmental requirements, it may be very difficult to maintain a high degree of environmental protection, resulting in a widespread reduction in the quality of environmental media and ecosystems in the long term. In fact, despite its positive intentions, the deregulatory trend has not reversed the tendency to speed the progressive deterioration of the ecological foundations of life and has not halted the incumbent ecological crisis.

An example of the failure of environmental regulation and deregulation is the climate change legislation passed at the European Union level. In this example, a regulatory approach has been adopted with regard to the progressive C0 ₂ reductions imposed by the EU legislation upon the member States, while a deregulatory approach, largely based on the use of market-based instruments, has been chosen with respect to industrial installations, by means of the EU Emission Trading Scheme (EU ETS). In both cases, the application of the rules has been characterized by a high level of compliance, which nonetheless has led neither to a sufficient level of emission reductions nor to a high degree of eco-innovation toward a carbon-free society (Borghesi et al. 2016).

This example clearly shows the double failure aspect of the problem-solving effectiveness of environmental law, by which both the traditional regulatory trend and the subsequent deregulatory trend have often failed to achieve the ultimate ecological objectives that should be pursued by environmental protection legislation. Such objectives should consist in ensuring the protection of the health and integrity of ecosystems, rather than simply addressing and limiting the negative externalities caused on the environmental media by the application of the dominant neoclassical economic model (Garver 2013, 2019; Montini 2017).

How to address the ecological crisis: promoting the transformation of environmental law into ecological law

A new attitude is needed to tackle the global ecological crisis, which should include as a core element the transformation of environmental law into ecological law (ELGA 2016). The transformation should be based on a new main objective, a new reference approach and a new key paradigm.

First, the new reference objective of protection in an ecological law perspective should be the health and integrity of ecosystems. It should create a discontinuity with the traditional approach that has characterized environmental law up to now, of focusing on managing environmental externalities and accepting environmental pollution and natural resources depletion up to a given extent. This has been done without questioning the continued validity of the dominant neoclassical economic model, despite the growing evidence of excessive pollution and over-exploitation of natural resources. As a consequence, environmental law has not been able to address the progressive rise of the ecological crisis caused by human activities under this model. Therefore, in order to tackle the ecological crisis, the transformation of environmental law into ecological law should embrace an ecological law paradigm. This should promote the setting up of minimum standards of ecological protection enshrined in the law with the ultimate aim of guaranteeing the protection of the health and integrity of the ecosystems affected by certain activities or behaviors. As a consequence, human activities should be pursued freely in accordance with the applicable (ecologically based) law, provided that in case of lack of scientific certainty, a precautionary approach is chosen so as to guarantee that ecosystems are not imperiled (Garver 2013, 2019; Kim and Bosselmann 2013; Burdon 2015).

Second, the anthropocentric approach that has largely shaped the whole legal system in most jurisdictions and has characterized environmental law so far should be overcome. The traditional approach is well exemplified by Principle 1 of the 1992 Rio Declaration, which affirms that “Human beings are at the centre of concerns for sustainable development” (Francioni 2015). This traditional approach should be substituted by a new holistic and comprehensive approach that ...

Índice

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• List of tables
• List of contributors
• Foreword
• Introduction
• Part 1 Overview: from environmental to ecological law
• Part 2 Problems with contemporary law: two illustrative examples
• Part 3 Solutions in ecological law
• Part 4 Challenges in the transition to ecological law
• Index