Multi-level governance and the environment in the pandemic era
As pandemic constraints subside, I am very much looking forward to resuming my long-delayed plans to travel to Bolzano as the Eurac Institute for Comparative Federalism 2020 Federal Scholar in Residence. My stay was originally scheduled for April 2020, as the full enormity of the pandemic was unfolding.
Among the many revelations about law, governance (and, dare I say, life) that the pandemic has triggered, one of the strongest is a general theme about connectedness and lack of connectedness. Remote working spotlighted the enormous value of measures to combat isolation between researchers. As a comparative legal scholar based in Australia, geographically distant from many of my collaborators, the topic is of enduring professional interest for me, and I have been eager to share tips from years of practice combatting isolation.
More substantively, the pandemic highlights the need for connections between health and the environment and natural resources, and the challenges of making connections across regulatory silos and jurisdictions.
Connections between the environment and health and implication for multi-level governance
I recently had the honour of presenting at a symposium on the global governance of infectious diseases held at the University of Melbourne. The focus of many speakers was the international context and the upcoming negotiations for an international treaty on pandemic prevention, preparedness and response. My focus was a little different. I continue to be struck by the many ways in which federalism and other kinds of connections between governments are implicated in both problems and solutions related to the pandemic. The construct of ‘One Health’ epitomizes this.
One Health, now formally recognized by the World Health Organization, the Food and Agriculture Organization of the United Nations, the United Nations Environment Programme and the World Organisation for Animal Health, aims to address ‘health threats in the animal, human and environment interface’. Important European work in this area points to the ways in which environmental factors are connected with animal-mediated diseases that affect humans, like COVID-19. This work implicates land use change, biodiversity decline, climate change, and pollution in driving risks of these diseases for humans.
Like other environmental lawyers, as I read that list—land use change, biodiversity decline, climate change, and pollution—I am building a multi-layered mental web of the many ways that law addresses those concerns in a way that spans levels of government. Land use is often the preserve of local governments, perhaps guided by a framework set at the sub-national level in federal systems. Biodiversity decline can be the product of land use change, climate change, and (especially in Australia) action and inaction in relation to invasive species, which is influenced by activities as varied as national biosecurity arrangements and local enforcement of agricultural pest management under state (provincial) law. Climate change is notoriously influenced by policies at every level of government to authorize or even actively promote emissions-intensive activities or fail to incentivize low-emissions activities. Eurac Senior Researcher Federica Cittadino argues that sub-national governments must play a key role in action on climate change – and I agree. Equally, pollution can be regulated by every level of government, sometimes separately dealing with land, freshwater, oceans and air.
There is obvious need for connections between levels of government within a nation, as well as between nations, to coordinate responses to these issues. This need for connections to ensure effective One Health responses will only increase, as climate change increases the threat of ‘zoonotic spillover’ events, creating new opportunities for animals to transmit viruses to humans.
Our legal systems could derive many benefits from better connecting health and this broader system of environmental and natural resources laws. Firstly, we could remove barriers that environmental laws may present to activities needed for pandemic prevention, preparedness and response. In this context, some have raised difficulties that arise with international sharing of biological material for scientific purposes under the Nagoya Protocol to the Convention on Biological Diversity. Secondly, we could use existing opportunities presented by the administration of environmental law to undertake activities that benefit pandemic prevention, preparedness and response. Something as simple as licensing commercial activities that involve wildlife presents an opportunity to require the collection of samples for disease surveillance. And thirdly, we could guide and improve the implementation of existing environmental law imperatives, like protecting forests and addressing the illegal wildlife trade, by using health to prioritise environmental interventions and perhaps boost political will to increase resources for implementation.
Pandemic-era federalism and reflections on environmental law and the nature of crisis
Beyond One Health, the pandemic governance experience provides food for thought about federalism and multi-level governance more generally in the context of environmental law. The changes that the pandemic wrought on the use of multi-level approaches suggests that we should be both optimistic and cautious in thinking about the implications of this experience for environmental law. In an edited collection on comparative federalism and COVID-19, my colleague Laureate Professor Emeritus Cheryl Saunders analyzes the great diversity and dynamism of intergovernmental arrangements that emerged to deal with the pandemic. She also points to the challenges of ideological differences between governments horizontally and vertically, of sharing information, and the need for enhanced transparency and accountability. All of these issues also frequently attend environmental problems.
However, many environmental problems represent crises of quite a different kind to that posed by the pandemic. When dealing with crises that are immediate and catastrophic, like the pandemic, it seems that the crisis can spur governments to get past differences of party affiliation, ideology, or a reluctance to share information. On the other hand, important environmental problems can accumulate incrementally and insidiously, the product of many activities that may be separated in space and time, perhaps even occurring over generations. These ‘incremental crises’ manifest in many spheres, but especially characterise the most difficult environmental problems, from species extinctions, to groundwater over-extraction to climate change.
This brings me to the subject of my current work, looking at comparative legal responses to these crises of cumulative environmental effect. They pose pronounced challenges for human recognition, understanding, acceptance, and action. Slow, incremental change is difficult to perceive. Individually minor effects are easy to ignore. Interactions between effects can be complex, lead to unpredictable results, and require vertical and horizontal coordination between governments.
Law plays a critical role in dealing with these incremental or cumulative crises because it can help overcome the technical, psychological, and sociological challenges they pose. My current work advances a conceptual framework for an effective regulatory response to incremental crises. I look forward to testing out this framework in case study research focused on the Alps, during my visit, and in stimulating conversations with Eurac Research-affiliated scholars.
Dr Rebecca Nelson, Melbourne Law School, will discuss the centrality of cities in causing and experiencing environmental threats. Her talk on 16 January 2023 in Eurac Research is based on her research published in the volume edited by Dr Erika Arban, Cities in Federal Constitutional Theory (2021, OUP).
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