Lifecycle of coastal environmental law
“Environmental laws have a lifecycle, like any organism. In this body of law, there are five phases”. These are the words of James Thornton from his book with Martin Goodman entitled Client Earth (Scribe, 2017). This is an excellent work that highlights how it is possible to use the law based on science to hold politicians and other interested parties to account. I recommend it for its discussion of legal processes in different countries (not Australia). However, it was Thornton’s analysis of the lifecycle of environmental law that captured my attention as a concept worth exploring in coastal management.
The cycle starts with science, but like any cycle can and presumably must return again and again to the science as our understanding of coastal systems evolve. Thornton is very conscious of this as he looks at different cases in different environments, especially in the context of climate change science. So an awareness of coastal processes is fundamental in coastal planning and management, and as he sees it as a lawyer, in confronting cases involving climate damages, “the physics of climate attribution is vital”. Of course, those of us in the coastal business know that this is easier said than done. Nevertheless, in our work in NSW and elsewhere in Australia, our knowledge base has grown and must continue to grow; yet it is sad that NCCARF and other coastal programs have been wound back in recent years. Investment in coastal science should be treated as a matter of national significance given the continued concentration of a growing coastal population and assets at risk from extreme events and projected sea level rise and changes to coastal weather systems.
The next phase involves the formulation of policy. Science should not just inform policy but be in a position to bring truth to power. Thornton uses the case of the need to revise fishery laws in Europe based on the research of biologists. Here is where a partnership of science and policy groups becomes important; mutual respect is required and at this stage Thornton argues lawyers should become involved. However, in my NSW experience lawyers have not been proactive at this stage. What is important is the ability of scientists to be able to communicate what may appear as complex biophysical processes to those who must develop policies in a world where there exists conflicting human interests. The science may be shrouded in degrees of uncertainty, but still should be, where appropriate, relevant to decision-making.
The third phase is law making. Now the lawyers emerge and begin to show their skills in translating science into statute law and regulations (including statutory planning policies and provisions in a gazetted manual). For me this can be frustrating especially when confronted with double or even triple negative clauses. But it is vital to be engaged in the process. This past year, Angus Gordon and I spent hours arguing for certain words and phrases to be incorporated into the 2016 Coastal Management Act: win some lose some but be in the ring! The process of drafting legislation can be quite lengthy, but if left just to policy teams it can lead to misunderstandings when complex coastal science inputs are needed. As other political interests come into play, there is no guarantee that all the good thinking from coastal practitioners will be incorporated into law.
Now to the difficult phase of implementation. Coastal academics often write about the so-called implementation gap. It is real. Government agencies and local councils are charged with various responsibilities to make the law and regulations work; but do they have the resources to achieve outcomes as required under provisions in the coastal legislation or planning policies? Over the past several decades I can think of many examples where managers have been frustrated at the implementation phase despite the best of intentions of all, or most stakeholders. It often comes down to a question of competing priorities as to whether something gets done.
And the final phase is enforcement. As noted by Thornton: “There will always be actors who violate a law. They may be private citizens, businesses, or governments. Every law needs to be enforced”. I can think of some interesting recent environmental examples of situations he describes where a law is passed then not enforced for whatever reason, so you are in effect authorising the behaviour you sought to prohibit. The Coastal Panel in NSW has recently been involved in a case requiring assessment of a development in relation to the law and this could be seen as attempting to enforce a provision of the Coastal Protection Act 1979.
I agree with Thornton when he says that each of these phases are critical in ensuring environmental laws are sound and enforced. The model of 5 phases offers a structure to work with in our consideration of the effectiveness of coastal management.
Words by Prof Bruce Thom. Please respect Bruce Thom’s thoughts and reference where appropriately: (c) ACS, 2017, posted 10 August 2017, for correspondence about this blog post please email email@example.com