Monday, July 23, 2012

Creating a legal system for climate change

(This blog is part of a live-blogging series on Empowering Sustainability on Earth at UC Irvine)

The legal system: the structures that provide the frameworks for us to live our lives.

But what if part of the challenge of adapting to climate change is that the very aspects of the system designed to protect and support us - the legal system - is actually making adaptation harder than ever?
Across all sectors impacted by climate change, one theme is clear: climate change requires collective learning. But the current legal system is not suited to enable learning.  Alejandro Camacho argues that US law is not suited to foster adaptation because it promotes a static view of nature. There is no connecting framework in a situation that demands greater coordination than ever previously attempted. Agencies are slow to adapt to new information and changed circumstances. I'd say, it does not take the reality of complexity sciences into account.

Camacho argued that procedural and substantive issues are related to one another, with neither one being adept at dealing with the inherent challenge of uncertainty at both local and national levels. He argues that the most important aspect are those that seek to reduce uncertainty and promote learning. Current decentralised regimes are unhelpful; they lack the capacity to get more information into inherently uncertain spaces. There is not enough connection between successful solutions.

The most common response to fragmentation is centralisation. But this has two problems. One, it decreases the ability to respond effectively to local conditions. Two, centralisation does not help us manage uncertainty.

Camacho explained that natural resource law tends to be grounded in and focused in 'wildness preservation' which relies on a human-nature dualism.  Keep humans and nature separate. The second law is about minimising non-native and keeping the native. The way we figure out the goal is by looking at what was before and keep it the way it was. We can understand this as historical preservation.

However, climate change shows us the limits of both of these types of approaches. Any attempt to protect nature as untouched is both belated and artificial. Humans have touched and interacted with every eco system in the world. Climate change itself inherently impacts these ecosystems. The importance of keeping the humans and nature separate becomes impossible. In regard to the second goal, we know that there is little ecological foundation for saying that we can focus on what occured before the european history.  it might be actually impossible to keep it the way it was. And really, why would we do that? It might even make it worse. Reserves might become inhospitable to the very areas they are designed to protect.   As conditions shift as a result ofclimate change, it becomes impossible to both keep things the way they are and to leave them alone. To keep them the way they are, active intervention becomes necessary.   What links these two things together? Existing law is based on stasis. Static and fixed models of decision making and nature are problematic.

Law comes form an attempt to provide certainty and stability - a place of fixed rules. But climate change makes the rigidity we see in the law particularly obvious and difficult to defend. We can recognise that procedural and substantive issues are related.  Most agencies put their resources in the front-end process. The premise and the assumption behind this is that that things will stay the same. But they do not. Historical preservationsiam requires stasis.   If the natural system is asssumed to be static, then emphasis on front-end processes makes sense. Historical preservation is only possible if the land is segmented from others. But natural systems move, crossing jurisdicial boundaries.  Creatures, people, pollution cross boundaries. Ecological systems will need to shift in order to adapt to climate change. So we need to either depart from this notion of stasis or we need to accept it won't work

The dualism between nature and humans has really influenced and contributed to regulatory segmentation. Human systems impact non-human systems. Of course we know that cities effect natural areas. But our legal regime is designed to keep them separate. We don't let them interact.

So what do we do about this?

Substantitve side: the goals should not be to leave nature alone or to restore it to some ideal past state. It should, instead, be about  how to maange in ways that promote desired future conditions: ensure health of ecosystems.

But then what do we mean by health? Does it mean to maximise productivity?  These are disputed arguements.  What about distributive impact?  Future ecological conditions and analyasis. The law is still focused on keeping things the way they were or keeping humans out of it.

What we do know about these sorts of questions is that they should not be left solely to experts.  These kinds of goals should not solely be left to these.  What a regulatory process - adaptive governance framework to incentivise regulation and a shared public information network to link different jurisidictions together to learn from the mistakes and successes to one another; they would be required to do so.It would help them adjust and respond to one another.

The citizenry comes to have an increasingly important role. My friends at Story of Stuff talk about this as flexing our 'citizen muscle' in engaging with the rules that shape our lives. The arguments for adaptive governance fit in well with Elinor Ostrom's analysis about governing the Commons and the insights coming out of complexity sciences.

In the US, the goal is to keep nature and humans separate. Maybe the goal of the law can change: to ensure the wellbeing of both the earth and her people by enabling them to live together. Which is, really, what the law is supposed to be about: flourishing well being. 

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