Grounding Earth Law with Ecological Governance

One of the key questions facing those engaged in the evolution of Earth Law is how to ground a whole systems approach into practical, workable, every day law. It was therefore heartening to discover Dr Olivia Woolley’s recently published work, Ecological Governance: Reappraising Law’s Role in Ecosystem Functionality (Cambridge University Press, 2014). The book articulates ambitious and far-reaching proposals for a new approach to governance, giving us a practical pathway for halting and potentially reversing human-induced ecological degradation.

Dr Olivia Woolley is a lecturer in law at the University of Aberdeen. I interviewed her in late November 2014 to find out more about Ecological Governance and her motivation for writing it. Dr Woolley shared with me that having worked as a solicitor in dispute resolution for 10 years, she decided to shift the focus of her work. Consequently, in 2007 she began studying for a PhD in Law at University College London, initially investigating the legal framework within which offshore wind energy developments operate. Her aim at that point was to enhance understanding of the interaction between the environmental law framework designed to restore the condition of marine ecosystems in UK waters, and the UK’s programme of offshore wind farm construction. In studying this, she became aware of the practical challenges of governing sea uses with a view to preventing ecological harm. Consequently, her doctoral studies ended up as a much broader study of the challenge of creating effective legal protection of ecosystems in general.

Dr Woolley credits her awakening to the wider issues of ecological degradation, and the enormous threat that this poses to humankind and other species, to the influence of her doctoral supervisors at UCL, Jane Holder and Maria Lee, and to feedback on her early work from Joanne Scott, also an environmental law academic at UCL. She refers to the ‘snowball’ effect of having her eyes opened to a world of law that she was not previously very aware of. She told me, “I had a fairly ‘nuts and bolts’ sense of the way in which offshore wind developments conflict with other sea uses and rules for marine environmental protection, and my broad idea was to look at how law can be used to try to manage those conflicts. However, working with environmental lawyers made me conscious that this was not just some practical, easily solved conflict at the environmental level. Developing solutions and approaches to balance ecological protection with offshore wind energy development was much more challenging than that. I realized that I needed to understand the science, to understand how marine ecosystems work and that I would need to think through the ethical arguments as well – why protect marine ecosystems? I mean, why would you prioritise that in some circumstances? I needed to have worked through those aspects in order to develop a law that would achieve the ends that I had in mind.”

Thinking Like an Ecosystem

So as a vital precursor to creating a legislative framework that operates to support healthy ecosystems, Dr Woolley first examines our current understanding of how ecosystems function. She then considers what conclusions we can draw from this knowledge, in order to make decisions at all levels of government relating to human activities that impact upon ecosystems in some way.

The book takes global ecological degradation as its starting point – as the problem that we need to address – and then, rather than reviewing the current legal position (since existing legal approaches have largely failed to stem the rate and extent of the degradation), the book begins by looking at our current scientific understanding of how ecosystems work.

A key point made by Dr Woolley is that when it comes to creating legislation to address the protection of dynamic and barely predictable ecosystems, which, in general are very poorly understood, the legal thinking of past generations is wholly unsuitable. She says “My general motivation is to solve problems. In my legal work I am less interested in analyzing the existing legal framework and making minor critiques of them than in looking at the challenges that confront the world and thinking about what kind of approaches are required to address them. With the ecological work, I am motivated by the serious concern that ecological degradation presents. It is a disastrous situation. It’s something that everybody should be motivated to address, not just academic lawyers. So I think it’s enormously important work, and having developed some ideas on this I am motivated to develop them further and to publicise them and get those ideas out there to people who may actually be able to do something about the situation.”

As our scientific knowledge has increased, theories have changed as to exactly how ecosystems function, and although imperfect, through research we have a certain level of understanding, but there is clearly a lot that we still do not know. Dr Woolley asserts that given our imperfect understanding of how ecosystems function, this requires us to apply the precautionary principle much more rigorously than we have done to date.  She argues that we should adopt a normative precautionary approach.  This means that a precautionary approach should be employed as a matter of course in environmental decision-making to reflect humanity’s profound uncertainty about the combined ecological effects of its actions.

The Vital Importance of Resilience

She says, “My focus is on resilience – the resilience of ecosystems particularly and trying to preserve that as the measure that is regarded as the key to their functionality. From what I have read of the science, I am conscious of our very poor understanding of how ecosystems function, of what makes them resilient and how resilience is lost. I question the sort of legal approaches that we tend to use now, which operate on the aspiration that we will acquire ‘perfect science’ at some point in time and hence be able to make sharp distinctions between what activities are acceptable and those which are not feasible, ecologically speaking.

Ecosystems are dynamic, so resilience is constantly changing, and therefore we cannot use the current expression of resilience as a benchmark against which to judge whether activities are acceptable. Also, resilience is a relative concept. It is relative to the challenges that ecosystems confront. An ecosystem that seems in good shape today might not be so in 10 years time, particularly with a changing climate. Add to this our ignorance as to how our activities combine to undermine the resilience of ecosystems. Furthermore, even if we did understand what factors made an ecosystem resilient at a particular point in time, I question whether this would be particularly useful knowledge for governing future activities, in view of the dynamism of ecosystems.“

From this starting point, Dr Woolley describes how we really don’t know where the cliff edge is or how close we are to it, in terms of the tipping point for ecosystem change, so consequently we are floundering around in a state of uncertainty. She then argues eloquently and logically that we need to adopt a different approach to governing our activities, an approach that reflects our ignorance of ecosystems in general, of resilience in particular and also taking into account their constantly changing nature.

Ethical Foundations

In terms of ethical considerations, of particular interest is that Dr Woolley argues that we do not need to agree that nature has intrinsic value in order to move forward with this kind of ecological governance. She says, “Even from an anthropocentric perspective, those with awareness of the reality of our situation should be able to recognize the necessity of the approach that I am arguing for. In other words, it is ethically necessary to alter our relationship with the natural world in this way. This is part of the foundation of my arguments. I am not saying that the position I adopt is logically impeccable. Rather, I have sought to set out a coherent set of ethical principles, which challenge the long-standing perspective that humans have the right to dominate nature. Instead of the ecocentric approach, in which we need to find an intrinsic value in nature, I adopt an ethical approach to which I hope many people will be able to relate. I think it is possible to recognize that a change in our approach to governance is essential, without having to address the question whether individual animals, species, ecosystems or the entire biosphere can be said to have value in themselves. I believe that by adopting a more ecological mindset, even from an anthropocentric perspective you may well end up at the same point anyway. So ecocentrism does not need to be your starting point, I would say.”

A New Legal Framework for Reducing Ecological Pressures

In proposing a legal framework based on a normative precautionary approach, Dr Woolley argues that traditional legal approaches try to regulate individual activities or groups of activities based on firm knowledge of environmental effects.  This does not reflect the reality of the whole situation and is not useful for protecting ecosystems in view of difficulties with establishing how the effects of human activities combine to undermine ecosystem functionality.   She argues that there needs to be a legal framework that makes reducing pressure on ecosystems its principle objective, with policy-making and decision-making based on what we choose to do as a society.

What is heartening about Dr Woolley’s approach is that she does not shy away from addressing the critical issues that so often get bypassed by politicians and policymakers. For example, how do we tackle rampant over-consumption and the unfettered economic growth that continues to damage ecosystems? In practice of course, politicians would rather avoid the conflict and political fallout that would almost inevitably emerge from placing constraints on certain commercial activity and upon human consumption and choice. But as Dr Woolley points out, we can no longer afford the luxury of the ‘head in the sand’ approach to these issues, given the rate of ecological degradation that continues under the existing regime of environmental law and policy.

The legal framework would be designed to achieve this through two approaches, both of which are discussed in the book. The first half looks at identifying and preferring policy options that are assessed to present the least threat of ecological harm and at how that assessment process would be conducted. In some settings, certain categories of activities that present too great a threat of ecological harm would be ruled out.

The second half of the book looks at the kind of arrangements that would need to be introduced in order to bring about an ecologically sustainable approach to governing our activities. The relationships between different levels of government are considered, in terms of who will do what in figuring out how this approach would be delivered in a way that would have the maximum chance of engendering popular support.

General Applicability

Dr Woolley notes that the set of principles for ecological governance offered by the book could in principle be applied in any country. So, for example, although there is a chapter critiquing existing UK planning law, the underlying principles could be embraced by any state wanting to govern ecologically. Dr Woolley says “It’s all based on my understanding of the science and the ethical arguments, which are not unique to one country. So it is possible to base generalized principles upon them, which you could then adapt for particular situations.”

Dr Woolley’s book is clearly the result of deep thought and consideration of what is required for a society to operate within the limits of the ecosystems on which it depends. Given that it offers us a fairly detailed proposal setting out how things could be if we took the health of ecosystems seriously, Ecological Governance: Reappraising Law’s Role in Ecosystem Functionality is worthy of deep consideration by anyone with an interest in shaping future law and policy.

Photo: Aberdeen Harbour, courtesy of www.iStockphoto.com

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