From Knowledge-Based Regulation to Transitional Law: Developing Appropriate Legal Responses to Risks of Global Ecological Collapse

Environmental law is the legal subdiscipline concerned with preserving valued environmental features by mediating between the human-environment relationship. It has grown markedly in importance and reach in recent decades due to increasing fears over the cumulative environmental effects of human activities, but not sufficiently to prevent them from reaching levels at which they are altering planetary conditions. The chapter contends that environmental laws have failed to prevent this situation from emerging because the understanding of the human-environment relationship on which they are founded does not correspond with its present reality. Part One examines three main misconceptualisations which impair environmental law’s effectiveness for meeting current challenges. It argues that humans have failed to grapple with the inherent unknowability of how complex adaptive systems such as ecosystems and the Earth System respond to human disturbance including in law. Unwarranted confidence in humanity’s ability to predict and thereby manage environmental threats and related inadequacy in its responses in law to them have allowed Earth’s ecosystems to be placed at risk of collapse in their entirety. Part Two examines guidance in law and decision theory for decision-makers and legislators on how endemic global threats to ecosystem functionality should be tackled despite profound scientific uncertainty. Part Three builds on Part Two’s analysis to propose legal responses which are better suited to meeting contemporary concerns because they reflect the human-environment relationship as it really is, not as we would wish it to be.