adapting law and governance to the age of …€¦ · adapting law and governance to the age of...

ADAPTING LAW AND GOVERNANCE TO THE AGE OF SUSTAINABILITY AND BIODIVERSITY

TIAGO DE MELO CARTAXO

CEDIS – Centre for R&D on Law and SocietyNova Law School, Universidade Nova de Lisboa, Portugal

EELF 2017 Conference, Copenhagen | 30. August - 1. September 2017

✓ Social communities change and evolve.

✓ The same happens with territories and ecosystems.

✓ In a large number of cases, caused by human action, but not only because of it.





Climate change is a concrete reality



✓ Continuous approval of agreements by the international community, such as the Paris Agreement

✓ States are permanently looking for new legal mechanisms for a decarbonized economy, fostering a general spirit of human well-being, side-by-side with nature and biodiversity



In cities, questions of pollution, health, efficiency and well-being are paramount



In rural areas and natural protected areas it is urgent to promote sustainable farming and tourism activities that respect ecosystems, the life of different species, as well as the existent natural resources



To face these concerns:

✓ Politicians✓ Legislators✓ Public officials✓ Companies✓ Associations✓ Anonymous citizens

must find ways of adapting to the needs of more

liveable and naturally balanced communities and territories, for the present and future generations.



✓ Adaptation of measures/solutions

✓ Integration of policies/mechanisms

✓ Balance of interests in territories



Douro Valley UNESCO World Heritage Site(Northern Portugal)

Cultural and rural landscapeIntegration and adaptation

Intermunicipal land use plan



✓ The world changes and evolves at a fast-forward motion

✓ Law must accompany those changes



✓ Law is usually seen as a static and crystalizing reality

✓ Long procedures of approval

✓ Conservative decision-making based on outdated rules



Conventional Law



Adaptive Law(urban, rural, natural protected areas)



a completely different perspective of dealing with law and governance in the areas of environment, nature conservation and spatial planning



mechanisms used for fostering the so-called “smart territories”

(which also are to be sustainable, inclusive and resilient territories)



Adaptive law, or in other words “smart law”, will play the catalysing role of articulating the wide range of the idiosyncratic elements of each territory.



the use of:✓ new technologies✓ open data✓ monitoring✓ iterative processes✓ decentralization✓ information✓ public participation

must be adopted by legal and governance systems within different territories, from urban to rural or natural protected areas



The Age of Sustainable DevelopmentJeffrey Sachs: 2015

vs.

The Anthropocene(the age of a significant human impact on the Earth's geology and ecosystems)



A Law for the Anthropocene?



Challenge for the Law in the Anthropocene:

both EU and national legal systems, through directives, regulations, guidelines, laws and even judicial adjudications, must adopt this “smarter” or more adaptive solutions, following a new paradigm of monitoring and responding to different social and ecological realities and their evolution throughout time

“feedback loops”

Smart Law for social-ecological resilience



Solutions and methodologies, at legal and

governance levels, to enhance social-ecological resilience (capacity of a system to withstand a

disturbance and maintain the same basic processes and structures, dealing with change and continuing to develop – evolving, keeping its identity)



J.B. Ruhl: “When climate change brings a new regime of high variability and low predictability in natural and social systems, the law must be ready.”

Based on examples of:✓ adaptive management✓ new governance✓ dynamic federalism✓ transgovernmental networks

J.B. Ruhl, General Design Principles For Resilience And Adaptive Capacity In Legal Systems With Applications To Climate Change Adaptation, 2011



Jonas Ebbesson (UStockholm)

Factors and conditions:1. Flexibility in social systems and institutions to deal with

changes.2. Openness of institutions so as to provide for broad

participation, not least in local decision-making and administration.

3. Effectiveness of multilevel governance.4. Social structures that promote learning and adaptability

without limiting the options for future development.

The rule of law in governance of complex socio-ecological changes, 2009



Craig Anthony Arnold (ULouisville, KY)

“a new paradigm, which we call “adaptive law,” to replace features of the legal system that are rigid, ignore interrelationships among social and ecological systems, emphasize front-end prescriptive rules, and generally are ill-equipped to adapt to rapid, unexpected change.”

Resilient Cities and Adaptive Law, 2014



“Adaptive law is polycentric, utilizing

multimodal and multiscalar responses to

problems that are loosely integrated. .”Arnold & Gunderson, Adaptive Law, 2014



“All four elements are critical:

1) continuous monitoring of multiple indicators of system functions and resilience;2) assessment of data from monitoring;3) scientific and social learning from the lessons that the monitoring and assessment provide about the effects of particular decisions or actions; and4) adaptation of plans, policies, programs, management, governance, and laws based on the lessons learned from monitoring and assessment.”

Arnold & Gunderson, Adaptive Law, 2014



EPA & Cosens et al., The Role of Law in Adaptive Governance, 2017

✓Law may be used to provide the authority for governmental

entities to use tools such as adaptive managementthat iterate toward an agreed upon solution.

✓Law may be used to provide the authority for governmental entities to engage broadly with the public through venues

that do not constrain the breadth and availability of public participation, yet provide stability through clearly defined procedural rules and transparent governmental decision-making.



EPA & Cosens et al., The Role of Law in Adaptive Governance, 2017

✓ Law may be used to provide the resources for governmental entities to monitor the social-ecological system at issue, the flexibility to respond to feedback

from monitoring, and the authority to test scientific understanding of a system through the lens of local knowledge.

✓ Law may be used to provide the authority to focus resources for innovation and experimentation at the local level and the scale of the social-ecological

system while maintaining sufficient state- and federal-level oversight and goals to provide stability.

✓ Law may be used to provide forums for dispute resolution that include

facilitation of alternative approaches to managing conflict for complex, multistakeholder problems.



✓ Monitoring of positive law and governance✓ Soft-law, manuals, guidelines✓ Permanent adjustments✓ Continuous development✓ Feedback loops✓ Promote transparency and information✓ Strengthening public participation



Giving people the chance of participating in processes, such as planning, public environmental and land use law- and decision-making, to improve well-being and social-ecological integrity.





Public Participation:A form of increasing the ties between law- or decision-making and the people, once:

“the public sphere can best be described as a network for communicating information and points of view (i.e., opinions expressing affirmative or negative attitudes).”

Jürgen Habermas, Between Facts and Norms, 1996



Portuguese Strategy for Sustainable Cities 2020 (approved by the Resolution of the Council of Ministers no. 61/2015, of July 16)

Recommends the appliance of solutions to inform and integrate citizens in the design and implementation of sustainability measures and urban efficiency, making cities able to be more sustainable, more resilient and greener, where governance and citizenship reach high levels of excellence.



Portuguese Strategy for Sustainable Cities 2020

+ prosperity+ resilience+ health+ justice+ connection+ cognition in cities

However, since then this strategy has not been taken into account by law- and decision-makers…



“Classified areas are to be lived by local communities.”

Neto et al., Uma Visão Integrada para o Território, 2015



www.natural.pt

21% of the territory



www.natural.pt

Environmental integration of protectedareas and nature conservation

Sustainable quality of infrastructures andservices to support visits

Cultural specificities (heritage, culture, rural way of life, know-how, tradition…)

Quality and authenticity oflocal products

Sustainable quality and diversity of local trade and services to support visitors

Quality of hosting by local community

Quality and integrity of the territory, basedon sustainability and respect for resources

21% of the territory



Promotes the involvement of local communities in preserving nature and sustainable human living.

Although it was foreseen in the Resolution ofthe Council of Ministers no. 51/2015, of July 21 (Nature Tourism Framework), itsimplementation has been softened after thechange of government, due to political reasons.



Adaptive, flexible, adjustable, integrated, participated, perceptive legal and governance mechanisms:

the most innovative secrets for enhancing the future of people’s lives, but also the integrity of ecosystems and biodiversity, in a “smarter” and more resilient Anthropocene.

Concluding…



Legal and governance structural compromises cannot be halted because of political changes, namely in what regards environmental issues.

The problem with law: it depends in a large measure on political legislators.

Concluding…

✓ Social communities change and evolve.

✓ The same happens with territories and ecosystems.

✓ And the same happens to law and governance.





“Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters us for the night is not the journey's end. The law, like the traveler, must be ready for the morrow. It must have a principle of growth.”

Benjamin Cardozo, Associate Justice of theSupreme Court of the United States (1932-38)



Will there be anything else after nature?Jedediah Purdy, After Nature: A Politics for the Anthropocene, 2015



If we do not change the paradigm…

…the Winter will certainly come!



Thank you very much for your attention

Tiago de Melo [email protected]

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