Wither Environmental Law? Wither Thy Timbers?

This article was very kindly published in the June 2008 edition of e-law, the electronic bulletin of the UK Environmental Law Association.

To summarise our predicament it runs through the most salient scientific developments to the end of May, before going on to raise issues of the profession as to how to respond.

Given what is happening, each and every one of us should be asking those same questions with the utmost urgency - of ourselves as much as of society as a whole.




These are singular times we live in.

Shortly we will be the privileged witnesses of an event never before seen, possibly never before experienced in Earth's history. Within the next few summers it is now highly probable the Arctic will cease to exist as a physical presence, becoming ice free and navigable to the North Pole itself. This will be quite unprecedented in the history of humanity, quite possibly in the history of the planet also.

Most will already know that the Arctic lost 23% of its ice coverage in the last two summers. In addition, on 23 May startling new evidence emerged of large scale and wholly unexpected breakup of the ice. The BBC reported

'Dramatic evidence of the break-up of the Arctic ice-cap has emerged from research during an expedition by the Canadian military.

'One of the expedition's scientists, Derek Mueller of Trent University, Ontario, told me: "I was astonished to see these new cracks. It means the ice shelf is disintegrating”'


While in a report of a petition by the Centre for Biological Diversity for three seal species to join the polar bear on the endangered list because of habitat loss due to the speed of the Arctic meltdown, the Guardian stated

'The petition from the centre warns that surface temperatures in the Arctic are warming much faster than expected. The extent of sea ice in winter in 2007 was reduced to an area that most climate forecasts had suggested would be reached by 2070.

'Arctic sea ice is melting so rapidly that every ice-dependent marine mammal needs protection," said Shaye Wolf, a biologist who lead the petition.'


His call has been widely taken up. The New Scientist website carried 'Should all Arctic species be red-listed?'

'Habitats are changing so rapidly in the face of global warming that some conservationists argue many thousands more species should be listed as "endangered"'


Meanwhile...

At the other end of the planet something very similar is happening, at least locally - if you can call the sudden break up of 160 square miles local. Scientists were taken utterly by surprise by the sudden disintegration of a large chunk of the Wilkins Ice Shelf, confounding all scientific predictions, which was reported at the end of March.

In addition research released in January demonstrated that far from being stable or growing as is widely believed, the net loss of ice from Antarctica increased by around 75% in the ten years to 2006. The cause is considered to be accelerating glacial movement as a result of climate change.

This is particularly unfortunately as existing models - most critically including those used by the IPCC - have presumed the Antarctic ice sheets to be stable so have failed to take these losses into account. As a result it is now widely accepted that the predictions of sea level rise contained in the fourth IPCC report are seriously understated.

Getting more into the detail, the New Scientist reported

'Until recently, conflicting results have meant estimates of ice loss at the poles vary widely. Now an international team has used satellite data and climate modelling to show that, in the decade ending in 2006, annual ice loss from West Antarctica increased by 59 per cent while losses from the Antarctic Peninsula leapt by 140 per cent (Nature Geoscience, DOI: 10.1038/ngeo102). These results tie in nicely with recent results obtained by other methods, bringing consensus over ice loss a bit closer.'

While in a report on how this meltdown is releasing a soup of highly toxic chemicals which is ending up in the food chain, the same journal stated:

'average winter temperatures on the Antarctic Peninsula have warmed 6 °C the past 30 years, and glaciers now melt faster than they grow. '

Singular times for the polar regions and all they hold, then.



Singular times for the rest of the planet's biodiversity, too. The latest Living Planet Index was published on 16 May revealing that biodiversity has plummeted nearly a third in the 35 years to 2005. Perhaps it would be more accurate to rename it the Dying Planet Index. The Independent headlined 'an epidemic of extinctions' and quoted a spokesman for the LPI who said the decline was

' "completely unprecedented in terms of human history". "You'd have to go back to the extinction of the dinosaurs to see a decline as rapid as this," he added.

'And "rapid" is putting it mildly. Scientists say the current extinction rate is now up to 10,000 times faster than what has historically been recorded as normal.'


Clearly the fate of the rainforests are absolutely critical in global biodiversity. And the critical news here comes from none other than Brazil where May saw the resignation of Marina Silva, the environment minister, regarded as the guardian angel of the Brazilian environment in general and the rainforest in particular. This news was greeted with massive dismay internationally. She walked because environmental protection was routinely subordinated to economic interests, effectively as a matter of policy.

'The Latin American giant's supposed progress on environmental protection has unravelled in the past year as revelations of record levels of deforestation, violent land disputes and runaway forest fires have followed in quick succession. The worldwide boom in agricultural commodities has created an unparalleled thirst for land and energy in Brazil, and the result has been a potentially catastrophic land grab into the world's largest remaining rainforest. The Amazon basin is home to one in 10 of the world's mammals and 15 per cent of its land-based plant species. It holds more than half of the world's fresh water and its vast forests act as the largest carbon sink on the planet, providing a vital check on the greenhouse effect.

'Since President Lula won a second term Ms Silva found herself a lone voice in a government acutely aware that its own political future depended on the vast agribusiness interests she was trying to rein in. The final breakdown in her relationship with the President came after he gave the green light to massive road and dam-building projects in the Amazon basin, and a plan she drafted for the sustainable management of the region was taken from her and handed to a business-friendly fellow minister.'

Reuters added

'About 80 percent of the world's biodiversity is found in tropical forests, yet every minute 20 hectares (50 acres) of forest disappear, say experts.'

While in the Environmental Network News story 'Brazilian Companies Announce Global Warming Game Plan' it stated

'In a report released last month, the United Nations Intergovernmental Panel on Climate Change predicted that, “by mid-century, increases in temperature and associated decreases in soil water are projected to lead to gradual replacement of tropical forest by savanna in eastern Amazonia.” The IPCC also warning that crop productivity in Brazil “is projected to decrease for even small local temperature increases” in tropical areas, “which would increase risk of hunger.”'

Thus fare the 'lungs of the planet'.


A different sort of lung is faring badly too. The New Scientist reported on 01 May that "dead zones" in the oceans containing too little oxygen for fish to breathe are growing as global temperatures increase.

'Warmer water dissolves less oxygen, so as temperatures rise, oxygen vanishes from oceans. Marine biologists are warning that if dead zones continue expanding, oceanic "deserts" could massively deplete marine life and fish stocks.

'Over the past 50 years, large volumes of ocean previously rich in oxygen have become "oxygen minimum zones" (OMZs) containing less than 120 micromoles of oxygen per kilogram of water. These are the concentrations at which fish, squid, crustaceans and other marine creatures begin to suffocate and die.'


On 23 May it was reported that acidification of the naturally alkaline oceans along the entire west coast of North America threatens the collapse of marine ecosystems. The reason is the process of marine calcification by which countless marine creatures critical in the food chain or as habitat (eg coral) build their skeletal body parts fails in an acidic environment.

Ocean acidification is, of course, a global, not a localised problem. The seas everywhere are becoming acidic because of the absorption of CO2, it being calculated that they have by now absorbed a third of all CO2 emitted since the start of industrialisation. Just to bear this out, the same problem was reported in Antarctica affecting the pteropods

'known as the "potato chip" of the oceans because they are eaten by so many species. Fish that feed on pteropods are eaten by bigger fish, seals and penguins, which are eaten by killer whales.'



Quite apart from the dead zones (which they have learned to effectively 'hold their breathe' to enter briefly) fish are on the edge too. A highly recommended report titled 'How the world's oceans are running out of fish', which demonstrates along the way how The United Nations Convention on the Law of the Sea has backfired in this respect at least, appeared in The Observer of 11 May.

'Is anyone not aware that wild fish are in deep trouble? That three-quarters of commercially caught species are over-exploited or exploited to their maximum? Do they not know that industrial fishing is so inefficient that a third of the catch, some 32 million tonnes a year, is thrown away? For every ocean prawn you eat, fish weighing 10-20 times as much have been thrown overboard. These figures all come from the United Nations Food and Agriculture Organisation (FAO), which also claims that, of all the world's natural resources, fish are being depleted the fastest. With even the most abundant commercial species, we eat smaller and smaller fish every year - we eat the babies before they can breed.

'Callum Roberts, professor of marine conservation at York University, predicts that by 2050 we will only be able to meet the fish protein needs of half the world population: all that will be left for the unlucky half may be, as he puts it, 'jellyfish and slime'. Ninety years of industrial-scale exploitation of fish has, he and most scientists agree, led to 'ecological meltdown'. Whole biological food chains have been destroyed.'



Perhaps the birds, being so highly adaptable, are fairing better? In the latest revision of the Red List by Birdlife International

'1,226 species of bird are now threatened with global extinction - around one-in-eight of the world's bird species.'



The very obvious fact is that biodiversity across the board is in a very parlous state, and we are failing dramatically and wilfully to protect it:

'BERLIN (Reuters) 16 may- Nearly 200 governments will say next week they are unlikely to meet a target of slowing the rate of extinctions of living species by 2010, a failure which could threaten future food supplies.

'U.N. experts say the planet is facing the worst spate of extinctions since the dinosaurs died out 65 million years ago and some say three species vanish every hour as a result largely of human activity causing pollution and loss of habitat.'

'"We hope to give a wake-up call to humanity. We need an unprecedented effort to meet the challenge of biodiversity loss," convention Executive Secretary Ahmed Djoghlaf told Reuters in a telephone interview. He said consumption had reached unsustainable levels and humans were destroying the foundation of life. Without a change in behavior, feeding up to 9 billion people would be difficult.'


As if that was not enough, the largest ever study of the impact of climate change has concluded biology is already being influenced and that only life in the Antarctica has been spared – thus far. 90% of species and 95% of natural features have already been affected, and its destabilising influence - for instance as a result of the early arrival of spring - has been scientifically confirmed. The authors consider these effects to be human induced.



Of course the immediate cause of most of these disasters is greenhouse gas emissions (the ultimate one being human values). How are we faring there?

Very bad news on that front too, regrettably. The general presumption has been that given time, anthropogenic CO2 emissions would be absorbed by natural processes in the environment. The catch was no-one knew how long that would take. We knew it is longer than a decade, most had resumed a couple of decades or so; but given long enough it would all go away again into the oceans (to acidify them further), and by way of photosynthesis.

Unfortunately modelling by Matthews and Caldeira has now found this happy picture to be highly questionable, and probably entirely false. The model introduced a single pulse of C02 at the start of the simulation period.

'Pulse sizes of 50, 200, 500 and 2000 billion tonnes of carbon were used. The model was set to calculate global temperatures and atmospheric and ocean carbon dioxide levels over a simulated 500 years.

'At the end of that period, Matthews and Caldeira found that between 20% and 35% of the initial emission pulse remained in the atmosphere – even for the smallest emission pulse – with the remainder having been absorbed by land and ocean carbon sinks.

'The lingering carbon dioxide means that global warming persisted for the entire simulation. For the four different emission scenarios, global temperatures stabilised at 0.09, 0.34, 0.88 and 3.6 ºC above pre-industrial levels respectively.

'So far industrial emissions total around 450 billion tonnes. “Even if we eliminated carbon dioxide today we are still committed to a global temperature rise of around 0.8 ºC lasting at least 500 years,” says Caldeira.

'One of the reasons for the persistence is the slow response of oceans. “It takes a lot of energy to heat them up and then a long time for them to cool back down,” he explains.'

Unsurprisingly, given that rather rude awakening, there have been a spate of calls for much more radical action to cut greenhouse emissions with the utmost urgency before it is all too late. Perhaps most notable is a study by some of the most respected climate-policy researchers which takes on the prevalent economic advice to governments that it is more economically efficient to delay the introduction of remedial measures. It quantified the impact of every year of delay

'We should not wait to cut back on burning fossil fuels until we have developed greener technology to supply our energy needs, despite what many economists are advising their respective governments. Such a waiting game may have deadly consequences.

'The US administration often objects to emissions cuts on the grounds that it is cheaper to delay until low-carbon technologies are available. Now a study by some of the most respected climate-policy researchers has quantified the impact of every year of delay. It concludes that reducing greenhouse gas concentrations in subsequent decades will be far harder than we thought - not that anyone thought it was going to be easy in the first place. What's more, the team says that current delays mean the world is virtually certain to overshoot the limits of greenhouse gas concentration advocated by the European Union and many environmental groups. "It's a sobering assessment.'



Two studies reported in the New Scientist on 03 April predicted major increase in volcanic eruptions as a result of climate change. One study dealt with local activity resulting from an unloading of the crust as ice melts; the other predicted massive increase in seismic activity as a result of loading caused by rising sea levels. The latter is borne out by what happened in previous warm periods of the Earth's history.

Increased volcanism is not normally something to look forward to with relish, unless you happen to be a volcanologist. But could it just be the Hollywood style salvation at the last possible moment? Could a long, and admittedly difficult, volcanic night compensate for global warming, and save the day in an unlikely denouement?

Sadly not, it would seem from what was billed as a pioneering meeting about the Earth's 'long-neglected' "deep" carbon cycle.

'Carbon is locked away down in the Earth's crust: in magma and old carbonate rocks buried by plate tectonics, in fossil fuels like coal and oil, and in ice lattices beneath the ocean bed. It has long been assumed that this carbon was largely cut off from the surface, and could safely be ignored when analysing the effect of greenhouse gases on climate.

'Now it seems there may be much more "deep carbon" ready to spew out than we thought. This realisation could have profound implications for our climate, argues Robert Hazen of the Carnegie Institution, who organised the meeting at the institution's Geophysical Laboratory in Washington DC. "We may be on the verge of a transformational moment...'


Clearly a massive increase in volcanic activity will equate with a massive release of this deep carbon. Perhaps tellingly, the report was entitled 'Earth may hide a lethal carbon cache'. Enough said.



And so it goes on, almost unceasingly, it seems. Key signs of ecological collapse or critical alterations in earth processes – climate, global circulation and so on - arrive daily. With each it is becoming harder to escape the conclusion that catastrophic change is about to come crashing down upon us, and much more imminently than our complacency would want us to believe.

A key sign is that events are consistently running in front of the science. In the light of better knowledge, the science is constantly having to be revised upwards in terms of the severity of its predictions, critically over the scale and immediacy of what is coming down the tubes at us. In other words the magnitude of what is happening has been generally underestimated by a large margin.

This is partly a natural consequence of scientific caution and the need for hard data, but is deeply regrettable in that it has encouraged – or provided the necessary excuse for - society at large to remain in denial about what is happening, maintaining various unrealistic attitudes which justify, in their own minds at least, persisting in transparently anti-social behaviours. And anti-social to the point of being self-destructive. The endemic fatuous use of profligate vehicles is but one very obvious example.

But what is most disquieting is that despite these revisions, actual events on the ground are still continuously confounding the experts by coming in massively ahead of forecast, often on a scale of several decades. When this happens as consistently as it is, it points strongly to the conclusion that we have seriously underestimated the speed, the scale and the severity of what is happening at a fundamental level. In other words, we are carrying on in a fools paradise.

The very ideas that we have any leeway at all in which to act, that the catastrophe will not start to unroll until 2050 or after, are completely untenable when we have already seen the predictions for an ice-free Arctic advanced from a possible 2070 to a probable now in four years that UKELA has been running its Wild Law events.

Indeed, that an air of unreality is currently abroad would seem indisputable. As recently as 02 May the Independent reported that

'more than seven in 10 voters insist that they would not be willing to pay higher taxes in order to fund projects to combat climate change'

'most Britons believe "green" taxes on 4x4s, plastic bags and other consumer goods have been imposed to raise cash rather than change our behaviour'

and

'two-thirds ...think the entire green agenda has been hijacked as a ploy to increase taxes.'

Astonishingly, and most disquietingly, 34 per cent

'believe that extreme weather is becoming more common but has nothing to do with global warming, while one in ten still believe that climate change is totally natural.'



What conclusion can environmental lawyers draw from this unfolding scenario, even as it stands?

A central tenet of Wild Law is that existing systems of legal protection for the environment are fatally floored so lead inevitably to its destruction. In the light of even this small sample of reports, drawn mainly from the last month, that would seem indisputable. Across the board biodiversity is collapsing, ecosystems appear to be poised on the point of permanent breakdown, natural resources of all types are being over-exploited to the point of absolute unsustainability. Worse still, all of this seems to be irreversible.

What we are seeing is a massive failure of environmental law in practice affecting most areas of its competence. In such exacting circumstances, one has to ask if the profession, on perceiving this and the danger that it poses, does not have an overriding ethical duty to speak out boldly and publicly to bring this literally catastrophic failure to the attention of society at large so it is fully aware of the peril and can begin to address it? To register the failing unequivocally with those who ultimately must formulate policy and law, including politicians, with the media, and through them with the public at large to whom it ultimately has a duty.

The other response that is demanded of the profession is to take a leading role in formulating a remedy. There is already the alternative put forward by the advocates of Wild Law. Its explicit purpose is to address this very problem, having embarked on a deep analysis of the root causes of the environmental disasters that stares us in the face, and having cast around as widely as it is possible to do in the search for alternative models that have worked. It has discovered these mainly amongst the traditional societies which, in many cases have endured - and endured sustainably - for far longer than industrial society. Frequently for longer than Western civilisation itself.

It therefore offers a possible way forward. It is not without downsides, but these are not necessarily insuperable. Wild Law is challenging because many of the ideas are, at first acquaintance at least, at odds with the prevalent values of consumer society, and because, by correctly identifying the root cause in a failure of governance, it would seem to require a shake up of the system so profound that many would be inclined to dismiss it as utopian - at least until the balloon really goes up and the panic sets in accordingly. At that point, when reality finally bites, necessity may open the minds and hearts to greater flexibility and more imaginative solutions than are currently admitted.

What it does offer is a coherent alternative, if not yet a fully formulated alternative. The problem at present is that it is moving forward far too slowly to keep pace with events, and urgently needs to make up ground by firming up on concrete and achievable options. It also needs to make ground in promoting itself as a viable, preferable, and indeed essential alternative, particularly in the world outside the profession.

For the remainder, who have yet to be convinced by Wild Law or consider it too romantic and hypothetical a proposition to ever be deliverable, an even more difficult challenge lies before them. For they are honour bound to put forward a better and more workable alternative instead. Again, this would be difficult under any circumstance, but it is all the harder given that the fundamental failure of our systems of governance is transparently at the heart of the problem that must be addressed. That may go to explain why alternative solutions seem, on superficial acquaintance at least, to be largely conspicuous by their absence. But to fail to do so is to abdicate responsibility.

Either way, what is imperative is to act. For there will be few fates in a post-ecological world more filled with pathos than to be a member of the profession that was charged with piloting the vessel who, when they knew the ship was heading for the rocks, neither spoke out nor acted.



Sources


Polar regions

North Pole could be ice free in 2008
http://environment.newscientist.com/channel/earth/climate-change/dn13779-north-pole-could-be-ice-free-in-2008.html?feedId=climate-change_rss20

Vast cracks appear in Arctic ice
http://news.bbc.co.uk/1/hi/sci/tech/7417123.stm

Call for three seal species to join endangered list
http://www.guardian.co.uk/environment/2008/may/30/wildlife.arctic?gusrc=rss&feed=environment

Giant Antarctic ice shelf breaks into the sea
http://www.guardian.co.uk/environment/2008/mar/26/poles.antarctica?gusrc=rss&feed=worldnews

Cracking up: the ice shelf as big as Northern Ireland
http://www.independent.co.uk/environment/climate-change/cracking-up-the-ice-shelf-as-big-as-northern-ireland-800585.html?r=RSS

Loss of Antarctic ice has soared by 75 per cent in just 10 years
http://www.independent.co.uk/environment/climate-change/loss-of-antarctic-ice-has-soared-by-75-per-cent-in-just-10-years-769894.html

Ice loss is severe at both poles
http://environment.newscientist.com/channel/earth/climate-change/mg19726393.700-ice-loss-is-severe-at-both-poles.html

Toxic release
http://environment.newscientist.com/channel/earth/dn13848-melting-glaciers-release-toxic-chemical-cocktail.html


Living Planet Index
http://www.independent.co.uk/environment/nature/an-epidemic-of-extinctions-decimation-of-life-on-earth-829325.html

http://environment.newscientist.com/channel/earth/dn13915-global-biodiversity-slumps-27-in-35-years.html

http://www.guardian.co.uk/environment/2008/may/16/wildlife.biodiversity


Brazil
http://www.independent.co.uk/environment/climate-change/i-give-up-says-brazilian-minister-who-fought-to-save-the-rainforest-828310.html

http://uk.reuters.com/article/environmentNews/idUKN1342081320080514?pageNumber=1&virtualBrandChannel=0

Brazilian companies announce global warming game plan
http://www.enn.com/business/article/36420


Oceans
http://environment.newscientist.com/channel/earth/dn13818-growing-ocean-dead-zones-leave-fish-gasping.html

http://www.independent.co.uk/news/science/the-worlds-oceans-at-risk-from-rising-acidity-832846.html

http://www.independent.co.uk/news/science/tiny-snail-crucial-to-antarctic-life-may-be-wiped-out-784030.html

How the world's oceans are running out of fish The Observer, 11 May 2008
http://www.guardian.co.uk/environment/2008/may/11/fishing.food


Effects of climate change
http://environment.newscientist.com/channel/earth/climate-change/mg19826564.400-life-feels-the-effects-of-a-changing-climate.html?feedId=climate-change_rss20


Red list for birds
http://www.rspb.org.uk/news/details.asp?id=tcm:9-189758


'U.N. experts to say 2010 biodiversity target elusive'
http://www.enn.com/wildlife/article/36415


Increasing volcanic activity
http://environment.newscientist.com/channel/earth/dn13583-melting-ice-caps-may-trigger-more-volcanic-eruptions.html


Hidden carbon
http://environment.newscientist.com/channel/earth/climate-change/mg19826575.000-earth-may-hide-a-lethal-carbon-cache.html?feedId=climate-change_rss20


Public in denial
http://www.independent.co.uk/environment/climate-change/green-tax-revolt-britons-will-not-foot-bill-to-save-planet-819703.html


.