Better BAT to Bolster Ecosystem Resilience: Operationalizing Ecological Governance through the Concept of Best Available Techniques

• Author: Renske A. Giljam
• Date: 01 April 2017
• Published date: 01 April 2017
• DOI: http://doi.org/10.1111/reel.12186

Better BAT to Bolster Ecosystem Resilience:

Operationalizing Ecological Governance through

the Concept of Best Available Techniques

Renske A. Giljam*

This article examines to what extent ecological govern-

ance can be implemented by extending the concept of

best available techniques (BAT) at the European Union

level. It therefore first analyses what ecological

governance would require and what this implies for

employing the use of BAT. The article then argues that

the use of BAT enables ecological governance to an

extent, but that the BAT concept needs to be modified

internally to serve this purpose. Additionally, it needs

to be extended to areas outside its original scope to

maintain the holistic perspective of ecological govern-

ance. Here, biomass used for energy production serves

as an illustration of such ‘external’BAT application.

INTRODUCTION

It is time to acknowledge that the current legal frame-

work is inadequately equipped to avert climate change

and to stop environmental degradation.

1

Global fossil

fuel emissions are still on the rise

2

and many nations

are not on track to meet their various targets,

3

despite

the fact that these are only intermediate goals and in

themselves not sufficient to assume adequate mitiga-

tion of climate change.

4

In fact, all current national

plans combined are insufficient to keep global average

temperature rise well below 2 °C.

5

Since ‘climate change

represents an urgent and potentially irreversible threat

to human societies and the planet’,

6

societies must be

decarbonized as soon as possible. To ensure planetary

survival and a livelihood for future generations, we

should start to truly respect our (natural) environment

and acknowledge ‘the importance of ensuring the integ-

rity of all ecosystems, including oceans, and the protec-

tion of biodiversity, recognized by some cultures as

Mother Earth’.

7

Laws have been put in place to protect

the environment, but these rules are often subordinate,

either literally or practically, to laws that protect private

property and/or economic (corporate) interests. This

article argues that a radically different approach to cli-

mate change must be taken, coupled with a legal frame-

work that goes well beyond the existing ones.

I argue that this altered legal framework must be

based on an ecological governance policy approach, as

developed by Woolley.

8

Woolley justly argues that

current legal approaches to environmental protection

are inadequate, because they overly rely on human

capability to predict the environmental effects of our

actions and ecosystems’responses to them.

9

In reality,

our understanding of such causalities is limited and

the functioning of ecosystems and their responses to

pressures are neither linear nor as easily predictable

as current regulations assume. Alternatively, Woolley

proposes a policy paradigm that is not so much

focused on causalities, but rather on a continuous

effort to reduce the cumulative pressures from human

activities on ecosystems.

10

Such stress reductions will

have an overall positive effect on the functioning of

ecosystems and will thus contribute to ecosystem re-

silience, that is, the adaptive capacity of ecosystems to

withstand (both internal and external) pressures.

11

As

Woolley convincingly argues, the current sustainabil-

ity paradigm is inadequate to protect this ecosystem

functionality. The current paradigm is based on a

*Corresponding author.

Email: r.a.giljam@rug.nl

1

See also J. Hansen et al., ‘Assessing “Dangerous Climate Change”:

Required Reduction of Carbon Emissions to Protect Young People,

Future Generations and Nature’, 8:12 PLoS ONE (2013), e81648.

2

International Energy Agency, ‘CO

2

Emissions from Fuel Com-

bustion’ (2015), found at: <http://energyatlas.iea.org/?subject=

1378539487>.

3

On renewable energy, see European Commission, Renewable

Energy Progress Report, COM(2015) 293, at 5. However, the EU as a

whole is on track, according to European Environment Agency (EEA),

Trends and Projections in Europe 2015: Tracking Progress towards

Europe’s Climate and Energy Targets (EEA, 2015), at 9. At the same

time, violations of air quality targets do still occur; see <http://

www.eea.europa.eu/themes/air/intro>.

4

‘World only Half Way to Meeting Emissions Target with Current

Pledges’, Euractiv (6 November 2015).

5

As stipulated in United Nations Framework Convention on Climate

Change (UNFCCC), Decision 1/CP.21, Adoption of the Paris Agree-

ment (UN Doc. FCCC/CP/2015/10/Add.1, 29 January 2016), at

preamble.

6

Ibid.

7

Paris Agreement (Paris, 12 December 2015; in force 4 November

2016), at preamble.

8

O. Woolley, Ecological Governance: Reappraising Law’s Role in

Protecting Ecosystem Functionality (Cambridge University Press,

2014).

9

Ibid., at 25–26; see also 158–162.

10

Ibid., at 31.

11

Ibid., at 55.

ª2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

5

RECIEL 26 (1) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12186

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Review of European Community & International Environmental Law