Introduction
Much environmental law and policy has as its objective to return nature to a pristine state as it is imagined to have existed prior to significant human intervention characterized by industrial society. Implicit in this objective is an assumption that ecosystems are static, or at least in a stable equilibrium, in the absence of human interference.Footnote 1 This conception of ecosystems is at variance with scientific insights into the complexity and dynamism of ecosystems. A more promising objective for environmental law and policy is resilience, or ecosystemic capacity to absorb stress without losing essential structure or function.Footnote 2 To pursue resilience as a policy objective, ecological governance could more usefully take the shape of management of complex adaptive systems, or adaptive management: laws, policies, decision-making processes, and governance institutions should be dynamic, flexible, and capable of learning and adaptation.Footnote 3 Legal systems, like ecosystems, are capable of absorbing and adapting to change, but, like ecosystems, their adaptability has limits, particularly in light of the contribution of legal systems to stability and predictability in society. Legal institutions that promote ecosystem resilience but do not overwhelm the resilience of legal systems would likely look very different to the highly material administrative regimes that currently predominate. Many environmental regimes are oriented around a planning mentality, pursuing a clearly defined outcome. Instead, what is called for here are regimes and institutions that strive to hold the future open rather than realize a particular future identified as desirable.
This is not without risks for the viability of legal systems, and more in particular to their capacity to provide a certain degree of stability, predictability, and order in society, creating islands of predictabilityFootnote 4 for actors seeking to project themselves into uncertain and highly contingent futures. Legal rules require flexibility, certainly, but they are relied upon precisely because their validity is resistant to learning: in the face of disappointment, legal rules persist. These considerations provide good reasons to examine adaptive management critically: it may be a promising framework for the pursuit of resilience in ecosystems, but it must not come at the expense of the resilience of law.
I begin with a discussion of a central challenge facing environmental law: there is good evidence that Earth’s ecosystems are facing catastrophe, and that our legal institutions are not robust enough to address the challenges we face. I then move to an analysis of the potential and the challenges of adaptive management in the pursuit of resilient ecosystems, focusing particularly on the challenges that this approach to environmental governance poses to the resilience of law. Finally, I discuss potential avenues for enhancing law’s resilience, notably through decentralized, networked governance structures, before concluding.
1. ‘We Don’t Believe What We Know’
In framing his argument for an ‘enlightened catastrophism,’ Jean-Pierre Dupuy describes a temporal inversion that must be practiced when we seek to prevent catastrophe. A catastrophe, prior to its occurrence, is perceived as an impossible event, whose always-existing possibility impresses itself upon us only once the catastrophe occurs: ‘sa possibilité, qui ne précède pas sa réalité, l’aura précédée une fois la réalité apparue.’Footnote 5 Dupuy points out that successful prevention of catastrophe requires one to invert this logic: to compel recognition of the possibility of catastrophe for the purpose of keeping it in the realm of the impossible.Footnote 6
This is not, Dupuy notes, a question of expanding data collection and analysis so that potential catastrophes can be discovered and thus prevented through careful planning. What makes environmental and human health catastrophes unique is not that we do not yet know the implications of our decisions and actions: rather, this information is not available in the present; it remains in the realm of the speculative or probablistic. Our capacity to predict, Hans Jonas argues, is outstripped by our capacity to act,Footnote 7 which generates overwhelmingly complex impacts. The uncertainty under which we operate when making decisions relevant to environmental protection is not a temporary, transient state; it is structural.Footnote 8
Dupuy’s enlightened catastrophism involves taking catastrophe seriously in order to provide ourselves with the means to prevent it. In much of the critical literature on emergency and catastrophe, the emphasis is on the myriad ways in which the concept of emergency is manipulated to achieve goals that have nothing to do with public security. Emergency is often used by political authorities to distract from other issues, including the likely root causes of the emergency itself—and from their own contributions to the state of emergency. To some extent, one sees this phenomenon in the environmental field as well: climate change and other environmental catastrophes are framed in largely technocratic ways, with proposed solutions tending to reinforce important elements of the status quo.Footnote 9 But it is difficult to discern attempts to exploit the urgency of the state of the Earth’s ecosystems for these purposes;Footnote 10 indeed, critics of environmental policy generally point to a lack of urgency, to an underappreciation of crisis. Dupuy sheds light on this state of affairs: ‘le problème est que nous ne le croyons pas. Nous ne croyons pas ce que nous savons.’Footnote 11 The statement is absurd, of course; it is precisely the absurdity of behaving as if we are in ignorance of the implications of our acts to which Dupuy draws attention.
The challenge of environmental protection may well be the opposite of that posed by the global war on terror: to find the means to create a sense of urgency that will focus the minds of political authorities and polities and induce them to act. This must be done, moreover, under conditions of structural uncertainty. In other words, while we may know what future we want, we cannot plan for it: we cannot take decisions in the present in order to secure a particular future present. The task is rather to avoid the closing of the future through environmental catastrophe.
There is certainly an enormous amount to be gained from taking catastrophe seriously. It is true that much remains uncertain about climate change, and that uncertainty resides at every level; for example, with respect to its causes, impacts, and the means to abate it. However, the recent history of climate law and policy is one of tragically missed opportunities, failure of political will, and absurdly short-term self-interest. Much could have been accomplished even in the face of such uncertainties. At this point, as options must be taken off the table and new, previously unthinkable or at least undesirable options—renewed investment in nuclear power, geoengineering, abandonment of regions and even entire states and the relocation of their populations—come to be seriously considered, the risks inherent in responses to climate change are ever increasing.Footnote 12
There are various diagnoses of this strange lack of urgency and slow progress in the field of climate governance. Clark A. Miller argues that the framing of climate change as a global problem, which requires an elaborate, coordinated response at the global level where governance institutions are weakest, is at least partly responsible. He notes that ‘the globalization of politics has not only failed to settle into a stable institutional framework, but has, in fact, exacerbated many of the uncertainties that haunt international relations.’Footnote 13 Miller points to the reconceptualization of ‘the Earth’s climate as a global system’ as the starting point for the globalization of climate governance.Footnote 14 Climate modeling in the early 1980s ‘represented the Earth’s climate as an integrated, global system’ which was put at risk by anthropogenic greenhouse gas emissions.Footnote 15 This conception was adopted by Intergovernmental Panel for Climate Change (IPCC) from its inception in 1988.Footnote 16 Scott Hamilton also impugns the approach taken by the IPCC and climate scientist generally, but for Hamilton the problem is rather the technological representation of global climate systems that seems to put climate change beyond the reach of political action.Footnote 17 These are compelling diagnoses, particularly in the face of relatively high levels of activity at the sub-state level,Footnote 18 where climate change is often successfully recast as a local issue, or at least as an issue having important local dimensions.Footnote 19
The restructuring of the global climate regime as a bottom-up regime with a high degree of flexibility may lead to greater emphasis being placed on local, state, and regional institutions.Footnote 20 In addition to this spatial realignment, many observers are calling for a restructuring of the time of environmental law and policy in order to synchronize environmental governance with the rate at which the effectiveness of policy and legislative interventions may be observed. Time is a central theme in literature on adaptive management, at least implicitly. Political decisions impose a certain degree of closure: a permit is issued or not issued; a bill is adopted or defeated, but all such decisions can be revisited when the conditions are right. Law’s closure is more emphatic: even when legal norms change, actions and decisions taken in virtue of the repealed norms do not generally become retrospectively illegal. Thus, the argument made by proponents of adaptive management—that policy decisions ought to be treated as hypotheses rather than conclusions, and policies as experiments—induces a certain vertigo for students of governance institutions.Footnote 21 Decisions that create legal rights and obligations generate expectations on which reliance is placed in the making of other decisions and the undertaking of activities. The passage of time may well reveal undesirable consequences of these decisions, but unwinding the situation that has been created may be difficult and disruptive. Law functions to create islands of certainty because it creates the conditions for actors to project their undertakings into the future. If these projections are to be taken as merely experimental, binding only if they produce the desired material outcomes, and subject to change with the evolution of knowledge and information, law’s function could become impossible to achieve.
2. Adaptive Management and the Resilience of Law
J.B. Ruhl describes adaptive management as ‘an iterative, incremental decision-making process built around a continuous process of monitoring the effects of decisions and adjusting decisions accordingly.’Footnote 22 Ruhl acknowledges that learning and adaptation imply constant re-evaluation and change—not just substantive but structural change: ‘The adaptive system persists in this state of stable disequilibrium, constantly shedding stresses by discarding obsolete structure and making room for new approaches.’Footnote 23 Naturally, such constant change poses a challenge for law, but, depending on the rate and scale of change, the challenge may not be difficult to meet. Legal systems have dealt with turbulence before; Ruhl points, for example, to the 1970s, when many jurisdictions began to frame environmental protection as an independent issue area, drafted large quantities of legislation, and built often elaborate administrative regimes in response. Ruhl describes efforts in the 1970s to come to terms with environmental degradation as often resulting in ‘an avalanche of law, a punctuation of the “equilibrium” if ever there was one in law.”Footnote 24 Jonas Ebbesson also notes the potential threats to rule of law generally, and legal certainty more particularly, posed by the kind of flexibility demanded by adaptive management, but concludes that law is in any event subject to constant change. Legal certainty, he argues, is strongly associated with the liberal state, while under the welfare state, the emphasis shifted to distribution of social benefits and access to them, and from there, under the security state, to the management of collective risks.Footnote 25 In other words, legal systems and the societies in which they are embedded have a good deal of experience with rapid and extensive legal change. Furthermore, the type of continuous change that Ruhl, Ebbesson, and others have in mind is intended to avoid the rapid change and resulting instability of the type described by Ruhl.
It may well be that constant change poses no significant threat to legal systems, or that legal systems are resilient enough to address those threats. Much will depend on the design of regimes, particularly decision-making systems; clearly, features to manage fairly rapid rates of change will need to be built into such regimes.
2.1 The Rhythm of Adaptation and the Time of Law
Ebbesson’s discussion of accelerated legal change, legal certainty, and rule of law concludes with the observation that certainty may not be central to rule of law and that law possesses or can develop the necessary resources for dealing with acceleration. However, the significance of time to law, and vice versa, may be more complex than Ebbesson acknowledges. The interrelationship between time and law is most easily discerned in customary law, whose norms are the product of accretion that necessarily takes place over time. One way to understand the role of time is to consider a customary norm to be the product of a kind of trial and error, during which actors gradually converge on an approach that seems to function well in a range of situations. Customary norms that are sufficiently old that their point of origin cannot be discerned acquire a venerable, foundational status.Footnote 26 Norms with old or even ancient roots are seen to have withstood the test of time; if they have repeatedly helped actors to address problems, structure relationships, or resolve disputes in the past, they will likely continue to do so into the future.Footnote 27 Social acceleration problematizes this relationship between age and validity: as societies and ecosystems change, lessons from the past are less useful for projecting into the future.Footnote 28
The venerable nature of rules is today less relevant to their authoritativeness, and legal operations are not carried out in the shadow of past operations to the same extent.Footnote 29 In the context of environmental protection, one of the most important impacts is the acceleration of scientific and technological developments and the resulting degradation of ecosystems. We lack the time required to assess the implications of these developments on society, culture, and ecosystems, and new technologies are adopted and implemented before we have an opportunity to understand their potential impacts.Footnote 30 But, even given infinite time, it is unlikely that such future impacts could ever be exhaustively, or even adequately, assessed. The complexity of the socio-ecological systems into which they are introduced is simply too great, and social responses to new technologies too contingent, to permit clear predictions of outcomes ex ante.
Three interrelated obstacles are at work here. One is complexity itself, leading not to difficulties with predictions but to their impossibility. The second is obstacles relating to planning, that is, the difficulty, under conditions of uncertainty and complexity, of identifying the means to transform a desired present future into a future present. The third, closely related to the second, involves deploying the means—through law, politics, economics, ethics, and science particularly—to secure the selected present future. Desired futures cannot be brought about in a linear causal manner. As Terry Whiteside notes, the complexity of environmental cause and effect severely reduces the utility of practical reasoning—the capacity to make sound judgments based on past experience and one’s ever-increasing capacity to deploy that experience in the process of judgment-making, i.e. phronēsis. When we cannot rely on past experience to project ourselves into the future, we must turn to experts, notably scientific experts, to help us make those projections.Footnote 31
2.2 Adapting to Acceleration: Strict Liability and Precaution
Ruhl and Ebbesson suggest that the time of law currently moves too slowly to adapt to emerging understandings about ecosystems and the effectiveness of legal and political interventions, but implicit in their diagnosis is the further problem that legal changes occur at a rate that depends on the pace of operations in the legal system rather than those taking place elsewhere. Science is one of the most important means for determining what impact legal and policy changes are having on ecosystems, and what unexpected occurrences emerge that require a response from governance systems. Those systems need to respond to changes in scientific understandings as they emerge, adapting themselves not only to the knowledge itself but, at least to some extent, to the rhythm at which it is produced. However, changing the time of these systems would lead to far-reaching changes to the systems themselves.Footnote 32
One example of the impact of evolving scientific understandings on law is in the increasing resort to strict liability in environmental regimes. Strict liability differs from the usual rules governing responsibility to compensate for harm caused through one’s negligence in that the injured person need not demonstrate any fault or lack of due care on the part of the responsible person. It is a reasonably good way of addressing the problem of past ignorance of consequences that come to light in the present, and present ignorance of future consequences. Responsibility based on fault or negligence—tort or delict—tends to create very different types of incentive structures than does strict liability: the absence of blameworthiness inherent in strict liability may, under certain conditions, make it less apt to foster prudential behaviour. On the other hand, tortious or delictual liability may create perverse incentives to maintain ignorance about potential consequences, which is clearly antithetical to prudence as well. Luhmann points to the uneasy fit of strict liability with individual rights:
The technical difficulties faced by law are well known—for instance, in the case of ecologically mediated, indirect, and long-term causality or in the case of an interest in prevention, which cannot yet be voiced because the injury has not yet materialized or is not immediately threatening. So far, legal solutions have been offered, above all, by the paradoxical instrument of strict liability, which permits action but provides liability in the case of legally (!) committed harm. This, too, is an indication of how law is losing its relevance and information value for individuals coping with everyday life. The law no longer specifies what one ought to do or not do. All that is left for law to say is: ‘If things work out, they work out. If they don’t, they don’t.’ And subjective rights come into play only by defining those who can claim damages, but not in the form of protective rights which allow people to access the courts if they only fear injury.Footnote 33
Strict liability works reasonably well in contexts in which the activity causing harm is beneficial and ought to be allowed to continue, but only in a context in which the most significant problem is not devastating harm but rather the inequitable distribution of harm and benefit. Where the harm in question has the capacity to reach devastating proportions, what is required are means to alter the manner in which the activity is carried out, or the manner in which the benefits that flow from the activity are procured. The prospect of paying damages should induce risk-creating actors to take care, but there is a danger that liberal use of strict liability could dilute the normative element and reduce calculations regarding risk-creating activities to the level of economic calculation alone. Furthermore, as indicated by Luhmann, those potentially subjected to risk may lose their agency, becoming little more than potential or actual victims, potential or actual claimants of compensation. In short, strict liability does not squarely address the problem of time reflected in uncertainty; it simply seeks to redistribute the burdens created by this problem—an undoubtedly useful, even crucial, contribution, but not one that is sufficiently far-reaching.
Another response to present ignorance of future harm is the precautionary principle.Footnote 34 Precaution is easier to unpack as a principle guiding political decision-making and the structure of decision-making procedures than as a legal principle, as it seeks to address the problem of legitimation of political decision-making under conditions of scientific uncertainty. The necessary scientific knowledge is understood to be potentially available in the future, but once that knowledge comes available, it will be too late for action. The solution is said to lie in behaving as if the uncertain ecological risk has been scientifically established. Because the authority of science cannot be heavily relied on in such circumstances to bolster the legitimacy of a decision, democratic processes are placed in the forefront: we are reminded that questions about the acceptability of risks are political, social, and cultural, and therefore that they are fit objects for democratic deliberation and political decision-making. However, as Dupuy notes, the precautionary principle rests on questionable assumptions, first about the nature of uncertainty—punctual and temporary rather than structural—and second about the risks involved in risk avoidance. Contrary to received wisdom about precaution, its application is a risky undertaking, generating not just opportunity costs—projects and profits foregone, investment in environmental protection measures that later prove unnecessary—but the creation of new risks, including environmental risks.Footnote 35 The precautionary principle is an attempt to address the shortcomings of democratic legitimation and scientific knowledge as potential bases for non-arbitrary decisions. But precaution can do little more than provide a degree of ethical-political cover for the making of arbitrary, and possibly erroneous, decisions. This could be acceptable if uncertainty were an exceptional and temporary state, but structural uncertainty risks transforming precaution into a kind of emergency power. This situation, too, would be regarded by many as acceptable, but only on the assumption that the worst that could happen is that the uncertain ecological risk in whose name precaution was invoked turned out to be inexistent.
While strict liability and precaution suffer from significant constraints, both present a distinct advantage: they do not seek to cure the asynchronicity of the different systems implicated in environmental protection, but rather to address certain of the problems that it generates. This is a promising starting point: the asynchronicity of these systems is a product of their distinct logics and objectives, and could be eliminated only if governance and science were to be collapsed into one another.Footnote 36 This could seem like a price worth paying, but it comes at the cost of the capacity of each system to carry out its particular function—to make its particular prestation to society.
Implicit in adaptive management is a strong tendency toward technocracy, which poses challenges to the democratic nature of environmental governance, but also to the autonomy of law. Two such challenges will be addressed: first, implications for the normativity of law; and second, the potential for the colonization of law by systems such as science and economics.
2.3 Law’s Response to Technocracy
The implication of scientific experts in environmental decision-making and planning is inevitable, and enormously beneficial. The danger of slipping into technocracy looms, not so much because scientists wish to take over, but because it becomes more difficult to conceive of politics and law possessing authority independent of the authority that science lends them. The phronēsis of political and legal agents makes a significant contribution to their authority, but under conditions of social acceleration, generating complexity and uncertainty, the capacity of those agents to make wise decisions is called into question. In addition, reliance on experts tends to lead to a high degree of centralization: private law appears to be of questionable use as doubt is cast on the capacity of individual actors to discern and pursue their interests in the face of ecological threats and risks and to deploy legal rights and remedies in the pursuit of those interests. Environmental quality, being a public good, is understood to require public, notably administrative, law in its pursuit. The state is seen as the actor best suited to identify environmental objectives, to commission or aggregate the scientific expertise necessary to design appropriate responses to environmental degradation, and to compel other societal actors to alter their behaviour in conformity with environmental objectives.
Environmental regimes, based as they are on planning, effect a shift in emphasis from past to future; from conditional to purpose-specific programs.Footnote 37 The terms of a contract will be valid and enforceable in the future when they fall due regardless of the many ways in which the future surprises, disrupting the calculus made by each party when the contract was concluded. The island of predictabilityFootnote 38 created by contractual rights is seen to be of greater value overall than the potential efficiency gains of breach. When the validity of a legal rule comes to depend on the capacity of that rule to contribute to the attainment of a certain outcome, however, law’s orientation shifts to the future, eroding predictability.
The premises of adaptive management seem more consonant with purpose-specific than with conditional programming: the validity of legal rules depends on the outcomes that they produce, and these outcomes are assessed, not within the legal system, but outside it, by scientists and other experts. Law thus stands to lose the capacity to interpret and apply its own normativity, as legal expertise is not appropriate to determinations of ecosystem perturbations or adaptations. As to actors that rely on legal norms to create islands of predictability, they face a new set of risks, produced by a legal system that is not only subject to rapid change—this was already the case since the advent of positivism and more emphatically since the rise of the welfare state—but to change that is directed from outside law. It is no longer risks created by other actors that are at issue, risks which law is meant to attenuate or manage, but rather the risks posed by law.Footnote 39 That feedback on impacts should be reflexively applied to legal rules is sensible: the political system should of course seek to learn from its mistakes. But making the validity of legal rules contingent on their consequences is a major shift. If actors know that their legal behaviour can be transformed into illegal behaviour over the course of a project or process, then investments of various forms in legal conformity may come to be regarded as irrational. Adaptive management presents a risk to understandings of legal rules as belonging to a system which shapes them and is shaped by them—in other words, the ecology of law.
An important aspect of legal normativity is the resistance of legal norms to learning by disappointment. The violation of a norm is not treated in the same manner as evidence that runs counter to a hypothesis: the norm retains (counterfactual) validity in the face of its violation, which is expected to give rise to legal consequences,Footnote 40 while the hypothesis is called into question if not revised or abandoned. Adaptive management, with its emphasis on the capacity of environmental regimes to ‘learn’ and adapt, has the potential to place in jeopardy the normative quality of legal rules. Strict liability provides a good illustration: if actors observe the standards of reasonable and prudential behaviour, they may nevertheless be held liable. Similarly, adaptive management would imply that if a particular standard is breached and produces no observable harmful effect, the standard will be deemed defective and sanctioning its breach may come to be seen as ineffective, even inappropriate. Legal norms could thus take on a cognitive quality: I follow the norm not because of its status as a norm, ensuring that behaviour that is legal today will be deemed to have been legal in the future, but because adhering to the norm is predicted to achieve certain (non-legal) effects, and it if does not, its status as a legal norm stands to be called into question.Footnote 41
One possible interpretation of the above discussion is that insensitivity of governance systems to scientific observations of the ecosystemic impacts of policy and legal interventions is the price to pay for the integrity of the political and legal systems. This would lead to the unfortunate conclusion that efforts to increase the resonance of scientific insights within governance systems are fruitless. Science and governance do interact in important ways; the point is simply that scientific information cannot be conceived of as an input into governance systems, provoking a response that can be identified in a linear-causal manner. Nor do legislative or policy initiatives cause ecosystemic responses in linear ways. The following section presents a brief discussion of modes of interactions between science and governance and implications of these modes of interaction for adaptive management.
3. Resilience of Legal Systems
Luhmann uses the heuristic of resonance to describe the extent to which system responses to communications in their respective environments can be coordinated, and concludes that the possibilities are extremely limited.Footnote 42 If one sees law and politics as instruments for social regulation, and science as the source of the most important information on environmental degradation, then environmental governance could be improved by enhancing the responsiveness of those systems to scientific communications. This could be accomplished, for example, by building triggers into legal regimes: when scientists conclude that a species is endangered, or that the fragmentation and degradation of a habitat has crossed a threshold, or that global warming will not be kept under 1.5°C without further cuts to emissions, certain policy and legal responses can be triggered. There are a number of problems with such an approach. Scientific insights are unlikely to be the only ones of relevance: economic, social, cultural, and other factors must be considered. Even if we can be confident that governance systems have translated scientific communications in reasonably robust ways, there are many routes to take to achieve the objectives that have been identified, and these different routes will result in different distributions of costs and benefits. The dynamism, complexity, and reflexivity of both societies and ecosystems confound attempts by governance authorities to simply bring about outcomes: placing stringent restrictions on the harvesting or sale of specimens of endangered species or products therefrom could result in increased prices and incentives for poachers and smugglers, often well-armed and prepared for violence, to the detriment of local communities and authorities that have to contend with them. In addition, it must be acknowledged that category definitions, thresholds, and the like are not purely scientific constructions: they are rather misreadings, at best productive ones,Footnote 43 of scientific communications. In short, governance systems cannot absorb the complexity of science, or match its features point for point: to attempt to do so would overwhelm those systems, ultimately leading to their absorption by science. This would be acceptable only if we understood the main, indeed the only, objectives of governance systems to be the translation of scientific communications about ecosystem health into measures for ecosystem protection.
The central challenge of adaptive management, to which Ruhl and Ebbesson are attuned, is this: how to promote ecosystemic resilience without diminishing the resilience of governance systems? If the stabilization of normative expectations is understood to require the persistence of substantive, material norms—measures to be taken to store and transport hazardous substances, quantitative emissions limits, ambient environmental standards expressed as parts per billion—then adaptive management poses a significant threat to law. Ebbesson points to attempts to render governance structures and decision-making processes more participatory, such that actors affected by changes to standards, thresholds, conditions in permits, and the like will have an opportunity to be informed of these changes and to make their views heard.Footnote 44 His broader objective is to find means to respect the rule of law that are more consonant with adaptive management; this is precisely the sort of thinking that is required to reconcile resilience of governance with resilience of ecosystems. But the participatory approach is likely to encounter significant challenges, as Ruhl hints.Footnote 45 The time required to reach consensus may be too great; differences in perspective and interest may be too significant to permit the reaching of a stable consensus; and the consensus may simply lead in the wrong direction as a result of misapprehensions of the nature of the problem and the primary and secondary impacts of potential solutions.Footnote 46
Ebbesson seeks to reconcile an essentially administrative model of regulation to adaptive management while at the same time attending to the rule of law. In much of his scholarship, Ruhl also focuses on administrative, regulatory models, but he also departs from such material approaches, notably in his discussion of nuisance. Material approaches are of relatively recent vintage, coming to predominate as a result of perceptions of the inadequacy of private law models. A significant advantage of private law institutions such as property and tort or delict is precisely their flexibility and adaptability: for example, what counts as a reasonable standard of behaviour, or a reasonable intrusion on the enjoyment of property, will evolve over time, as will the boundaries of the category of compensable damages. Ruhl argues that nuisance may be a very useful framework for apprehending ecosystemic degradation from the perspective of law.Footnote 47 What counts as a nuisance is not fixed by law; the category is susceptible of being influenced by evolving economic, scientific, and social understandings of acceptable and unacceptable interference with enjoyment of property. In a society in which smoke billowing from smokestacks is indicative of progress and prosperity, a high degree of tolerance for soot and ash on one’s property may be expected. As scientific developments allow a wider range of actors to see endocrine disruptors, persistent organic pollutants, and nanoparticles, as well as their environmental impacts, the range of types of interference that count as nuisance will shift. Through the productive misreading of diminishment of ecosystem function as compensable loss, risk-creating actors can come to be highly exposed to liability. Through approaches such as these, law’s resilience can be exploited, rather than threatened, in the pursuit of ecosystemic resilience.
Nuisance is subject to the important limitation that it may only be invoked by persons that have suffered particular damage, over and above the general damage caused to the public interest. In many cases, ecological damage affects public lands and, in some jurisdictions at least, requires governmental action in public nuisance.Footnote 48 Difficulties arise, however, where the state is unwilling to take such action, for example when those in power perceive the benefits from an ecologically harmful project to outweigh the costs, which will very often be the case when costs and benefits are inequitably distributed and vulnerable populations are hardest hit. Arguably, the multiplicity of actors, rights, and interests that are engaged in a private law model enhances its resilience: under the public, administrative approach, enforcement action is channeled through the state rather than being carried out at many sites. Ecosystemic diversity is understood to be an important pillar of resilience; in addition, the multiplication of channels through which legal communications flow could enhance the resilience of ecosystems. The (potential) disadvantage is that the objective to be pursued is not centrally controlled; different actors will understand their interests and objectives differently. This logic extends to private authorities such as certification bodies that purport to act in the public interest: there may not be, indeed there is unlikely to be, widespread consensus on the contents of the public interest or the optimal means of pursuing it. Insights from resilience theory suggest that the multiplicity of perceptions of interest could also be seen as a healthy form of diversity.
3.1 Networked Governance
The success of adaptive management will depend on robust interaction between science and law. As noted above, these interactions are indirect; the systems can influence each other, but do not direct or control one another. To the frequent frustration of scientists, they have some influence but no direct control over the manner in which their communications are taken up and interpreted by governance systems. This is not (only) because governance systems operate on the basis of inadequate models of scientific knowledge production. These models could certainly be improved, for example to take better account of the probabilistic rather than absolute nature of scientific understandings of complex systems. But ultimately, scientific knowledge cannot be replicated point for point through governance mechanisms. The concept of CO2 equivalence used in the climate regime may be a gross simplification of scientific understandings of the environmental impacts of various greenhouse gases, but governance structures have their own priorities; quantifying emissions and identifying thresholds for the purposes of legal limits and standards require simplicity and clarity. The binary approach to causation used in tort and delict is necessary for the purposes of legal decision and imposition of legal consequences, even if such a categorical distinction has no scientific basis.
Even allowing for the very different logics of science and governance, there is a point at which the distance between them becomes too great. The construction of boundary organizations such as the Intergovernmental Panel on Climate Change and the Intergovernmental Platform on Biodiversity and Ecosystem Services is intended to bring those systems into closer interaction with one another particularly by rendering scientific knowledge more readily legible for political and legal authorities. These organizations play an important role in promoting the co-evolution of science and governance:Footnote 49 the production of reports on the state of the art in climate and biodiversity science influences decisions made within governance institutions, while the demands by such institutions for actionable scientific knowledge influences the manner in which scientific research is carried out and presented.Footnote 50 Teubner refers these processes as blind co-evolution to emphasize the indirect, non-teleological manner in the various systems influence each other.Footnote 51 One result of the work of highly centralized boundary organization is, not surprisingly, a tendency toward the centralization of scientific knowledge, or at least of the points of interaction between science and governance.
As Arthur P.J. Mol notes in his work on ecological modernization, this tendency towards centralization encounters significant counter-tendencies: vast quantities of environmentally relevant information are widely available to a growing range of actors. Mol notes the significant impact that these flows of information are having on the structure of environmental governance, prompting greater decentralisation and diminishing and altering the role of the state.Footnote 52 While I do not altogether share Mol’s conclusions regarding the implications of information flows to democratization and democratic deliberation—I doubt that much of the raw data will be accessible in any meaningful sense to most citizens—I agree with his arguments regarding the capacity of actors such as civil society organizations,Footnote 53 private authorities such as certification bodies,Footnote 54 insurance and reinsurance firms,Footnote 55 industry associations,Footnote 56 and ratings agencies,Footnote 57 among many others, to translate this information into a range of accessible and deployable forms. These and other actors constitute nodes in increasingly complex governance networks, one of the chief tasks of which is to promote flows of information through such nodes, where translation takes place.
The resilience of such networks, and more particularly their capacity to promote ecosystemic resilience, depends in large measure on the translation between science and governance performed by nodes such as certification bodies. It may be perceived that decentralized co-evolution will result in a cacophony of points of view on scientific knowledge with no agreed-upon standards for scientific rigor. The decentralisation of such standard-setting processes is already a reality within science: climate modelers, theoretical physicists, and evolutionary biologists use different standards to test the rigor of their knowledge production; indeed, a single lab may use different sets of standards depending on the methodology being deployed in any one aspect of a study. It is arguably more important for reasonably stable modes of interaction to be constructed to fit the context of the scientific sub-disciplines most directly relevant to particular governance nodes, or issue areas. As Roderick A. Macdonald once pointed out, harmonization in political and legal circles is rarely understood to relate to musical harmony, in which the whole point of the exercise is the bringing together of a range of tones and rhythms in what is perceived to be an ordered whole.Footnote 58
4. Concluding Remarks: Preserving the Resilience of Law
Thinking about ecosystemic resilience as an objective for governance, and about the resilience of governance institutions themselves, brings clearly into focus a central dilemma of environmental law and politics: how to decide without losing authority and legitimacy. Political decision-makers vacillate between the authority of science, which can provide much-needed information but not the substance of policies or decisions, and the legitimation of democratic deliberation. Such deliberation will not necessarily result in consensus, due to conflicting interests and varying capacities among participants to absorb complex scientific inputs. Legal principles such as precaution are helpful in guiding policy-making and in the process of interpreting and applying legal rules, but political decision-makers cannot rely on the authority of the law to bolster their decisions. Under conditions of uncertainty, it makes sense, as proponents of adaptive management argue, to make a decision and take responsibility for its consequences—not (necessarily) by compensating those who suffered unintended harm or by resigning or by calling an election, but by working to understand those consequences and correcting the course. This will require great care in the design of legal institutions, and robust critical evaluation of the results and their implications. This task cannot be left to environmental lawyers and scholars alone: the implications for the legal system itself are too great.
