Wednesday, November 19, 2014
IPCC Response Essay #12: Law Confronts the Intertwined Threats of Climate Change and Species Extinction
David Takacs, Associate Professor of Law, UC Hastings College of Law
We share the Earth with millions of gorgeous species, the current, ephemeral expressions of over 3 billion years of biological evolution. All species are cogs in functioning ecosystems that support all life. All humans require a diversity of species to feed, heal, and inspire us.
With “high confidence,” the IPCC Summary for Policy Makers asserts that “[a] large fraction of both terrestrial and freshwater species faces increased extinction risk under projected climate change during and beyond the 21st century, especially as climate change interacts with other stressors, such as habitat modification, over-exploitation, pollution, and invasive species.” The Summary further notes that “[m]any species will be unable to track suitable climates under mid- and high- range rates of climate change.” That is to say, continued evolution in the face of a most unnatural selection is unlikely for most species, and thus “[t]hose that cannot adapt sufficiently fast will go extinct in part or all of their ranges.”
Temperatures will rise, droughts will exacerbate, storms will intensify, pests will spread, pollinators will go extinct or lose synchronicity with the plants they pollinate, and all the while human populations will be expanding and on the move, exploiting more of the ecosystems upon which all human life depends. Through the alchemy of photosynthesis, terrestrial ecosystems absorb about a quarter of human carbon dioxide (CO2) emissions; deforestation disrupts this vital ecosystem service and currently accounts for about 15-20% of greenhouse gas (GHG) emissions. So, as climate change and human needs degrade natural ecosystems—as plants are felled, burned, or eaten, as tundra melts, as peat bogs desiccate—climate change worsens … further imperiling species and ecosystems.
Paying attention to the twinned threats of climate change and species extinction requires ingenuity, cash, and nimble legal mechanisms. Two novel solutions—REDD+ (Reducing Emissions from Deforestation and Forest Degradation) and Biodiversity Offsetting—comprise potentially win-win solutions.
In REDD+, a local community, individual landowner, private developer, or government entity reforests degraded land or preserves a forest that would otherwise be felled. The actor may then sell the stored carbon for a contracted period of time to entities that want to offset their GHG emissions or simply want to preserve forests. REDD+ may happen on a project-by-project basis, or, increasingly, REDD+ is operating on a broader scale—i.e. , a nation, province, or state uses REDD+ funds to reduce deforestation or promote reforestation in a wide geographic area, resulting in greater stored carbon than would have occurred without the funding.
REDD+ blurs the bounds between global mitigation and local adaptation. REDD+ mitigates climate change when trees retain carbon that deforestation would otherwise release, or if new growth absorbs extra CO2. Healthy forests help communities adapt to climate change by sustaining ecosystem services—preventing erosion, increasing rainfall, buffering floods, cleansing drinking water, and harboring crop pollinators—and by preserving biodiversity crucial for human survival. REDD+ investments can promote socioeconomic climate change adaptation through new sources of income and by providing for more secure, formal land title. REDD+ may also further institutional adaptation as community leaders, landowners, and government officials develop and manage REDD+ projects and hone skills and institutions to negotiate effectively with project developers and government functionaries.
Biodiversity offsets, in turn, translate the logic of carbon offsetting into something more sweeping. In more than two dozen jurisdictions, developers are being allowed to destroy biodiversity in one place in exchange for protecting biodiversity elsewhere. They are trading life for life. As in REDD+, if biodiversity offsetting works as its backers promise, it’s win-win: Jurisdictions encourage economic development where it is needed and can prioritize preservation where it is most effective and beneficial to the species, ecosystems, and human communities of concern.
To fulfill their promise, biodiversity offsets must both mitigate the original damage and enhance the chance for a species to survive. But is life fungible? Let’s put aside, for the moment, the question of whether it is ethically legitimate to harm one biological community (and perhaps harm the human communities that depend upon those communities) in exchange for biological mitigation elsewhere. In the name of preservation of an imperiled species or ecosystem type, conservation biology may support offsetting. Given climate change, isolated small preserves may allow species nowhere to go, and static management that doesn’t respond to ecological change may result in local extinctions as well as global ones. Prioritizing fewer, larger reserves (as opposed to scattered, smaller ones) can help preserve greater genetic diversity (and thus a more resilient species response to climate change), and offsetting might also prioritize corridors and connectivity to allow species to migrate to more suitable habitats.
The IPCC notes that “[g]overning a transition toward an effective climate response and sustainable development pathway is a challenge involving rethinking our relation to nature, accounting for multiple generations and interests (including those based on endowments in natural resources), overlapping environmental issues, among actors with widely unequal capacities, resources, and political power, and divergent conceptions of justice.” REDD+ and biodiversity offsetting don’t change existing societal patterns unless they’re done in ways that are transformative: transferring large quantities of wealth from North to South, inventing nimble and flexible uses of land not subject to the strictures of private property or rigid governmental control, fomenting true Environmental Democracy as communities are empowered to formulate, manage, and reap economic and ecological benefits from REDD+ projects or biodiversity banks, and/or implemented with the most capacious possible interpretation of international human rights law.
Whether they function effectively in the short term, or lead to genuine transformation in the long run, REDD+, biodiversity offsetting, or any other legal regime to preserve Earth’s myriad species and the humans that depend upon them, must be implemented sustainably and in a deeply equitable way. For REDD+ or biodiversity offsetting to be sustainable, it must be: 1) effective—working for all stakeholders with minimal complication; 2) synergistic— maximizing benefits for climate, biodiversity, and local people; and 3) equitable—narrowing gaps between rich and poor. “Deep equity,” in turn, refers to the laws, policies, and values that promote sustainable pathways acting in synergy to maximize the health and potential of all individuals, communities, and ecosystems. The equity is “deep” because values become rooted within each individual, requiring that we fundamentally re-envision our community structures and responsibilities and root these values and responsibilities in our legal systems. Our laws and policies would, in turn, support values and actions promoting even deeper equity.
Neither REDD+ nor biodiversity offsetting offers a permanent solution to the species extinction crisis. They are stopgap, emergency legal mechanisms that buy (literally) time for us to transition to a non-hydrocarbon based economy and for the planet to heal and rebound from heat and chaos. Poorly designed REDD+ projects and biodiversity offsets may facilitate ecologically damaging human development, and may simply accelerate biodiversity loss in the face of climate change, undermining humans' own options for adaptation and survival. If done well, however, they offer enhanced resilience for local human and non-human communities in the present, bandages to staunch wounds while we find the moxie to address the underlying causes of species extinction.
 Id. at 15.
 Id. at 15.
 Ch. 4, “Sustainable Development and Equity,” IPCC Working Group III “Mitigation of Climate Change,” at 4.