Doughnut Law – Environmental Law for the Anthropocene?

Niko Soininen

Niko Soininen currently works as a Postdoctoral Researcher in Ocean Governance Law at University of Gothenburg and Senior Lecturer in Environmental law and Jurisprudence at UEF Law School/CCEEL. In the fall of 2018, Soininen will start as an Assistant Professor (sustainable law, governance and regulation) at University of Helsinki.

Anthropocene is the scientific term for a geological time-period acknowledging the fundamental human impact on the Earth’s ecosystems. With global impact come questions of planetary boundaries: How much human impact is too much human impact? The Stockholm Resilience Centre’s study on planetary boundaries shows that we are currently well beyond safe nitrogen and phosphorus output levels. Also, biosphere integrity, especially the loss of genetic diversity, poses a high risk for humanity. Climate change and land-use are currently reported as causing increasing risks. At present, freshwater use lacks a quantified planetary boundary but freshwaters are heavily impacted by the above environmental changes. This is a bleak picture, but not all is lost. I spent four months in the spring of 2018 at the University of Maryland Socio-Environmental Synthesis Center as an ASLA-Fulbright visiting scholar studying adaptive governance. In the following, I’ll recap some of the most salient lessons from the adaptive governance scholarship seeking to design effective and legitimate environmental governance for the Anthropocene.

FROM DOUGHNUT ECONOMICS TO DOUGHNUT LAW

With the global economic system being a major driver in pushing the planetary boundaries, Kate Raworth presents an interesting theory for rethinking economics (Doughnut Economics. Seven Ways to Think Like a 21st Century Economist. Chelsea Green Publishing 2017). She makes a compelling argument for moving away from antiquated pictures of steadily climbing economic growth toward doughnut shape economics. The economic doughnut builds on “a pair of concentric rings”. The inner ring depicts the social foundation of human well-being and the outer ring the ecological boundaries of our planet. All human activity must remain within the doughnut’s two rings. With this picture in mind, Raworth asks us to consider “what economic mindset will give us the best chance of getting there?”

The question of getting the economic system to nourish social well-being while respecting planetary boundaries is not only important for economics, but also for law. In a legal context, the question reads: what legal mindset will give us the best chance of getting there? Applying Raworth’s question to law, we enter a familiar territory for adaptive law and governance scholarship. What does doughnut law and governance look like? What kind of law and governance is needed to stay within safe operating space for humanity? Analogically to the doughnut economy questioning existing economic theories, the adaptive law and governance theories question existing legal theories.

FOUR DOUGHNUT-LESSONS FOR LAW

The first doughnut lesson for law and governance in the Anthropocene is to regulate the use and protection of ecosystems at a systemic level (see a good overview, Benson & Craig 2017; Garmestani & Benson 2013). Traditionally, law has turned a blind eye to regulating cumulative human impacts on ecosystems. This is visible, among others, in the fragmentation of environmental management authority into several sectors at all levels of governance (energy, transportation, food production, natural resources, nature conservation etc.). The limitations of sectoral competence are often aggravated by management and regulatory authorities having limited geographical, and often artificial (non-ecosystem-based), competences. Staying within the doughnut, however, requires law and governance that is equipped with competence equivalent to the nature of the environmental problem at hand. Wicked problems such as climate change, nutrient run-offs and biodiversity loss require a systemic cross-sectoral and multi-level approach to law and governance.

The second doughnut lesson is to recognise that managing (what do we do?) and governing (what do we want?) the use and protection of ecosystems needs to be adaptive. As Craig & Ruhl (2014) and Cosens et al. (2017) have repeatedly observed, procedural and substantive rules need to facilitate the consideration of changing social-ecological circumstances. Traditionally, law has often been used to establish predictable rules that operate acontextually and do not allow consideration of changed ecological, social, economic, technological and cultural circumstances. In Finland, this approach is well illustrated in government issued hydropower licenses that are legally protected against revocation, and in certain instances the law does not even allow changes to existing licenses. This picture of the law as guaranteeing predictability and finality faces significant challenges in the Anthropocene as ecosystems and social systems dependent on them are dynamic entities (complex adaptive systems) with immensely complicated functions, feed-back loops and non-linear tipping-points. For this reason, law needs to allow adaptive and experimental management of social ecological systems and be able to adapt its own rules for maintaining human activity within the doughnut.

The third doughnut lesson is based on an understanding that people and companies do not like to be regulated. They may, however, still wish to advance accepted societal goals and may be very well-equipped to do so. The wrong picture is to think that law is the only policy instrument that really works. If we look at climate change mitigation, this is certainly not true. A study done by Vandenberg & Gilligan (2017) shows that companies like Walmart hold significant power to push environmental policy goals through their subcontractor networks. Law (or public governance in general) is not always the most effective way to steer human activities within the doughnut.

The fourth and final doughnut lesson is that law and governance need to be science based (see e.g. Benson & Craig 2017; Saunders et al. 2017). We need constant monitoring of social and ecological systems to understand how they function, have functioned and will be likely to function. Systemic governance is not possible without science, nor is adaptive management or governance.

With the above four lessons in mind, environmental law and governance will be much more equipped to stay within the social-ecological doughnut than ever before. The million-dollar question is, however, whether the international community, regional actors such as the EU and states have the courage and the political will to move towards more adaptive law and governance. While some encouraging regulatory examples are visible on all governance levels, the push-back of antiquated legal mindsets still linger in the air.