Environmental Law

25/02/2017

Climate Change Impacts on Agriculture and Food Security: What Role for Disaster Law?

Agriculture depends on a stable climate. Crops need a fertile soil, sufficient water and temperatures that remain within a certain (plant specific) bandwidth, livestock needs healthy grazing land, sufficient water and livable temperatures. The climate needs to be predictable, so that farmers can plan their activities with the aim to secure the best possible harvest. Such stable conditions only occurred after the previous major climate change that took place on Earth and which marked the end of the last ice age, around 12,000 years ago. Around that time, man settled down and started to grow his own food through agriculture.

Given the dependence of agriculture on weather and climate, it does not come as a surprise that the agricultural sector is and will be hit hard by climate change impacts. The impacts are diverse and potentially disastrous for global food security. The latest IPCC report on the impacts on agriculture and food security gives a chilling image of what is expected to happen and, in fact, is already happening across the world.^[1] Water shortages in droughts and heat waves have a negative impact on crops as well as livestock. A surplus of water with excessive precipitation, floods and inundation, increased and changing occurrence of pests, weeds and diseases, are but a few examples of the other impacts of climate change that negatively affect agriculture. Extreme weather events, generally, hit rural areas hard with a profound negative impact on rural communities and food production.

Against this background of increasing climate change impacts on agriculture, both through slow- and sudden-onset disasters, it is particularly worrying that food demand is and will continue to grow over the next few decades until 2050. It is expected that increasing climate change impacts on agriculture and rising demand will lead to an increase of food prices across the globe. According to the IPCC, ‘it is very likely that changes in temperature and precipitation (…) will lead to increased food prices by 2050, with estimated increases ranging from 3 to 84%.^[2] A World Bank report adds that losses in the agricultural sector and spikes in food prices can push vulnerable consumers into poverty, as poor people spend a large part of their budget on food.^[3] The 2008 food spike caused around 100 million people to fall into poverty, and the 2010–2011 food price spike has been estimated to have pushed 44 million people below the basic needs poverty line across 28 countries.^[4] It can, therefore, be expected that there is a substantial risk of increasing famine in developing countries.

Developed countries, however, are not safe either. Consumers in developed countries are not only expected to face drastic price increases, but food safety issues as well.^[5] Rural communities in developed countries are particularly vulnerable for climate change impacts, for several reasons, such as the substantially higher average age compared to urban areas. The IPCC refers to the social impact of the prolonged drought in Australia during the early 2000s which led to ‘farm closures, increased poverty, increased off-farm work, and, hence, involuntary separation of families, increased social isolation, rising stress and associated health impacts, including suicide (especially of male farmers), accelerated rural depopulation, and closure of key services’.^[6]

Climate disaster law

Disaster law is the field of law that aims to respond to disasters, to compensate for the losses that occurred in a disaster and to facilitate recovery and rebuilding, as well as to mitigate the possible impact of future disasters. Climate disaster law is the rapidly developing new body of law which responds specifically to climate disasters. So far, however, attention for agriculture and food security has been fairly limited and it is clear that in this area, much needs to be done to prepare the world for increasing climate disasters hitting agriculture and food security.

Disaster mitigation in agriculture

The disaster mitigation phase, usually, is considered to be the most important phase of the disaster cycle (mitigation-response-rebuilding), not just because of the simple fact that prevention is better than curing, but also because of the nature of climate disasters. Adler rightfully observes that ‘drought and other disaster response policies that might be appropriate for occasional and difficult-to-foresee events may no longer be appropriate for conditions that will now occur with increasing frequency due to climate disruption’.^[7]

Disaster mitigation for agriculture starts with the adoption of climate smart practices and technologies. Most countries, around the globe, do not have comprehensive and effective legal instruments in place that stimulate farmers to adopt climate smart practices and technologies.^[8] To make the agricultural sector more resilient to climate change, it is essential that law and policymakers around the world rapidly start developing policies and laws so that climate-smart agricultural practices are commonplace soon. Financial instruments, such as subsidies or offset mechanisms under carbon pricing programmes can be used to achieve this goal. In addition, well-functioning early warning systems should be operational to help farmers to manage the hazards and avoid these turning into disasters. International collaboration and fundraising seems required to speed up the development and implementation of early warning systems for agricultural climate disasters. The same is true for climate and weather information and forecasts. These do exist, but have to be further developed to make the forecasts more useful for farmers.

Disaster response in agriculture

According to the FAO, between 2003 and 2013, about 3.4 percent of all humanitarian assistance was directed to the agriculture sector, with an average of around 374 million USD annually. The average annual crop and livestock production losses in developing countries, however, were much larger: an analysis of 140 disasters triggered by natural hazards found annual costs of crop and livestock losses to be 7 billion USD per year over the same period. With the expected increase of the number and size of disasters under climate change over the next few decades, much remains to be done to improve our ability to effectively respond to climate disasters, especially in the area of agriculture and food security. The current instrument of the Food Assistance Convention, that lays down a set of principles and best practices for effective and efficient food assistance for the most vulnerable people needs to be expanded to a full and comprehensive legal framework on international climate disaster response, so that the response efforts are well coordinated and aligned and so that domestic emergency managers are fully engaged and empowered.

Rebuilding: getting the farmer back into business asap

After a climate disaster, food production needs to be restored as soon as possible. Financial aid is usually needed so that farmers can clean up and prepare the land for agricultural activities, buy new seeds, new machines, new livestock etc. At the international level, organizations such as the World Bank, the International Fund for Agricultural Development, and the Special Climate Change Fund under the UNFCCC, put much effort into providing such financial aid. It is now well understood that farmers and communities should undertake investments with long term benefits, so that the next climate disaster has less impact. The compensation and rebuilding phase, therefore, is closely linked to the disaster mitigation phase.

A range of methods is explored for their suitability to compensate for the loss caused by climate change. Although private insurance has its limitations in the case of climate disasters, new insurance products are being developed, such as the ‘Broad Weather Insurance Policy’ which was developed by agricultural insurance companies together with agribusiness organisations and the government in the Netherlands to offer farmers insurance against climate change related crop damage.^[9] This policy covers financial loss caused by natural disasters, such as extreme rainfall, extreme drought, erosion, severe windstorms, hailstorms and fires (caused by lightning). This insurance does not cover all damages, but instead requires farmers to bear 30% of the loss. The government has a subsidy scheme in place to provide financial assistance to individual farmers to pay for the premium. Reinsurance firms are even starting to operate in developing countries in Africa, where micro-insurance policies have been developed for farmers to cover for loss of crops due to drought, storms, pests, and diseases.^[10] Private markets alone cannot provide the funding that is needed to develop and operate insurance products for farmers to protect them from financial losses caused by climate disasters. Some form of government intervention and cooperation between insurers, banks, governments and NGOs is essential to make climate disaster insurance for farmers a success. In order to avoid that farmers keep relying on government aid and insurance claims, and do not make the necessary changes to become more resilient to climate change, it is important that legal instruments in the area of disaster compensation reward the adaptive farmer.

[1] J.R. Porter et al., ‘Food Security and Food Production Systems’ in: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014), 485-533. The IPCC is currently preparing a special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems. This report is due to come out in 2019.

[2] Id. at 512.

[3] S. Hallegatte et al., Shock waves. Managing the impacts of climate change on poverty (Worldbank 2016) at 5.

[4] W.N. Adger et al., Human security in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014) at 763.

[5] M. Miraglia et al., Climate Change and Food Safety: An Emerging Issue with Special Focus on Europe, (2009) 47(5) Food and Chemical Toxicology 1009–21.

[6] A. Reisinger et al., ‘Australasia’ in: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014) at 1398.

[7] Robert W. Adler, Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought, and Agricultural Law, (2012) 64(1) Florida Law Review 201, 265.

[8] Jonathan Verschuuren, Towards a Regulatory Design for Reducing Emissions from Agriculture: Lessons from Australia’s Carbon Farming Initiative, (2017) 7(1) Climate Law at 6-10.

[9] W.J. Wouter Botzen, Managing Extreme Climate Change Risks through Insurance 57 (2012). For an up-to-date description of the cover of the current policy, see agricultural insurance company ‘AgriVer’ website, http://www.agriver.nl/gewassen-te-velde.html (in Dutch).

08/02/2017

Ecological Literacy and Restoration

(Professor of Environmental Law, University of Tasmania; Tilburg University’s Global Law Visiting Chair 2017)

In early 2015 my wife and I purchased 66 acres of wild landscape in our homeland, Tasmania, and set about ensuring its indefinite protection by putting a conservation covenant on the property title.  With this legal protection to “Blue Mountain View”, as we call our land, we joined other like-minded neighbours committed to safeguarding this beautiful niche in Tasmania’s Huon Valley. We have also since participated in some wildlife monitoring projects with environmental groups to better understand the local biodiversity and thereby facilitate long-term conservation planning.

Blue Mountain View, Tasmania (photo: B. Richardson)

Becoming an environmental steward with legal responsibility to protect and improve the ecological values of a small piece of our planet is a great privilege, providing exceptional opportunities to forge a more intimate relationship with, and knowledge of, the natural world. This experience reminds me of the writings of Harvard biologist Edward O. Wilson who hypothesized that human beings possess biophilic tendencies.^[1] Yet biophilia, like other affections, is unlikely to flourish if not nurtured. If our experience of nature is limited to desolate landscapes with few wildlife beyond the ubiquitous rats, pigeons and common weeds, we are unlikely to appreciate nature’s richness and beauty. Equally, if our daily lives are spent amidst car parks and shopping malls, we will hardly understand the complexity of ecosystems and the need to care for them. In our highly urbanized, consumer lifestyles, the impoverished opportunities for direct interactions with wild places are one of the principal obstacles to making environmental conservation a social priority.

My association with Blue Mountain View has enabled me to acquire much greater ecological literacy than I ever gained from just reading literature and watching nature films. I have come to learn much about the habits of rare or engendered species that inhabit it, such as Tasmanian Devils and Eastern Quolls, and develop a greater sensitivity to nature’s temporalities as observed from the fruiting and flowering of vegetation or the seasonal migration of birds.

Tawny frogmouth, Blue Mountain View (photo: B. Richardson)

But how can we engage the general public with the natural world so as to similarly build ecological literary, respect and affinity?  This is a multidimensional task of which environmental law can only play a part.^[2]

A key strategy must be community participation in ecological restoration, the practice of repairing historic or recent damage to landscapes and seascapes. The practice is evoked by the work of New York artist Alan Sonfist. He erected numerous monuments in cities around the globe to commemorate and “heal” their lost ecology. His archetypical work is “Time Landscape”, constructed over 1965 to 1978 in Manhattan in cooperation with the City Botanical Gardens. His “landscape” recreated the original indigenous vegetation of New York on an empty street corner in Manhattan, and the living artwork evokes the processes of nature reclaiming itself.  Serious ecological restoration, of course, must be tackled on a much grander scale.

Restoring nature is vital to defend against the upheavals of the Anthropocene. We shouldn’t assume that sustainability – the dominant goal of modern environmental law – is achievable using current environmental conditions as baselines for legal protections because those conditions are often too degraded to meaningfully sustain. Instead, attaining sustainability may also require some recapturing of prior ecological conditions – lands may need to be replanted with vegetation, fish stocks replenished, and landscapes cleansed of contaminants.

Southwest Tasmania’s world heritage (photo: B. Richardson)

The law must prioritise ecological restoration, a task that will require a major shift from current legal precedents. Major environmental legislation in most countries offers few provisions devoted to this task, mostly focusing on remediation of contaminated brownfields or former mines rather than restoration of entire ecosystems.^[3] Fortunately, the governance deficits are starting to be filled by some fascinating initiatives from non-state actors, namely environmental NGOs, community groups, farmers and Indigenous peoples, collaborating voluntarily to restore and rewild nature.^[4]

The examples include Gondwana Link, restoring a 1000 km stretch of Western Australia that suffered catastrophic land degradation from misguided farming. Began in 2002, the project aims to reconnect fragmented natural habitats to create a holistic ecological system, through outright purchase of high priority lands and conservation covenants on other properties that are then subject to various restorative interventions.^[5] In North America, the Y2Y project – denoting Yellowstone to Yukon – is using a similar approach to Gondwana Link, except over a bigger scale along the Rocky Mountains and involving more jurisdictions and actors.  In New Zealand, which has suffered among the world’s worst biodiversity loses – don’t believe the deceptive “100% Pure” slogan that the country advertises – restoration has been led by community groups sometimes in partnership with government land managers. They are creating huge fenced sanctuaries in which exotic vermin are removed to allow the remnant avifauna to regenerate.^[6] And in Scotland a charity called Trees for Life is restoring 230,000 hectares of the ancient Caledonian forest that was grazed and logged to near destruction several centuries ago.^[7]

Another approach, better suited to urban denizens, is called “reconciliation ecology”. The term was apparently coined by Michael Rosenzweig to describe restoration projects that benefit people by drawing them closer to their natural environs, including providing aesthetic and recreational benefits.^[8] Such reconciliation often takes place in urban areas to bring nature closely into people’s daily lives, such as expanded city parks, restored waterways, and green roofs. One outstanding example is “Zealandia”, a restored bird-rich sanctuary, located near the heart of Wellington, the capital city of New Zealand. Through reconciliation activities, people become more aware of their degraded environs, the opportunities to improve them, and thereby hopefully acquire greater ecological literacy.

‘Citizen science’ is another movement that touches on similar ideas but uses different methods. Citizen science projects involve lay people participating in environmental monitoring to help researchers understand environmental baselines and changes that can then feed into management actions including restoration. Citizen science taps into a valuable community resource while enhancing participants’ ecological knowledge and commitment. Citizen science projects include tracking marine plastic debris^[9] and counting birds.^[10] Advances in information technology, both in recording and sharing the data such as GPS and remote camera ‘trapping’, have greatly expanded opportunities for citizen science to recruit larger audiences of volunteers. I have been involved in one such project on Blue Mountain View recently.

Trees in heaven, Blue Mountain View (photo: B. Richardson)

But such community-based initiatives aren’t enough. Volunteerism may not be sustainable in the absence of reliable funding, may lack influence when confronted with uncooperative landowners, and may be undermined by antagonistic government policies and regulations that enable inappropriate economic developments. For instance, some Australian states have enacted recent legislative changes that make it easier for landowners to clear native vegetation.^[11] Environmental lawyers must advocate ways for governments to play a more positive role, while preserving community initiative. Such roles could include more generous seed funding and tax breaks, coupled with reforms to land use planning and inclusion of stewardship obligations in all property tenures. Legislative mandates for sustainability should also be redefined to include obligations for restoration and reconciliation where existing ecological baselines are too degraded.

Of course, social change will require more than just law. The arts can also play a special role in enlivening people’s imagination and building their commitment to restoring nature. German artist-entrepreneur Dirk Fleischmann’s project “My Forest Farm” is one of the most ambitious artworks that illustrate this stance. The zero-carbon footprint art “work” is a voluntary carbon–offset program in the form of a reforestation initiative in the Philippines. In 2008, Flesichmann began planting nearly 2,000 trees on four acres with the aid of the local community. His project aims to challenge the booming carbon offset-market which he believes wrongly simplifies the issues of climate change by pretending that the problem of greenhouse emissions can be solved simply by purchasing offsets (an efficient transactional mechanism suited to busy people with no time to contemplate the environmental issues at stake).  My Forest Form reveals the complexities and time-consuming process of carbon-dioxide sequestration. Although his project results in carbon off-setting, he does not offer the carbon credits for sale. Instead, Fleischmann offers art – each of the trees is photographed and its GPS location recorded, and then exhibited in galleries and sold via the project website for 10 euros each. The earnings help fund the reafforestation project and educate the public about nature’s time-scales.

Dragonfly – austrogomphus guerini, Blue Mountain View (photo: B. Richardson)

In conclusion, when reflecting on the roles of environmental restoration and reconciliation, we should appreciate that it is not just about improving nature but also improving human society. Restoring damaged ecosystems is not a viable long-term proposition if humankind remains emotionally and cognitively detached from its natural environs. Without inculcating greater ecological literacy, society will likely just repeat its past mistakes and undo any gains from new restorations. Participation in restoration projects can help communities understand their place in the deep time-scales of Earth’s landscapes, and may help nurture their biophilic impulse. Not everyone can elope to a place like Blue Mountain View, but we should all have some opportunities to engage with and learn about nature in which we are embedded and dependent like a cell within a body.

[1] Edward O. Wilson, Biophilia (Harvard University Press, 1984).

[2] See further Benjamin J. Richardson, Time and Environmental Law: Telling Nature’s Time (Cambridge University Press, 2017): in press.

[3] Margaret A Palmer and JB Ruhl, “Aligning Restoration Science and the Future of Law to Sustain Ecological Infrastructure for the Future” Frontiers in Ecology and the Environment 3(9) (2015): 512.

[4] Benjamin J. Richardson, “Reclaiming Nature: Eco-restoration of Liminal Spaces” Australian Journal of Environmental Law 2(1) (2016): 1; Caroline Fraser, Rewilding the World: Dispatches from the Conservation Revolution (Picador, 2009).

[5] Keith Bradby, Amanda Keesing and Grant Wardell-Johnson, “Gondwana Link: Connecting People, Landscapes, and Livelihoods Across Southwestern Australia” Restoration Ecology 24(6) (2016): 827.

[6] Dave Butler, Tony Lindsay and Janet Hunt, Paradise Saved (Random House, 2014).

[7] Adrian Manning, David Lindenmayer and Joem Fischer, “Stretch Goals and Backcasting: Approaches for Overcoming Barriers to Large-scale Ecological Restoration”, Restoration Ecology 14(4) (2006): 487.

[8] Michael Rosenzweig, Win-Win Ecology (Oxford University Press, 2003).

[9] Paul E Duckett and Vincenzo Repaci, “Marine Plastic Pollution: Using Community Science to Address a Global Problem” Marine and Freshwater Research 66(8) (2015): 665.

[10] Jeremy Greenwood, “Citizens, Science and Bird Conservation” Journal of Ornithology 148 (2007): 77.

[11] E.g., Biodiversity Conservation Act 2016 (New South Wales); Sustainable Planning Act 2009 (Queensland).