Untapped capacity for resilience in environmental law

Abstract

Over the past several decades, environmental governance has made substantial progress in addressing environmental change, but emerging environmental problems require new innovations in law, policy, and governance. While expansive legal reform is unlikely to occur soon, there is untapped potential in existing laws to address environmental change, both by leveraging adaptive and transformative capacities within the law itself to enhance social-ecological resilience and by using those laws to allow social-ecological systems to adapt and transform. Legal and policy research to date has largely overlooked this potential, even though it offers a more expedient approach to addressing environmental change than waiting for full-scale environmental law reform. We highlight examples from the United States and the European Union of untapped capacity in existing laws for fostering resilience in social-ecological systems. We show that governments and other governance agents can make substantial advances in addressing environmental change in the short term—without major legal reform—by exploiting those untapped capacities, and we offer principles and strategies to guide such initiatives.

Spatial Imaging and Screening for Regime Shifts

“…Such locations have not yet experienced regime shifts, but are likely to in the future, and can therefore serve as areas for anchoring conservation efforts and building resilience against approaching regime shifts. Other locations in close proximity to regime shift signals may be prioritized for intensive management aimed at halting regime shift advance, while still other locations where regime shifts are already occurring at broad scales may be slated for adaptation-based management under the new regime (Chaffin et al, 2016;Garmestani et al, 2019). Local and expert sources of knowledge, as well as perspectives from social and political science, are essential for effective diagnosis and treatment of regime shifts, in order to better inform how screening results can be used to support decision-making and management.…”

“…For this reason, it is important to link screening results to management through a formal diagnosis of the regime shift and its likely causes. If management is incapable of preventing an approaching regime shift, then management resources and efforts may be more effectively devoted to transforming the system to mitigate the negative effects of the regime shift (Chapin et al, 2010;Chaffin et al, 2016;Garmestani et al, 2019).…”

“…In the same way, areas in which screening indicates regime shift imminence may be prioritized for intensive management aimed at halting or reversing the regime shift. Finally, areas in which screening indicates that regime shifts have already occurred-particularly at large scales-or areas in which it is infeasible to halt regime shift advances, may explore avenues for transformation in law, policy, and governance to better deal the realities of the new regime (Chaffin et al, 2016;Garmestani et al, 2019).…”

Convergence science in the Anthropocene: Navigating the known and unknown

“…Such constraints relate to a combination of rigid policy, limitations of currently available technological solutions and economic models embracing linear growth. Adaptation is often further complicated because the dynamic, uncertain, non‐stationary environmental change is not accounted for in policy and management (Garmestani et al, ; Twidwell et al, ). In the absence of accounting for such constraints, adaptation can often become counterproductive or, according to Holling and Meffe (), ‘pathological’.…”

On dynamic naturalness, static regulation and human influence in the Ems-Dollard estuary

“…The difficulty in law and policy in Germany and the Netherlands is that they do not bring economy and nature in balance with each other but prefer the interests of nature to fit within economic purposes. Elsewhere in the world, granting legal rights or personhood to nature is seen as a step forward in warranting the interests of nature and instigating restoration measures (Boyd, 2017;Cano Pecharroman., 2018;Daly, 2012;Garmestani et al, 2019;O'Donnell & Talbot-Jones, 2018;Stone, 1972Stone, , 2010Suykens et al, 2019), but given the framework of legislation and management, this is not considered feasible for the Ems-Dollard (Gilissen et al, 2019;Van der Werf, 2019). Still, decision making on natural systems does require discussion of the underlying assumptions in nature restoration.…”