Timing environmental responsibility
When is the right time to act on the environment? The environmental activities of the business sector and their governance, especially in regard to climate change, have crucial temporal dimensions. As I argued in my book Time and Environmental Law (Cambridge University Press, 2017), which investigates this topic in depth, time is important because it enables us to measure change and thereby to understand the relationship between events over temporal intervals. As the world changes, we need to know when to respond to that change or to initiate change. Timing is thus a navigational tool for regulators, business managers and other actors to help determine the most appropriate occasion to act.
There is no singular, “correct” time for making environmentally sustainable decisions. The right timing depends on the kind of environmental issue, the social context (eg degree of community anxiety or pressure), the legal system (eg existing legal entitlements) and many other variables. We need to act quickly to curb fossil fuels — to act now, not in many years from now. Conversely, sometimes it is sensible to wait and postpone making a decision that cannot easily be reversed without substantial cost, such as introduction of risky gene drive technology to remove invasive species.
Nonetheless, we can identify some common issues that need to be resolved to help get the timing right in environmental decision-making.
Firstly, we must understand the timescales of ecological and biological processes in order to be able to respond at the right time to nature’s signals. Farmers know this very well — in that they plant and harvest their crops at certain times of the year when the climatic conditions are optimal. As consumers of food, we should also know the elementary importance of knowing when food is best too eat — when the fruit is ripe rather than raw. To tell nature’s time requires being in a relationship with nature, having ecological literacy that sensitizes us to nature’s biorhythms. Greater investment in environmental science, and integrating that scientific knowledge into policy and legal decisions, is crucial to ensure that we can get the timing right.
Secondly, well-timed governance requires consultation with affected communities whose support legitimates and can improve governance outcomes. Meaningful public consultation needs to be timed so that it occurs before regulators or companies make their final decisions, otherwise such consultation is a sham. Community participation however can sometimes delay decision-making, as evident in some development proposal environmental assessments, and thus skew regulatory decisions away from the "correct" timing. But the absence of democratic checks-and-balances could bring even greater drawbacks such as litigation challenges or civil disobedience that create greater delays.
Thirdly, we need adaptive flexibility to respond at the right time. Because ecological systems like societies are dynamic, regulators must adjust the rules of the game in a timely manner to address new circumstances. A company’s pollution licence might need to be adjusted in light of new scientific information about the impacted environment, or a technological innovation may offer new solutions to an old dilemma. Decision-making systems in government, business corporations and other key institutions must thus be able to respond when circumstances change. Rigid blueprints, whether made by a corporation or a government regulator, risk restricting the ability of these actors to respond to changing circumstances at the right time.
Flexibility, however, comes with a price, namely some loss of certainty and predictability in the rules of the game. Nobody likes rules that often change, and the business sector making long-term investments is especially opposed to uncertain and changing regulation.
Yet, the more commonly encountered problem with business and environmental regulation is temporal inertia rather than excessive changeability. This inertia, this frozen in time quality, flourishes because of the pervasive legal practice called "grand-fathering". It shields existing resource uses and polluters from transitions to new environmental standards, thus holding back the capacity of governance to respond to a changing future. This time-differentiated treatment is evident in mining law, fisheries management, climate change law, and so on. There is no easy solution to existing grandfathered uses, and financial compensation may be politically necessary to undo environmentally damaging activities, or at least to put sunset clauses on them. We can reduce future grandfathering by redesigning the licensing process to enable more scope for re-licensing. Many economic activities should commence conditionally, subject to re-licensing processes that may foreseeably result in suspension or modification of any authorised development. Such recalibration of a licence might occur if the initial environmental assessment to support the licence decision had made inaccurate predictions, or new knowledge of an emerging environmental problem justifies changing course.
Finally, we must also ensure timely justice for victims of environmental harm. Slow justice is pervasive. It stems partly from the character of some ecological impacts, such as the gradual gestation of pollution that manifests only over many decades. In his book Slow Violence Robert Nixon details how this temporal displacement falls hardest on the most economically vulnerable. Slow justice is also prolonged by under-resourced judicial systems mired in byzantine procedures that lead to congested courts. One solution is specialist adjudicatory forums equipped with suitable expertise, flexible procedures for assessing scientific evidence, and efficient case management. The first such court was established in the Australian state of New South Wales in 1980: its Land and Environment Court has successfully minimised delays for environmental cases, contributed substantially to an innovative jurisprudence on environmental law, and has made its implementation within New South Wales more consistent.
In conclusion, timing is a fundamental element of well-designed environmental governance that helps ensure that society including the business sector can respond to changing circumstances, as well as to initiate change. In many cases better-timed environmental governance will necessitate putting the breaks on economic development, such as by ending the practice of fast-track development legislation; but in some cases it should lead to accelerated decisions to deal with urgent problems such as climate change.
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