Ecological Restoration Law

Concepts and Case Studies

Afshin Akhtar-Khavari, Benjamin J. Richardson, Afshin Akhtar-Khavari, Benjamin J. Richardson

• Publisher: Routledge
• Year: 2019
• Topic: Law
• eBook ISBN:
  9780429887253
• Subtopic: Environmental Law
• Index: Law

Ecological restoration is as essential as sustainable development for the health of the biosphere. Restoration, however, has been a low priority of most countries' environmental laws, which tend to focus narrowly on rehabilitation of small, discrete sites rather than the more ambitious recovery of entire ecosystems and landscapes. Through critical theoretical perspectives and topical case studies, this book's diverse contributors explore a more ambitious agenda for ecological restoration law. Not only do they investigate current laws and other governance mechanisms; they also consider the philosophical and methodological bases for the law to take ecological restoration more seriously. Through exploration of themes relating to time, space, geography, semiotics, social justice, and scientific knowledge, this book offers innovative and critical insights into ecological restoration law.

1 Ecological restoration and the Anthropocene

Afshin Akhtar-Khavari and Benjamin J. Richardson

1.1 Importance of ecological recovery

Ecological recovery has never been more important yet incongruously remains a low priority in environmental law. Most policy-makers perceive the intensifying upheavals of the Anthropocene as reasons to pay ever more attention to the future so as to forestall further degradation. Climate change, species extinctions, oceans of plastic debris and other ecological tolls loom on the horizon as an ever-real dystopia. We cannot ignore the urgency to halt dissipation of the life-sustaining biosphere, yet equally we should heal past losses in order to make sustaining what remains more viable.¹ The Anthropocene is not a recent phenomenon but derives from a long history of anthropogenic environmental change that began at least with the onset of industrialisation two centuries ago and possibly earlier with the advent of agriculture.² Under the aegis of the philosophy of sustainable development, which provides environmental law’s conceptual ballast, regulators dwell on forestalling future adversity rather than addressing past follies.³ The legal priority is commonly to avert, mitigate or adapt to new ecological impacts rather than to repair past damage. This stance may also emotionally and culturally weaken people’s sense of environmental stewardship on the presumption that nature has the capacity to passively restore itself through processes of ecological succession, species evolution and so forth. Damaged or degraded ecosystems sometimes can recover through their own processes, as evident in how nature rebounds after fires, floods or droughts; however, some recovery may be effectively impossible, such as when invasive species have fundamentally altered ecological equilibriums or toxic pollutants become embedded in land or water.

This book aims to deepen scholarship on ecological restoration (hereafter ‘eco-restoration’) law in order to better understand its methods, goals, achievements and other foundational dimensions. Providing neither an exegesis of current legal doctrine nor blueprints for law reform, the book instead offers critical and often conceptual insights into a variety of themes that permeate restoration governance, including its spatial and temporal properties, the role of science, social justice and community participation, and other issues across a diversity of jurisdictions sampled. Building on a special edition of the Griffith Law Review in 2017 devoted to eco-restoration law,⁴ this book includes additional authors and topics to enable a more comprehensive analysis of the subject, including additional insights on financing eco-restoration and climate change. As a multi-authored volume, the contributors bring diverse perspectives about eco-restoration law, but they share the leitmotif that the law should be more ambitious in helping nature to recover. In particular, lawmakers should go beyond the existing agenda that emphasises remediation of discrete sites, such as former mines and oil spills, to promote regeneration of entire landscapes and ecosystems. The difference between these approaches is epitomised in the terminological distinction this book makes between ‘environmental’ and ‘ecological’ restoration. The global practice of restoration ecology spans a diversity of methods, as evoked by the ubiquitous terminology of ‘remediation’, ‘regeneration’, ‘restoration’, ‘reclamation’ and so on, with these terms sometimes used interchangeably. In legal regimes, however, the broad distinction we make between ‘environmental’ and ‘ecological’ restoration is plausible because the law emphasises restoration actions towards the former spectrum while downplaying the latter. Governments occasionally intervene to ‘remediate’, ‘reclaim’ or ‘regenerate’ the most degraded enclaves but the widespread, incremental dissipation of the biosphere over centuries has gone largely unchecked and unrepaired.

A casual survey of international and regional environmental law and policy might suggest otherwise, however. The European Community’s Habitats Directive⁵ obliges its Member States ‘to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest’.⁶ The Directive is supported by the European Biodiversity Strategy, which aspires by 2020 to restore ‘at least 15% of degraded ecosystems’.⁷ The European Landscape Convention also acknowledges restoration as one seminal method of ‘landscape planning’ as mandated by the treaty.⁸ Of global reach, the Convention on Biological Diversity of 1992 obliges its current 196 parties, as far as possible, to ‘rehabilitate and restore degraded ecosystems and promote the recovery of threatened species’; and to ‘adopt measures for the recovery and rehabilitation of threatened species and for their reintroduction into their natural habitats under appropriate conditions’.⁹ The Aichi Biodiversity Targets, the Convention’s strategic plan for the decade to 2020, include the goal of restoring at least 15 per cent of degraded ecosystems.¹⁰ Many further examples of international legal recognition of restoration are evaluated in the landmark book by Telesetsky, Cliquet and Akhtar-Khavari (2017), but they recognise that official edicts do not necessarily reflect actual practices. Recent research suggests these largely hortatory norms have limited traction in restoration governance within states for reasons that include their economic costs, community opposition, existing land-use entitlements and the lack of meaningful legal accountability for compliance.¹¹

Consider the following examples that illustrate states’ practices.¹² The United States has some legal precedents for eco-restoration, such as its Collaborative Landscape Restoration Program enacted in 2009 under the Omnibus Public Land Management Act.¹³ The program prescribes ambitious mandates to restore forest ecosystems, although the rationales serve the forestry economy and control of destructive wildfires rather than recovery of biodiversity and ecological integrity for their own value.¹⁴ New Zealand legal practice emphasises the latter goals more, and through the Conservation Act 1987¹⁵ authorities have initiated projects to restore populations of the country’s endemic and highly endangered birds,¹⁶ and adopted a national strategy to eliminate entirely stipulated destructive exotic pests by 2050.¹⁷ New Zealand’s ambitions thus far await more extensive action, as so far its strategy is mainly directed to existing conservation-managed lands rather than any of the vast areas managed for farming or other economic activities. The governance of Australia’s Murray-Darling Basin – as considered in some detail by Francine Rochford (Chapter 11 in this book) – presents another cautionary tale. The objects of the applicable Water Act 2007 (Cth) include to ‘restore and provide for the ecological values and ecosystem services of Murray-Darling Basin’: in practice, the managing authority has been hamstrung because of opposition from riparian towns and farmers wishing to retain their share of the river flows.¹⁸

Less ambitious forms of environmental restoration are more likely to be supported by governments because the private sector usually bears the costs; they deliver more tangible, near-term benefits; and they entail less complex governance given their more discrete temporal and spatial scales. Pollution regulation commonly has provisions to require landowners to remediate contaminated lands, and mining legislation similarly obliges operators to restore the amenity of their sites after mining ceases. Another avenue for environmental restoration is biodiversity and carbon offsets, in which, as a condition of regulatory approval, the developer must restore habitat in another location in exchange for the right to impair environmental values on their site being developed. Despite the benefits that some of these approaches can yield, they generally offer only ad hoc improvements to the environment, and with offsets may even worsen overall conditions.

The foregoing lacunae and weaknesses of official regulation are starting to be mitigated by community and environmental non-governmental organisations (NGOs) voluntarily restoring degraded landscapes.¹⁹ The Yellowstone to Yukon Region Conservation Initiative (Y2Y), undertaken by a loose confederation of such organisations, has since 1997 being restoring and conserving a 3,200 km corridor of the Rocky Mountains from the United States to northern Canada that has been ecologically impaired by a history of development from roads, dams, forestry, mining and so forth.²⁰ In southwest Australia, the Gondwana Link project is similarly harnessing community resources for reconnecting fragmented landscapes that conserve imperilled fauna and flora in a global biodiversity hotspot. In Scotland, a group called Trees for Life is replanting 230,000 ha of the former Caledonian forest in the Scottish Highlands with a similar focus on biodiversity recovery.²¹ Rewilding Europe is spearheading reintroduction of wolves to restore the ecological equilibrium that such apex predators can provide.²² Some restoration projects are driven by business entrepreneurs, such as the former heads of clothing companies Patagonia and North Face who funded the acquisition and ecological restoration of former cattle ranches in Chile’s Patagonia region, which have now become national parks.²³ Later in this book we will learn much more about the role of non-state actors in restoration governance, including to the level of individual landowners, as discussed in Chapter 5 by Robyn Bartel and Nicole Graham.

1.2 Terminology

What is ‘eco-restoration’? The term has no authoritative definition in law, yet is widely used by academics and practitioners working on restoration issues. Restoration also has a long history, with antecedents in reforestation and game management in medieval Europe.²⁴ The Society for Ecological Restoration (SER), the leading global network of professionals in this field today, defines the term as ‘an intentional activity that initiates or accelerates the recovery of an ecosystem with respect to its health, integrity and sustainability’.²⁵ The SER elaborates that an ecosystem can be ‘restored’ when it can ‘sustain itself structurally and functionally’, showing sufficient ‘resilience to normal ranges of environmental stress and disturbance’.²⁶

The SER’s approach thus emphasises three important ideas. First, restoration has a spatial dimension, the ‘ecosystem’, which exists in a huge variety of sizes from a small creek or decaying log to a large rainforest. Yet all have in common their quality as an environmental system, rather than being defined by anthropocentric spatial concepts such as property tenure or government jurisdiction. Second, restoration serves to improve and sustain the ecosystem’s health and integrity rather than meeting only anthropocentric needs, such as returning polluted land to some economic purpose (the SER also acknowledges ‘functionality’ as an outcome, so that restoration can serve human needs in addition to, but not instead of, non-anthropo...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• 1. Ecological restoration and the Anthropocene
• PART 1: Concepts of ecological restoration law
• PART 2: Case studies of ecological restoration law
• Index